Delhi District Court
Ms. Gajala Parveen vs Sh. Upender Paswan on 20 August, 2019
IN THE COURT OF SH. RAKESH KUMAR - III
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL-02
(CENTRAL):DELHI
MACT Case No.: 358363/16
Ms. Gajala Parveen
D/o. Mohd. Tauhid Alam
R/o. Khasra No. 43/18, Gali No. 42, C-Block,
Inderprasth Colony, Burari, Delhi - 110084. .......Petitioner
VERSUS
1. Sh. Upender Paswan
S/o Sh. Jugal Paswan
R/o H. No. 239, Gyani Transport,
Gyani Border, PS Sahibabad,
Distt. Ghaziabad, U.P.
Also at : VPO - Rajkhand PS Aurai,
Distt. Muzafarpur, Bihar. (Driver)
2. Sh. Rohan Diwan
S/o Sh. Kiran Diwan
R/o. H. No. 5/431, Mohalla Maharam,
Shahdara, North East, Delhi - 110032.
Also at : VPO Manesar,
Guargaon - 122001. (Regd. Owner)
3. SBI General Insurance Company Ltd.
7B, Ground Floor, Pusa Road, Opposite
Rachna Cinema, Metro Pillar No. 153,
Rajendra Park, New Delhi - 110060. (Insurer) ......Respondents
Date of Institution (DAR) : 28.09.2016
Date of reserving order/judgment : 20.08.2019
Date of pronouncement : 20.08.2019
MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 1/11
JUDGMENT CUM AWARD
INFORMATION IN TERMS OF PROVISIONS OF THE MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP) 1 Date of Accident 21.04.2016 2 Date of intimation of the accident by the 22.04.2016 Investigation Officer to the Claims Tribunal (Clasuse2) 3 Date of intimation of the accident by the 28.09.2016 Investigation Officer to the Insurance Company (Clause2) 4 Date of filing of the Report under section Not filed 173 Cr.PC before the Metropolitan Magistrate (Clause 10) 5 Date of filing of Detailed Accident 28.09.2016 Information Report(DAR) by the Investigation Officer before Claims Tribunal (Clause) 6 Date of service of DAR on the Insurance 28.09.2016 Company (clause11) 7 Date of service of DAR on the claimant(s) 28.09.2016 (Clause11) 8 Whether DAR was complete in all Yes respects? ( Clause11) 9 If not state deficiencies in the DAR Nil 10 Whether the police has verified the Yes documents filed with DAR? (clause4) 11 Whether there was any delay or deficiency No on the part of the Investigation Officer? If so, whether any action/ direction warranted? 12 Date of appointment of the Designated Not mentioned Officer by the Insurance Company 13 Name , address and contact number of the Not mentioned Designated Officer of the Insurance Company(Clause 19) 14 Whether the Designated officer of the No insurance Company submitted his report within 30 days of the DAR?(Clause 21) 15 Whether the Insurance Company admitted NIl the liability? If so, whether the Designated Officer of the Insurance Company fairly MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 2/11 computed the compensation in accordance with law. (Clause22) 16 Whether there was any delay or deficiency No on the part of the Designated officer of the Insurance Company? If so whether any action/ direction warranted?
17 Date of response of the claimant(s) to the 21.08.2018 offer of the Insurance Company? (Clause
23) 18 Date of Award 20.08.2019 19 Whether the award was passed with the No consent of the parties? (Clause 22) 20 Whether the claimants(s) examined at the Yes time of passing of the award to ascertain his/ their financial condition? (Clause 26) 21 Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/ legal heirs of the deceased taken at the time of passing of the award? (Clause26) 22 Mode of disbursement of the award amount Mentioned in the award to the claimant(s) (Clause 28) 23 Next Date of compliance of the 20.09.2019 award(Clause30) MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 3/11
1. This is a claim for compensation arising out of Detailed Accident Report u/s 158 (6) MV Act filed by PS Burari, Delhi, in respect of injuries suffered by the petitioner in the road traffic accident on 21.04.2016 and same is treated as petition u/s 166 MV Act, 1988.
2. The case of the petitioner is that on 21.04.2016 at about 1:00 PM, petitioner was going to her house along with her father from School on his bicycle and when they reached at Main Road, Burari, one Truck bearing registration no. HR-55H-5998, which was being driven by its driver rashly and negligently came from the back side and hit the bicycle with great force. As a result of this, both fell down on the road and petitioner received injuries. She was immediately taken to the BJRM Hospital, Gandhipur, where her MLC was prepared. By way of present petition, the petitioner claimed compensation of Rs. 10,00,000/- on account of the injuries sustained by her in the accident.
3. The written statement was not filed by Respondents No. 1 and 2, despite opportunity.
4. The written statement was filed by respondent no. 3 / insurance company admitting therein that the offending vehicle was insured with it as on the date and time of accident.
5. From the pleadings of the parties, following issues were framed for consideration on 21.08.2018 :-
1. Whether the petitioner Ms. Gajala Parveen suffered injuries in an accident that took place on 21.04.2016 at about 1:00 PM involving Truck bearing registration No. HR-55H-5998 driven rashly and negligently by respondent no. 1, owned by the Respondent No. 2 and insured with the Respondent No. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 4/11 whom?
3. Relief.
6. In order to establish the claim of the minor petitioner, her father stepped into the witness box and examined himself as PW-1 and exhibited the documents viz., Ex.PW1/1 - original medical record of the petitioner, Ex.PW1/2 - original medical bills, Ex.PW1/4 - copy of aadhar card of the petitioner (OSR), Mark A - Copy of school identity card of the petitioner, Mark B - Copy of election I card of PW1, Ex.PW1/6 - DAR (colly).
7. Respondents no. 1 to 3 did not lead any evidence in their defence.
8. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsels for the parties.
My findings on aforesaid issues are as under :-
ISSUE NO. 19. The present petition is under Section 166 of M V Act and as such, it was the duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
10. The police has filed the Detailed Accident Report (DAR) pertaining to the case FIR no. 218/16 P.S. Burari u/s 279/337 IPC.
11. To prove this issue, father of the minor petitioner appeared in the witness box and examined himself as PW-1 and deposed that on 21.04.2016 at about 1:00 PM, petitioner was going to her house along with him from School on his bicycle and when they reached at Main Road, Burari, one Truck bearing MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 5/11 registration no. HR-55H-5998, which was being driven by its driver rashly and negligently came from the back side and hit the bicycle with great force. As a result of this, both fell down on the road and petitioner received injuries. She was immediately taken to the BJRM Hospital, Gandhipur, where her MLC was prepared.
The cross-examination carried on by the Respondent No.3 is not suggestive of anything which may discard the claim of the petitioner that the driver of the offending vehicle was not rash and negligent at the time of accident. The Respondents No. 1 & 2 have not cross examined the witness.
12. It is pertinent to note that the respondent no.1/driver of aforesaid Truck, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Truck bearing registration No. HR-55H-5998. The insurance company has not led any evidence on this aspect.
13. While determining the negligence, reliance can be placed upon the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein the Hon'ble High Court has held that in case the petitioner files the certified copy of the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR in addition to recovery memo and mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach at the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 6/11 Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, it was held that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under section 166 and 140 of the Act.
14. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
15. This aspect has also been considered recently by the Hon'ble High Court of Delhi in the case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors in MAC App. No. 200/2012 decided on 23/07/2012. The Hon'ble High Court has held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 wherein it was held as under:
"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 any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 7/11 have been applied."
16. Thus, the issue no. 1 is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 : COMPENSATION NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
17. As per MLC, the petitioner has suffered simple injuries. The petitioner has filed medical bills to the tune of Rs. 4245.89/-. Keeping in view the nature of injuries as well as medical documents filed on record, I hereby grant a sum of Rs. 4245.89/- towards medical expenses. (Same is rounded off to Rs.4246/-) PAIN AND SUFFERINGS :
18. It is settled law that a particular amount can not be fixed for pain and sufferings in all the cases and it varies from case to case. Judicial notice can be taken to the fact that since the petitioner had got injuries as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have taken heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No:
709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 8/11 which has to be paid must bear some objectives co- relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
19. Keeping in view the said guidelines, nature of injuries and duration of treatment, I hereby grant Rs. 3,000/- towards pain and sufferings. I hereby award a sum of Rs. 2,000/- towards special diet and conveyance.
LOSS OF STUDIES DURING TREATMENT PERIOD
20. The petitioner was stated to be a student of Govt. Girls Sr. Sec. School, Nathupura, Delhi. Keeping in view the nature of injuries, it appears to me that petitioner could not have studied for about 15 days. Accordingly, I award a lump sum amount of Rs. 2,000/- towards loss of studies. I also award Rs.2,000/- towards loss of enjoyment of childhood and play during treatment period.
The total compensation is assessed as under:-
Treatment expenses: Rs. 4,246/-
Pain and sufferings: Rs. 3,000/-
Conveyance & special diet: Rs. 2,000/-
Loss of studies treatment period Rs. 2,000/-
Loss of Childhood & Play during
treatment period Rs. 2,000/-
__________
Total: Rs. 13,246/-
MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 9/11
RELIEF:
21. I award Rs. 13,246/- (Rupees Thirteen Thousand Two Hundred Forty Six Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e. 28/09/2016 till realization in favour of the petitioners and against the respondents on account of their liability being joint and several.
The entire amount with upto date interest be transferred in the saving account of the petitioner upon providing necessary details account details and identification documents.
MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 10/11APPORTIONMENT OF LIABILITY
22. The Respondent No: 3 being the insurer is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
23. A copy of this award be given to the insurance company as well as to the petitioner free of cost.
24. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 20.09.2019.
Announced in the open court (RAKESH KUMAR-III) on this 20th day of August, 2019. PO: MACT-02 (CENTRAL) DELHI/20.08.2019 MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 11/11 MACT Case No.: 358363/16 20.08.2019 Present : Ld. Counsels for the parties.
Arguments heard.
Put up for judgment at 4:00 PM.
( Rakesh Kumar - III ) P.O. MACT (Central - 02) Delhi / 20.08.2019 AT 4:00 PM Present: None.
Vide separate detailed judgment of even date today, I award Rs.13,246/- (Rupees Thirteen Thousand Two Hundred Forty Six Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR i.e. 28/09/2016 till realization in favour of the petitioners and against the respondents on account of their liability being joint and several.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 20.09.2019.
( Rakesh Kumar - III ) P.O. MACT (Central - 02) Delhi / 20.08.2019 MACT No. 358363/16 Gajala Parveen Vs. Upender Paswan Ors. Page No. 12/11