Delhi District Court
Shri Pramod Kumar vs Shri Vijay Kumar on 1 April, 2013
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT No. 12/11
IN THE MATTER OF :
Shri Pramod Kumar,
S/o Late Shri Jai Kishan,
R/o RZD 2/71, Gali No. 5,
Mahavir Enclave, Palam,
New Delhi - 110 045.
... Petitioner
Versus
1. Shri Vijay Kumar, (Driver)
S/o Shri Parsadi Lal,
R/o H. No. 183, Harijan Basti,
Rangpuri, New Delhi.
2. Shri Madan Kumar, (Owner)
S/o Shri N.V. Joshi,
R/o RZN - 16, N Block,
Nanda Block, Mahavir Enclave,
Palam Road, New Delhi.
3. National Insurance Company Limited, (Insurer)
619620, Somdutt Chambers - II,
Bhikaji Cama Place,
New Delhi - 110 066.
... Respondents
MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 1 of 12
VEHICLE NO. : DLIVA 0574 (RTV MINI BUS)
VALID FROM : 13/07/2011 TO 12/07/2012
POLICY NO. : 360983/31/11/6700001260
FILED ON : 23.11.2011
RESERVED ON : 26.03.2013
DECIDED ON : 01.04.2013
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.
3. It is stated in this claim petition that on 11.08.2011, at about 7:30 p.m., claimant had boarded RTV Mini Bus bearing No. DLIVA 0574 which was plying between Palam Village to Mahipalpur from Skygourmet Stand. When the claimant was in the process of boarding the RTV Mini Bus which was full of passengers, Respondent No. 1 started the said RTV Mini Bus and took a sharp turn as a result of which claimant fell down on the road and came underneath the rear wheel of the offending RTV Mini Bus and sustained multiple grievous injuries on the whole parts of his body.
4. It is stated that FIR No. 362/11 under Section 279/338 of IPC was registered at IGI Airport. Claimant was taken to Safdarjung Hospital where MLC was prepared.
5. It is stated that the claimant was 30 years of age at the time of accident and was earning Rs. 6,599/ per month by working for M/s. Sinar Jernih (India) Private Limited.
MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 2 of 126. It is stated that the claimant has spent more than Rs.30,000/ on his treatment and claimed a compensation of Rs. 5,00,000/ with interest @ 12% per annum from the date of filing of the claim petition till realization.
7. A common written statement was filed by Respondent No. 1 and 2 who stated therein that the claimant has concealed correct facts as accident was not caused due to negligence of Respondent No. 1 and rather the Respondent No. 1 had helped the claimant by removing him to the hospital and the claimant has falsely implicated him in the criminal case.
8. However, it is admitted that at the time of accident vehicle was insured vide Cover Note No. 360983/31/11/6700001260 valid from 13.07.2011 to 12.07.2012 and Respondent No. 1 was having a valid and effective Driving License, badge and has not caused any breach of terms and conditions of policy.
9. Therefore, it was stated that the answering respondents are not liable to pay any compensation to the claimant.
10. Insurance company also filed detailed written statement and denied all the averments made in the claim petition but it admitted factum of insurance of the vehicle on the date of accident.
11. From the pleadings of parties, following issues were framed: i. Whether petitioner Sh. Pramod Kumar sustained injuries in a motor vehicle accident dtd. 11.08.2011 due to rash or negligent driving of RTV Mini Bus bearing registration No. DLIVA 0574 by R1?
..... OPP MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 3 of 12 ii. Whether the petitioner is entitled to claim compensation, if so, what amount and from whom?
..... OPP iii. Relief.
12. First witness examined on behalf of the petitioner was one Dr. Pramod Pasari who proved disability certificate given by the Medical Board of DDU Hospital as Ex. PW1/1. As per this disability certificate, claimant has suffered Post Traumatic Stiffness of Left Ankle with Temporary Physical Disability of 30% in relation to left lower limb.
13. In crossexamination, he deposed that disability will improve in case petitioner cooperates with the physiotherapist.
14. Second witness examined on behalf of the petitioner was one Shri Amit Malhotra, HR Executive of M/s. Sinar Jernih (India) Pvt. Ltd. who produced salary slip of the claimant for the month of June and July, 2011 which was exhibited as Ex. PW2/1. He deposed that the claimant is no more working in their company after the accident. As per salary slip, the claimant was getting a salary of Rs. 5,922/ per month.
15. Lastly, claimant entered in the witness box as PW1 and proved his treatment record at Safdarjung Hospital as Ex. PW3/14, treatment record at Jainak Medical Centre as Ex. PW3/56, other treatment record of Safdarjung Hospital as Ex. PW3/710, treatment record at DDU Hospital and receipts for purchase of medicines as Ex. PW3/1152, conveyance charges were proved as Ex. PW3/53100, salary slip was proved as Ex. PW3/101, discharge summary of Ameda Hospital was proved as Ex. PW3/102, other MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 4 of 12 treatment record and bills were proved as Ex. PW3/103104.
16. In crossexamination, he denied a suggestion that the accident took place as he was trying to board a moving bus and he deposed that the bus was standing at the stop when he was boarding the bus. He deposed that he had asked the conductor to stop the bus but as the conductor did not listen, he fell down.
17. Other suggestions contrary to his case were denied by him.
18. No other witness was crossexamined by any other parties.
19. On the basis of pleadings of parties, evidence on record, issuewise findings are as under: ISSUE NO. 1:
20. Burden of proving this issue is on the claimant.
21. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
22. This is sine qua non for getting the relief.
23. Claimant himself is an eye witness to the accident. He has deposed that the driver of the offending vehicle was driving the same in a rash and negligent manner and when driver took a sharp turn, he fell down.
24. Respondent No. 1 has filed written statement denying allegations of rash and negligent driving made against him but he did not enter in the witness box to prove his innocence.
25. Police after investigation in the matter has filed MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 5 of 12 charge sheet against Respondent No. 1 under Section 279/338 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.
26. 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 the society"
27. 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 MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 6 of 12 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."
28. 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 MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 7 of 12 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."
29. 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.
30. Therefore, this issue is decided in favour of claimant and against the respondents. ISSUE NO. 2:
31. In the case of Raj Kumar v. Ajay Kumar & Anr., MANU/SC/1018/2010, Civil Appeal No. 8981/2010 decided on 18.10.2010, 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 MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 8 of 12 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 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.
32. As per MLC prepared at Safdarjang Hospital, nature of injuries are grievous.
33. Perusal of treatment record of claimant at Safdarjang Hospital, vide Ex. PW3/2, shows that he had suffered MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 9 of 12 fracture of Med. Meleolus left, fracture of talis left and fracture of navicular left. The treatment had continued for a considerable period and he was advised physiotherapy exercises. Petitioner was again admitted in Ameda Hospital from 02.01.13 to 07.01.13 for corrective ortho surgery.
34. Therefore, for Pain and Suffering, claimant is awarded a compensation of Rs. 60,000/.
35. Medical bills worth Rs. 33,827/ are on record. Additionally, claimant had spent Rs. 56,000/ on his treatment in Ameda Hospital.
36. Therefore, claimant is awarded a compensation of Rs. 89,827/ for Cost of Treatment.
37. With the kind of injuries, it can be safely assumed that he would have needed the help of an attendant at least for a period of three months. Minimum wages of an unskilled workman in the month of August, 2011 were Rs. 6,422/.
38. Therefore, he is awarded a compensation of Rs. 19,266/ as Attendant's Charges.
39. Claimant has filed on record bills of taxi service Ex. PW1/53 to Ex. PW1/100. However, in absence of any evidence of taxi owner, these bills cannot be taken into consideration.
40. However, on lump sum basis he is awarded a compensation of Rs. 7,500/ for Conveyance Charges and Rs. 7,500/ for Special Diet.
41. Income of the claimant at the time of accident was Rs. 6,422/. With the kind of injuries it can be safely assumed that he would have remained on leave at least for a period of four MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 10 of 12 months.
42. Therefore, for Loss of Wages, he is awarded a compensation of Rs. 25,688/.
43. Petitioner has suffered post traumatic stiffness of left ankle with temporary physical disability of 30% in relation to left lower limb.
44. In the case of Sanjay Batham v. Munna Lal Parihar & Ors. decided by Hon'ble Supreme Court of India on 01.11.2011 in Civil App. No. 9013/11 arising out of SLP(c) No. 8983/10 it was held that temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Considering that there was evidence of the doctor showing that petitioner would require treatment in future, a compensation of Rs. 2 lacs was awarded for future treatment including doctor's fee, cost of medicine, transportation, diet etc.
45. However, in this case claimant has not examined any doctor to show extent of expenses required by him for his treatment.
46. Therefore, on lump sum basis he is awarded a compensation of Rs. 75,000/ being a case of temporary physical disability of 30% in relation to left lower limb.
47. As per Ex. PW3/4 claimant was advised physiotherapy.
48. Therefore, on lump sum basis he is awarded a compensation of Rs. 10,000/ for Physiotherapy Charges.
49. Resultantly, total compensation payable to the MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 11 of 12 claimant would be Rs. 2,94,781/ which will be paid with interest @ 7.5% per annum from the date of filing of this claim petition which is 23.11.2011 till its realization.
50. Insurance company has not proved any defence.
51. Therefore, compensation shall be payable by insurance company which be paid within 30 days from today under intimation to the claimant as well as his counsel by Registered A.D. Post. Nazir will also send a notice of deposit of compensation to the claimant as well as his counsel.
52. In view of financial needs expressed by claimant, entire compensation shall be released in his favour without any precondition of FDR.
53. Address of counsel for the claimant for effecting service of notice of deposit of compensation is as under: Sh. Jagmal Singh Yadav, Advocate, Chamber No. 250 Patiala House Courts New Delhi110001.
54. Ahlmad will put up a copy of this order with report from Nazir regarding deposit of compensation again on 02.07.2013.
55. Copy of award be given dasti to all the parties.
56. File be consigned to the Record Room.
Announced in the open Court On the 01st Day of April, 2013.
(ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS: NEW DELHI MACT No. 12/11 Shri Pramod Kumar v. Shri Vijay Kumar & Ors. Page 12 of 12