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Delhi District Court

Sh. Jot Ram vs Sh. Guddu Hari Lal (Driver) on 1 November, 2012

         IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL­II, 
             DWARKA COURTS, NEW DELHI

                            MACT No. 290/12

IN THE MATTER OF : 

   1. Sh. Jot Ram
      S/o Sh. Meer Singh 
      R/o 83, Pochan Pur Village
      Dwarka, New Delhi.

                                                                            ......Petitioner
                            Versus

   1. Sh. Guddu Hari Lal  (Driver)
      S/o Sh. Kalu
      R/o E­80/490, Jhilmil Colony
      Shahdara, Delhi­110095.
       
   2. M/s. Taneja Service Station (Owner)
      Through its Manager
      IOC Petrol Pump
      Pocket­A, IFC
      Gazipur, National Highway
      24­Bye Pass, Delhi. 

   3. The New India Assurance Co. Ltd.  (Insurer)
      A­74, Swami Dayanand Marg
      Main Road, Kanti Nagar
      Krishna Nagar, New Delhi­110051.         
                                                  .........Respondents

FILED ON                                :        29.03.2012
RESERVED ON                             :        25.10.2012
DECIDED ON                              :        01.11.2012



MACT No. 290/12      Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors.                     Page 1 of 16
                              ­:      J U D G M E N T     :­

1. This claim petition 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.

Case of the Petitioner:­

3. Case of the petitioner in this claim petition is that on 24.10.11, at about 11.20 a.m., petitioner was going to Gurgaon on electric scooty alongwith Sh. Ran Singh as pillion rider and the said scooty was being driven by petitioner Sh. Jot Ram as per traffic rules and regulations and at a normal speed.

4. It is stated that when the petitioner reached at Dwarka Link Road, Pushpanjali cut, P.S. Kapashera, New Delhi, one Tata Tanker, bearing registration no. DL­1GB­7008 came from Pushpanjali Farm House, Bijwasan from IOC side. Respondent No. 1 was driving the offending vehicle in a rash and negligent manner, at a high speed, in total contravention of traffic rules and regulations, in a zig zag manner and in the process struck with the electric scooty of the petitioner from front side.

5. It is stated that due to huge impact, petitioner and pillion rider Sh. Ran Singh fell down on the road and sustained multiple grievous injuries.

6. It is stated that leg of petitioner came under front wheel of Tata Tanker.

7. Petitioner was taken to Base Hospital, Delhi Cantt.

where doctors on duty prepared MLC.

8. It is stated that the accident took place due to sole negligence of driver of offending vehicle.

9. It is stated that police has registered FIR No. 185/11 under Section 279/338 of IPC against Respondent No. 1 at P.S. Kapashera.

10. It is stated that petitioner suffered amputation of right leg, injuries on left foot, face and arm and other multiple grievous injuries on the whole parts of the body.

11. It is stated that petitioner was 71 years of age at the time of accident. He is an Ex­Army man and was running a grocery shop and was earning more than Rs. 10,000/­ per month from the said shop. However, now due to this accident he is not able to do his work any more and is suffering financial loss.

12. It is stated that petitioner had engaged an attendant w.e.f. 25.10.11 till date at a salary of Rs. 4000/­ per month and he has spent Rs. 10,000/­ on conveyance till date and Rs. 200/­ per day on special diet and on the fees of doctors.

13. Petitioner claims that he has spent a sum of Rs. 75,000/­ on his treatment and claimed a total compensation of Rs. 12 lacs with interest @ 12% p.a. from the date of filing of petition till its realisation.

Case of Respondent No. 1 and 2:­

14. Respondent No. 1 and 2 have stated in their written statement that the petitioner and pillion rider were not MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 3 of 16 wearing helmets and the accident had taken place due to contributory negligence on the part of petitioner.

15. It is stated that the petitioner was not driving the scooty as per rules and regulations prescribed under Motor Vehicles Act.

16. It is stated that the petitioner had jumped the red signal and came in front of the tanker and due to loss of control over handle of the scooty, fell down and might have sustained injuries due to their own fault and not due to any fault of answering respondent.

17. It is stated that Respondent No. 1 was holding a valid and effective driving license and was having a license to drive petroleum products as well and if there is any liability, that is to be borne by the insurance company. Case of Insurance Company:­

18. Insurance company has stated in its written statement that insurance company will be liable only if it is proved that Tanker bearing registration no. DL­1GB­7008 was driven by a person having a valid and effective driving license at the time of accident and he was not disqualified to hold or obtain the same and also if the said Tanker had a valid permit.

19. It was admitted that the vehicle was insured by insurance company vide policy no. 32030331100100008337 valid for a period from 25.02.11 to 24.02.12 in the name of M/s. Taneja Service Station, Shahdara, Delhi.

20. It is also stated that compensation claimed is without any basis and is exorbitant.

21. Rest of the contents of claim petition were denied.

22. From the pleadings of parties, following issues were framed:­

1) Whether the petitioner received injuries in an accident on 24.10.2011 caused by respondent no. 1, while driving Tata Tanker bearing no. DL­1GB­7008 rashly and negligently? OPP

2) If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP

3) Relief.

Evidence on behalf of Petitioner:­

23. Petitioner entered in the witness box as PW­1 and stated similar facts in his evidence by way of affidavit as were stated by him in the claim petition.

24. Discharge slip given by Base Hospital was exhibited as Ex. PW1/1, Election I­Card of petitioner was exhibited as Ex. PW1/2, Ex­Serviceman Card of the petitioner was exhibited as Ex. PW1/3 and disability certificate given by Medical Board of Deen Dayal Upadhyay Hospital, which was directly sent to this Tribunal, was exhibited as Ex. PW1/4.

25. In cross examination, petitioner admitted that he and the pillion rider were not wearing helmets at the time of accident as they were wearing turbans.

26. PW­1 further stated that he is not having any driving license. He deposed that for driving an electric scooty, license is not required.

27. He denied a suggestion that clutch of scooty was struck up in the pocket of his kurta as a result of which he fell down.

28. Petitioner further stated in his cross examination that stock in his shop may be worth Rs. 10,000/­ to 12,000/­ and the said shop was in his house. The shop was not registered under Shops and Establishments Act. There is no sign board of the shop.

29. Petitioner further stated that he remained admitted in the Base Hospital from 24.10.11 to 22.11.11. He has fallen down twice after his discharge from Base Hospital but has not placed on record documents of treatment on these two occasions.

30. Petitioner further deposed that there are eight family members in his family and as none of them was attending him, he had to engage an attendant.

31. Petitioner deposed that the name of attendant was Rahul who lived near his house.

32. He stated that he has spent Rs. 15,000/­ on conveyance charges as he was paying Rs. 3000/­ per day for engaging a vehicle for the whole day.

33. Petitioner stated that he is not having any receipts given by the taxi driver.

34. He stated that he was earning Rs. 5000/­ to 6000/­ per month from his shop.

35. Suggestions contrary to his case were denied.

36. Respondent No. 1 entered in the witness box and MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 6 of 16 stated in his evidence by way of affidavit that the clutch of the scooty was entangled in the pocket of the kurta worn by petitioner and for this reason petitioner lost control over scooty and fell down on the road by his own negligent driving.

37. In cross examination, he admitted that he has not given any complaint to the police stating that the accident had taken place as the kurta of driver of scooty was entangled with the clutch.

38. No other witness was examined by any other party.

39. Arguments were addressed by Sh. J.S. Yadav, learned Counsel for petitioner and Sh. P.P.S. Vohra, learned Counsel for insurance company.

40. Counsel for petitioner argued that petitioner has suffered grievous injuries. He was 71 years of age and would suffer loss of income in future due to disability which is permanent in nature.

41. On the other hand, counsel for insurance company has argued that no compensation be given for attendant's charges as there is no proof of those charges and there is no documentary evidence of payments given to the attendant.

42. He has argued that there are eight family members. Therefore, petitioner would not have needed help of an attendant.

43. On the basis of pleadings of parties, evidence on record and arguments addressed, issue­wise findings are as under:­ ISSUE NO. 1 MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 7 of 16

44. Burden of proving this issue is on the petitioner.

45. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.

46. This is sine qua non for getting the relief.

47. Petitioner himself is an eye witness to the accident. He has stated in the claim petition that the offending vehicle, being driven at a fast speed, in contravention of traffic rules and regulations had hit the scooty being driven by petitioner from front side.

48. Respondent No. 1 and 2 have denied allegations of rash and negligent driving made against them by the petitioner.

49. Petitioner has reiterated allegations of rash and negligent driving against Respondent No. 1 in his evidence by way of affidavit.

50. In cross examination, Respondent No. 1 took a new defence which was not taken by them in their written statement that the clutch of scooty was struck up in the pocket of kurta of petitioner as a result of which he fell down.

51. Respondent No. 1 had filed his evidence by way of affidavit reiterating this defence.

52. However, this defence cannot be taken into consideration as the same was not taken in the written statement by Respondent No. 1.

53. Respondent No. 1 gave up the defence which they MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 8 of 16 had taken in the written statement that the accident had taken place because petitioner had jumped red light and had come in front of the vehicle.

54. Moreover, Respondent No. 1 admitted that he has not complained to the police against his false implication in this criminal case when he was not negligent or responsible for the accident.

55. Police has investigated in the matter and has filed charge sheet against Respondent No. 1 under Section 279 and 338 of IPC which is also prima facie suggestive of rash and negligent driving of Respondent No. 1.

56. 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 summary inquiry and this is a legislation for the welfare of MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 9 of 16 the society"

57. 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 vehicle so as to falsely implicate him in the case.

58. 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 in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."

59. 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."

60. Therefore, this issue is decided in favour of MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 11 of 16 petitioner and against the respondents. ISSUE NO. 2:­

61. 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 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 MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 12 of 16 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.

62. As per discharge slip of Base Hospital, Delhi Cantt. Petitioner was diagnosed traumatic amputation right leg and lacerated wound right forehead.

63. He remained admitted in the Hospital from 24.10.11 to 22.11.11.

64. The treatment given to the petitioner is trans tibial amputation, right stitches over lacerated forehead, skin graft on left foot for raw wound and he was discharged when amputation stump was found healthy.

65. Therefore, for Pain and Suffering, petitioner is given a compensation of Rs. 50,000/­.

66. Petitioner has not spent anything on treatment or purchase of medicines as he was treated in Base Hospital being an Ex­Army Man.

67. However, for Special Diet and Conveyance he is given a compensation of Rs. 7,500/­ each i.e. Rs. 15,000/­.

68. Petitioner has suffered permanent disability to an extent of 60% in relation to right lower limb.

69. Petitioner has stated that he was a shopkeeper. However, he has not supported his averments by any documentary evidence. Therefore, case is to be decided on the MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 13 of 16 basis of minimum wages of an unskilled workman which on the date of accident i.e. 24.10.11 were Rs. 6,656/­ per month.

70. It can be safely assumed that with this kind of injuries, petitioner would have remained out of work at least for a period of six months.

71. Therefore, for Loss of Wages, he is given a compensation of Rs. 39,936/­ (i.e. Rs. 6656/­ x 6).

72. Petitioner has suffered 60% permanent disability in relation to right lower limb.

73. Functional disability qua whole body can be considered as 30%.

74. Age of petitioner is above 65 years.

75. Therefore, multiplier applicable would be of 5.

76. 30% of Rs. 6656/­ is Rs. 1996/­. Therefore, Loss of Earning Capacity due to permanent disability will be Rs. 1,19,808/­ (i.e. 1996 x 12 x 5).

77. Petitioner says that he had engaged an attendant.

78. Counsel for insurance company has vehemently opposed any relief to the petitioner for attendant's charges for the reason that when there are eight family members, petitioner would have been attended by family members.

79. However, Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta & Ors. MAC APP. No. 762/11 dated 04.07.12 has held that a victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member.

80. In this case, reliance was also placed on DTC v.

Lalita AIR 1981 Delhi 558.

81. Therefore, on lump sum basis petitioner is given a compensation of Rs. 10,000/­ towards Attendant's Charges.

82. Therefore, total compensation payable to petitioner would be Rs. 2,34,744/­ 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 29.03.12 till its deposit in the Tribunal.

83. 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.

84. Following directions are given for investment/release of compensation:­ (1) Compensation shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Jot Ram.

(2) 50%, out of the total compensation awarded, with proportionate interest shall be released in favour of Petitioner. This amount shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi.

(3) Balance compensation will be kept in 5 FDRs of equal amount for a period of 1 to 5 years. Monthly interest will be credited in his Saving Bank Account regularly.

(4) All the original FDRs shall remain with the MACT No. 290/12 Sh. Jot Ram v. Sh. Guddu Hari Lal & Ors. Page 15 of 16 bank. Only copies thereof will be given to the petitioner. However, pass book will be given to the petitioner. No cheque book shall be issued to the petitioner.

(5) No loan or advance will be given against these deposits.

(6) FDRs shall not be prematurely encashed without leave of this Tribunal.

(7) Petitioner shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.

85. Copy of this order be given dasti to all the parties.

86. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.

87. File be consigned to the Record Room.

Announced in the Open Court.

On the 01st day of November, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL­II DWARKA COURTS, NEW DELHI.