Delhi District Court
Baby Aakshi Garg vs . Rakesh Kumar Sharma & Ors. Page 1 Of 47 on 28 April, 2022
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 1 of 47
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 5112017
UNIQUE ID No. : DLNW010051802017
Baby Aakshi Garg, D/o Sh. Sohan Lal,
R/o H.No. 2727, Street No. 204,
Onkar Nagar, Tri Nagar, Delhi110035.
........ Petitioner/claimant
Vs.
1. Sh. Rakesh Kumar Sharma S/o Sh. Radhey Shyam Sharma,
R/o Roopa Ka Bas, Tehsil Thanagazi,
District Alwar, Rajasthan.
....... Driver /R1
2. Sh. Amit Sharma S/o Sh. Satya Prakash Sharma,
R/o 1657, Gali No.119,
Ganesh Pura, Tri Nagar, Delhi110035.
....... Owner/R2
3. M/s United India Insurance Company Limited,
1st Floor Plot No.78,
Above Union Bank of India,
Delhi Road, Sonepat, Haryana.
......Insurance co./R3
......Respondents
Other details
DATE OF INSTITUTION : 05.06.2017
DATE OF RESERVING JUDGMENT : 28.04.2022
DATE OF PRONOUNCEMENT : 28.04.2022
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 1 of 47
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 2 of 47
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI
Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident In the intervening night
of 03/04.06.2016
2. Date of intimation of the accident by the Petition was filed
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the Petition was filed
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Not available on
before the Metropolitan Magistrate record.
5. Date of filing of Detailed Accident Information Petition was filed
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance Company Petition was filed
7. Date of service of DAR on the claimant (s). Petition was filed
8. Whether DAR was complete in all respects? Petition was filed
9. If not, whether deficiencies in the DAR removed Petition was filed
later on?
10. Whether the police has verified the documents filed Petition was filed
with DAR?
11. Whether there was any delay or deficiency on the Petition was filed
part of the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by Petition was filed
the insurance Company.
13. Name, address and contact number of the Ms.Neeru Garg, Ld.
Designated Officer of the Insurance Company. Counsel for the
insurance co.
14. Whether the designated Officer of the Insurance Petition was filed
Company submitted his report within 30 days of the
DAR? (Clause 22)
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.
16. Whether there was any delay or deficiency onthe Petition was filed
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 2 of 47
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 3 of 47
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 offer of Petition was filed
the Insurance Company .
18. Date of the Award 28.04.2022
19. Whether the award was passed with the consent of No
the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were directed to 06.09.2019
open saving bank account (s) near his place of
residence and produce PAN Card and Aadhar Card
and the direction to the bank not issue any cheque
book/debit card to the claimant(s) and make an
endorsement to this effect on the passbook(s).
22. Date on which the claimant (s) produced the 06.01.2020
passbook of their saving bank account near the
place of their residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the Claimant(s) As mentioned above
24. Details of saving bank account(s) of the claimant(s)
Aakshi Garg savings
and the address of the bank with IFSC Code bank a/c No.
90612310000515, with
Syndicate Bank, Tri
Nagar, Branch, Delhi
IFSC :
SYNB0009061
25. Whether the claimant(s) saving bank account(s) is Yes
near his place of residence?
26. Whether the claimant(s) were examined at the time Yes
of passing of the award to ascertain his/their
financial condition.
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the Claims 110002427,
Tribunal in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 3 of 47
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 4 of 47
JUDGMENT
1. The present claim proceedings have emanated from a claim petition preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act') on 05.06.2017 for seeking compensation in the sum of Rs.35,00,000/ (Rupees Thirty Five Lakhs Only) along with interest @ 18% p.a. in respect of injuries sustained by Baby Aakshi Garg (hereinafter referred to as 'the injured/ the petitioner/ the claimant') in a motor vehicular accident. A perusal of court record reveals that another victim of the same accident, namely, Rajiv Aggarwal had got registered a zero FIR bearing number 001 at PS Shalimar Bagh for the alleged commission of offences of causing hurt by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/337 of Indian Penal Code 1860. A perusal of Court record reveals that subsequently, a general diary entry was also got recorded at PS Kotwali Didauli, Janpad Amroha vide entry No.041 on 09.06.2016 at about 14:20 hours in respect of injuries sustained by one Baby Aakshi Garg (hereinafter referred to as 'injured/petitioner/claimant') and five other persons travelling in Tempo Traveller bearing registration No.DL1VC2443(hereinafter referred to as 'the offending vehicle') in a road traffic accident in respect of which no further criminal action was taken by the police at concerned PS Kotwali Didauli, Janpad Amroha against one Rakesh Kumar, the driver of the offending vehicle(hereinafter referred to as the Respondent Number 1/R1) because instead of pursuing the matter at PS Kotwali Didauli, Janpad Amroha, the petitioner and other victims had preferred to pursue their claim petitions in the present Court.
2. The brief facts of the case as discernible from the petition are that on 03.06.2016, the petitioner along with eleven other passengers including her parents and other friends of her father along with their respective families had Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 4 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 5 of 47 started their journey from Delhi to Mountain Trail Resort, Mukteshwar in a tempo traveller bearing registration No.DL1VC2443, which they had booked from Sh. Amit Sharma, Proprietor of M/s Milan Travel , owner of the offending vehicle(hereinafter referred to as respondent No.2/R2) and in the intervening night between 03.06.2016 and 04.06.2016 at about 4:00 am, upon reaching near Village Budhanpur near Rajdhani Dhaba, District Amroha, U.P on NH24, the aforesaid tempo traveller had met with an accident with a truck as Sh. Rakesh Sharma (hereinafter referred to as respondent No.1/R1) rammed the vehicle into the backside of said truck, as a consequence of which the petitioner and other copassengers had sustained injuries all over their bodies. The petitioner was sleeping in the tempo traveller at the time of occurrence of the case accident and had been informed about the manner in which the accident in question had occurred by her father Sh. Sohan Lal who was awake at the relevant time. It is further the case of the petitioner that the factum of occurrence of above mentioned accident has also been reported to PS Kotwali Didauli, District Amroha, U.P. by driver of the offending vehicle, namely, Rakesh Kumar Sharma who had claimed in his intimation to the concerned police station that a Neel Gaye had suddenly come in front of his vehicle and while trying to save the said Neel Gaye, he had lost control over his vehicle which had got rammed into the back side of a truck moving ahead of his vehicle. It is the alleged case of the petitioner that after the accident, the petitioner was initially taken to Sai Hospital, Moradabad, U.P wherefrom the petitioner was shifted to Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi by Ambulance wherein she was medically examined vide MLC No.2401/16 containing a finding to the effect that she had sustained various injuries including avulsion injury over left leg and she was accordingly referred to plastic surgery department of the said hospital for further treatment and management. Patient Aakshi Garg had remained admitted at Sir Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 5 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 6 of 47 Ganga Ram Hospital with effect from 04.06.2016 and was discharged therefrom on 08.06.2016 after undergoing surgical procedure, such as, debriment of raw areas and Split Skin Graft (SSG) as well as inset of avulsed flap over left leg.
3. R1/Rakesh Kumar Sharma has filed his written statement wherein he had interalia stated that the present petition was based on suppressed statement of facts to extort money from R1 and did not disclose any cause of action against R1. He had further claimed in his defence that compensation claimed by the petitioner was highly exaggerated and the petitioner was, therefore, not entitled to any compensation. He had claimed in his defence that the offending vehicle was fully insured with United India Insurance Company Limited/R3 vide policy No.1120023116P102561326 having its validity period commencing from 02.06.2016 and expiring on 01.06.2017 and, therefore, the insurance policy of the offending vehicle was live and valid as on the date of occurrence of the alleged accident, that is, on the intervening night of 03.06.2016 and 04.06.2016. Moreover, it had further been claimed in the written statement of R1 that R1 was having a driving license valid upto 13.10.2028 issued by the competent authority making him eligible for driving a four wheeled motor vehicle on a public road and, therefore, as such, the R1 had no liability to pay any compensation to the petitioner and the liability to pay compensation, if any, to the petitioner would be that of the insurance company.
4. Sh.Amit Sharma, owner of the offending vehicle(hereinafter referred to respondent No.2/R2) has filed his separate written statement wherein he had interalia stated that the petitioner had not approached the Court with clean hands and had suppressed the material facts. He had further submitted in his written statement that there was no cause of action in favour of the petitioner for instituting the present claim proceedings against R2 as the accident in question had taken place due to rash and negligent act of the petitioner herself, and Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 6 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 7 of 47 hence, the present petition of the petitioner was liable to be dismissed with heavy cost. He had further claimed in his defence that the insurance policy of his vehicle was live and valid as on the date of occurrence of the case accident, and therefore, he was not liable to pay any compensation to any of the victims of the case accident including the present petitioner.
5. R3/United India Insurance Company Limited had filed its written statement wherein it had been averred that the claim of the petitioner was highly exorbitant, unfair and not substantiated with evidence. It had been further averred on behalf of R3 that unless and until it was proved that the driver of the offending vehicle was in possession of a valid driving licence and the owner of the said vehicle was having a valid and effective permit of the offending vehicle at the time of alleged accident, no liability can be fastened against the insurance co./R3. Besides, R3 had prayed for permission to avail all the defences available to it under section 170 of the M.V. Act in case R1 and R2 were found to be in collusion and connivance with the petitioner or would otherwise fail to contest the present petition.
6. It is pertinent to note that there are two connected matters related to the same accident titled as Sweety Garg Vs.Rakesh Kumar Sharma bearing MACT No.510/17 and Baby Aakshi Garg Vs. Rakesh Kumar Sharma bearing MACT No.511/17 and vide order dated 17.01.2019, the above named two connected files arising out of the same accident were consolidated for the purpose of recording of evidence of parties and the case file titled as Sweety Garg Vs. Rakesh Kumar Sharma was directed to be treated as main case file for the purpose of examination of witnesses by the learned predecessor Court. It was further observed that as per the admitted position of the parties, the testimonies of all the witnesses and documents relied upon by the parties were to be read in both the files.
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 7 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 8 of 477. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor of this court vide order dated 12.07.2018: (1) Whether on the intervening night of 03/04.06.2016 near Rajdhani Dhaba, Amroha, U.P on NH24 minor petitioner sustained injuries due to rash and negligent driving of vehicle No.DL1VC2443 driven by R1?OPP (2). Whether petitioner is entitled to compensation, if so, to what amount and from whom?
(3). Relief.
7.1 Ms. Sweety Garg,mother/guardian of petitioner Baby Aakshi had examined six witnesses in support of her version of the case. She(Sweety Garg) had examined herself as PW1; Dr. Swaroop Singh Gambhir, Consultant Plastic Surgeon, Sir Ganga Ram Hospital, New Delhi as PW2; Sh. Pyara Singh, Medical Record Officer, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi as PW3; another victim of the same accident, namely, Sh. Rajiv Aggarwal as PW4; Dr. G.K. Gupta, M.D.S, Dr. Gupta's Dental Center, H5, Ashok Vihar, PhaseI, Delhi as PW5 and Sh. Pardeep Singh, Assistant, Sir Ganga Ram Hospital, Delhi as PW6. No other witness had been examined by the mother of the petitioner in support of the case of the petitioner.
7.2 A perusal of the Court record reveals that all three respondents had not examined any witness in support of their respective versions of the case.
8. I have heard final arguments addressed by Ms. Sarita Aggarwal, learned counsel for the petitioner, learned proxy counsel for R1 & R2 and Ms. Neeru Garg, learned counsel for the insurance co./R3. My issue wise findings based on my appreciation of the evidence led by the parties are reproduced herein below:
9. Issue wise findings are as under: ISSUES No. 1 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 8 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 9 of 47
1. Whether on the intervening night of 03/04.06.2016 near Rajdhani Dhaba, Amroha, U.P on NH24 minor petitioner sustained injuries due to rash and negligent driving of vehicle No.DL1VC2443 driven by R1?OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioner.
9.1 Ms. Sweety Garg, mother of the petitioner had examined herself as PW1 by way of affidavit as Ex. PW1/A, wherein the mother of the petitioner had reiterated the facts mentioned in the petition by deposing that on the intervening night of 03.06.2016 and 04.06.2016, she was travelling in the offending vehicle along with her family comprising of her daughter Akashi Garg, husband Sh. Sohan Garg as well as other friends of Sh. Sohan Garg along with their respective family members and upon reaching near Rajdhani Dhaba at Village Budhanpur, District Amroha, U.P on NH24, the driver of the offending tempo traveller had struck the same into the back said of a truck as a consequence of which she and other copassengers had sustained injuries all over their bodies. She had claimed to have incurred huge expenses on medical treatment of her daughter including Rs.13,330/ as expenses paid by her from her own pocket and Rs.1,29,789/ paid through the medical insurance of her daughter during the treatment of her daughter as an inpatient at Sir Ganga Ram Hospital, Rs.15,000/ as consultation fees of various doctors, Rs.20,000/ as dressing charges and Rs.20,000/ on procurement of medicines prescribed by doctors during follow up treatment of her daughter from Sir Ganga Ram Hospital itself. Moreover, it had been averred by the petitioner in her evidence by way of affidavit that she had spent Rs.40,000/ as expenses on providing special diet to her daughter and Rs.5,000/ as charges on hiring ambulance for shifting her daughter from Sai Hospital, Moradabad, U.P. to Sir Ganga Ram Hospital at Delhi Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 9 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 10 of 47 as well as Rs.25,000/ as expenses on conveyance/travel of her daughter from her residence to the hospital and viceversa during the follow up treatment of her daughter. Also, the mother of the petitioner had deposed that she had availed services of a medical attendant for her daughter Aakshi Garg during her period of hospitalization with effect from 04.06.2016 to 08.06.2016 at the rate of Rs.1,000/ per day and thereafter, she had further incurred a sum of Rs.30,000/ for engaging a home servantcumattendant after the discharge of her daughter from the hospital. She had also averred in her examination in chief by way of affidavit that she was likely to incur another sum of Rs.5,00,000/ as future medical expenses on surgery of her daughter's leg as well as another sum of Rs.70,000/ each as charges for availing services of a medical attendant in future as well as for providing special diet to her daughter in future if her daughter was prescribed bed rest and special diet for future plastic surgery, if any. The mother of the petitioner had also claimed in her evidence by way of affidavit that the marriage prospects of her daughter had diminished due to injuries sustained by her in the case accident and she would be required to spend an extra sum of Rs.15,00,000/ on the marriage of her daughter in the aftermath of case accident. She had further averred in her evidence by way of affidavit that her daughter Ms. Aakshi Garg along with her husband's friend Sh. Rajeev Aggarwal, his wife Ms. Yukti Aggarwal and another friend of her husband, namely, Sh. Arun Kumar Bansal and his wife Ms. Shalu Aggarwal had sustained grievous injuries all over their bodies whereas other passengers had suffered minor injuries in the case accident. She had relied upon the following documents in support of her case: a. The booking slips for travelling from Delhi to Nainital Ex.PW1/1.
b. The online booking slips for the rooms for stay in Garh Muketswar Ex.PW1/2.
c. Her MLC and admission record Ex.PW3/1. Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 10 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 11 of 47 d. Copy of FIR Ex.PW1/5. e. Copy of DD entry No.041 recorded at PS Kotwali Didauli by R1 Ex.PW1/6. f. Her medical record Ex.PW3/1 and also Ex.PW6/1 (colly). g. Her OPD receipts Ex.PW1/8 (colly 5 pages). h. Her dressing receipt Ex.PW1/9 (colly). i. Her medical bills Ex.PW1/10 (colly). j. Treatment record of tooth of Sweety Garg already Ex.PW5/1, which was
an estimate given by the doctor and the original medical bills Ex.PW1/11.
k. Her future treatment estimate Ex.PW2/B. l. Copy of her ITR Ex.PW1/13 (objected to mode of proof). m. The receipts for her physiotherapy Ex.PW1/14 (colly). n. The pass book of the owner of the offending vehicle in which the owner
had received the claim amount in respect of damage sustained by his vehicle from the insurance co. regarding this accident Ex.PW1/15 (objected to mode of proof).
o. Certified copy of other cases settled in Lok Adalat Ex.PW1/16 and Ex.PW1/17 (colly).
p. The medical bills qua minor petitioner Aakshi Garg Ex.PW1/18 (colly).
9.2 In her cross examination by Sh. Neeraj Sharma, learned counsel for the insurance co./R3, PW1 had denied the suggestions that the case accident had occurred when a Neel Gaye had come in front of the offending vehicle and there was no negligence on part of R1. She further denied the suggestion that the offending vehicle had hit against a truck in the attempt made by R1 to save the Neel Gaye which had suddenly come in front of the offending vehicle. She Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 11 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 12 of 47 admitted that all the medical bills had been duly placed on record. She deposed that she used to file Income Tax Return(ITR) and the relevant ITRs had been placed on record. She deposed that she had cleared Central Teacher Eligibility Test (CTET) on 30.10.2015 and she proved on record a copy of the certificate issued in her favour in this regard as Ex.PW1/R3X1. She stated that her medical bills had been partly reimbursed by mediclaim policy to the tune of Rs. 2,50,000/ whereas the medical bills of her daughter Baby Aakshi had been partly reimbursed by mediclaim to the tune of Rs.1,16,459/. She deposed that she had not placed on record any document to prove her expenditure on special diet, conveyance and attendant charges. She further deposed that she had also not placed on record any document to show that she had been advised bed rest by the doctors for at least six months as well as to establish that she had been unable to give private tuitions to her students.
9.3 Sh. Sanjay Kumar Sharma, learned counsel for R1 and R2 had adopted the crossexamination of PW1 conducted on behalf of the insurance co./R3. 9.4 PW2 Dr. Swaroop Singh Gambhir, Consultant Plastic Surgeon from Sir Ganga Ram Hospital, New Delhi produced the summoned record pertaining to the treatment of patient Aakshi Garg Ex.PW2/A vide which patient Aakshi Garg was admitted in the said hospital on 04.06.2016 and was discharged on 08.06.2016. PW2 has also proved on record the estimated bill of future treatment required by patient Aakshi Garg to the tune of Rs.5,00,000/ as Ex.PW2/B. 9.5 In his cross examination by Sh. D.K. Sharma, learned counsel for the insurance co./R3, PW2 deposed that while doing a plastic surgery upon a patient, they usually did not keep the photographs of the affected portion and photographs if kept were retained only for the academic purposes. He expressed his inability to recall as to whether any such photographs of the affected portion had been retained in the present case or not. He expressed his inability to tell as Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 12 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 13 of 47 to in what percentage of cases such photographs were usually taken. He voluntarily clarified that such photographs were taken only if they were academically significant. He further deposed they used to take photographs in cases of rare injuries which were academically significant. He stated that in case of injury, deformity was always there. Even after perusing the Court record, PW2 could not tell as to whether any photographs had been taken in the present case or not as the photographs were only for academic purpose and did not form the part of the medical record. He deposed that when the patient was examined in casualty, the patient was advised for plastic surgery and was advised admission under plastic surgery. PW2 further deposed that he had no concern with the issuance of bills of expenses and payment thereof and the Accounts Department used to calculate the expenses for the hospital procedures. He denied the suggestion that no plastic surgery was required in the case of the petitioner and the same had been done only at the request of the petitioner.
9.6 Sh. Sanjay Kumar Sharma, learned counsel for R1 and R2 had adopted the crossexamination of PW2 conducted on behalf of the insurance co./R3.
9.7 PW3 Sh. Pyara Singh, Medical Record Officer from Sir Ganga Ram Hospital, Rajinder Nagar, Delhi had proved on record the medical bills of injured Sweety Garg as Ex.PW3/1(colly) and medical bills of victim Baby Aakshi Garg as Ex.PW3/2.
9.8 In his cross examination by Sh. D.K. Sharma, learned counsel for the insurance co./R3, PW3 deposed that the record produced by him on the day of recording of his deposition included the treatment record, discharge record and bills except OPD and emergency bills.
9.9 R1 and R2 had failed to appear in the Court to cross examine the PW3 despite opportunity being given to them by the Court to cross examine PW3.
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 13 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 14 of 47Hence, crossexamination of PW3 on their behalf was treated as nil.
9.10 PW4 Sh. Rajiv Aggarwal deposed by way of affidavit Ex.PW4/A wherein he had reiterated the facts mentioned in the claim petition by deposing that on 03.06.2016, he along with his wife and children and his other friends, namely, Sh. Arun Bansal, Sh. Sohan Garg and their respective families were travelling to Nainital and Mukteshwar by a Tempo Traveller bearing registration No.DL1VC 2443 belonging to respondent No.2, who was running a travel agency under the name and style of M/s Milan Travels and the aforesaid tempo traveller was being driven by respondent No.1. He supported the testimony of PW1 on the manner of occurrence of the alleged accident by deposing that on the intervening night of 03.06.2016 and 04.06.2016 at about 4.00 a.m. upon reaching near Rajdhani Dhaba at village Budhanpur, District Amroha, U.P. on NH24, the tempo traveller had met with an accident when the said tempo traveller being driven at a high speed and in a rash and negligent manner by R1 had been rammed into the back side of a truck being plied on the same road ahead of the tempo traveller. He stated that at the time of occurrence of the accident, he was sleeping in the tempo traveller and due to the case accident, he along with other copassengers had sustained injuries. He corroborated the deposition of PW1 on the factum of admission of victim Sweety Garg and Aakshi Garg at Sai Hospital, Moradabad and their subsequent admission as well as treatment at Sir Ganga Ram Hospital at Rajinder Nagar in Delhi. He proved on record copies of orders dated 10.02.2018 passed in the National Lok Adalat whereby the claim petition of himself and his wife Yukti Aggarwal had been settled. He relied upon the following documents in support of his deposition:
a) Attested copies of settlement order dated 10.12.2018 regarding Rajiv Aggarwal and Yukti Aggarwal Ex.PW4/1 and Ex.PW4/2.Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 14 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 15 of 47
b) Photographs of the offending vehicle Ex.PW4/3(colly).
9.11 In his crossexamination by Sh. D.K. Sharma, learned counsel for insurance company, PW4 deposed that the receipts of payment of Rs.40,000/ made by them to Mountain Trail Resorts, Mukteshwar for booking rooms therein had not been placed on record by him. He admitted that at the time of occurrence of the case accident, he was sleeping. He stated that after the accident, he had become unconscious and had regained his consciousness in the hospital. He deposed that when they had started their journey, the driver of the offending vehicle was driving the vehicle in question at a very fast speed and the accident in question had occurred after they had travelled to a distance of about 150 kms. from the starting point. He denied the suggestion that he was deposing falsely regarding the mode and manner of occurrence of the case accident as he was sleeping at the time of occurrence of the accident in question.
9.12 R1 and R2 had failed to appear in the Court to cross examine PW4 despite the fact that opportunity had been given to them by the Court to cross examine PW4. Hence, the crossexamination of PW4 on their behalf was treated as nil.
9.13 PW5 Dr. G.K. Gupta, Masters of Dental Sciences at Dr. Gupta Dental Centre deposed that he had treated patient Sweety Garg at his clinic and had raised estimated bill Ex.PW5/1 as well as final bill of treatment in the sum of Rs.36,500/ Ex.PW5/2 which had been duly paid on behalf of patient Sweety Garg in cash.
9.14 In his crossexamination by Sh. D.K.Sharma, learned counsel for insurance company/R3, PW5 deposed that he had not brought the record pertaining to treatment given by him to the injured and he had not seen the MLC Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 15 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 16 of 47 of the injured at the time of her treatment at his clinic. However, the patient had informed him verbally regarding the fact that she had met with an accident. He categorically deposed that he had no personal knowledge about the fact as to whether the patient had met with a motor vehicular accident or not.
9.15 R1 and R2 had failed to appear in the Court to cross examine PW5 despite the fact that opportunity had been given to them by the Court to cross examine PW5. Hence, the crossexamination of PW5 on their behalf was treated as nil.
9.16 PW6 Sh. Pradeep Singh, an Assistant at Sir Ganga Ram Hospital, Delhi produced the medical bills raised by emergency as well as OPD department of Sir Ganga Ram Hospital in respect of patient Sweety Garg Ex.PW6/1 in the sum of Rs.50,140/ which had been duly paid by the petitioner. After perusing the remaining medical bills of Sweety Garg already Ex.PW3/1, PW6 had reaffirmed that the same had been issued by Sir Ganga Ram Hospital. He also produced medical bills of Baby Aakshi Garg raised by emergency department of his hospital in the sum of Rs.3,330/ Ex.PW6/2 which had been duly paid on behalf of patient Aakshi Garg. After perusing the medical bills of Aakshi Garg Ex.PW3/2, PW6 reaffirmed that the same had been raised by Sir Ganga Ram Hospital.
9.17 Sh. Sanjay Kumar Sharma, learned counsel for R1 and R2 as well as Sh. Neeraj Sharma, learned counsel for R3/insurance co. had not availed the opportunity given to them by the Court to cross examine PW6.
9.18 Nothing has appeared in the cross examination of PW1 and PW4 to discredit their above said testimonies to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 thereby causing injuries on the person of the petitioner. The testimonies of PW1 and Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 16 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 17 of 47 PW4 are reliable and trustworthy.
9.19 Ms. Neeru Garg, learned counsel for Insurance Company has submitted that no FIR had been lodged in the present case at the concerned police station in District Amroha, U.P. and consequently, no chargesheet had been filed in the concerned Court of Ld. Judicial Magistrate. Besides, it had been submitted by the learned counsel for the insurance company that both the eye witnesses examined by the petitioner including PW1 Sweety Garg and PW4 Rajiv Aggarwal have categorically stated in their examination in chief itself that they were sleeping inside the tempo traveller at the time when the same had got rammed into the back side of a truck moving ahead of itself, and therefore, the petitioner has led no reliable evidence to establish the negligence or rashness on the part of the driver of the offending vehicle. Learned counsel for the insurance company has thus prayed that the nonregistration of FIR/criminal case against the driver of the offending vehicle in the present matter is fatal to the case of the petitioner and as such, the present claim petition is liable to be dismissed for want of proof of rashness and negligence on the part of respondent No.1.
9.20 I, however, do not agree with the above contentions of the learned counsel for Insurance Company to the effect that the case against the respondents is liable to be dismissed for want of registration of FIR at the concerned PS Kotwali Didauli against R1 as well as for want of filing of chargesheet against respondent No.1 in the concerned Court at District Amroha, U.P. on account of the fact that a zero FIR Ex.PW1/5 was got registered by one of the injured person, namely, PW4 Rajiv Aggarwal at PS Shalimar Bagh in respect of the occurrence of the alleged accident due to rash and negligent driving of the offending vehicle by R1 and a copy of the said FIR was also sent to the concerned police station, that is, PS Kotwali Didauli, District Amroha, U.P. as per the deposition of PW4 Rajiv Aggarwal. Besides, the respondent No.1 had Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 17 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 18 of 47 got lodged a daily diary entry No.041 at PS Kotwali Didauli wherein he had himself stated that on 04.06.2016 at about 4.00 a.m., upon reaching near Rajdhani Dhaba at Village Budhanpur, District Amroha, U.P., a Neel Gaye had come in front of his tempo traveller and in his attempt to save the said Neel Gaye, he had lost control over his vehicle which had got rammed into the back side of a truck moving ahead of his vehicle. This statement made by R1 Rakesh Kumar at the concerned police station in District Amroha, U.P. recorded in the form of DD entry No.041 prima facie establishes that there was no fault on the part of the other vehicle, that is, the truck involved in the case accident and his own vehicle had become out of his control due to which it had got rammed into the back side of the truck plying ahead of the vehicle being driven by R1. In such circumstances, the zero FIR registered at PS Shalimar Bagh as well as the daily diary entry No.041 dated 09.06.2016 made at PS Kotwali Didauli points towards the negligence of R1 himself who had himself lost control over his vehicle.
9.21 It is true that the petitioner as well as other victims of the case accident had subsequently not pursued the matter at PS Kotwali Didauli and were not aware till the stage of final arguments as to whether any separate FIR was registered in respect of case accident at PS Kotwali Didauli in District Amroha, U.P. apart from the zero FIR registered at PS Shalimar Bagh or not. However, it is a known fact that in Indian context, accident victims are more concerned about their treatment and well being than getting registered criminal cases against the drivers of the offending vehicles. Anyone who suffers grievous injuries in a road traffic accident several kilometers away from his residence would firstly be concerned with his/her own treatment as well as the treatment and well being of his/her near and dear ones and would generally prefer not to travel vast distance across the the country for getting the guilty drivers punished by way of a police complaint or FIR and in the present case also, the petitioner had suffered Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 18 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 19 of 47 grievous injuries including avulsion injury over left leg for treatment of which she had undergone operative procedures, such as, debriment of raw areas and Split Skin Graft (SSG) as well as inset of avulsed flap over left leg. A minor victim of trauma, such as, the petitioner cannot in such circumstances be expected to run around from pillar to post for getting an FIR registered at the concerned police station in Uttar Pradesh. Being a resident of Delhi, one of the victims of case accident, namely, PW4 Rajiv Aggarwal had got registered a zero FIR near his place of residence at PS Shalimar Bagh. Even otherwise, the factum of occurrence of the case accident had been proved through the daily diary entry No.041 recorded at PS Kotwali Didauli, District Amroha by the respondent No.1, that is, driver of the offending vehicle himself and in such circumstances, non registration of FIR at PS Kotwali Didauli is not fatal to the case of the petitioner.
9.22 Similar observations were made by the Hon'ble High Court of Delhi in the decided case of Delhi Transport Corporation vs. Sh. B.P. Singal and Ors. Decided on 05.10.2007, wherein the Hon'ble High Court of Delhi had categorically observed that although in ordinary circumstances a victim of road traffic accident must lodge an FIR against the driver of an offending vehicle. However, nonregistration of complaint or FIR cannot have any adverse effect on a claim petition if the claimants are otherwise able to establish negligence on the part of the driver of the offending vehicles. Relevant extract of the observations made in para 6 of the judgment are reproduced herein below in this context:
"6. Perusal of the aforesaid paragraphs would clearly reveal that the contentions raised by the appellant in the present appeal have been discussed threadbare by the Tribunal. It is no doubt true that in normal circumstances, the complaint should have been lodged against the driver of the bus but in the given facts and circumstances of a particular case non registration of complaint or FIR cannot have any adverse effect if the claimants are otherwise able to establish the Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 19 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 20 of 47 negligence on the part of the driver of the offending vehicle. Once the respondent has successfully established the negligence on the part of the driver of the bus that too before the MACT Tribunal, no adverse inference can be drawn against the respondent for nonregistration of any complaint or FIR against the driver of the offending bus. Even otherwise, it is an admitted case that the driver of TSR became unconscious due to the injuries sustained by him and the boy in question had died at the spot itself."
9.23 In the light of aforecited observations made by Hon'ble High Court of Delhi in the case of Delhi Transport Corporation vs. Sh. B.P. Singal and Ors. (supra) that it can be safely concluded that registration of an FIR in respect of occurrence of a road traffic accident is not a prerequisite for claiming compensation from a Motor Accident Claims Tribunal, particularly in cases where the factum of occurrence of the alleged accident is established through other evidence, such as, daily diary entry recorded at the concerned police station regarding the occurrence of the accident in question and MLC of the victim etc. 9.24 Applying the ratio of the aforecited case decided by Hon'ble Court of Delhi to the facts of the present case, it can be safely concluded that nonregistration of an FIR by the victims of the case accident at PS Kotwali Didauli, District Amroha, U.P. is not fatal to the case of the petitioner because the factum of occurrence of the case accident has been otherwise established by the claimants by placing on record a copy of zero FIR bearing No.001 registered by victim Rajiv Aggarwal at PS Shalimar Bagh as well as by placing on record a copy of daily diary entry No.041 recorded at PS Kotwali Didauli on the basis of intimation given by R1 to the concerned police station regarding the case accident. Moreover, MLC of victim Aakshi Garg bearing No.2401/16 Ex.PW2/A also corroborates the factum of occurrence of the case accident as it is duly recorded in the said MLC that the patient had been examined with alleged history of RTA(Road Traffic Accident). Therefore, nonregistration of FIR at PS Kotwali Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 20 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 21 of 47 Didauli and nonfiling of chargesheet against R1 in the concerned Court at District Amroha, U.P. is not fatal to the case of the petitioner in the present claim proceedings.
9.25 The only other ground on which the insurance company has sought to demolish the case of prosecution is that both the eye witnesses of the case accident, namely, PW1 Sweety Garg and PW4 Rajiv Aggarwal have categorically stated in their examination in chief itself that they were sleeping at the time of occurrence of the case accident, and therefore, as such, no eye witness has been examined by the claimants herein to prove the rashness and negligence of R1.
9.26 It has been rightly argued by the learned counsel for insurance company that both the eye witnesses examined on behalf of the petitioner have candidly admitted the fact that they were sleeping inside the offending vehicle at the time of occurrence of the case accident. However, they have still made a categoric statement to the effect that the offending vehicle was being driven at a high speed at the time of occurrence of the case accident. Although the evidence given by PW1 Sweety Garg and PW4 Rajiv Aggarwal regarding negligence of R1 resulting in occurrence of the case accident is hearsay and cannot be relied upon by this Tribunal. However, the same can be used for the purpose of corroboration of other material evidence available on record regarding negligence of R1. In this context, it has been held by Hon'ble Apex Court in several decided cases that when there is no eye witness account of the accident available on Court record, then, the Court can also examine the nature of accident by relying upon the doctrine of res ipsa loquitur which envisages that the accident speaks for itself and a Court can look into the extent of damage suffered by the vehicles involved in the accident as well as the nature of injuries suffered by the victims so as to ascertain the cause behind the accident and to Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 21 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 22 of 47 arrive at a finding as to whether the accident in question had occurred due to negligence of the driver of the offending vehicle or not. 9.27 In a catena of judgments, the Hon'ble Apex court had held that in certain cases of accident, the principle of res ipsa loquitur is applicable and the condition of the vehicles involved in the accident as well as the injuries sustained by the victim speak for themselves. The Hon'ble Apex Court has time and again observed that in such cases, the negligence of a driver can be ascertained from the fact that the vehicle hit by his vehicle has been badly damaged due to the collision.
9.28 In the present case also, the vehicle of the victim had got rammed into the back side of a truck and had got damaged to such an extent that its front body had got completely crushed and the steering wheel as well as the front seats of the vehicle had become exposed, as is reflected from the photographs Ex.PW4/3(colly), due to the impact of collision. The condition of the offending vehicle itself is sufficient to prove that the offending vehicle was being driven at a very high speed at the time of occurrence of accident in question and establishes that it had struck against the back side of a truck with great force due to its high speed. Although it is the defence of the driver of the offending vehicle that he had lost control over his vehicle when a Neel Gaye had come in front of his vehicle, however, if the vehicle in question was being driven at a normal speed, then,the same could not have got damaged to such a great extent. It is prima facie evident from the photographs of the offending vehicle that the impact of collision was extremely forceful and the tempo traveller had hit against the back side of a truck with such a great force that its own body had got badly damaged due to high speed impact and nearly all the passengers sitting inside the tempo traveller had sustained injuries.
9.29 Similar observations were made by Hon'ble Apex court in the case of Ravi Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 22 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 23 of 47 Kapur vs State Of Rajasthan Criminal Appeal number 1838 of 2009 decided on 16 August, 2012 wherein the Hon'ble Apex Court had reiterated that the doctrine of res ipsa loquitur is applicable in cases wherein the accident in question speaks for itself and there are reasonable grounds to arrive at a finding that the accident could not have occurred without any negligence on the part of the driver of the offending vehicle. Relevant extract of observations made in para 13 of the judgement passed in this case are noteworthy in this context and are reproduced herein below:
"13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 23 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 24 of 47 maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010]."
9.30 In the case of Sayad Akbar vs. State of Karnataka 1980 SCR (1) 25, 1979 AIR 1848 decided on 25.07.1979, it was held by the Hon'ble Supreme Court of India that when an accident is of such a nature which could not have occurred without the negligence of the person having management or control over the offending vehicle, then, the doctrine of res ipsa loquitur can be invoked to arrive at a finding of negligence against the driver of the offending vehicle in the absence of other direct evidence pointing towards the guilt of the driver of the offending vehicle. Relevant extract of the observations made in Sayad Akbar vs. State of Karnataka is reproduced herein below:
"As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated, that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing caused Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 24 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 25 of 47 the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which "tell their own story" of being offsprings of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a headoncollision on the wrong side of the road. See per Lord Normand in Barkway v. South Wales Transport Co.(1); Cream v. Smith(2) and Richlev v. Fanll(3)."
9.31 Besides, the Hon'ble High Court of Delhi had also elaborately explained the doctrine of res ipsa loquitur and discussed its applicability in the cases of road traffic accident in the case of National Insurance Co. Ltd. vs Gita Bindal & Ors. MAC.APP.No.179/2004 and CM No.5285/2008 on 12 October, 2012 in following words:
"12. The principle of res ipsa loquitur laid down in the aforesaid four judgments is summarized as under:
i. Res ipsa loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more.
ii. Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care.
iii. There are two requirements to attract res ipsa loquitur, (i) that the "thing" causing the damage be under the control of the defendant and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence.
iv. Res ipsa loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 25 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 26 of 47 part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer.
v. In some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story.
There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more.
vi. The effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur', therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability.
vii. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant.
viii. The doctrine of res ipsa loquitur has been applied by the Courts in the following cases: ➢ Where victim was sleeping on a cot placed in front of his house by the side of the road when the offending vehicle dashed against the Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 26 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 27 of 47 cot and injured the claimant.
➢ Where a bus had dashed against a tree, causing death of a passenger.
➢ Where a vehicle negotiating a sharp "U" turn dashed against a tree, moved away to a distance of 150 feet from the road and then overturned.
➢ Where a vehicle wentoff the road, hit against the tree and rolled down killing a passenger.
➢ Where a truck dashed against the victim standing by roadside.
➢ Where a truck came at breakneck speed without blowing horn and dashed against a 9 years old boy, who was walking on the extreme left side of the road, from behind resulting in instantaneous death."
13. In the present case, the deceased was travelling in car No. DL8CG 0794 being driven by Sumeet Sharma. The deceased was sitting on the rear seat. The car was in the exclusive control of its driver, Sumeet Sharma and the accident would not have happened in the ordinary course of events without the negligence of its driver. The deceased has not in any manner contributed to the accident. This case is squarely covered by the principle of res ipsa loquitor. The facts of this case raise a presumption of negligence which has not been rebutted by its driver. In the facts and circumstances of this case, it is held that the accident occurred due to rash and negligent driving of the offending car by its driver and the claim petition is treated under Section 166 of the Motor Vehicles Act. The contrary finding of the Claims Tribunal and conversion of the claim petition to Section 163 of Motor Vehicles Act is set aside."
9.32 In the light of afore cited opinion expressed by Hon'ble Supreme Court of India in the decided cases of Ravi Kapur vs State Of Rajasthan(supra) and Sayad Akbar vs. State of Karnataka(supra) as well as in the light of opinion expressed by Hon'ble High Court of Delhi in the decided cases of National Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 27 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 28 of 47 Insurance Co. Ltd. vs Gita Bindal & Ors.(supra), it can be safely concluded that although in certain cases there may be no eye witness available to depose on the factum of negligence of the driver of the offending vehicle, however, the accident speaks for itself and appears to have occurred in such a manner that it could not have happened except for the reason of negligence of the driver under whose management and care the vehicle was being plied on the road at the time of occurrence of the alleged accident. In the present case, victim Aakshi Garg was travelling in a Tempo Traveller bearing registration No.DL1VC2443 which had got rammed into the back side of an unknown truck which was being plied on the same road. It is the defence of R1 that a Neel Gaye had come in front of his vehicle due to which he had lost control over his tempo and had struck the same against a truck travelling ahead of his own tempo, however a mere look at the photographs of the offending vehicle reveal that it had got badly damaged and its front body was broken to such an extent that the steering wheel and front seats of the said tempo traveller had become exposed. The impact of collision with the truck was such that the accident could not have occurred unless the offending vehicle was being driven at an excessive speed, in a rash and negligent manner. Entire front body and bonnet of the offending vehicle had got damaged due to high force impact sustained by the offending vehicle which could not have happened without the negligence or extremely high speed driving of the offending vehicle by its driver. Hence, even if the two eye witnesses travelling in the offending vehicle, namely, PW1 Sweety Garg and PW4 Rajiv Aggarwal had categorically stated that they were sleeping at the time of the occurrence of the case accident, then also, there is ample evidence against the driver of the offending vehicle in the form of photographs of the offending vehicle Ex.PW4/3 which speak volumes about the manner in which offending vehicle was being driven and the high speed impact sustained by the vehicle in question Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 28 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 29 of 47 when it had got rammed into the back side of another vehicle which was not negligent at all. Moreover, R1 himself had got recorded a daily diary entry bearing No.041 Ex.PW1/6 at PS Kotwali, Dhindholi District Amroha, U.P regarding the case accident in which he himself had also not imputed any rash and negligent act upon the driver of the truck against which his vehicle had got struck and in such circumstances, the opinion of this court regarding rashness of the driver of the offending tempo traveller is fortified by the opinion expressed by the Hon'ble High Court of Delhi in the case of National Insurance Co. Ltd. vs Gita Bindal & Ors.. Hence, by taking recourse to the doctrine of res ipsa loquitur, this Tribunal can arrive at the finding of negligence against the driver of the tempo traveller in question.
9.33 The issue no. 1 is only to be proved by claimant beyond preponderance of probabilities as distinguished from beyond reasonable doubt.
9.34 In the said circumstances, testimonies of PW1 and PW4 corroborated with the daily diary entry No. 041 Ex.PW1/6, recorded at PS Kotwali Didauli, District Amroha, U.P and the photographs of the offending vehicle Ex.PW4/3, this Tribunal can rely upon the doctrine of res ipsa loquitur to arrive at a finding on the scale of preponderance of probabilities to the effect that the case accident had occurred at the above said date, time and place and in the above said manner due to rash and negligent driving of tempo traveller by R1 leading to extensive damage to the front body of the offending vehicle on account of high speed impact of collision sustained by the vehicle and also resulting in moderate to severe injuries to almost all the passengers travelling in the offending vehicle including victim Aakshi Garg.
Issue no.1 is decided in favour of petitioner and against the respondents accordingly.
Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 29 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 30 of 4710. Issue No. (2) In view of my findings on issue no.1, the petitioner is entitled to compensation.
In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioner is entitled to compensation in respect of medical expenses, conveyance expenses, special diet charges, etc. incurred by her. I shall now examine the entire evidence including the documents of the petitioner for the purpose of arriving at a finding about the quantum of compensation to which the petitioner is entitled.
10.1 The mother of the minor petitioner has filed her evidence by way of affidavit as Ex. PW1/A, wherein she deposed that due to the case accident, her daughter Aakshi Garg had sustained grievous injuries as recorded in her MLC No. 2401/16 dated 04.06.2016 of Sir Ganga Ram Hospital Ex.PW2/A as well as her discharge summary of the same hospital Ex.PW3/2. A perusal of the discharge summary of the petitioner further reveals that she had undergone surgery for repair of debriment of raw areas and Split Skin Graft (SSG) as well as inset of avulsed flap over left leg. She had claimed in her evidence by way of affidavit that her daughter had sustained grievous injuries in the form of post traumatic avulsion of flap over left leg.
10.2 The mother of the minor petitioner had further deposed in her evidence by way of affidavit that although both the eye witnesses examined on behalf of the petitioner including PW1 herself and PW4 Rajiv Aggarwal have candidly admitted that they were sleeping at the time of occurrence of the case accident, however, this Tribunal had already arrived at a finding of negligence against the driver of the offending vehicle by pressing into service the doctrine of res ipsa loquitor. 10.3 In the present case, the petitioner was a minor at the time of accident Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 30 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 31 of 47 having her year of birth as 2008 as mentioned in her Aadhar card, whereas, the date of accident was 04.06.2016 and thus, the petitioner was thus aged about 08 years at the time of case accident. Accordingly, the petitioner is entitled to following compensation:
11. Medical Expenses.
11.1 PW1 Sweety Garg, the mother of the petitioner had claimed to have incurred huge expenses to the tune of Rs.1,29,789/ on medical treatment of her daughter including Rs.13,330/ as expenses paid by her from her own pocket and Rs.1,16,459/ through medical insurance of her daughter during treatment of her daughter Aakshi Garg as inpatient at Ganga Ram Hospital. She had further claimed in her evidence by way of affidavit that she had paid a sum of Rs.15,000/ as consultation fee to various doctors and Rs.20,000/ as dressing charges whereas she had also spent a sum of Rs.20,000/ on procurement of medicines prescribed by doctors during the follow up treatment of her daughter from the said hospital.
11.2 PW1, the mother of minor petitioner has proved treatment record and medical bills of her daughter as Ex.PW1/18(colly). A perusal of the same reveals that at the time of discharge of her daughter from Sir Ganga Ram Hospital after undergoing requisite surgery, a bill of Rs.1,21,056/ had been raised in the name of her daughter and out of the said bill, a sum of Rs.1,16,459/ had paid on her behalf by medical insurance policy of her daughter whereas the remaining bill in the sum Rs.4,597/ had been paid by her in cash. Besides, the mother of the minor petitioner, namely, Sweety Garg has filed bills raised towards consultation sought by the injured from various doctors at Sir Ganga Ram Hospital during follow up treatment of her daughter as well as dressing of her daughter amounting to a sum of Rs.13,000/ and bills raised by chemist/pharmacist etc. in respect of medicines procured by her for her daughter and diagnostic tests Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 31 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 32 of 47 undergone by her daughter in the sum of Rs.6,330/. Thus, total medical bills in the sum of Rs.1,40,386,/ have been placed on record by the petitioner out of which an amount of Rs.1,16,459/ has been paid through the insurance policy of her daughter and as such, she is entitled to claim the remaining amount of Rs.23,927/. Accordingly, the petitioner is granted Rs. 23,927/ as compensation under the said head of medical expenses.
12. Special Diet and conveyance 12.1 Ms. Sweety Garg, mother of the petitioner as PW1 has deposed that she had spent Rs.40,000/ as expenses on providing special diet to her daughter and Rs.5,000/ as charges on hiring ambulance for shifting her daughter from Sai Hospital, Moradabad, U.P. to Sir Ganga Ram Hospital at Delhi as well as Rs.25,000/ as expenses on conveyance/travel of her daughter from her residence to the hospital and viceversa during the treatment period of her daughter. In her crossexamination by the learned Counsel for the insurance company, PW1 admitted that she had not placed on record any document to prove her expenditure on special diet, conveyance and attendant charges of her daughter.
12.2 Petitioner or her mother have also neither examined any witness to prove the expenditure on special diet and conveyance of victim Aakshi Garg nor proved any bill in that regard. Although in the discharge summary of petitioner Aakshi Garg, she had been advised to take soft diet. However, no special diet, such as, liquid diet, high protein diet etc. have been prescribed to her at the time of her discharge from Sir Ganga Ram Hospital. Besides, the minor petitioner has also not filed any other prescription of any dietician, doctor or medical practitioner advising her to take special diet for speedy recovery. In such circumstances, the requirement of special diet, if any, by the petitioner during her treatment period as well as the necessity of availing services of paid transport for travel to hospital Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 32 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 33 of 47 from her residence and viceversa have to be ascertained in accordance with the injuries sustained by the petitioner and her medical documents placed on record. 12.3 In this context, a perusal of the MLC of the petitioner bearing No.2401/16 reveals that the minor petitioner had sustained various injuries including avulsion injury over left leg and was referred to plastic surgery department of the said hospital for further treatment and management. The minor petitioner had remained admitted at Sir Ganga Ram Hospital with effect from 04.06.2016 and was discharged therefrom on 08.06.2016 after undergoing surgical procedure, such as, debriment of raw areas and Split Skin Graft (SSG) as well as inset of avulsed flap over left leg. Besides, the petitioner has annexed prescriptions of her follow up treatment in Out Patient Department of Sir Ganga Ram Hospital upto 23.12.2016. Thus, as per the follow up treatment record of OPD of Sir Ganga Ram Hospital relied upon the by the minor petitioner, it can be safely concluded that the petitioner must have remained under treatment at OPD of Sir Ganga Ram Hospital for a period of six months approximately with effect from the date of accident, that is, upto 23.12.2016. Accordingly, from the material available on record including the nature of injuries sustained by the minor petitioner as per her MLC and discharge summary and also in view of the surgery undergone by the petitioner, this Tribunal is of the opinion that the petitioner must have remained under treatment for a period of six months approximately with effect from the date of case accident. Besides, this Tribunal is also of the opinion that the petitioner must have been required to take special diet, such as, liquid diet during her treatment period. Also, her parents must have incurred certain expenses on travelling to the hospital from their residence during her follow up treatment.
12.4 In view of above said discussion and taking the probable period of treatment for about six months, a lump sum amount of Rs.50,000/ is granted Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 33 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 34 of 47 including Rs.25,000/ towards special diet and Rs.25,000/ as conveyance charges.
13. Attendant Charges 13.1 Petitioner Sweety Garg as PW1 has deposed that she had availed services of medical attendant during the period of hospitalization of her daughter with effect from 04.06.2016 to 08.06.2016 at the rate of Rs.1,000/ per day and thereafter, she had further incurred Rs.30,000/ for engaging a home servant cumattendant after discharge of her daughter from the hospital. In her cross examination by the learned Counsel for the insurance company, PW1 admitted that she had not placed on record any document to prove her expenditure on special diet, conveyance and attendant charges of her daughter. 13.2 Thus, it is prima facie evident from the material available on record that the mother of the minor petitioner has not endeavoured to prove the expenses incurred by her on hiring a medical attendant for her daughter by leading any documentary evidence in the form of bill of the agency providing medical attendants on hire or receipts of payment made by her to the concerned attendant or the agency through which the attendant had been hired by her. She has also not examined in the court the medical attendant concerned or the representative of the agency through which she had hired the medical attendant to establish that, in fact, she had engaged such attendant for the care and look after of her daughter and had paid monthly charges to the said attendant for availing the services of the said medical attendant. In these circumstances, the requirement of medical attendant by the petitioner during the treatment period of her daughter has to be ascertained in accordance with the nature of injuries sustained by the minor petitioner.
13.3 In this context, a perusal of the MLC of the petitioner bearing No.2401/16 reveals that the petitioner had sustained various injuries including avulsion injury Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 34 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 35 of 47 over left leg and was referred to plastic surgery department of the said hospital for further treatment and management. The petitioner had remained admitted at Sir Ganga Ram Hospital with effect from 04.06.2016 and was discharged therefrom on 08.06.2016 after undergoing surgical procedure, such as, debriment of raw areas and Split Skin Graft (SSG) as well as inset of avulsed flap over left leg. Moreover, PW1 Sweety Garg has annexed prescriptions of follow up treatment of her daughter in Out Patient Department of Sir Ganga Ram Hospital upto 23.12.2016. On the basis of materials available on record, this Court has already determined the probable period of treatment of the petitioner to be about six months. In view of the nature of injuries sustained by the petitioner and the surgery undergone by her, this Tribunal is also of the opinion that the petitioner must have required services of a medical attendant during her treatment period of six months as well as during her hospitalization period of five days. Accordingly, a lump sum amount of Rs.30,000/ is granted as compensation under this head towards attendant charges.
14. Pain and Suffering 14.1 The MLC No.2401/16 of the petitioner of Sir Ganga Ram Hospital Delhi has been placed on Court record and perusal of the same reveals that the petitioner had sustained various injuries including avulsion injury over left leg and was referred to plastic surgery department of the said hospital for further treatment and management. The petitioner had remained admitted at Sir Ganga Ram Hospital with effect from 04.06.2016 and was discharged therefrom on 08.06.2016 after undergoing surgical procedure, such as, debriment of raw areas and Split Skin Graft (SSG) as well as inset of avulsed flap over left leg. 14.2 In view of the nature of injuries sustained by the petitioner detailed above as well as the surgeries undergone by her, this Tribunal is of the opinion that the petitioner must have endured physical pain and mental agony during her Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 35 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 36 of 47 recuperation period. Accordingly, a lump sum amount of Rs.40,000/ is granted as compensation to the petitioner under the said head of pain and suffering.
15. Loss of Studies 15.1 Although the name of the school of minor petitioner Aakshi Garg as well as the class in which Aakshi Garg was studying have nowhere been mentioned in the claim petition as well as in evidence by way of affidavit of her mother Ms.Sweety Garg. However, It is an admitted position that the victim was 08 years old at the time of occurrence of case of accident, therefore, it can be safely presumed that victim Aakshi Garg was school going child when she had sustained injuries in the case accident. Besides, it is mentioned in para 15 of the petition that the petitioner could not attend school for about 06 or 07 months due to the injuries sustained in the accident in question.
15.2 Even otherwise, as per the MLC and discharge summary of the petitioner, she had sustained various injuries in the case accident and had remained admitted at Sir Ganga Ram Hospital, Rajender Nagar, Delhi for about 05 days with effect from 04 June 2016 to 08 June 2016 during which period, she had undergone surgical procedures, such as, debriment of raw areas and Split Skin Graft (SSG) as well as inset of avulsed flap over her left leg. Keeping in view the nature of injuries sustained by the petitioner as well as the surgery undergone by her, the period of treatment of petitioner has already been determined to be about 06 months, and accordingly, the petitioner is entitled to compensation for loss of studies for about 06 months. In the said circumstances, she is awarded a lump sum amount of Rs. 30,000/ under the said head of loss of studies.
16. Loss of Marriage Prospects 16.1 Ms. Sweety Garg, mother of the petitioner while deposing as PW1 by way of affidavit has claimed that she was likely to incur an additional expenses of Rs.15 lacs on the marriage of her minor daughter at the appropriate age because Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 36 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 37 of 47 of the injuries sustained by her daughter in the case accident. However, she has led no evidence to establish that the marriage prospects of her daughter had been adversely effected due to injuries sustained in the case accident. As such, no permanent disability has been sustained by the petitioner and the petitioner had only suffered a scar on left leg for which she has already claimed another sum of Rs.5,00,000/ as expenses on future medical treatment of the said scar. Thus, the scar in question was fully curable through future medical treatment and was not likely to adversely effect the marriage prospects of minor petitioner Aakshi Garg to such a great extent. Nevertheless, in order to compensate the petitioner for minor decline in her marriage prospects due to the scar sustained by her on her left leg, a sum of Rs.50,000/ is awarded as compensation to the petitioner for loss of marriage prospects.
17. Future Medical Expenses 17.1 Mother of Petitioner, PW1 Sweety Garg has claimed in her evidence by way of affidavit Ex.PW1/A that she had already incurred a sum of Rs. 1,29,789/ on medical treatment of her daughter Aakshi Garg and she was likely to incur another sum of Rs.5,00,000/ on the surgery of leg of her daughter whereas she was further likely to incur another sum of Rs.10,00,000/ on plastic surgery of her daughter. Thus the mother of the petitioner had claimed that future treatment expenses to the tune of Rs.15,00,000/ was likely to be incurred by her for ensuring full recuperation of her daughter. However the mother of petitioner has failed to reliable and cogent evidence to establish that a huge sum of Rs.15,00,000/ was likely to be incurred on future treatment of the petitioner. 17.2 In this context, the petitioner has examined one Dr. Swaroop Singh Gambhir, Consultant Plastic Surgeon employed at Sir Ganga Ram Hospital as PW2 to prove that there was a depressed scar over the anterior part of left leg of petitioner of size 7x15cm which had been managed through a skin graft surgery Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 37 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 38 of 47 which had well settled, however, the petitioner had multiple expander and flap advancement surgery for which the petitioner was likely to incur expenses to the tune of Rs.5,00,000/ Thus, Dr. Swaroop Singh Gambhir has proved the estimated cost of the future treatment required by the petitioner vide Ex.PW2/B wherein the cost of future treatment of petitioner has been reflected as Rs.5,00,000/. Accordingly, a sum of Rs.5,00,000/ is awarded to the petitioner as future treatment expenses under this head.
17.3 In terms of Judgment of Hon'ble Delhi High in case of Arvind Pathak vs Parshant Kumar, MAC.APP 107/2007, date of decision 21.04.2016, having regard to the fact that the compensation under the head of loss of future expenses is being given in advance, there shall be no interest levied on that part of the award for the period the claim petition remained pending before the Tribunal. Thus, in calculating the total compensation, the period of 23.01.2017 to 28.10.2020 shall be excluded for computing the effect of interest against the said head of compensation.
18. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 7,23,927/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 40,000/ 2 Special diet & Conveyance Rs. 50,000/
3. Attendant Charges Rs 30,000/
4. Medical Expenses Rs. 23,927/
5. Loss of Studies Rs. 30,000/
6. Future Medical Expenses Rs. 5,00,000/
7. Loss of Marriage Prospects Rs. 50,000/ Total Rs. 7,23,927/ ( Rupees Seven Lakhs Twenty Three Thousand Nine Hundred Twenty Seven only) 18.1 In respect of the petitioner's entitlement to interest if any on the Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 38 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 39 of 47 compensation payable to him, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) held that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present claim petition had been filed on 05.06.2017 and the rate of interest on fixed deposits in nationalized banks had fluctuated/dropped several times during the pendency of the present matter. Therefore, in the interest of justice, in the present case also this court is of the opinion that the claimant/petitioner is entitled to interest @ 6% per annum from the date of filing of DAR/petition i.e. w.e.f 05.06.2017 till realisation of the compensation amount.
18.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
19. Liability 19.1 In the case in hand, the Oriental Insurance Co. Insurance co./R3 has not lead any evidence and has not been able to show anything on record that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law. Since the offending vehicle was duly insured with the insurance company/R3, hence, R3 is liable to pay the entire compensation amount to the petitioner as per law. In terms of Judgment of Hon'ble Delhi High in case of Arvind Pathak vs Parshant Kumar, MAC.APP 107/2007, the petitioner shall not be entitled to interest on future medical expenses to the tune of Rs.5,00,000/ out of the total award amount with effect from filing of DAR till the date of disposal.
19.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Oriental Insurance co./R3 is Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 39 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 40 of 47 directed to deposit the awarded amount of Rs.7,23,927/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 6% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
20. Statement of the mother of petitioner, namely, Ms. Sweety Garg in terms of clause 29 MCTAP was recorded on 06.01.2020 regarding her savings bank a/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. I have heard the petitioner and learned counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 20.1 Keeping in view the facts and circumstances of the case, said statement of the petitioners and clause 32 of MCTAP regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs.1,00,000/ be released to the petitioner in her MACT Claims SB A/c no.90612310000515 with Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 40 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 41 of 47 Syndicate Bank, Tri Nagar Branch, Delhi as per rules i.e. the branch near her place of residence (as mentioned in statement of her mother recorded under clause 29 MCTAP) and remaining be kept in FDR till she attains the age of majority without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal and after maturity the said amount be released to her in her above said MACT Claims SB A/c as per rules. 20.2 The aforesaid award amount shall be disbursed to the claimant(s) through MACAD Scheme formulated by Hon'ble Delhi High Court in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to following conditions:
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 41 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 42 of 47 the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
21. Relief 21.1 As discussed above, R3 is directed to deposit the award amount of Rs.7,23,927/ with interest @ 6% per annum from the date of filing of petition i.e. 05.06.2017 till realization within the jurisdiction of this Tribunal i.e. SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
21.2 R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 42 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 43 of 47 to respondent no. 3 for compliance within the granted time. 21.3 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
21.4 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, statement of mother of minor petitioner was also recorded on 06.01.2020 wherein she had stated that petitioner was entitled to exemption from deduction of TDS and that he would submit form 15G to insurance co. so that no TDS is deducted.
22. Form IVB which has been duly filled in has also been attached Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 43 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 44 of 47 herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
on 28th April, 2022. PO/MACT N/W
Rohini Courts, Delhi.
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Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 45 of 47
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident: intervening night of 03.04.2016 and 04.06.2016
2. Name of injured: Ms. Aakshi Garg
3. Age of the injured: As per Aadhar card of the petitioner, her year of birth is mentioned as 2008 whereas, the date of accident was 04.06.2016 and thus, the petitioner was aged about 08 years at the time of case accident.
4. Occupation of the Injured: student/Nil
5. Income of the injured: Nil
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about six months.
8. Period of hospitalization: About 05 days.
9. Whether any permanent disability ? If yes, give details: No.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 23,927/
(ii) Expenditure on conveyance Rs. 25,000/
(iii) Expenditure on special diet Rs. 25,000/
(iv) Cost of nursing/attendant Rs. 30,000/
(v) Loss of earning capacity Nil
(vi) Loss of studies Rs. 30,000/
(vii) Any other loss which may require any N/A special treatment or aid to the injured for the rest of his life Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 45 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 46 of 47
12. NonPecuniary Loss:
(I) Compensation for mental and physical N/A
shock
(ii) Pain and suffering Rs. 40,000/
(iii) Loss of amenities of life Nil
(iv) Disfiguration Nil
(v) Loss of marriage prospects 50,000/
(vi) Loss of earning, inconvenience, N/A
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and Nil
nature of disability as permanent or
temporary
(ii) Loss of amenities or loss of expectation Nil
of life span on account of disability
(iii) Percentage of loss of earning capacity in Nil
relation of disability
(iv) Loss of future income - (Income X Nil
%Earning capacity X Multiplier)
(v) Future Medical Expenses 5,00,000/
14. TOTAL COMPENSATION Rs.7,23,927/ (In terms of
Judgment of Hon'ble Delhi High
in case of Arvind Pathak vs
Parshant Kumar, MAC.APP
107/2007, the petitioner shall
not be entitled to interest on
future medical expenses to the
tune of Rs.5,00,000/ out of the
total award amount with effect
from filing of claim petition till
the date of disposal.)
15. INTEREST AWARDED 6%
16. Interest amount up to the date of award Rs. 65,797.14 p.
17. Total amount including interest Rs. 7,89,724.14p.(Rs.7,89,724/ after rounding of) Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 46 of 47 Baby Aakshi Garg Vs. Rakesh Kumar Sharma & Ors. Page 47 of 47
18. Award amount released Rs. 1,00,000/
19. Award amount kept in FDRs Rs. 6,89,724/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 28.05.2022 (Clause 31) Announced in open court (JASJEET KAUR) on 28th April, 2022. PO/MACT N/W Rohini Courts, Delhi.
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