Delhi District Court
Sanjeev Kumar vs Sh. Raju Gupta (Driver) on 1 March, 2014
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL-II, DWARKA COURTS: NEW DELHI
MACT No. 319/12
IN THE MATTER OF :-
Sanjeev Kumar,
S/o Sh. Babu Chand Prasad,
R/o A-86, Rajan Vihar,
Hastsal Village,
Uttam Nagar,
New Delhi-110059.
...Claimant
Versus
1. Sh. Raju Gupta (Driver)
S/o Sh. Ramashankar,
R/o H.No. 696, Sector-7,
Bahadurgarh, District Jhajjar,
Haryana.
2. M/s. Carnation Auto India P. Ltd. (Owner)
Studio 205, Plot No. 7,
Sector-127, Noida,
Gautam Budh Nagar,
U.P. - 201301
Through Sh. Jagdish Khattar,
Manager Director/Chairman
3. HDFC Ergo General Ins. (Insurer)
Ramon House, H.T. Parekh Marg,
169, Backbay Reclamation,
Mumbai-400020
... Respondents
MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 1 of 13 FILED ON : 02.07.2012 HEARD ON : 01.03.2014 DECIDED ON : 01.03.2014
-: JUDGMENT :-
1. This is a claim petition 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 21.06.12, at about 7.30 p.m., claimant alongwith his friend Sh. Ajit Kumar was going on Motorcycle No. DL- 4S-BX-3542 towards Mohan Garden. The Motorcycle was being driven by Sh. Ajit Kumar and claimant was the pillion rider.
4. Claimant has stated that when they reached near Atulya Chawk, Sector-18, Dwarka, New Delhi, then, all of a sudden, the offending vehicle Eeco Car bearing registration no. DL-1LP-6814 came at a high speed, being driven by its driver in a rash and negligent manner and hit the motorcycle of the claimant resulting MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 2 of 13 in grievous injuries to him.
5. It is stated that claimant was removed to Bensups Hospital for treatment and police at P.S. Dwarka North had registered FIR No. 150/12 under Section 279 and 338 of IPC against Respondent No. 1.
6. It is also stated that at the time of accident, the claimant was 23 years old and was working as a Technician with M/s. MGF Toyota Capital Vehicles Sales Ltd. at a salary of Rs. 8,000/- and he was earning Rs. 10,000/- per month additionally by rendering freelance services and thus his income at the time of accident was Rs. 18,000/- per month.
7. Therefore, for losses suffered due to this accident, the claimant has claimed a compensation of Rs. 20 lacs from the respondents with interest from the date of filing of claim petition till its realization.
8. Respondent No. 1 and 2 have filed a common written statement stating therein that the motorcyclist Sh. Ajit Kumar was not having a valid and legal license to drive the motorcycle and the accident was due to negligent driving of Sh. Ajit Kumar himself who had come at a very high speed and had collided with the vehicle of respondents.
9. They have also stated that the owner of the motorcycle on which claimant was a pillion rider is a necessary party to this claim petition.
10. Each and every other averment made in the MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 3 of 13 claim petition was also denied and it was prayed that claim petition be dismissed.
11. Insurance company also filed its written statement stating that the driver shall prove that he was holding valid and effective driving license on the date of alleged accident authorising him to drive the vehicle in question and if the insured wants to take the benefit of contract of insurance, he has to prove that there is no breach of terms and conditions of policy.
12. Factum of insurance of the offending vehicle on the date of accident was admitted but rest of the averments made herein were denied.
13. To decide the compensation payable to the claimant, following issues were framed:-
1. Whether the petitioner received injuries in an accident on 21.06.2012 caused by respondent No. 1, while driving Ecco Car bearing No. DL-1LP-6814 rashly and negligently, owned by Respondent No. 2 and insured with Respondent No. 3? ... OPP
2. If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP
3. Relief.
14. Claimant entered in the witness box as PW-1 and stated similar facts vis-a-vis accident as well as compensation claimed by him as were already stated by him in the claim petition.
MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 4 of 13
15. He proved his Identity Card given to him by his employer as Ex. PW1/1, ESIC Card as Ex. PW1/2, Voter Card as Ex. PW1/3 and Discharge Summary of Bensups Hospital as Ex. PW1/5. He deposed that he has not received any reimbursement from any quarter regarding his medical bills.
16. In cross-examination, he deposed that he was wearing helmet at the time of accident which was seized by the police. He also deposed that on the date of accident, the motorcyclist had a driving license to drive the motorcycle.
17. Other suggestions contrary to his case were also denied by him.
18. Claimant again entered in the witness box to prove bills towards his treatment and proved them as Ex. PW1/6.
19. Claimant had summoned a witness from the Office of his employer. However, the employer sent a certificate to this Tribunal certifying therein that claimant was employed with them at a salary of Rs. 6,600/- which with the passage of time had increased to Rs. 10,261/- per month. It was also stated in that certificate that the claimant had worked with them from 08.08.10 to 14.01.13.
20. Claimant had stated that he has suffered permanent disability and he was examined by DDU Hospital. However, the said Hospital gave a certificate MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 5 of 13 that the claimant has not suffered any physical disability.
21. No other witness was examined by any other party and arguments were addressed by Sh. H.S. Mehra, learned Counsel for the claimant and Sh. M.P. Shahi, learned Counsel for the insurance company.
22. On the basis of pleadings of parties, evidence on record and arguments addressed, issue-wise findings are as under-:
ISSUE NO. 123. Burden of proving this issue is on the claimant.
24. 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.
25. This is sine qua non for getting the relief.
26. Statement of claimant was recorded by the Investigating Officer where he had stated similar facts vis-a-vis accident as were stated by him in his claim petition.
27. Pursuant to that statement, Investigating Officer investigated in the matter and filed charge- sheet under Section 279, 337 and 338 of IPC against Respondent No. 1.
28. Respondent No. 1 and 2 have filed their MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 6 of 13 written statement and have taken a defence that the accident was due to self negligence of the motorcyclist.
29. However, when claimant entered in the witness box, he was not cross examined by counsel for the driver.
30. Respondent No. 1 did not enter in the witness box to prove the defence raised by him in his written statement.
31. Therefore, in the light of unchallenged evidence of claimant it is held that the accident was due to such negligence of Respondent No. 1 alone.
32. 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 MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 7 of 13 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"
33. 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."
34. In the case of National Insurance MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 8 of 13 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 respondents-claimants 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 charge- sheet under Sections 279/304-A, 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."
35. 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) MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 9 of 13 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.
36. Therefore, this issue is decided in favour of claimant and against Respondent No. 1.
ISSUE NO. 237. 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 MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 10 of 13 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. Non-pecuniary 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.
38. As per Discharge Summary of Bensups Hospital Ex. PW1/5, claimant was admitted in that hospital on 21.06.12 and discharged on 30.06.12 as a case of RTA with tentorial bleed. He was treated conservatively.
39. As per MLC, nature of injuries are grievous. Therefore, claimant is awarded a compensation of Rs. 45,000/- for Pain and Suffering.
40. Medical bills worth Rs. 38,252/- are on record. Therefore, claimant is awarded a compensation of Rs. 38,252/- for Cost of Treatment.
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41. With the kind of injuries suffered by the claimant, he would have needed the help of an attendant at least for a period of three months.
42. Therefore, claimant is awarded a compensation of Rs. 15,000/- for Attendant's Charges @ Rs. 5,000/- per month.
43. Additionally, claimant is awarded Rs. 15,000/- for Special Diet and Rs. 15,000/- for Conveyance Charges.
44. Claimant has stated that his salary was Rs. 10,000/- per month but he could not attend to his office for three months.
45. Therefore, for Loss of Wages, claimant is awarded a compensation of Rs. 30,000/-.
46. Claimant has not suffered any permanent physical disability.
47. Therefore, total compensation payable to the claimant will be Rs. 1,58,252/- which shall be payable with interest @ 7.5% per annum from the date of filing of this claim petition i.e. 02.07.2012 till its realization.
48. Insurance company has not proved any defence.
49. Let the compensation be deposited by the Insurance Company within 30 days from today under intimation to the claimant as well as to his counsel by Registered Post.
50. In case, the compensation remains unpaid MACT No. 319/12 Sh. Sanjeev Kumar v. Sh. Raju Gupta & Ors. Page No. 12 of 13 even after 90 days of the passing of the award, the same shall be recovered by attaching the bank account of Insurance Company along with a cost of Rs. 5,000/- in terms of judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688.
51. Nazir of this Court will also send intimation of deposit of compensation to the claimant as well as to his counsel.
52. Ahlmad will put up this file with a report from Nazir regarding deposit of compensation again on 01.06.2014.
53. Copy of this order be given dasti to all the parties.
54. File be consigned to the Record Room.
Announced in the Open Court On the 01st March, 2014.
(ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL-II DWARKA COURTS, NEW DELHI.
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