Delhi District Court
Om Prakash Gupta vs Driver Of The Offending Vehicle ... on 7 September, 2022
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IN THE COURT SH. NAVEEN KUMAR KASHYAP
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT, SOUTH EAST DISTRICT, SAKET COURTS: NEW DELHI
MACT No. 39/18
FIR No. 12/17
PS : Badarpur
U/s:279, 338 IPC
CNR NO.: DLSE01-000371-2018
Om Parkash Gupta (DAR) v. Pooja Goel
Compensation case regarding grievous injury to Om Prakash Gupta, aged
about 43 years
Om Prakash Gupta
S/o Sh. Ram Janki Gupta
R/o M-54, Saurabh Vihar,
Jaitpur Extn., Badarpur,
New Delhi.
Presently R/o:
H.No. B-44/3, Basant Pur,
Faridabad, Haryana.
.....Claimants/petitioners
Versus
1. Driver of the offending vehicle (Untraced)
............Respondent no.1
2. Pooja Goel D/o Late Suresh Kumar Goel W/o Sh. Nipun Jindal MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 1 of 16 BK :2: R/o H.No. 958, Sec.-16, Faridabad, Haryana.
....... Registered Owner/ Respondent No. 23. Deepak Verma (Subsequent purchaser of the offending vehicle) S/o Sh. Raj Kishore Verma R/o 9/193, Barh Mohalla Old Faridabad, Kheri Kalan Haryana.
..... Subsequent Purchaser/ Respondent No.3 Date of accident : 07.01.2017 Date of filing of DAR : 15.01.2018 Date of Decision : 07.09.2022 AWARD
1. In this case, a detailed accident report was filed by police in terms of provisions of Motor Vehicle Act and same is treated as Claim Petition in view of the provisions contained in such Act.
2. Brief facts as per such DAR are that injured/petitioner submitted that at about 3 pm on 07.01.2017, he was waiting for his relative on the side of the road at NTPC gate. At that time, a person driving on scooter came in a very rash and negligent manner and at a very high speed hit him. As a result of which, petitioner fell down and sustained grievous injuries. He was taken to JPN Apex Trauma Center, AIIMS and thereafter treated at Holy Family hospital, New Delhi.
3. After investigation, FIR in question bearing No. 12/17 registered at PS Badarpur. Thereafter, police filed charge sheet under Section 279/338 IPC MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 2 of 16 BK :3: against respondent No. 1. DAR was filed by Investigating Officer before this Tribunal.
4. In this particular case, as per the investigation carried out by the IO, it was found that registered owner Pooja Goel factually sold the offending vehicle in question to one Deepak Kumar. It further appears that such Deepak Kumar claimed that he further sold such vehicle through OLX India Pvt. Ltd. to some other person. But as per reply given by Legal Manager, Ms. Juhi Singh of OLX India Pvt. Ltd, they did not have any detail of purchaser as the transaction took place outside their platform. Further, it is stated by the IO that despite efforts made, driver of the offending vehicle could not be traced.
5. Further, as per material on record, there are certain correspondence/legal notice/reply between such registered owner Pooja Goel and purchaser Deepak Kumar regarding sale of such vehicle to Deepak Kumar, and duty of the seller or the purchaser regarding intimation to RTO concerned regarding transfer of ownership and liability to pay the present claim.
6. In response to the DAR, as per record, R-2 registered owner and R-3 Possession holder appeared through counsel and R-2 filed reply. R-3 did not file reply.
7. In nutshell, in reply filed by R-2/Pooja Goel, it is stated that at the time of accident in question, such respondent no.2 was neither the owner nor in possession of the offending vehicle nor driver of such vehicle, as she has already sold the vehicle to respondent no.3 on 03.07.2016 and even handed over the possession of the said vehicle on the same day, in fact certain documents are also executed by R-3 regarding the same. As such, R-2 was under bona fide impression that vehicle is transferred in the name of R-3. It is further stated that without knowledge or intimation to R-2, R-3 further sold such vehicle to some other person through OLX. As such, it is claimed that R-2 is not liable at all to MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 3 of 16 BK :4: pay the claim, if any in the present claim. It is further submitted that no accident took place and she is falsely impleaded as respondent in the present case.
8. Right to file reply by R-3 was closed by my Ld. Predecessor vide order dated 03.08.2018. Further, as per record, respondents were directed to furnish security at least to the tune of Rs. 3 lacs to satisfy the award, if any in the present case vide order dated 18.09.2018. Further, as per record, respondents failed to comply with the same.
9. Further, it may be noted that in the present case, no insurance was found nor any driving licence of driver placed on record, in fact the driver itself is not traceable.
10. Following issues were framed on 18.09.2018 by my Ld. Predecessor:
1. Whether the injured Om Prakash Gupta suffered injuries in a road traffic accident on 07.01.2017 due to rash and negligent driving of vehicle no.HR-51R-1437 being driven by R1 AND owned by R2 without insurance? OPP.
2. Whether the injured is entitled to any compensation, if so, to what extent and from whom? OPP
3. Relief.
11. Petitioner/injured stepped in the witness box as PW1 and filed his evidence by way of affidavit (Ex. PW1/A). He relied upon copy of his Aadhar Card Ex.PW1/1, MLC as Ex.PW1/2, Discharge Summary and OPD cards as Ex.PW1/3 (colly), DAR as Ex. PW-1/4(colly), 10 th Marksheet as Mark-A and Medical bills as Ex. PW-1/5 (colly). On 27.07.2019, respondents side sought time to cross-examine PW-1. But thereafter as per record, they failed to cross- examine and their right to cross-examine was closed vide order dated 19.05.2022.
12. Further, vide order dated 16.07.2022, it was noted that as respondent side MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 4 of 16 BK :5: failed to deposit the security amount in the form of FDR and it is a no insurance case, right of respondent to lead respondent evidence was closed and matter was put up for final arguments.
13. Further, as per record, there is no permanent disability in the present case to the injured/ petitioner.
14. Final arguments in detail were addressed in the present case by learned counsel for the petitioner. No arguments were addressed on behalf of respondents as per record.
15. On the basis of pleadings of the parties, evidence adduced and arguments addressed, issue-wise findings are as under:-
Issue No.1
16. Negligence in a compensation case before Claims Tribunal is to be proved by preponderance of probability and the test is not as strict as in a criminal case.
17. It is well settled that the proceedings before the Claims Tribunal are in the nature of inquiry and the finding of rash and negligent driving by driver of the offending vehicle is to be returned only at the touch stone of preponderance of probabilities. The factors noted above are sufficient to conclude that preponderance of probability is made out showing negligence of respondent No. 1 in causing the accident.
18. Police after investigation had filed charge-sheet against respondent no.1 under section 279/338 of IPC which is also suggestive of negligence of respondent in causing the accident. The IO has filed Detailed Accident Report before this Tribunal. In National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of chargesheet u/s 279/304A IPC are sufficient proof of negligence of the driver of the offending vehicle.
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19. In this case, injured person while appearing into witness box as PW-1 made statement and narrated the mode and manner of the accident. He deposed that accident occurred due to the negligent driving of driver who is untraced in this case. PW-1 in his examination in chief by way of affidavit reiterated his original stand stated in the DAR, which is already noted above.
He further deposed that after his initial treatment from Trauma Center AIIMS, he was further admitted in the Holy Family Hospital New Delhi.
He was not cross-examined by respondents.
20. In the MACT cases, claimants are required to prove the rash and negligent driving by the driver of the offending vehicle. In this case, petitioner / PW-1 has deposed about the manner of accident and further deposed that accident occurred due to negligence of driver of offending vehicle. In Cholamandlam insurance company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310, it was held that if driver of offending vehicle does not enter the witness box, an adverse inference can be drawn against him. In the present case also, driver did not enter into the witness box to controvert the claim of petitioner or even to explain circumstances of accident.
21. As such, in view of the evidence proved on record and charge-sheet against R1, the issue No.1 is decided accordingly, in favour of the petitioner.
ISSUE NO. 222. At this stage, before proceeding further, by rely upon the judgments of C.K. Subramania Iyer v. T. Kunhikuttan Nair, R.D. Hattangadi v. Pest Control (India) (P) Ltd. and Baker v. Willoughby which are referred and relied in Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 Supreme Court cases 343 decided by Hon'ble SC, it can be noted that the provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 6 of 16 BK :7: 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 equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
23. Further it can be noted that the heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
23.1. In routine personal injury cases, compensation will be awarded only MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 7 of 16 BK :8: under heads (i), (ii) (a) and (iv).
23.2. It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 23.3. Assessment of pecuniary damages under Item (i) and under Item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence.
23.4. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof.
23.5. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)-- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of Hon'ble SC and Hon'ble High Courts contain necessary guidelines for award under these heads, if necessary.
23.6. It was observed by Hon'ble Supreme Court in such case of Raj Kumar (supra) that what usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii) (a).
24. But in the present case, we are not concerned with permanent disability aspect.
25. In this background of material and evidence on record, in the present case having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 8 of 16 BK :9: Sl. no. Pecuniary loss : - Quantum
1. (I) Expenditure on treatment : Rs. 2,252/-
Petitioner has filed medical bills Ex.PW1/5 (colly).
(ii) Expenditure on Conveyance : The Rs. 20,000/- petitioner has not filed any bill for conveyance. The nature of injuries are grievous. As per record, petitioner was residing at Badarpur, New Delhi and his treatment was carried out from AIIMS and Holy Family Hospital, New Delhi.
Therefore, having regard to the distance and the period of treatment, by guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : Rs.20,000/- There is no prescription for special diet.
The nature of injuries are grievous.
Therefore, having regard to the nature of injury and the treatment, by guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even Rs.20,000/- in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : The petitioner has Rs. 47,320/- deposed in his evidence by way of affidavit that at the time of accident, he was earning around Rs. 25,000/- per month by running two wheeler repairing shop.
It is further claimed that due to such claim, he could not work for about four MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 9 of 16 BK : 10 : months after such accident.
He was not cross-examined by respondents side. But he has not placed on record any evidence including examination of any of the customer or copy of ITR etc. As such, taking his income is taken based on skilled worker at the time of accident on 07.01.2017 @ Rs.11,830/-
per month, compensation towards loss of income is Rs. 11,830 x 4 = Rs.47,320/-.
(vi) Cost of artificial limbs (if Not Applicable applicable) :
(vii) Any other loss / expenditure : Not applicable
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.20,000/-
physical shock : As the petitioner has suffered grievous injuries, he would have undergone mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 25,000/- for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
(iii) Loss of amenities of life : The Rs.20,000/- petitioner has suffered grievous injuries.
(iv) Disfiguration : NA
(v) Loss of marriage prospects : Nil
Petitioner was aged about 43 years at the
time of accident.
3. Disability resulting in loss of earning
capacity
(I) Percentage of disability assessed NA
and nature of disability as permanent
or temporary
(ii) Loss of amenities or loss of NA
MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 10 of 16 BK
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expectation of life span on account of
disability :
(iii) Percentage of loss of earning NA
capacity in relation to disability: In this case no permanent disability is proved on record.
(iv) Loss of future Income: NA
Total Compensation Rs.1,74,572/-
Deduction, if any NA
Compensation after deduction NA
Interest Simple interest @9% p.a.
from the date of filing of
DAR i.e. 15.01.2018 till
actual realization of Award
amount/compensation.
26. The total compensation payable to the claimant would be Rs.1,74,572/- with simple interest at the rate of 9% p.a. from the date of filing of DAR 15.01.2018 till its actual realization.
Liability :-
27. This is a case without insurance and driver licence. In fact, as noted above, as per the claim of IO/SHO concerned despite efforts made driver of the offending vehicle could not be traced. Further, as per record, R-2 is the registered owner and admittedly vehicle in question was purchased by R-3. It further appears that such R-3 sold the vehicle subsequently but acting in a irresponsible manner, he did not even care to keep record of such subsequent purchaser. It is stated by IO that action r/w with section 177 of MV Act against MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 11 of 16 BK : 12 : such R-2 and R-3 as per law.
In this background of peculiar facts of present case when driver is not traceable and R-2 failed in her duty to change her name in the RTO concerned, having regard to the law that registered owner is liable to pay the claim, it is held that such claim/Award amount Rs. 1,74,572/-with interest of would be paid by the R-2 Pooja Goel. But it is further made clear that such Pooja Goel is at liberty to take appropriate action, if allowed in law to recover such amount from the driver or other subsequent purchaser including R-3.
28. The award amount shall be deposited by R-2 with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the claimant.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
Apportionment:-
29. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
30. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 12 of 16 BK : 13 : fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi- illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 13 of 16 BK : 14 : rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 14 of 16 BK : 15 : invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
31. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same. As petitioner is already incurred expenses on his treatment and further, suffered loss of income due to such accident and he is a major/ skilled person who can take care of his financial affairs in his own best interest, the whole of award amount be released to him with interest.
Form - IVB Summary of computation of award amount in injury cases to be incorporated in the award.
1 Date of accident 07.01.2017 2 Name of injured Om Parkash Gupta 3 Age of the injured 43 years 4 Occupation of the injured Not proved 5 Income of the injured Minimum wages in Delhi for skilled worker at the time of accident which is Rs. 11,830/- per month is taken as his income.
6 Nature injury Grievous injuries
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7 Medical treatment taken by AIIMS Hospital and Holy Family
the injured: hospital, New Delhi.
8 Period of Hospitalization One day
9 Whether any permanent No
disability?
32. Copy of this award be given to the parties free of cost. The copy of award be sent to the DLSA, SE and concerned Ld. Metropolitan Magistrate.
33. List on 07.10.2022 for compliance as well as for appearance of petitioner to file bank details.
Announced in the open court on 07th September, 2022 (Naveen Kumar Kashyap) PO-MACT (South-East) Saket Court/ New Delhi MACT No.39/18 Om Prakash Gupta v. Pooja Goel Page No. 16 of 16 BK