Delhi District Court
Smt. Guddi Devi vs . Mustkeen & Ors. Mact No. 172/15 on 30 October, 2017
Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15
BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL:
NORTHEAST DISTT. : KARKARDOOMA COURTS COMPLEX: DELHI
Presiding Officer: ANAND SWAROOP AGGARWAL: DHJS
Additional District & Sessions Judge: Delhi
MACT No. 172/15 FIR No. 1240/15
ID No. 15500/15 U/s. 279/337/304A IPC
P.S. Khajuri Khas.
In the matter of:
Smt. Guddi Devi W/o. Late Prem Pal Through:
R/o. E220, Street No.6, Mr. Jatinder Kamra, Advocate,
20 Futa Road, (Mob.: 9810254409)
West Karawal Nagar, Ch. No. 28, Western Wing,
Delhi - 110094. Tis Hazari Courts, Delhi - 110 054.
( details given in compliance with Clause 27 of
Modified Claims Tribunal Agreed Procedure)
...... Claimant
Versus
1. Mustkeen S/o. Sh. Farmood 2. Momeen S/o. Sh. Idreesh
R/o. Village Paavi, Loni, R/o. E13, Gali No.1, Sri Ram
Distt. Ghaziabad, UP. Colony, Rajeev Nagar, New Delhi.
(DRIVER OF VEHICLE SCORPIO (OWNER OF VEHICLE
NO. DL10CT1695) SCORPIO NO. DL10CT1695)
3. Liberty Videocon General Insurance
Co. Ltd. Through its Manager
Front of 2nd Floor, AIPS Building, 56,
A - Block, Connaught Place, New
Delhi. (INSURER) ..... Defendants
i) Date of institution of claim petition : 18.12.2015
ii) Date when reserved for award : 16.10.2017
iii) Date of award : 30.10.2017
Page No. 1 of 19 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI /30.10.2017
Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15
CLAIM PETITION U/S. 166 & 140 OF THE MOTOR VEHICLES ACT, 1988
A W A R D
1. CASE OF THE CLAIMANT AS PLEADED IN CLAIM PETITION
On 12.11.2015 on the occasion of Vishkarma Day at about 18:45 hrs. Prem
Pal alongwith claimant and minor children was performing pooja while standing on
the footpath of Pusta Road, Near Kanhaiya Public School, PS Khajuri Khas, Delhi
when all of a sudden a speedily driven White Color Scorpio bearing registration no.
DL10CT1695 came from Sabhapur Side and tried to overrun / cross speed breaker
without slowing down, resulting in sudden jump of Scorpio which engrossed the
footpath, where claimant and her family were performing pooja / prayer and hit the
claimant and her family members. The speed and recklessness of driver of offending
Scorpio was to such an extent that even after hitting four persons offending Scorpio
did not stop and hit a wall and fell on service lane, resulting in grievous injuries to
claimant. This accident occurred sheerly due to high speed driving coupled with non
- adherence to traffic rules and insensitivity toward other road users. Had the driver
of the offending Scorpio DL10CT1695 been vigilant this accident could have
averted. The driver of erring Scorpio failed to discharge proper case while driving a
SUV vehicle and grossly neglected the speed limits due to which the accident
occurred. The speed of offending vehicle was not less than 80 - 90 kmph at the time
of accident. The claimant suffered grievous injuries due to the road accident and was
taken to GTB Hospital and MLC No. A4801/15 was prepared. The claimant suffered
grievous injuries and about 40 stitches were made on left eye, 7 stitches on nose and
injuries on chest. The claimant remained admitted at GTB Hospital from 12.11.2015
to 22.11.2015 and treatment is till continuing. FIR was recorded by the police and
expenses are being incurred by claimant as wounds have not healed till date.
Page No. 2 of 19 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI /30.10.2017
Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15
Claimant was housewife at the time of road accident was providing /
discharging the services as normally an Indian housewife performs starting from
housekeeping, to guiding and nurturing young ones, bringing grocery, paying utility
bills etc, working as seasoned manager and using inter - personal skills in maintaining
smooth relationships among the family members and with society at large.
These voluntary services had pecuniary value of less than Rs.20,000/ per
month as claimant is unable to perform these services extra expenses are being
incurred to outsource these services. The claimant is incurring expenses on medical
treatment, pharmacy, special diet, conveyance, attendant as the treatment is still
continuing. Exact amount of these heads shall be ascertained after complete recovery.
Various stitches and wound marks have left ghastly marks / scars on the facial
region / head etc. of the claimant which has diminished the personality and
appearance of claimant for which compensation of Rs.2,00,000/ may be granted.
Besides pecuniary expenses claimant is suffering immense pain and suffering loss of
amenities of life, confinement to bed / boredom due to accidental injuries for which a
sum of Rs.10,00,000/ may be granted. The claimant has not sought reimbursement
or refund of medical bills or expenses incurred from source except this petition.
Claimant has claimed Rs.20,00,000/ as compensation with interest @ 12%
p.a. in her favour and against the defendants.
1.2 DAR was filed on 18.03.2016 and it was ordered to be tagged with claim
petition.
2.1 STAND TAKEN BY DEFENDANTS NO.1 & 2 IN THEIR COMMON
WRITTEN STATEMENT OF DEFENCE.
Defendant no.1 has been falsely implicated in the alleged accident while
defendents have nothing to do with the said accident. No accident took place due to
Page No. 3 of 19 (ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD / DELHI /30.10.2017
Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15
negligence on defendant no.1, while the police implicated defendant no.1 in false
criminal case and also claimants implicated the defendant no.1 in the false accidental
case under conspiracy to get false compensation from defendant no.1. The deceased
and other injureds were standing on the road alongwith the vehicle and some other
vehicle had hit them and they were not able to note down the number of that vehicle.
The driver of the offending vehicle helped him only and injured has given the number
of the vehicle and police falsely implicated the driver in this case. Defendant no.1 has
nothing to do with this case and he was falsely implicated by the victim and IO of the
case.
At the time of alleged accident the vehicle in question was insured with
Liberty Videocon Insurance Company Ltd. and defendant no.1 had valid driving
licence, permit and fitness and, therefore, the insurance company is liable to
compensate the claimants if accident took place as alleged.
2.2 STAND TAKEN BY DEFENDANT NO.3 IN THE WRITTEN
STATEMENT OF DEFENCE.
The following are the particulars of the vehicle insured with defendant no.3:
1 Registration Number DL10CT1695 (PVT VEHICLE)
2 Policy No. 201120010214100611300001
3 Period 19.03.15 to 18.03.16
4 Date of accident 12.11.15
5 Owner name Sh. Mommen
6 Insured Name Rahisuddin who has not been impleaded as respondent
7 Driver Mustkeen The liability of defendant no.3, if any, shall be subject to terms, conditions, exceptions and limitations of the insurance policy, involvement and negligence of Page No. 4 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 vehicle in question.
3. ISSUES Vide order dated 28.05.2016 ld. predecessor of this tribunal framed the following issues:
(i) Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. DL 10CT 1695 by respondent no.1 on 12/11/2015 at about 18:45 hours on footpath of Pusta Road, Near Kanahaiya Public School, P.S. Khajuri Khas, Delhi within the jurisdiction of P.S. Khajuri Khas? OPP
(ii) Whether petitioner is entitled to compensation? If so to what amount and from whom? OPP
(iii) Relief
4. EVIDENCE Claimant examined PW1 Dr. P. K. Sahu, Professor, Opthaimology, GTB Hospital, Delhi and PW2 Manoj Kumar. Claimant herself appeared in witness box as PW3 Smt. Guddi Devi. Defendant no.1 appeared in the witness box as D1W1 - Mustkeem (sic) and evidence of defendants no.1 and 2 closed by court order on 04.08.2017. On 22.05.2017 ld. counsel for defendant no.3 closed DE without leading any evidence.
5. INTERIM AWARD On 21.01.2017 interim was passed in favour of claimant directing defendant no.3 to deposit Rs.25,000/ within 30 days from the date of award with interest @ 9% p.a. from the date of filing of petition till date of the interim award. Pursuant to this award cheque no. 940680 dated 15.02.2017 for an amount of Rs.27,632/ in the name of Guddi Devi was released to claimant.
Page No. 5 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15
6. STATEMENT UNDER CLAUSE 26 OF MCTAP.
On 08.09.2017 statement of claimant was recorded under clause 26 of MCTAP.
7. ARGUMENTS I have heard Ms. Indu Aggarwal (P/c) for Mr. Jitender Kamara, Ms. Sulekha Thakur, Adv. for defendants no.1 and 2 and Ms. Kiran Kumari (P/c) for Mr. M. P. Shahi, Adv. for defendant no.3. Written submissions also filed by defendant no.3. I have gone through the material available on judicial file carefully.
8. MY ISSUEWISE FINDINGS ARE AS UNDER: 8.1. ISSUE No.1 Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle no. DL 10CT 1695 by respondent no.1 on 12/11/2015 at about 18:45 hours on footpath of Pusta Road, Near Kanahaiya Public School, P.S. Khajuri Khas, Delhi within the jurisdiction of P.S. Khajuri Khas? OPP Claimant has examined, besides PW3 Guddi / claimant, PW2 Manoj, as an eyewitness to the accident, who in his evidence affidavit Ex. PW2/A deposed as:
"2. That on 12112015 on the occasion of Vishkarma Day at about 18:45 hrs deponent was sitting near the ladder going on Pusta Road, near by Sh. Ish Prem Pal who was my neighbour, along with his family was performing pooja while standing on the footpath of Pusta Road, near Kanahaiya Public School, PS Khajuri Khas, Delhi, when all of a sudden a speeding driven white colour Scorpio bearing No DL10CT1695 came from Sabhapur side and tried to overrun/cross speeding breaker without slowing down, resulting into abrupt sudden jump of Scorpio which engrossed the foothpath where Sh. Prem Pal and family members were performing pooja and hit Prempal an other family members resulting in road accidental injuries. The speed and recklessness of the driver of offending Scorpio DL10CT1695, was to such an extent that even after hitting four persons offending Scorpio did not stop and hit a wall and fell Page No. 6 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 on the service lane before coming to halt. This accident occurred solely due to rash and negligence of driver of Scopio DL10CT1695 and none else, had driver of Scopio DL10CT1695 been vigilant this accident could have averted. The lack of duty to drive carefully, and slowing the speed, keeping vehicle under control while driving on a public way was missing resulting in to this road accident. PS Khajuri Kas Delhi recorded FIR No 1240/15 dated 121115 on my statement and same is true.
3. That I apprehended the offending driver who also suffered some injuries and handed over to police. I narrated the incident to police and injured persons were taken to hospital PCR."
In his crossexamination PW2 Manoj has been made to depose as under : "XXXXXX by Smt. Sulekha Thakur, D1 and D2.
I did not receive any court notice to appear before the court today. Guddi Devi is residing 3 / 4 streets away from my house. It is correct that as per my evidence affidavit the vehicle of deceased was stationed on the road and deceased alongwith his family a were standing on the footpath.
I am 5th class pass.
Q. Do you know the contents of para. 2 of your evidence affidavit?
A. I can't read English.
My evidence affidavit has been prepared as per my instructions. Q. Kindly tell what you had instructed for preparation of your evidence affidavit?
A. I do not remember the number of vehicle but it was TATA Eicher in Cherry colour which was stationed near the footpath. I was standing on the footpath ahead of the vehicle. Guddi Devi was sitting on the peripheral wall alongwith footpath of the road. From the Sabhapur side white colour Scorpio came. There was a speed breaker prior to the position of Tata Eicher. The scorpio vehicle was being driven at a very high speed and driver could not control the vehicle and hit Guddi Devi, her husband and three children. The scorpio had broke down the wall and had fallen towards the other side of the wall near the 'Nala'. I was asked that much on.
Q. Kindly tell who had told you about the number of scorpio vehicle as mentioned in the FIR and statement made by you before the police?
A. I had witnessed the accident.
It is wrong to suggest that I was also indulged in setting the abovesaid vehicle scorpio on fire after the accident. Police recorded my statement Page No. 7 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 on 12.11.2015. I was taken by the police to the PS and I was not taken by the police at any other place. Accident had occurred at about 6.45 p.m. It is correct that I had seen the number of scorpio after the accident. (Vol. I had seen the number when it had fallen down after breaking the wall.) It is wrong to suggest that accident involving the claimant, her husband and children had occurred by reason of involvement of some other vehicle and scorpio vehicle has simply fallen down on the other side of wall.
It is correct that I was sitting on the peripheral wall of the footpath ahead of the front face of Eicher vehicle and claimant, her husband and children were so sitting towards the backside of the Eicher. It is wrong to suggest that I saw the scorpio only after the said vehicle fallen down on the other side of the wall. It is correct that the place where Eicher was there was not meant for parking. I do not know whether the Eicher vehicle was new or not. (Vol. Pooja was being performed of the Vehicle.) It is wrong to suggest that I did not witness the accident. It is wrong to suggest that I am deposing falsely at the instance of claimant.
Xxxxx by Mr. M P Shahi, Adv. for D3 / insurance company. Adopted as above."
AS AGAINST THIS EVIDENCE, defendant no.1 while appearing as D1W1 Mustkeem (sic) in his evidence affidavit Ex. D1W1/A deposed as under : "2. That on 12.11.2015, the deceased has parked his vehicle on middle of road and his family members were performing Puja of vehicle alongwith the deceased.
3. That the some vehicle came, hit them and run away from the spot.
4. That the respondent no.1 try to note down the number of the vehicle, who hit the deceased and his family members and try to cross the speed breaker and lost the control over the vehicle.
5. That in this process the vehicle of the respondent No.1 turn and turtle.
6. That the family members, friends and relative of the deceased given the respondent's Scorpio number to the police officials.
7. That the family and friends of the deceased set in fire the vehicle of the respondent.
8. That the police officials also did not investigate the matter and register the F.I.R. against the vehicle of the deponent.
Page No. 8 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15
9. That the police file false case against the deponent before this Hon'ble Court."
IN HIS CROSSEXAMINATION D1W1 MUSTKEEM (sic) deposed as under: "xxxxx by Mr. Jitender Kamara, Adv. For claimant. On 12.11.2015 at about 6:45 p.m. I was going from Pavi to Khajuri Khas by scorpio vehicle, whose number I do not remember. However, it was of white colour. The vehicle is owned by Momeen/ defendant no. 2. Q. Kindly tell whether police had apprehended you when your scorpio vehicle had hit canter no. DL 1LT 5796 ?
Ans. My vehicle was not involved in the accident. I was apprehended by the police and taken me to the PS. I was told that someone had given my vehicle number to the police. My vehicle was stationary about 20mtr. away in the back side of abovesaid canter.
It is wrong to suggest that I was driving the vehicle at such a high speed and had firstly hit the canter and thereafter hitting the footpath rammed into the service road adjacent to place of accident. I am not facing any criminal case regarding the accident which subject matter of this case. Police had seized my DL. It is correct that I am on police bail. Q. Kindly tell about the condition of the your vehicle after the accident? Ans. No accident took place involving my vehicle. Q. Kindly tell for how much time you remain at the place of accident after the accident?
Question objected to by ld. counsel for defendants no. 1 & 2 submitting that once the witness is denying the accident repeatedly. Heard. Question disallowed keeping in view the consistent depositions made by witness that no accident took place involving these vehicles. Obviously truthfullness of this stand shall be decided by the court at the appropriate stage and all legal consequence shall full. Q. Kindly tell whether you have file any protest petition/complaint before any authority/complaint regarding your involvement in case FIR No. 540/15 u/s. 279/337 /304A IPC PS Khajuri Khas?
Ans. I have told about my false implication to the owner Momeen , but I did not file any protest petition/complaint before any authority/court. Q. It is put to you that defendant no. 2 Momeen was served with notice u/s. 133 Motor Vehicles Act Ex. D1W1/X1 by SI Jasbir Singh. Can you identify the signature of your employer at point A on this document? Ans. I do not know about the manner in which defendant no. 2 signs.
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However at point A name of defendant no. 2 is mentioned. It is wrong to suggest that I was driving the vehicle at a high speed and because of speed breaker I could not control the vehicle and the same had hit the canter and thereafter it had rammed into the service road adjacent to place of accident.
Xxxxx by Ms. Archana Singh, Adv. Proxy for Mr. M. P. Shahi, Adv. For defendant no. 3.
Nil. Opportunity given."
AT THE OUTSET it is to be noted that even the defendant no.1 by virtue of depositions made in evidence affidavit Ex. D1W1/A is, as such, admitting the factum of accident and the manner in which it happened. EVEN THE EVIDENCE AFFDAVIT (Ex. D1W1/A) OF DEFENDANT NO.1 supports the manner of happening of the accident, as such, as alleged by claimants in the claim petition. HOWEVER defendant no.1 is denying his involvement in the accident. WHAT IS TO BE NOTED is that the depositions made by D1W1 Mustkeem (sic.) in his cross examination to the effect that, "..... My Vehicle was stationary about 20 mtr. away in the back side of the abovesaid canter", are absolutely contrary to the evidence affidavit of D1W1 Mustkeem (sic.) and, particularly, to the paras. 5 thereof wherein D1W1 Mustkeem (sic.) deposed that, "5. That in this process the vehicle of the respondent No.1 turn and turtle." If the vehicle of defendant no.1/D1W1 Mustkeem (sic.) was stationary about 20 mtr. away in the back side of the canter, there was no occasion for vehicle of defendant no.1 turning turtle in the process of defendant no.1 trying to note down the number of the vehicle which had hit the deceased. Evidence of D1W1 Mustkeen is not worth reliance from judicial mind in the totality of facts and circumstances of this case.
NOW COMING TO EVIDENCE OF PW2 MANOJ. Presence of PW2 Manoj at the place of accident stands admitted keeping in view the manner in which he has been crossexamined. However his place of sitting as deposed by him, as it so Page No. 10 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 appears, is not as per his place of his sitting as per the site plan prepared by police. But same is immaterial in the totality of facts and circumstances of this case particularly keeping in view the manner in which accident took place and as to what happened after the accident. In the facts and circumstances of this case principle of resipsaloquitor is applicable and explanation given by defendant no.1 while appearing as D1W1 Mustkeem (sic.) is not acceptable to judicial mind. It cannot be said that credit of PW2 Manoj stood shook in the course of his crossexamination. Police has prepared Final Form Report (Under Section 173 Cr.PC) which is part of DAR, charging defendant no.1 for the offences punishable u/s. 279/337/338/304A IPC. Defendant no.1 has not filed any protest petition/complaint before any authority/court regarding his alleged false implication in criminal case. Claimant has examined PW1 P K Sahu who has proved permanent disability certificate as Ex.PW 1/A mentioning that claimant suffered 20% permanent disability qua left eye. In the totality of facts and circumstances of this case being guided by the principle of preponderance of probabilities issue in hand is decided in favour of claimant and against the defendants.
8.2 ISSUE NO.2 Whether petitioner is entitled to compensation? If so to what amount and from whom? OPP In view of my finding(s) on issue no.1 claimant is entitled to compensation under section 165 r/w. Section 166 of the Motor Vehicles Act, 1988.
PW3 Smt. Guddi Devi / claimant in her evidence affidavit has deposed as under: "7. That deponent also suffered grievous injuries due to this road accident as was hit by offending Scorpio bearing No DL10Ct1695 along with her husband and children. Deponent was taken to GTB Hospital for treatment of accidental injuries and MLC NO A 4801/15 was Page No. 11 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 prepared. That deponent suffered 40 stitches on head, left eye, 7 stitches on Nose coupled with facture of Nasal Bone and injuries on chest. Deponent remained admitted from 12115 to 221115 at GTB Hospital and thereafter remained as OPD Patient from Govt and private hospitals. That due to injuries on chest and head deponent occasionally suffers difficulty in breathing, loss of consciousness and pain at back. Deponent had not completely regained its original physical and mental condition which deponent used to enjoy prior to this road accident and had developed scars on face leading to impairment and ugly personality. That eye - sight of deponent had diminished and deponent had developed 20% permanent impairment in respect to eye. Copy of disability certificate is exhibited as PW1/12. Deponent due to accidental injuries had spent amount of pharmacy, medical tests, conveyance, special diet and attendant. Deponent had spent Rs.30,000/ Few bills of expenditure incurred by deponent amount to Rs.5,858/ on pharmacy is coll. Exhibited as PW1/13. Deponent could not preserve and procure few bills due to trauma and accidental death of spouse in this road accident. Deponent had not sought any refund or reimbursement of medical bills from any source except the present case. Copy of discharge card and treatment record is coll. exhibited as PW1/14. That treatment of deponent continued for six month and deponent could not perform her functions as home maker and had to spent Rs.80,000/ on outsourcing few services of home maker through full time maid. That expenses of about 30,000/ were incurred on special diet as deponent used to take juices, soups etc. That deponent had made about 30 trips to hospital, private doctors and pharmaceutics on which a sum of Rs.25,000/ approx was spend on conveyance as to and fro charges to various trips to hospital, private doctors and pharmaceutics. That due to accidental injuries deponent had developed scars on her face where overall general personality of deponent had diminished leading to low self esteem and unpleasant personal appearance for which Rs.20,000/ may be granted. That due to 20% permanent of eye, deponent is unable to lead a normal life and is suffering hindrances in performing day to day life functions presently and also adverse repercussion in future life. Deponent is facing difficulty in performing functions of housewife, managing young ones, difficulty in catering young ones and need assistance for her at late evening hours of day. Deponent also suffered pain and trauma, loss of amenities, loss of longevity of limb and life, confinement to bed, boredom due to accidental injuries for which Rs.10,00,000/ may be granted."
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In her examination in chief and crossexamination PW3 Smt. Guddi Devi deposed as under: (Note: Pursuant to order dated 21.01.2017 both the cases bearing no. 172/15 and 173/15 arising from the same accident were consolidated for the purpose of recording evidence. As such entire evidence is being led in case no.172/15 and same may be read in case no.173/15.) I hereby tender my evidence by way of affidavit which is Ex. PW 3/A and bears my signatures at points A to C. I rely upon the document which is exhibited as Ex. PW3/1, Ex. PW3/2 (Colly. 54 pages) - DAR, Ex.PW3/3, Ex.PW3/4, Ex.PW3/5, Mark - PW3/6, Mark - PW3/7, Mark - PW3/8, Ex.PW3/9 (Colly. 3 pages), Ex.PW3/10 (Colly. 3 pages), Ex.PW3/11 (Colly. 3 pages), Ex.PW3/12, Ex.PW3/13 (Colly. 6 pages), Ex.PW3/14 (Colly. 2 pages), Ex.PW3/15 and Ex.PW3/16. XXXXXX by Mustkeem, defendant no.1 in person.
Nil. Opportunity given.
Xxxxx by Defendant no.2.
None has appeared for Defendant no.2 despite repeated calls and sufficient wait. Further wait / calls not justified. Hence Defendant no.2 proceeded against as exparte.
Xxxxx by Mr. M P Shahi, Adv. for D3 / insurance company u/s. 170 of the Motor Vehicles Act, 1988.
My deceased husband was earning income as depicted in the ITR from driving his own vehicle i.e. TATA 407. The said vehicle was purchased after obtaining loan and my husband used to pay the installments. The vehicle is still lying with me. I am unable to pay the installments as the vehicle is lying idle. After the demise of my husband I am unable to pay the installments of the vehicle. I do not know the name of the bank from which the vehicle was financed by my husband. It is wrong to suggest that the vehicle is still plying and installments are being paid out of the income drived thereof.
My all the children are minor and are non working and non earning. I am housewife and not paying income tax. It is wrong to suggest that original income tax returns forms placed on the record are fabricated. I was present at the spot when the accident took place. I do not know whether police took my statement.
I was standing on extreme left on the footpath of the road. We were offering prayers on the Vishwakarma Day on our vehicle when the Page No. 13 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 accident had occurred. It is wrong to suggest that all the family members while offering pooja were standing in the middle of the road i.e. right side of Tata 407.
I have no documentary proof to show that I have incurred the expenses on special diet, conveyance, attendant. It is wrong to suggest that all medical bills placed on record are fabricated. It is wrong to suggest that I have not suffered permanent disability - impairment as mentioned in the disability certificate. It is wrong to suggest that I am able to see the objects properly. At present I am able to do house of works. (Vol. It is so because I am suffering from financial crises and cannot afford engagement of attendant / housemaid.). It is wrong to suggest that I am not suffering any financial crises.
It is wrong to suggest that I am deposing falsely. It is wrong to suggest that I have filed false and wrong affidavit."
As per MLC of claimant she had suffered grievous injury. She was unfit for her statement at the time of preparation of MLC. Even at 5:45 p.m. on 14.11.2015 she was unfit for her statement. As per Patient Discharge Summary Ex.PW3/14 she was admitted on 13.11.2015 and discharged from GTB Hospital on 22.11.2015. Her Final Diagnosis was, "Small Hgic contusion in Rt Parietal with B/L Nasal bone # with # Lt frontal sinus." Except MLC, Patient Discharge Summary, Emergency Registration Card and certain bills there is nothing on record to show the medical treatment / expenses of the claimant. Claimant has also examined PW1 Dr. P. K. Sahu who in his evidence deposed as under: "ON SA I am summoned witness and I have brought the original record alongwith the disability certificate of Smt. Guddi Devi, W/o Late Sh. Prem Pal, the same is Ex. PW 1/A which bears my signatures at point A. I have personally examined Smt. Guddi Devi at the time of issuance of disability certificate. I was one of the board member. I also identified the signatures of other board members. She is suffering from linear scar at lateral , inferior, medial, orbital margin on left side with left eye temporal pallor of optic disc. She will be able to lead a normal life. She will be not be able to do things which require depth perception such as using microscope. The scars are permanent in nature. There is no possibility of Page No. 14 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 any further deterioration due to age and time. She will be able to see properly during night time and will have no problem in performing her duty as a housewife. The disability is due to the injuries sustained in the accident. She can see clearly distant objects such as a bus from a distance.
Xxxxx by Sh. M. P. Shahi, ld. Counsel for respondent no. 3. I have also perused the previous medical record of the injured before issuing the disability certificate.
Xxxxx Ms. Sulekha Thakur, ld. Counsel for respondents no. 1 & 2. Nil. Opportunity given."
In view of above depositions of PW1 Dr. P. K. Sahu functional disability of claimant deserves to be assessed at zero percent inasmuch as claimant is a housewife and PW1 Dr. P. K. Sahu has deposed that claimant will have no problem in performing her duty as a housewife.
Claimant was a housewife. Notional value of gratuitous services rendered by claimant to her family members is assumed to be minimum wages equivalent to that of a non - matriculate as on date of accident (i.e. Rs.10,140/ per month) being guided by Royal Sundaram Alliance Insurance Company Ltd. Vs. Master Manmeet Singh & Ors. 2012 ACJ 721. There being no specific evidence regarding the period of treatment of claimant.
Keeping in view the nature of injuries suffered by claimant the said period is assumed to be the period of 3 months. In the totality of facts and circumstances of this case claimant is held to be entitled to following compensation under different heads: Sl. No. Particulars Amount in ₹ 1 Medical Expenses (Ex. PW3/13) 5858.00 2 Loss of gratuitous services for 3 months (₹ 10,140.00 x 3) 30,420.00 3 Pain and Sufferings 25,000.00 4 Special Diet / Conveyance Attendant Charges 25,000.00 Page No. 15 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 5 Loss of Personality / Appearance due to scars on face 15,000.00 Total 1,01,278.00 Rounded to 1,01,280.00 8.3 LIABILITY Here DL of defendant no.1 has been verified by I/O in the DAR. Defendant no.2 is the registered owner of the vehicle no. DL10CT1695 as on date of accident. The vehicle is insured in the name of Rahisuddin as a "NEW" vehicle for the period from 19.03.2015 (18:50 hrs) to MID NIGHT OF 18.03.2016. Date of Cover Note is 19.03.2015. As per reply given by Rahisuddin to the notice under section 133 M. V. Act, 1988 Rahisuddin sold the vehicle no. DL10CT1695 to defendant no.2 on 12.04.2015 and it was registered in the name of defendant no.2 as on the date of accident. In the totality of facts and circumstances of this case it is a matter of fact that vehicle no. DL10CT1695 is insured with defendant no.3 in the name of Rahisuddin who sold the vehicle to defendant no.2, the registered owner as on date of accident. Failure to implead Rahisuddin as a party herein is inconsequential inasmuch as it has already come on record through DAR that he had sold the vehicle to defendant no.2, who got it registered in his name. On his impleadment he would have replied in the same manner he replied the notice u/s. 133 M.V. Act, 1988. Absence of Rahisuddin during these proceedings has not prejudiced any body. There is no evidence of breach of terms and conditions of insurance policy by defendant no.2. Thus, defendant no.3 is liable to indemnify defendant no.2 qua the abovesaid liability 8.4 ISSUE NO. 3: RELIEF In view of my above findings claimant is held to be entitled to compensation to the tune of Rs.1,01,280.00 (inclusive of interim award) payable by defendant no.3 Page No. 16 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017 Smt. Guddi Devi Vs. Mustkeen & Ors. MACT No. 172/15 with interest @ 9% p.a. from the date of filing of claim petition (i.e.18.12.2015) till the date of notice of deposit of awarded amount inclusive of interest by defendant no.3 with copy to ld. counsel for claimants.
As per section 168 (3) of the Motor Vehicles Act, 1988 this award is to be complied with within 30 days and, hence, it is ordered that if award is not complied with within 30 days from today by defendant no.3, defendant no.3 shall be liable to pay interest @ 12% p.a. on the awarded amount for the default period. Defendant no.3 is directed to deposit the awarded amount with this tribunal by issuing a cheque in favour of claimant. The entire awarded amount shall be liable to be released to the claimant keeping in view statement made by claimant under clause 26 of MCTAP.
9. Put up on 30.11.2017 for compliance.
10. Attested copies of the award be furnished to parties and be also sent to DLSA and Ld. MM.
11. FormIV to the MCTAP is attached herewith as Annexure - A.
12. File be consigned to Record Room after completing due formalities.
Pronounced in Open Court on 30.10.2017
(ANAND SWAROOP AGGARWAL)
PO - MACT / NE / KKD COURTS / DELHI
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Annexure A
FORM - IV
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE AWARD
1. Date of accident 12.11.2015
2. Date of intimation of the accident by the Investigating No intimation given. Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by the Investigating Not known Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section 173 Cr. P. C. - do before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident Information Report 18.03.2016 (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the Insurance Company 18.03.2016 (Clause 11)
7. Date of service of DAR on the claimant(s) (Clause 11) 18.03.2016
8. Whether DAR was complete in all respects? (Clause No
16)
9. If not, state deficiencies in the DAR Site plan not to scale; multiangle photographs of injured not filed; some requirements of clause 102 of the DAR not completed
10. Whether the police has verified the documents filed Yes with DAR (Clause 4)
11. Whether there was any delay or deficiency on the part As noted above. No action was of the Investigating Officer? If so, whether any warranted. action / direction warranted?
12. Date of appointment of the Designated Officer by the Not known Insurance Company. (Clause 19)
13. Name, address and contact number of the Designated - do - Officer of the Insurance Company. (Clause 19)
14. Whether the Designated Officer of the Insurance No. Insurance company contested the Company submitted his report within 30 days of the case on merits.
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DAR? (Clause 21)
15. Whether the Insurance Company admitted the No.
liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
(Clause 22)
16. Whether there was any delay or deficiency on the part No. 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 offer of the No Offer was given Insurance Company. (Clause 23)
18. Date of the award 30.10.2017
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) examined at the time of Yes passing of the award to ascertain his / their financial condition? (Clause 26)
21. Whether the photographs, specimen signatures, proof Yes of residence and particulars of bank account of the injured / legal heirs of the deceased taken at the time of passing of the award? (Clause 26)
22. Mode of disbursement of the award amount to the Lump sum release claimant(s). (Clause 28)
23. Next Date of compliance of the award. (Clause 30) 30.11.2017 (ANAND SWAROOP AGGARWAL) P.O. MACT(NorthEast), KKD Delhi Page No. 19 of 19 (ANAND SWAROOP AGGARWAL) PO - MACT / NE / KKD / DELHI /30.10.2017