Delhi District Court
Sh. Lakhvinder S/O Sh. Sukhdev Singh vs ) Sh. Ashok Kumar S/O Sh. Jhepsu on 9 November, 2011
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IN THE COURT OF SH. YASHWANT KUMAR, ADDL. DISTRICT &
SESSIONS JUDGE CUM PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, ROHINI COURTS, DELHI.
(MACT Case No. 860/10/06)
Sh. Lakhvinder S/o Sh. Sukhdev Singh
R/o A201, Gupta Colony,
Prahlad Pur Bangar Village,
Shahbad Dairy, Delhi Petitioner
Versus
1) Sh. Ashok Kumar S/o Sh. Jhepsu
R/o Village Parsoli, P.O. Sorawa
P.S. Bordu, Distt. Azamgarh, U.P
2 nd Address:
Sh. Ashok Kumar s/o Sh. Jhepsu
R/o N28/320F, Azadpur, Delhi110033
2) Sh. Manoj Kumar S/o Sh. Vinod Kumar
R/o BS60, Sanjay Gandhi Transport Nagar,
Delhi110042
3) National Insurance Company Ltd.
Respondents
Date of institution25.05.2006
Date of decision09.11.2011
(Application u/s 140 and 166 of Motor Vehicles Act
for grant of compensation)
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JUDGMENT
1. Petitioner Sh. Lakhvinder, aged about 23 years through the present petition claimed compensation of Rs. 6,00,000/ with interest @ 12% p.a. on the -2- ground that on 08.08.2005 at about 8.30 p.m., when the petitioner was driving his two wheeler scooter No. DL8SD9005, coming from Samaypur Badli and proceeding towards his residence at Shahbad Diary, Gupta Colony, via Bawana Road, reached near Bus Stand Shahbad Dairy, Bawana Road within the jurisdiction of P.S. Bawana, Delhi, then Eco Friendly Sewa/Vikram Tempo No. DL1W0589, driven by its driver respondent no.1 at a very high speed, rashly and negligently, preceding to him and struck against two wheeler scooter of the petitioner on its right side and the pillion rider Sh. Kamaljeet @ Sonu and two wheeler scooter fell on the road and the petitioner had suffered head injuries on left side of his head. His brother Sh. Kamaljeet @ Sonu had took him to Maharishi Balmiki Hospital, Pooth Khurd, Delhi in unconscious condition. He was medically examined at Maharishi Balmiki Hospital, Pooth Khurd, Delhi vide MLC No. 1417/05, C.R. No.13553/05 dated 08.08.2005. A criminal case under section 279/337 IPC was registered against respondent no. 1 vide FIR No. 283/05 in police station Bawana, Delhi.
2. Petitioner alleged that he was self employed and running workshop and earning Rs. 6,000/ per month. Petitioner claimed compensation from respondents being driver, owner and insurance company of the offending vehicle under various pecuniary and non pecuniary heads.
3. Respondents no. 1 and 2 did not file their written statement, so their defence was struck off vide order dated 01.10.2008. The respondent no. 3 insurance company in its written statement while admitting existence of insurance policy qua the offending vehicle tried to avoid its liability on various technical grounds. On the basis of pleadings of the parties, following issues were framed on 27.01.2009 by my ld. Predecessor:
1) Whether petitioner received injuries in the motor vehicle accident caused by offending vehicle No. DL1W0589 (Eco Friendly -3- Sewa/Vikram Tempo) at 8.30 pm on 08.08.2005 at Shahbad Dairy, Gupta Colony via Bawana Road near bus stand Shahbad Dairy Bawana Road, Delhi due to rash & negligent driving of R1/driver? OPP
2) Whether driver of the offending vehicle is possessing valid driving licence at the time of accident? OPR
3) Whether the petitioner is entitled to compensation and if so to what extent and from which of the respondents? OPP
4) Relief.
4. Petitioner in order to prove his case examined himself as PW1. Respondent no. 3 insurance company examined Sh. Brij Pal, LDC, Wazirpur Licensing Authority, Delhi as R3W1 and Sh. Anil Bareja, Assistant Manager, National Insurance Company, D.O.II, Jhandewalan Extension, New Delhi as R3W2.
5. None appeared for arguments on behalf of R1 and R2. However, I have heard the counsel for the petitioner and the insurance company and have perused the entire records.
6. The petitioner has filed the application u/s 166 and 140 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act) for grant of compensation on the grounds mentioned in the petition. Section 140 of the Act provides for Liability to pay compensation in certain cases on the principle of no fault. In S. Kaushnuma Begum vs. New India Assurance Co. Ltd. AIR 2001 SC 485, it was held that the provisions of Motor Vehicle Act permits that compensation paid under no fault liability can be deducted from the final amount awarded by the Tribunal. In Himachal Road Transport Corporation vs. Garji Devi (1993) 2 ACC 652 (Him. Pra.) (DB); New India Assurance Co. Ltd. vs. Dinanath Agrawalla 2000 AIHC 1081, it was held that before an order is passed u/s 140, the Tribunal must, on the -4- basis of material on record, prima facie satisfy itself that (i) the accident arose out of a motor vehicle, (ii) which resulted in permanent disablement or death of a person
(iii) and the claim is made against the owner and the insurer of the motor vehicle involved in the accident. Section 166 of the Act provides for application for compensation. The claim under section 166 is on a fault liability. Special damages can also be claimed. Not only the income at the time of accident but future prospects also certain to take shape may be taken into consideration as a long drawn trial takes place. While deciding the application under section 166, it is the Tribunal who has to adjudicate and come to the conclusion as to which multiplier would be applicable. In the claim under section 166 of the Act, the Tribunal is required to adjudicate and decide the minimum income may be on presumption.
7. Let us secondly discuss the role of the Motor Accident Claims Tribunal under the Act. In this context, a reliance can be placed upon the reported judgment in Ranu Bala Paul Vs Bani Chakraborty 1998 A.I.H.C. 4814: 1999 ACC.CJ. 634 (Gau.), it was held 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 prepreponderance of evidence, but in a claim before the Motor Accidents Claim Tribunal that 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 enquiry and this is a legislation for the welfare of the society. The Court should be succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. In State of Himachal Pradesh Vs Shrichand Kishan Hazri (1990) 1 ACC.C.C. 44 1990 Acc. C.J. 663 (Him. Pra), it was held that the law relating to award of compensation in motor accident cases has -5- developed enormously. It is a good sign. Judicial pronouncements, dealing with the subject, have greatly widened the horizons in this field. New principles have been enunciated to cover various concepts of damages. Enough care has been taken to see that the victim, in case of personal injuries, and the dependents in case of fatal accidents, do not suffer, incalculably due to the accident in question and decisions make an attempt to equate, as far as possible, the misery with the compensation awarded, though money compensation can not be considered to be in any way equal to the injuries sustained or the life lost. Pecuniary and nonpecuniary damages have to be carefully determined. Need for future care is more, so that the victim or the dependents do not lead a miserable life. In Syed Mehabood vs. New India Assurance Co. Ltd., 2011 ACJ 1667, it was held that it is a well settled principle of law that a court has duty to give reasons as its judgment affects the rights and obligations of the litigating parties, who are entitled to know why the court came to its decision. Now, in view of the aforesaid statutory provisions and the judgments, my findings upon the above mentioned issues are as under:
ISSUE NO.1:
8. The averments made in the claim petition about the manner of accident have already been discussed above. The photocopy of criminal case record for the offences punishable u/s 279/337 IPC against the respondent no.1 has been filed by the counsel for the petitioner, which reveals that he was prosecuted by the police for causing injuries to the petitioner. The petitioner also appeared & entered into witness box and examined himself as PW1. PW1 has testified the manner of accident. PW1, in his examination in chief by way of affidavit Ex. PW1/A deposed that due to the impact of the accident, the petitioner and his brother fell from the scooter and the petitioner sustained grievous injuries and the accident occurred due to sole negligence and rashness in driving by the driver of the Vikram bearing no. DL1W0589. PW1, in his cross examination, deposed that the offending Tempo was coming from the opposite direction at the time of accident. PW1 denied the -6- suggestion that he was driving his vehicle on the wrong side of the road. PW1 further denied the suggestion that he hit a stationery vehicle. The counsel for respondents nos. 1 and 2 have not appeared to cross examine PW1. Even otherwise, there is nothing on record to suggest that there was any element of contributory negligence from the side of the petitioner in happening of the accident, so an adverse inference has to be drawn against the the respondent nos.1 & 2. Police investigation also prima facie reveals the involvement of respondent no. 1 in causing the accident due to driving offending vehicle in rash and negligent manner. It is not the case of the respondents that any complaint to any higher authority was lodged against alleged false implication of respondent no. 1 in the criminal case. Hence, I find no ground on record to presume that accident had taken place due to negligence of the petitioner. It is accordingly held that accident was caused due to rash and negligent driving of the aforesaid offending Vikram Tempo by respondent no. 1. The strict principles of proof in a criminal case are not attracted. In this regard, I would place a reliance upon the judgment reported in Bimla Devi Vs Himachal Road Trans. Corpn., 2009 ACJ 1725 (SC), it was held as under:
"(15) 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 an accident caused by a particular car 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."
In view of my findings above and the judgments (supra), I hold that respondent no.1 was involved in causing the accident due to rash and negligent driving of vehicle bearing No. DL1W0589 (Eco Friendly Sewa/Vikram Tempo) resulting injuries upon the petitioner. Accordingly, this issue is decided in favour of the petitioner and against the respondents.
-7-Issue no. 2:
9. Respondent no. 3 examined R3W1 who brought the summoned record pertaining to the licence no. P08022002281755 issued in the name of Ashok Kumar/respondent no.1 from 06.02.2002 to 05.02.2022 for motorcycle and LMV (N/T). R3W1 deposed in his examination in chief that no endorsement to drive the commercial vehicle was ever made on this licence. The driver Ashok Kumar was not competent to drive commercial Vikram Tempo as per this licence. The attested copy of driving license record was exhibited as Ex. R3W1/A. The counsel for the petitioner did not appear, therefore, the crossexamination of R3W1 was treated as nil. R3W2 tendered his affidavit in evidence as Ex.R3W2/A and relied upon documents mentioned in his affidavit. R3W2 in his affidavit exhibited the documents, i.e., copy of policy as Ex.R3W2/1, Notice u/o. 12 rule 8 CPC as Ex.R3W2/2 and postal receipt as Ex.R3W2/3 to Ex.R3W2/5. R3W2 further exhibited the copy of driving licence and driving licence verification report as Ex.R3W2/6 and Ex.R3W2/7. R3W2 deposed in his affidavit Ex.R3W2/A that the driver was not holding a valid and effective driving licence at the time of alleged accident with the knowledge of the owner and the owner committed breach of policy with respect to driving licence, therefore, the insurance company is not liable to pay any compensation to the petitioners. The notices were sent by registered post as per postal receipts Ex. R3W2/3 to Ex.R3W2/5 but respondents no. 1 and 2 neither produced the documents as required by the insurance company nor opted to reply the same. Even they did not appear in the witness box to show that they were having possession of these demanded documents. Insurance company in such situation due to breach of terms and conditions of policy is liable to be exonerated from indemnifying the owner of the vehicle and in this regard reliance can be placed upon decision of Supreme Court given in case National Insurance Co. Ltd. vs. Challa Bharathamma III (2004) ACC -8-
292. Keeping in view the violation of the term and condition of policy regarding existence of valid permit, it is directed that insurance policy shall pay the entire compensation amount to the petitioner and later on can get it recovered from respondents no. 1 and 2 through execution proceedings.
Issue no. 3:
10. Let us examine whether the petitioner is entitled to compensation and if so, to what amount and from whom. PW1 deposed in his examination in chief by way of affidavit that as a result of accident, he fell down and sustained injuries. Thereafter, the petitioner was taken to Maharishi Balmiki Hospital for treatment of the accidental injuries and MLC NO. 1417/05 was prepared and was referred to Trauma Centre. The petitioner remained admitted at Lok Nayak Hospital from 08.08.2005 to 12.08.2005. PW1 further deposed in his examination in chief by way of affidavit Ex.PW1/A that he sustained multiple fracture of left temporal bone (head) coupled with depressed fragment. Various tests and MRI were done and treatment continued for about six months, private doctors and lab were also consulted since the petitioner suffered head injuries. PW1 exhibited the election identity card as Ex.PW1/1 (OSR). PW1 further deposed that as the family was disturbed, bills and prescription could not be preserved. However, the test reports available with the petitioner have been exhibited as Ex.PW1/2 (colly) and the discharge card as Ex.PW1/3. Ex. PW1/3 which is a discharge slip issued from Lok Nayak Hospital, New Delhi reveals that petitioner was admitted on 08.08.2005 and was discharged on 12.08.2005. Ex.PW1/2 (colly) reveals that awake EEG record was done in Ganesh Diagnostic and Imaging Centre, 109, PocketA1, Sector8, Rohini, Delhi on 25.08.2005. Further MRI brain was also done in the aforesaid centre on the same day, i.e., 25.08.2005 which also reveals that the patient is a Followup Case of Left Temporal Bone Fracture Post Surgery Status. The study shows evidence of left temporal craniotomy with post op changes and small hemorrhagic ..traaxial collection in the underlying temporal convexity (4 mm width) appearing -9- hyperintense in T1W1 & T2W1. Tiny focus appearing hyperintense in T1W & T2W1 is seen in the underlying temporal lobe suggesting resolving hemorrhagic contusion (late subacute). Normal signal intensity is seen in remaining cerebral parenchyma, basal ganglia, thalami, brainstem and cerebellum. No hemorrhage is seen. Diffusion imaging shows no focus of restricted diffusion to suggest recent/acute infraction. The normal flow voids are maintained. The sulci, ventricular systems and basal cisterns are normal. The pituitary is grossly normal. No midline shift is seen. Both orbits, auditary meati & paranasal sinuses are normal.
11. There is no certificate of doctor to show that any disability was suffered by the petitioner. Judicial notice can be taken of the fact that due to fracture, petitioner might have suffered difficulty in walking, sitting etc. for a period of atleast three months. Difficulty and inconvenience must have arisen to him to perform even daily personal routine acts for atleast three months. He must have suffered great pain and sufferings due to injuries and fracture and might not be able to enjoy the amenities of life properly till the period his injuries and fracture was not cured. Such type of non pecuniary losses cannot be assessed in terms of money but keeping in view the status and condition of the petitioner, extent of injuries and hospital admission, he is granted lump sum amount of Rs. 25,000/ towards pain and sufferings, inconvenience and temporary loss of amenities etc.
12. PW1, in his examination in chief by way of affidavit Ex.PW1/A deposed that he had incurred a sum of Rs. 60,000/ on medical treatment and medicines, test etc., but the petitioner could not preserve the bills and prescriptions since his family was disturbed. PW1 in his crossexamination admitted that he does not possess any bill of Rs. 60,000/ as expenses on his treatment. PW1 denied the suggestion that he has not spent Rs. 60,000/ on his medical treatment. Therefore, judicial notice can also be taken in the absence of any bills for medical treatment of the petitioner that the petitioner would have incurred medical expenses for curing -10- his injuries and fracture. Thus, the petitioner is entitled to Rs. 4,500/ as lumpsum amount towards medical expenses for his medical treatment.
13. PW1 in his affidavit Ex.PW1/A deposed that he spent expenses on special diet, conveyance, nursing etc., and he used to take special diet @ Rs. 60/ per day for six months, he made 1520 trips to hospital and lapse incurred Rs. 400 per trip as to and fro charges, Rs. 2,000/ per month for about six months were incurred on attendant. PW1 denied the suggestion in his crossexamination that he has spent Rs. 60/ per days as special diet, Rs.400/ per trip on conveyance and Rs. 2,000/ per month on nursing. The petitioner has not placed on record any bill regarding his conveyance, diet or any other expenses but it is a fact that normally in case of sickness and serious injury and fracture, a special diet in the form of healthy food, juices, milk etc. is provided instead of or in addition to the normal food. Accordingly, I am of the view that maximum petitioner can be paid lump sum Rs. 5000/ towards special diet and conveyance charges.
14. The petitioner has claimed that he was self employed and running workshop and was earning Rs. 6,000/ p.m. PW1 in his crossexamination admitted that he has no documentary proof as to is earning of Rs. 6,000/ per month. PW1 denied the suggestion that he was not working as welding mistry and earning Rs. 6,000/ per month. PW1 further denied the suggestion that he has not suffered loss of income for about six months due to accidental injuries. It emerges from the above testimony of PW1 that the petitioner has not brought on record any document and even otherwise not produced any witness to the effect that he was earning Rs. 6,000/ p.m. Therefore, the plea taken by the petitioner that he was earning an amount of Rs. 6,000/ p.m. does not support his case. In the absence of any documentary evidence of income, the petitioner is presumed to be earning sum of Rs. 3331.90/ per month under the scale of Minimum Wages Act being falling under the category of semiskilled worker. Thus he is entitled to loss of income of maximum -11- three months at Rs. 3331.90/ p.m. Accordingly, petitioner is entitled for compensation to the amount of Rs. 9996/ rounded off (Rs. 3331.90 x 3= 9995.70) towards loss of income which was the direct cause of accident.
15. In view of the above discussions, this issue is decided in favour of petitioner by holding that he is entitled to get the following total compensation from the respondent no. 3 who is also given recovery rights to get this amount recovered later on from respondents no. 1 and 2 jointly or severally:
a) Loss of income Rs. 9,996.00
b) Medical expenses Rs. 4,500.00
c) Special diet and conveyance charges Rs. 5,000.00
d) Pain and sufferings etc.Rs.25,000.00 __________________ Total: Rs.44,496.00 Petitioner shall be entitled to interest at the rate of 7.5% p.a. on this amount from the date of institution of the petition i.e. 25.05.2006 till realization.
Issue no. 4 (Relief):
16. On the basis of findings given above, present petition is disposed off and an award is passed. Respondent no. 3 insurance company is directed to pay within 30 days a sum of Rs. 44,496/ to the petitioner along with interest at the rate of 7.5% p.a. from 25.05.2006 till this amount is fully paid. After making the entire payment, respondent no.3 is entitled to get it recovered from respondent no.1 & 2 by filing execution petition. Copy of this judgment be given to petitioner and counsel for respondent no.3. File be consigned to record room.
-12-Announced in the open (YASHWANT KUMAR)
Court on 09.11.2011 JUDGE, MACT (OUTERII)
DELHI
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