Delhi District Court
Umesh Chandra Rai vs Jitender Kumar on 12 October, 2015
IN THE COURT OF MS. KIRAN BANSAL
P.O. MOTOR ACCIDENTS CLAIMS TRIBUNAL
NORTH-EAST DISTRICT: KKD COURTS : DELHI
MACT No. 218/08
Unique ID no. 02402C0388252008
UMESH CHANDRA RAI
S/o Sh. Paras Nath Rai
R/o F-378, West Karawal Nagar,
Delhi. ......Petitioner
Versus
1. JITENDER KUMAR
S/o Sh. Harsaran Singh
R/o H. NO. E-1418, near Sample House Chowk,
Ram Park Extn., Loni, Ghaziabad, UP.
2. SHRI MUNNA LAL
S/o Sh. Budh Ram
R/o 389, Balram Nagar,
Ghaziabad, UP.
.......Respondents
1. Date of Institution of claim petition :28.05.2008
2. Date of Decision :12.10.2015 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWARD
1. Petitioner being the injured filed the present claim petition u/s 166 & 140 MV Act seeking the compensation. It is the case of the petitioner that on 25.01.2008, petitioner after finishing his work was returning back to his home on scooter bearing no. DL 3S AE 1938 and when he reached at MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 1/10 Khajuri Pusta near A-Block, all of a sudden vehicle bearing no. UP 14X 9586 which was being driven by respondent no. 1 came from Loni side and hit the scooter from front. As a result of which, petitioner fell down on the road and sustained grievous injuries. Petitioner was taken to GTB Hospital, where he was admitted from 25.01.2008 and discharged on the same day, thereafter petitioner was again admitted at Parnami Hospital from 27.01.2008 to 02.02.2008 and again petitioner admitted at Mahajan Hospital on 20.07.2008 and discharged on 22.07.2008. Police Station Khajuri Khas has registered the offence vide FIR No. 24/08 U/s 279/337 IPC against the respondent no.1. It is further averred that petitioner was doing the work of medicine distributor and earned Rs. 10,000/- per month.
2. Summons were served on the respondents. WS was filed on behalf of respondent no. 1. It has not been specifically denied that FIR no. 24/08 was registered at PS Khajuri Khas, Delhi against respondent no. 1.
3. After completion of the pleadings, following issues were framed :
1. Whether petitioner Umesh Chandra Rai son of Sh. Paras Nath Rai, sustained injuries in motor accident caused by rash and negligent driving of vehicle i.e TSR bearing registration no. UP 14X 9586 by respondent no. 1 on 25.01.2008 at about 9:00 pm at Khajuri Pushta Road, near A Block, Khajuri Khas, Delhi, within the jurisdiction of Police Station Khajuri Khas, Delhi? OPP
2. Whether petitioner is entitled to compensation? If so, what amount and from whom?
3. Relief
4. Petitioner has examined himself as PW1 and has tendered his affidavit Ex. PW 1/A and relied upon the documents i.e discharge slip and medical paper Ex. PW 1/1 to PW 1/ 8, medical bills Ex. PW 1/9, medical challan fee is Mark A, medical bills Ex. PW 1/13. Respondent no. 1 has MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 2/10 examined himself as R1W1 and Sh. Suraj Kumar has been examined as R1W2.
5. I have heard the counsels for both the parties and gone through the entire evidence on record carefully.
6. My issuewise findings are as below :
ISSUE NO.1 Whether petitioner Umesh Chandra Rai son of Sh. Paras Nath Rai, sustained injuries in motor accident caused by rash and negligent driving of vehicle i.e TSR bearing registration no. UP 14X 9586 by respondent no. 1 on 25.01.2008 at about 9:00 pm at Khajuri Pushta Road, near A Block, Khajuri Khas, Delhi, within the jurisdiction of Police Station Khajuri Khas, Delhi? OPP
7. PW1 i.e. petitioner has filed his chief affidavit reiterating the facts mentioned in the petition. Police Station Khajuri Khas has registered the offence vide FIR No. 24/08 U/s 279/337 IPC against the respondent no.1.
8. PW1 is cross-examined at length by the counsel for respondent. During cross examination and he deposed that on the date of accident there was no fog and the road on which he was going was single road . It is further deposed that the auto rickshaw over took a car and he had seen the auto rickshaw at a distance of about 10-15 mtrs. and he was holding the DL at that time but he has not placed the copy of the same on record. It is further deposed that after the accident the public gathered on the spot and the driver fled away from the spot and he remained conscious after the accident. .
9. Respondent no. 1 has examined himself as R1W1 and has tendered his affidavit Ex.R1W1/A. MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 3/10
10. Sh. Suraj Kumar has been examined as R1W2 and has tendered his affidavit Ex.R1W2/A. During cross examination he deposed that on the date of accident he was alongwith Jitender at Khajoori and he does not know the date of birth of Jitender. It is further deposed that he alongwith respondent no. 1 was standing on the Khajuri bus stand and at the time of accident Jitender i.e respondent no. 1 was not holding any DL.
11. Respondent no. 1 Jitender in his affidavit has stated that he was falsely involved in the present case at the instance of respondent no. 2 and Mr. Khacheru and he has never plied the vehicle of respondent no. 2.
Moreover, his version is that he was minor on the date of accident. He further stated that he has never worked as a driver with the respondent no. 2 on the alleged offending vehicle and neither he has caused the accident. The witness R1W2 Suraj Kumar in his affidavit has also stated that respondent no. 1 was minor at the time of accident and has never worked with respondent no. 2 as a driver. During cross examination of Suraj Kumar i.e R1W2 he admitted that accident had occurred on 25.01.2008. He further submitted that criminal court proceedings are pending in the criminal court and not in Juvenile Justice Board. During his cross examination, he has also deposed that on the date of accident, the offending vehicle was driven by Sh. Subhash, who was residing near his residence. Strangely this fact that the offending vehicle was driven by Mr. Subhash has not been stated in his affidavit itself. Parentage and other details such as address of said Sh. Subhash is not given by Mr. Suraj Kumar R1W2. If the respondent no. 1 was minor on the date of accident then why the present proceedings are not pending in Juvenile Justice Board and plea regarding juvenility has not been taken by the respondents before the concerned MM has also not been explained.
MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 4/10 Respondent no. 1 was also cross examined by counsel for petitioner wherein it is admitted that he has not filed any complaint in any authority that he has been falsely implicated. It is further submitted that he has not moved any application pleading that he was juvenile at the time of accident before the court of Ld. MM.. During cross examination it is stated that his date of birth 07.07.1991, but as per the DL Ex. R1W1/B date of birth of the witness was 07.10.1986. When this query was put by the court to the respondent regarding the date of birth, he produced another document i.e photocopy of Aadhar card and election I card , according to which his date of birth was 21.12.1990 and he submits that date of birth in the licence was antedated at the instance of a Dalal/broker. A court observation was made that regarding his date of birth was giving vague answers and was evasive in his answers. In fact when he was asked to clearly state his date of birth, he said "Kagjo mein jo likhi vohi hai". The question of juvenility is not a matter in issue here and the respondent no. 1 is at liberty to raise this plea of being a juvenile before the court of Ld. MM. As far as the present case is concerned, the respondent has admitted that he was not having any DL on the date of accident. Even he has not been able to explain that why the petitioner would falsely implicate him or why the respondent no. 2 alongwith said Mr. Khacheru would falsely implicate him without any previous enmity. The parentage of the other details regarding the address of Mr. Khacheru has also not been disclosed by the respondent. The mechanical inspection of the TSR i.e offending vehicle conducted on 29.01.2008 shows that the TSR had fresh damage. As per the FIR, the offending vehicle was also seized at the spot on the date of accident itself. After examining the material placed on record and after going through the entire testimony, I am satisfied that respondent no. 1 had caused the accident on 25.01.2008 due to his rash and negligent driving.
MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 5/10
12. Moreover, to determine the negligence, 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 completion 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 and 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 it was held that, 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 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.
Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 6/10 on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
" 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 any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claiman 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."
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.
Therefore , from the statements of the PW 1 Umesh Chandra Jain and in view of the record of the criminal case regarding the accident, it is proved that injured Umesh Chandra Jain sustained injuries in the accident which occurred on 25.01.2008 due to rash and negligent driving of offending vehicle bearing no. DL 3S AE 1938 driven by its driver i.e Respondent no. 1. This issue is decided accordingly.
13. ISSUE NO. 2MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 7/10 Whether petitioner is entitled to compensation? If so, to what amount and from whom?
14. During cross examination he deposed that he has been operated three times and has remained under the treatment till December 2011.
15. It is stated by the petitioner in his statement as well as in chief affidavit that he suffered grievous injuries and he was treated at GTB Hospital. Medical bills of Rs. 1,68,977/- has been filed in support of his claim.
16. As far as income of the petitioner is concerned, it is stated by petitioner in the claim petition as well as chief affidavit Ex.PW1/A that he is running a medical store and earned Rs. 10,000/- pm. However, no proof regarding the occupation & income of the petitioner has been filed. No Income Tax Returns have been filed. No document relating to educational and qualification has been filed.
17. Therefore, the income of the petitioner is considered in terms of minimum wages of unskilled worker as applicable which on the date of the accident is @ Rs. 3,516/- p.m. Also, he must have taken rest for at least 8 months as per the treatment papers.
18. Keeping in view the nature of injuries suffered by the Claimant and the fact that he was under constant treatment, he needed an Attendant to look after him and the claimant is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble High Court held that a victim cannot be deprived of compensation towards gratuitous services MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 8/10 rendered by some of the family members, for the benefit of the tortfeasor. In the circumstances, where the injured had suffered grievous injuries, it is deemed fit that a lump sum of Rs.20,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery.
19. Considering all the facts & circumstances and material on record, I am of the opinion that petitioner is entitled to compensation as under :
Pain & suffering Rs. 50,000/-
Special diet Rs. 5,000/-
Conveyance Rs. 5,000/-
Attendant charges Rs. 20,000/-
Medical Bills Rs. 1,68,977 /-
Loss of Income Rs. 28,128/-
( 3516 X 8 ) _____________
Total Rs. 2,77,105/-
Thus, the total compensation amount is Rs. 2,77,105/-
20. Liability The respondent no. 1 is the driver and respondent no. 2 is the registered owner of the offending vehicle i.e TSR bearing no. UP 14X 9586. In view of my findings on issues no. 1 & 2, respondents no. 1 & 2 being the driver and owner of the offending vehicle are held jointly and severally liable to pay the compensation.
21. Relief MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 9/10 Award is passed directing Respondent no. 1 & 2 to pay a sum of Rs. 2,77,105 /- to the petitioner along with interest @ 9% per annum from date of filing of the petition ( 28.05.2008 ). Payment is to be made by depositing cross cheque in favour of petitioner. The respondents no. 1 & 2 are directed to deposit the award amount along with interest in court within thirty days from today under written intimation to the petitioner. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each day default.
Attested copies of the award be furnished to the concerned parties from court Pronounced in Open Court on (KIRAN BANSAL) 12.10.2015 P.O. MACT(North-East) KKD Delhi MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 10/10 MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 11/10 MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 12/10 MACT Case No. 218/08 Kiran Bansal P.O. MACT (NorthEast), Delhi Page 13/10