Delhi District Court
Shri Ran Singh vs Shri Guddu Hari Lal on 1 November, 2012
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 291/12
IN THE MATTER OF :
Shri Ran Singh,
S/o Shri Bhagwan Singh,
R/o Pole No. 36, Near Holi Chowk,
Sector - 23, Village Pochanpur,
Dwarka, New Delhi. ... Petitioner
Versus
1. Shri Guddu Hari Lal, (Driver)
S/o Shri Kalu,
R/o E80/490, Jhilmil Colony,
Shadara, Delhi - 110 095.
2. M/s. Taneja Service Station, (Owner)
Through its Manager,
IOC Petrol Pump, Pocket - A, IFC,
Gazipur, National Highway, 24 bye pass,
Delhi.
3. The New India Assurance Company Limited, (Insurance)
A74, Swami Dayanand Marg,
Main Road, Kanti Nagar, Krishna Nagar,
New Delhi - 110 051.
... Respondents
Policy No. 32030331100100008337 Valid From : 25/02/2011 to 24/02/2012 Vehicle No. : DLIGB7008 (TATA Tanker) MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 1 of 15 Filed on : 29.03.2012 Reserved on : 25.10.2012 Decided on : 01.11.2012 : 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.
Case of the Petitioner:
3. Case of the petitioner in this claim petition is that on 24.10.11, at about 11.20 a.m., petitioner was going to Gurgaon on electric scooty alongwith Sh. Jot Ram who was driving the scooty as per traffic rules and regulations at a normal speed. The petitioner was pillion rider on that scooty.
4. When the petitioner reached at Dwarka Link Road, Pushpanjali cut, P.S. Kapashera, New Delhi, in the meanwhile, one Tata Tanker, bearing registration no. DL1GB7008 came from Pushpanjali Farm House, Bijwasan from IOC side. Respondent No. 1 was driving the offending vehicle in a rash and negligent manner, at a high speed in total contravention of traffic rules and regulations, in a zig zag manner and in the process struck with the electric scooty of the petitioner from front side.
5. It is stated that due to huge impact, petitioner and MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 2 of 15 Sh. Jot Ram fell down on the road and sustained multiple grievous injuries.
6. It is stated that petitioner suffered fracture right tibia, fracture left radius and other multiple grievous injuries on the whole parts of his body.
7. Petitioner was taken to Base Hospital, Delhi Cantt.
where doctors on duty prepared MLC.
8. It is stated that petitioner was treated at Mata Chanan Devi Hospital, Janak Puri, New Delhi and spent Rs. 50,000/ on his treatment which is still continuing.
9. It is stated that the accident took place due to sole negligence of driver of offending vehicle.
10. It is stated that police has registered FIR No. 185/11 under Section 279/338 of IPC against Respondent No. 1 at P.S. Kapashera.
11. It is stated that petitioner suffered amputation of right leg, injuries on left foot, face and arm and other multiple grievous injuries on the whole parts of the body.
12. It is stated that petitioner was 77 years of age at the time of accident. He is an ExArmy man and was running a grocery shop and was earning more than Rs. 10,000/ per month from the said shop. However, now due to this accident he is not able to do his work any more and is suffering financial loss.
13. It is stated that petitioner had engaged an attendant w.e.f. 25.10.11 till date at a salary of Rs. 4000/ per MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 3 of 15 month and he has spent Rs. 5,000/ on conveyance till date and Rs. 200/ per day on special diet and on the fees of doctors.
14. Petitioner has claimed a total compensation of Rs.
12 lacs with interest @ 12% p.a. from the date of filing of petition till its realisation.
Case of Respondent No. 1 and 2:
15. Respondent No. 1 and 2 have stated in their written statement that the petitioner and pillion rider were not wearing helmets and the accident had taken place due to contributory negligence on the part of petitioner.
16. It is stated that the driver of scooty was not driving the scooty as per rules and regulations prescribed under Motor Vehicles Act.
17. It is stated that driver of the scooty had jumped the red signal and came in front of the tanker and due to loss of control over handle of the scooty, petitioner and driver of scooty fell down and might have sustained injuries due to their own fault and not due to any fault of answering respondent.
18. It is stated that Respondent No. 1 was holding a valid and effective driving license and was having a license to drive petroleum products as well and if there is any liability, that is to be borne by the insurance company. Case of Insurance Company:
19. Insurance company has stated in its written statement that insurance company will be liable only if it is MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 4 of 15 proved that Tanker bearing registration no. DL1GB7008 was driven by a person having a valid and effective driving license at the time of accident and he was not disqualified to hold or obtain the same and also if the said Tanker had a valid permit.
20. It was admitted that the vehicle was insured by insurance company vide policy no. 32030331100100008337 valid for a period from 25.02.11 to 24.02.12 in the name of M/s. Taneja Service Station, Shahdara, Delhi.
21. It is also stated that compensation claimed is without any basis and is exorbitant.
22. Rest of the contents of claim petition were denied.
23. From the pleadings of the parties, following issues were framed:
(i)Whether the petitioner received injuries in an accident on 24.10.2011 caused by Respondent No. 1, while driving Tata Tanker bearing No. DLIGB7008 rashly and negligently? OPP
(ii) If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent?
(iii) Relief.
24. Petitioner entered in the witness box as PW1 and stated similar facts in his evidence by way of affidavit as were already stated by him in the claim petition.
25. OPD Ticket of Mata Chanan Devi Hospital was proved as Ex. PW1/1 and Ex. PW1/2, receipts of payments given to the said hospital were proved as Ex. PW1/39, his MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 5 of 15 Election Identity Card was proved as Ex. PW1/10, Card as ex Serviceman given to the petitioner was proved Ex. PW1/11.
26. In crossexamination, he admitted that he was not wearing helmet at the time of accident. He was admitted and discharged from the hospital on the same date.
27. He stated that he has spent a sum of Rs. 3,590/ on his treatment at Mata Chanan Devi Hospital. He stated that his treatment will continue till the time he is alive. He stated that he was doing business of building supplies and he was not having any grocery shop. He deposed that there are ten family members but his grand children go to their schools and colleges and his children go for their jobs.
28. In these circumstances, he had to engage an attendant. He deposed that he had engaged an attendant for three months and his business was closed due to injury suffered by him in the accident.
29. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
30. Burden of proving this issue is on the petitioner.
31. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
32. This is sine qua non for getting the relief.
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33. Petitioner himself is an eye witness to the accident. He has stated in the claim petition that the offending vehicle, being driven at a fast speed, in contravention of traffic rules and regulations had hit the scooty being driven by petitioner from front side.
34. Respondent No. 1 and 2 have denied allegations of rash and negligent driving made against them by the petitioner.
35. Petitioner has reiterated allegations of rash and negligent driving against Respondent No. 1 in his evidence by way of affidavit.
36. In cross examination Respondent No. 1 took a new defence which was taken by them in their written statement that the clutch of scooty was struck up in the pocket of kurta of petitioner as a result of which he fell down.
37. This defence was not taken in the written statement.
38. Respondent No. 1 had filed his evidence by way of affidavit reiterating this defence.
39. However, this defence cannot be taken into consideration as the same was not taken in the written statement by Respondent No. 1.
40. Moreover, Respondent No. 1 admitted that he has not complained to the police against his false implication in this criminal case when he was not negligent or responsible for the accident.
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41. Police has investigated in the matter and has filed charge sheet against Respondent No. 1 under Section 279 and 338 of IPC which is also prima facie suggestive of rash and negligent driving of Respondent No. 1.
42. 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"
43. 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 MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 8 of 15 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.
44. 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."
45. In the case of National Insurance Company Ltd. v.
Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 9 of 15 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 charge sheet 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 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."
46. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
47. 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 MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 10 of 15 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 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 MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 11 of 15 (and/or loss of prospectus of marriage) and loss of expectation of life.
48. As per register of Medico Legal Cases, Base Hospital, Delhi Cantt., injuries suffered by the petitioner are grievous. He was taken to private hospital against medical advise. Petitioner was treated at Mata Chanan Devi Hospital where close reduction of all small fractures and dislocation of joints were done and POP cast below elbow / knee was applied.
49. As a result of this accident, petitioner has suffered permanent disability to an extent of 9% in relation to left upper limb and right lower limb.
50. Therefore, for Pain and Suffering, petitioner is given a compensation of Rs. 40,000/.
51. Petitioner has spent a sum of Rs. 3,590/ on his treatment. Petitioner is entitled to receive this amount as Cost of Treatment.
52. For Special Diet, petitioner is given a compensation of Rs. 5,000/ and another compensation of Rs. 5,000/ is given for Conveyance Charges.
53. This petitioner has suffered 9% physical disability being a case of Post Traumatic Stiffness at left wrist and right knee joints.
54. Therefore, functional disability can be assessed at 5%.
55. There is no proof of income of petitioner at the MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 12 of 15 time of accident.
56. Therefore, reliance can be placed on minimum rates of wages in Delhi for an unskilled workman which were Rs. 6,656/ per month.
57. It can be assumed that petitioner would have remained out of work at least for six months due to this accident.
58. Therefore, petitioner is given a compensation of Rs. 39,936/ for Loss of Wages due to accident i.e. Rs. 6,656/ x
6.
59. Considering the functional disability as 5%, petitioner would suffer Loss of Wages of Rs. 332/ per month.
60. As petitioner is more than 65 years of age, the multiplier applicable will be of 5 and Loss of Income in Future will be Rs. 19,920/.
61. Petitioner has stated that he had engaged an attendant.
62. Counsel for insurance company has vehemently opposed any relief to the petitioner for attendant's charges for the reason that when there are ten family members, petitioner would have been attended by family members.
63. However, Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta & Ors. MAC APP. No. 762/11 dated 04.07.12 has held that a victim of an accident has to be compensated in terms of money even if gratuitous services are rendered by a family member.
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64. In this case, reliance was also placed on DTC v. Lalita AIR 1981 Delhi 558.
65. Therefore, on lump sum basis petitioner is given a compensation of Rs. 10,000/ towards Attendant's Charges.
66. Resultantly, total compensation payable to petitioner would be Rs. 1,23,446/ which will be paid with interest @ 7.5% per annum (this is the rate of interest which is being awarded by Hon'ble High Court of Delhi at present) from the date of filing of this claim petition which is 29.03.2012 till its deposit in the Tribunal.
67. Insurance company has not proved any defence.
Therefore, compensation is to be deposited by insurance company which be paid within 30 days from today under intimation to the petitioner by registered post.
68. Following directions are given for investment/release of compensation: (1) Compensation shall be deposited by the insurance company directly with State Bank of India, Dwarka Courts, New Delhi and the cheque will be in the name of SBI A/c Jot Ram.
(2) 50%, out of the total compensation awarded, with proportionate interest shall be released in favour of Petitioner. This amount shall be released in his Saving Bank Account to be opened in State Bank of India, Dwarka Courts, New Delhi.
(3) Balance compensation will be kept in 3 FDRs of equal amount for a period of 1 to 3 years. Monthly interest will be credited in his MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 14 of 15 Saving Bank Account regularly.
(4) All the original FDRs shall remain with the bank. Only copies thereof will be given to the petitioner. However, pass book will be given to the petitioner. No cheque book shall be issued to the petitioner.
(5) No loan or advance will be given against these deposits.
(6) FDRs shall not be prematurely encashed without leave of this Tribunal.
(7) Petitioner shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
69. Copy of this order be given dasti to all the parties.
70. A copy of this order be also sent to the State Bank of India, Dwarka Courts, New Delhi.
71. File be consigned to the Record Room.
Announced in the Open Court.
On the 01st day of November, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
MACT No. 291/12 Shri Ran Singh Vs. Shri Guddu Hari Lal & Ors. Page No. 15 of 15