Delhi District Court
Radhika vs Rinku Tiwari on 25 January, 2019
IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
D-87/17
Unique Case I.D. No.: MACT/807/2017
Radhika
W/o Sh. Rajesh Kumar
R/o H. No. 4/466, Khichripur,
Block-4, Delhi-110091
..... Petitioner
VERSUS
1. Rinku Tiwari
S/o Sh. Shiv Kumar Tiwari
R/o Village Neempur, Shukul Bazar,
Distt. Amethi, Uttar Pradesh
..... Driver
2. Bilal Khan
S/o Sh. Rahisuddin
R/o D-54, Gali No. 6, Dairy Farm,
Ghazipur, Delhi-110096
..... Owner
..... Respondents
Date of Institution : 30.01.2017
Date of Reserving : 25.01.2019
Date of Judgment : 25.01.2019
JUDGEMENT
D87/17 Radhika vs Rinku Tiwari & Anr. 1 of 11 PLEADINGS:
1. Smt. Radhika, (the petitioner), 31 years, suffered 'grievous' injury in the form of 'fracture anterior tibia left' in a motor vehicular accident that occurred at 03.15 p.m. on 29.12.2016 in front of H. No. B-60, Gali No. 6, Ghazipur Diary Farm, Delhi, while she was moving on foot, on way to Ghazipur Diary Farm to purchase milk, when ECCO Van bearing registration No. DL-1LS 0830 (the van), allegedly driven in rash and negligent manner by the respondent No. 1, had hit her. The petitioner instituted an accident claim case in context of Detailed Accident Report (DAR) submitted by HC Budhpal Singh, Investigating Officer under section 166 (4) of the Motor Vehicles Act, 1988 (MV Act) on the basis of evidence collected during investigation of criminal case vide FIR No. 520/16, initially, registered under section 279/337 of Indian Penal Code, 1860 (IPC) at PS Ghazipur impleading driver and owner of the car as the respondent No. 1 and 2 respectively.
2. The respondent No. 1 has not participated in the inquiry. He has not filed written statement.
3. The respondent No. 2, in written statement, contended that the respondent No. 2 used to transport milk in the van from milk dairy of Madan Lal Bainsla at B-59, Village Ghazipur, Delhi. He contended that the van was parked outside the said dairy for the purpose of loading milk cans. He contended that he went inside for supervising filling of milk cans and kept keys of the van on the table of the said dairy. He contended that the respondent No. 1, who was employed in the said dairy, taken the keys without his permission.
D87/17 Radhika vs Rinku Tiwari & Anr. 2 of 11
4. According to the respondent No. 2, the respondent No. 1 driven the van and caused accident. He contended that he had not caused any accident. He contended that the accident was caused by the respondent No. 1 was an employee of the said Madan. He contended that the respondent No. 1 and his employer Madan are liable to pay compensation to the petitioner. He claimed false implication. ISSUES:
5. On the pleadings, following issues were framed:
(i) Whether on 29.12.2016 at about 3.15 p.m. in front of H. No. B-60, Gali No. 6, Ghazipur Diary, Delhi, the respondent No. 1 / Rinku Tiwari caused injury to the petitioner / Radhika due to rash and negligent driving of ECCO Van bearing registration No. DL-1LS 0830?
(OPP)
(ii) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
(OPP)
(iii) Whether the petitioner is entitled to interest on the award amount, if so, to what rate of interest and for which period?
(OPP)
(iv) Relief.
PETITIONER'S EVIDENCE:
6. The petitioner appeared as PW-1. He filed evidence by way of affidavit Ex.PW1/A. She deposed manner of accident. She relied on voter card Ex.PW1/1, MLC Ex.PW1/2, final bill Ex.PW1/3, treatment record and medical bills Ex.PW1/4, charge-sheet Ex.PW1/5 and discharge summary Mark 'P'.
D87/17 Radhika vs Rinku Tiwari & Anr. 3 of 11 RESPONDENT'S EVIDENCE
7. The respondent No. 2 appeared as R2W1. He filed evidence by way of affidavit Ex.R2W1/A. FINAL ARGUMENTS:
8. I have heard arguments of Sh. Ratnesh Tiwari, Advocate for the petitioner examined evidence on file of tribunal. Counsel for the respondent No. 2 did not address final arguments despite several opportunities. ISSUE NO. 1:
9. In a claim instituted on principle of 'fault liability', it is incumbent upon the petitioner to prove rash and negligent driving of the offending vehicle. The standard of proof is not that rigorous as that applied in criminal cases. The evidence is tested on touchstone of preponderance of probabilities.
10. In order to prove rash and negligent driving of the van, the petitioner appeared as PW-1. She deposed, on strength of affidavit Ex.PW1/A, sequence of events leading to occurrence. She deposed, in affidavit Ex.PW1/A, that on 29.12.2016 at 03.15 p.m., she went to Ghazipur Dairy Farm to purchase milk. She categorically deposed that when she reached in front of H. No. 60, Gali No. 6, Ghazipur Dairy, Delhi, the van bearing registration No. DL-1LS 0830 had hit her from front and she fell down on road. She deposed that she suffered serious injuries on her left leg and other parts of her person.
11. The petitioner was cross-examined by counsel for the respondent No. 2. In her cross-examination, she denied suggestion that she was deliberately screening Madan and falsely implicated the respondent No. 2.
D87/17 Radhika vs Rinku Tiwari & Anr. 4 of 11
12. On careful examination of cross-examination of the petitioner, it is evident that there is nothing in her cross- examination which can render her evidence not worthy of credit. It may be relevant to note that it was the specific case of the respondent No. 2 that the accident was caused by his vehicle which was driven by the respondent No. 1 who was employee of Madan, owner of Madan Dairy. However, in cross- examination, he made suggestion that the vehicle which caused the accident belonged to Madan. Relevant portion of cross- examination is extracted as under:
"It is wrong to suggest that the vehicle by which the accident was caused belonged to Madan, owner of the dairy. Vol. I do not know. It is wrong to suggest that due to good relations with Madan as I used to take milk from his dairy and I am deliberately saving Madan and falsely implicating the alleged respondent No. 2 as the person by whose vehicle the accident took place. It is wrong to suggest that this particular alleged vehicle was not involved in the present accident..... It is wrong to suggest that I am deposing falsely at the instance and in collusion with one Madan, owner of Madan Dairy and IO to save Madan as it was his vehicle by which the accident was caused and not this present alleged vehicle and I am falsely implicating him to extort money from the respondent No. 2."
(emphasis supplied)
13. At this stage, it would be relevant to refer relevant portion of reply of the respondent No. 2, as under:
"1. That the answering respondent No. 2 is the owner of the so called offending vehicle and at the time of the incident, the offending vehicle used to transport milk from the dairy of one Mr. Madan Lal Baisla R/o B-59, Village Ghazipur, Delhi to his own dairy, which is in the same locality in B-Block, Ghazipur, and the offending vehicle was parked outside the dairy of Madan for the purpose of loading milk in the cans and then to carry to his own dairy, which is B-59, B-Block, Village Ghazipur.
D87/17 Radhika vs Rinku Tiwari & Anr. 5 of 11 However, when the answering respondent parked the vehicle outside the above-said dairy and went inside for the purpose of filling the cans with milk and as usual he put the keys on the table of Madan Dairy and thereby started supervising the work of filling the milk in the cans.
2. That while the answering respondent No. 2 was busy in the work, in the meanwhile, the respondent No. 1, who used to work in Madan Dairy took the keys without permission, knowledge and consent of the respondent No. 2 and took the vehicle, and thereafter, the respondent No. 2 came to know that the respondent No. 1 met with an accident."
(emphasis supplied)
14. It is, therefore, evident that the respondent No. 1 was driving the van belonging to the respondent No. 2. It is proved that the respondent No. 1 had hit the petitioner and caused injuries to her. It may be further relevant to note that the case FIR was lodged at 08.05 p.m. on 29.12.2016 within 5 hours from the time of the accident. The evidence of the petitioner is in sync with her statement contained in case FIR. The respondent No. 1 alongwith van was apprehended at the place of the accident. Particulars of the respondent No. 1 and the van are mentioned in case FIR. The van was seized from the place of the accident. The respondent No. 1 has neither stated nor deposed as to why he could not avoid the accident. Rash and negligent driving of the van is inherent in sequence of events proved on file of the tribunal.
15. According to MLC Ex.PW1/2, the petitioner was admitted at 04.05 p.m. on 29.12.2016 in LBS Hospital, Khichripur, Delhi-110091 as a case of road traffic accident (RTA).
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16. The petitioner was diagnosed to have suffered 'fracture tibia left'. The nature of injury is 'grievous'.
17. It is proved that the petitioner suffered 'grievous' injury in a motor vehicular accident due to rash and negligent driving of the van by the respondent No. 1.
18. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondents. ISSUE NO. 2:
19. The petitioner suffered 'grievous' injury in accident arising out of rash and negligent driving of the van by the respondent No. 1. She is entitled to just and reasonable compensation for the injury.
PAIN AND SUFFERING:
20. As noted in MLC Ex.PW1/2, the petitioner was admitted at 04.05 p.m. on 29.12.2016 in LBS Hospital, Khichripur, Delhi-110091 as a case of road traffic accident (RTA). The petitioner was examined to have suffered 'lacerated wound measuring 3 x 2 cm left leg below knee with diffuse swelling'. She was diagnosed to have suffered 'open fracture anterior middle 3rd tibia left'. The petitioner received treatment as an indoor patient from 29.12.2016 to 01.01.2017 in Ram Lal Kundal Lal Orthopedic Hospital, Delhi-110092 vide discharge summary Mark 'P'. She underwent 'wound debridement and closure'. The nature of injury is 'grievous'. In view of nature of injury and period of indoor treatment, she is awarded an amount of Rs. 25,000/- under the head of 'pain and suffering'.
D87/17 Radhika vs Rinku Tiwari & Anr. 7 of 11 MEDICAL EXPENSES:
21. Final bill in the sum of Rs. 49,519/- issued by Ram Lal Kundan Lal Orthopedic Hospital Ex.PW1/3 was paid by 'Apollo Munich Health Insurance Co. Ltd.' under medi-claim policy and therefore, the petitioner is not entitled to recover the said medical expenses.
22. The petitioner suffered additional medical expenses in the sum of Rs. 29,043/- vide medical bills Ex.PW1/4. Accordingly, she is awarded Rs. 30,000/- under the head of 'medical expenses'.
LOSS OF INCOME:
23. The petitioner, in affidavit Ex.PW1/A, claimed that she is a 'homemaker' and she remained bed-ridden for 3 months. She suffered 'fracture tibia left'. She received treatment as an indoor patient from 29.12.2016 to 01.01.2017 in Ram Lal Kundal Lal Orthopedic Hospital, Delhi-110092 vide discharge summary Mark 'P'. She underwent 'wound debridement and closure'. According to treatment record Ex.PW1/4, the petitioner visited Ram Lal Kundan Lal Hospital as an outdoor patient on 09.01.2017 and 14.01.2017. She further visited the said hospital on 04.02.2017, 18.02.2017, 18.03.2017 and 22.04.2017. It is, therefore, evident that the petitioner remained under active treatment till 01.01.2017 and thereafter, she visited the said hospital on weekly and monthly basis. In view of nature of injury and treatment record, the petitioner is awarded loss of income for 2 months on benchmark of minimum wages for unskilled workers. She is awarded (9,724 x 2) = 19,448/- (rounded of) Rs. 20,000/- under head of 'loss of income'.
D87/17 Radhika vs Rinku Tiwari & Anr. 8 of 11 SPECIAL DIET AND CONVEYANCE:
24. The petitioner has claimed an amount of Rs. 20,000/-
towards special diet and Rs. 15,000/- towards conveyance. She has not led any evidence to prove that she was prescribed any special diet. She has not led any evidence that she purchased protein rich or nutritious diet. She has not led any evidence that she engaged any conveyance and incurred expenses thereon. In view of the nature of the injury and period of treatment, she is awarded Rs. 5,000/- each under the head of 'special diet and conveyance'.
ATTENDANT CHARGES:
25. The petitioner has claimed attendant charges @ Rs.
5,000/- per month for 3 months. She has not led any evidence that she engaged any attendant to assist her during treatment as an indoor patient or thereafter. She has not led evidence that she incurred any expense on attendant. The nature of injuries suffered by her did not render her immobile and dependent on others for her daily life activities. Accordingly, the petitioner will not be entitled to attendant charges. (See: Daisy Kuriakose versus Sanjay Kumar & ors., MAC APP No. 513/2008 decided on 26.04.2016).
26. The compensation awarded to the petitioner is computed, as under:
Sl. No. Head of compensation Amount
1. Pain and suffering Rs. 25,000/-
2. Medical expenses Rs. 30,000/-
3. Loss of income for 2 months Rs. 20,000/-
4. Special diet and conveyance Rs. 10,000/-
Total Rs. 85,000/-
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AWARD
27. The petitioner is awarded compensation in the sum of Rs. 85,000/- alongwith interest @ 9% p.a. from date of filing of the petition till date of award. The respondent No. 1 and 2 shall deposit award amount with the tribunal within 30 days and otherwise, award amount will carry interest @ 9% per annum from date of filing of the petition till realization. [See: judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.]. Copy of award be supplied to the respondent No. 1 and 2 for compliance. File be consigned to record room.
Digitally signed by SANJAYSANJAY SHARMA Location: East District, Karkardooma Courts, Delhi SHARMA Date: 2019.01.25 15:53:19 +0530 Announced in the open Court Sh. Sanjay Sharma Dated: 25th January, 2019 Presiding Officer MACT (East) Karkardooma Court, Delhi D87/17 Radhika vs Rinku Tiwari & Anr. 10 of 11 DAR No. 87/17 25.01.2019 Present : Sh. Ratnesh Tiwari, Advocate for the petitioner. None for the respondent No. 2 / owner. It is 3.30 p.m.
The tribunal heard final arguments on behalf of the petitioner on 13.12.2018. The tribunal adjourned the case for 24.12.2018, 18.01.2019 and 25.01.2019 for the purpose of arguments of counsel for the respondent No. 2. However, counsel for the respondent No. 2 neither submitted oral nor written arguments. Vide separate judgment, award is passed. To come up for compliance on 25.02.2019.
Sanjay Sharma PO MACT (East)/KKD Delhi/25.01.2019 D87/17 Radhika vs Rinku Tiwari & Anr. 11 of 11