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Delhi District Court

Vijay Devi vs ). Mainuddin (Driver) on 20 January, 2020

           IN THE COURT OF SH. VIVEK KUMAR GULIA
           P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
         EAST DISTRICT : KARKARDOOMA COURTS: DELHI

In the matters of :
                            MACP No. 327/16
                       CNR No. DLET01­002787­2014
Vijay Devi
W/o Sh. Rajender,
R/o 4/425, Block­4, Khichripur,
Delhi­110091.                                            .....Petitioner
                                     Versus
1). Mainuddin (driver)
    S/o Sh. Abdulla
    R/o Village Silari, PS Sohna,
    District Gurgaon, Haryana.
2). Jasbir (owner)
    S/o Sh. Dhanni
    R/o H. No.6, Block­1, Village Pali,
    Tehsil & District Faridabad, Haryana.                ...Respondents

AND MACP No. 323/16 CNR No. DLET01­002776­2014 Pramod Kumar @ Pramod Nath S/o Sh. Janjari Lal, R/o 4/425, Block­4, Khichripur, Delhi­110091. ........Petitioner Versus

1). Mainuddin (driver)

2). Jasbir (owner) (details as given above) .....Respondents AND MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

CNR No. DLET01­002788­2014 Margub S/o Sh. Zulfkaar, R/o P­79, Block­P, Welcome, Seelampur­III, Delhi. ........Petitioner Versus

1). Mainuddin (driver)

2). Jasbir (owner) (details as given above) .....Respondents AND MACP No. 330/16 CNR No. DLET01­002790­2014 Master Sourabh through his mother and natural guardian Smt Vijay Devi W/o Sh. Rajender R/o 4/425, Block­4, Khichripur, Delhi­110091. ........Petitioner Versus

1). Mainuddin (driver)

2). Jasbir (owner) (details as given above) .....Respondents AND MACP No. 329/16 CNR No. DLET01­002789­2014 Baby Annu through her mother and natural guardian Smt Vijay Devi W/o Sh. Rajender R/o 4/425, Block­4, Khichripur, Delhi­110091. ........Petitioner Versus MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

MACP No. 329/16; MACP No. 330/16;                                Page 2 of 18
 1). Mainuddin (driver)
2). Jasbir (owner)
    (details as given above)                         .....Respondents
Date of Institution      :            01.09.2014
Date of Reserving        :            10.01.2020
Date of Judgment         :            20.01.2020

                                   AWARD

1. By this common award, all the five present claim petitions u/s 166 Motor Vehicles Act, 1988, would be decided.

2. Important facts of the case are as under. Petitioners Vijay Devi, Pramod Kumar, Magrub, Master Sourabh and Baby Annu suffered injuries on account of a motor vehicular accident happened on 16.07.2014 at about 5.00 pm, near village Gulawali Expressway, Noida, U.P. In respect of this accident, an FIR No.91/14, u/s 279/338/427 IPC was registered at PS Greater Noida, U.P. As per the FIR, at the relevant time, petitioners were traveling in a Santro car bearing registration No.DL­7CE­0304 and when the car reached at the aforesaid place, a truck bearing registration No. HR­38M­7266 (in short "offending vehicle") came at high speed and in rash and negligent manner from wrong side and after breaking the divider, hit their car, as a result of which they received injuries. During investigation, it was found that the offending vehicle was being driven by respondent no. 1 at the time of accident.

3. On service of notice, both the respondents marked appearance through their counsel and thereafter were proceeded ex­ MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

parte and subsequently, an ex­parte award was passed in favour of petitioners on 27.01.2017. Thereafter, application under Order 9 Rule 13 CPC moved on behalf of respondent No. 1 and 2 was allowed vide order dated 28.02.2018. Thereafter, respondent no.1 and 2 filed joint written statement mentioning that no accident took place, as alleged by the petitioners.

4. On the basis of pleadings, following common issues were framed on 12.03.2018 :

(i). Whether on 16.07.2014 at about 5.00 p.m. on Expressway near Village Gulawali, Noida within jurisdiction of PS Greater Noida, the petitioners / Vijay Devi, Pramod Kumar, Margub, Master Sourabh and Baby Annu, suffered injuries in a motor vehicular accident caused by rash and negligent driving of truck bearing registration No. HR­38M­ 7266 (offending vehicle) driven by the respondent No.1 / Mainuddin? OPP

(ii). Whether the petitioner is entitled to any compensation, if so, to what amount and from whom? OPP

(iii). Whether the petitioner is entitled to interest on the award amount, if so, to what rate of interest and for which period? OPP

(iv). Relief.

5. Vide order dated 12.03.2018, for the purpose of inquiry of all the cases are consolidated and MACP No. 327/16 was treated as lead case and evidence recorded therein was ordered to be read in all other cases.

6. Petitioners examined 3 witnesses to establish their claim. 6.1 Petitioner Vijay Devi (PW1) of case MACP No. 327/16, stepped into the witness box and deposed about the manner of MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

accident. Further, PW1 relied upon the copy of aadhaar card of three injured persons (Vijay Devi, Master Sourabh and Baby Annu) Ex.PW1/1 (colly), certified copy of criminal case record Ex.PW1/2, certified copy of MLC of three injured persons (Vijay Devi, Master Sourabh and Baby Annu) Ex.PW1/3 (colly), medical bills Ex.PW1/4 (16 sheets).

6.2 Petitioner Margub (PW1) of case MACP No. 328/16 stepped into the witness box and deposed about the manner of accident. Further, PW1 relied upon the copy of aadhaar card Ex.PW1/1 (colly), certified copy of MLC of Ex.PW1/2 (colly), medical bills Ex.PW1/3 (5 sheets) and driving licence Ex.PW1/4.

6.3 Petitioner Pramod Kumar @ Pramod Nath (PW1) of case MACP No. 323/16, stepped into the witness box and deposed about the manner of accident. Further, PW1 relied upon the copy of aadhaar card Ex.PW1/1 and certified copy of MLC of Ex.PW1/2 (9 sheets).

7. Both respondents entered into witness box to give evidence. 7.1 Respondent No.1 (R1W1) testified that one day after accident, he had gone with respondent No. 2 to bring his vehicle from police station of Noida and respondent No. 2 had informed him that his previous driver had left the vehicle on road after it met with an accident. 7.2 Respondent No. 2 Jasbir (R2W1) stated that respondent No.1 was not driving the vehicle at the time of accident rather one Suresh was driving it and truck crossed the divider and came on the right side of the road near footpath as driver side front tyre had bursted.

MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

He also stated that Dharambir and Ravi had told him that they had seen that Santro car was hit by another unknown truck.

8. I have heard Sh. J.P.Rajput, Ld. Counsel for petitioners and Sh. Pradyuman Singh, Ld. Counsel for respondent No.1 and 2. Record of the case has also been perused.

ISSUE No.1 :

9. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is tested on the touchstone of principle of preponderance of probabilities.

10. To prove their case, petitioners Vijay Devi, Margub and Pramod Kumar have categorically deposed that 16.07.2014, when they were coming from Noida towards Delhi by a Santro car and reached near village Gulawali Expressway Noida, all of sudden a truck bearing registration No. HR­38M­7266 came from opposite side at a fast speed and hit their Santro car causing grievous injuries to all the occupants in the car. During cross­examination, Vijay Devi mentioned that the truck hit their car after breaking the divider. She further mentioned that she was sitting on the front seat adjacent to the driver and the truck hit the car on her side and since she became unconscious she cannot identify the driver of the vehicle. Margub stated in his cross­examination, he was driving the Santro car and the truck hit the car on his side after breaking the divider. Further, he stated that he had seen the driver of the offending vehicle and he had fled away after the offending vehicle MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

fell into drain (nali) on the road side. Petitioner Pramod Kumar also deposed in his cross­examination that the offending vehicle came from opposite direction and hit the car from front side.

11. Considering the testimony of all three petitioners, it is found that nothing could be extracted from them during cross­examination to raise doubt on the facts put forward by them. It is found that the version of all three injured persons is in consistence with the material collected by the police during investigation. The site plan, which is part of police record Ex.PW1/2 (MACP No. 327/16) makes it clear that the truck had gone on its right side after crossing the divider and hit the Santro car coming from the front side. Further, mechanical inspection report of the Santro car also shows that it was badly damaged in the accident.

12. Though, R1W1 and R2W1 have deposed that respondent No. 1 was not driving the vehicle at the time of accident, however, their testimony is not found convincing. The respondents failed to explain as to why Suresh, who was allegedly driving the truck as per version of R2W1, was not produced to explain the exact sequence of events. Further, though R2W1 mentioned in his affidavit that Dharamvir and Ravi were travelling on motorcycle behind Santro car and had seen the unknown truck hitting the car, but no explanation furnished for not producing these alleged eye witnesses. Moreover, it is also to be noticed that the no suggestion was given to any of the injured person that their car was hit by some unknown truck and the said two persons had witnessed the accident.

MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

13. Moreover, the respondents had taken contradictory defence. Suggestion was given to Vijay Devi that the offending vehicle had crossed the divider and hit their car as its front tyre had bursted, whereas a suggestion was given to Pramod Kumar that the truck had hit the car from front side and further that the offending vehicle was already parked on account of burst of its tyre.

14. Furthermore, it is not disputed that respondent No.1 has been charge­sheeted in the aforesaid criminal case for causing accident by driving the offending vehicle in rash and negligent manner and he has admitted in his cross­examination that he had not given complaint to police or any other authority after coming to know that he has been falsely implicated in this case. Thus, it is concluded that the defence of respondents is not probable and convincing.

15. Furthermore, MLCs of Vijay Devi, Sourabh and Annu Ex.PW1/3 (colly) (MACP No. 327/16) make it clear that all of them suffered injuries in the accident. Further, MLC of Pramod Kumar Ex.PW1/2 (MACP No. 323/16) and MLC of Margub Ex.PW1/2 (MACP No. 328/16) make it clear that both of them also suffered injuries in the accident.

16. In view of this court, aforesaid material is found sufficient to establish that the accident had occurred due to rash and negligent driving of the offending vehicle by respondent No.1 and that has resulted into injuries to all 5 petitioners. Therefore, issue no. 1 is decided in favour of the petitioners.

MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

ISSUE NO. 2 :

17. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance.

(MACP No. 327/16 : In re­ Vijay Devi ) MEDICAL EXPENSES:

18. PW1 has referred to medical bills of Rs.44,948/­ Ex.PW1/4 in her testimony. It is observed that all medical bills are original and are in order. These have not been challenged in any manner. In view of above, a total sum of Rs.44,948/­ is granted to the petitioner as medical expenses.

PAIN AND SUFFERING:

19. PW1 deposed that she suffered number of injuries all over her body, especially fracture in 3 ribs, multi fracture in knee of left leg. She further stated that her treatment continued for long time and since she is house wife, she could not cook food and do other household works during treatment period. She also stated that she had to hire domestic help and paid Rs.32,000/­ to her. It is observed that apart from MLC, no treatment papers have been placed on record. Further, in MLC also, only provisional diagnosis regarding nature of injuries i.e. fracture in left femur and ribs was done. In absence of complete treatment record and final medical opinion, though it cannot be opined MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

about nature of injuries suffered by the petitioner but considering her medical bills of a period of more than one year and some of the bills are related to x­ray tests, it may be safely assumed that the petitioner suffered grievous injuries and remained under treatment for a long time. Thus, considering the overall circumstances, a sum of Rs.40,000/­ is awarded to petitioner under this head. LOSS OF INCOME (DURING TREATMENT):

20. Petitioner has mentioned that she was a house wife. Therefore, her income cannot be considered less than a skilled workman. At the relevant time, minimum wages of a skilled person prevailing in Delhi was Rs.10,374/­. Further, considering the MLC and medical bills, it may be safely assumed that petitioner might not have been able to do any work for at least 2 months after accident. In view of this, petitioner is awarded Rs.20,748/­ (10,374 X 2) under this head. CONVEYANCE, ATTENDANT CHARGES & SPECIAL DIET:

21. Though, no specific evidence has been led in this regard but considering the period of treatment and nature of injuries suffered by the petitioner, an inference can be drawn that petitioner had to spend considerable amount to visit hospital number of times and for her special diet for the purpose of early recovery. Therefore, a sum of Rs.20,000/­ is awarded under this head.

22. Thus, the compensation awarded to the petitioner is summarized as under:­ Sl. No. Head of compensation Amount

1. Medical Expenses Rs. 44,948/­ MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

2. Pain & Suffering Rs. 40,000/­

3. Loss of Income Rs. 20,748/­ Conveyance, attendant & Rs. 20,000/­ 4. Special Diet Charges TOTAL Rs.1,25,696/­ (rounded off Rs.1,26,000/­) (MACP No. 323/16 : In re­ Pramod Kumar ) MEDICAL EXPENSES:

23. Though Petitioner stated that he had spent around Rs.50,000/­ on his treatment but no documentary evidence is placed on record. In view of this, no compensation can be awarded under this head.

PAIN AND SUFFERING:

24. Petitioner deposed that he suffered injuries all over his body, especially fracture in left shoulder. He further stated that on account of injuries sustained in the accident, he is unable to do work properly. It is observed that apart from MLC, no treatment papers have been placed on record. Further, in MLC also, only provisional diagnosis regarding nature of injuries i.e. fracture in shoulder was done. In absence of complete treatment record and final medical opinion, it cannot be opined about nature of injuries suffered by the petitioner. In view of this, this court is left with no option but to award compensation on the basis of oral testimony of the petitioner. Thus, considering the overall circumstances, a sum of Rs.20,000/­ is awarded to petitioner under this head.

MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

LOSS OF INCOME (DURING TREATMENT):

25. Petitioner has mentioned that he was doing work of scrap in Ghazipur dairy farm and was earning Rs.15,000/­ per month at the time of accident. In absence of the treatment papers, it is not possible to assess loss of income on account of said injuries, however, considering the material placed on record, a sum of Rs.10,000/­ is awarded to petitioner under this head.

CONVEYANCE, ATTENDANT CHARGES & SPECIAL DIET:

26. Though, no specific evidence has been led in this regard but considering the evidence brought on record, a nominal amount of Rs.5,000/­ is awarded under this head.

27. Thus, the compensation awarded to the petitioner is summarized as under:­ Sl. No. Head of compensation Amount

1. Pain & Suffering Rs. 20,000/­

2. Loss of Income Rs. 10,000/­

3. Conveyance, attendant & Rs. 5,000/­ Special Diet Charges TOTAL Rs.35,000/­ (MACP No. 328/16 : In re­ Margub ) MEDICAL EXPENSES:

28. PW1 has referred to medical bills of Rs.4,573/­ Ex.PW1/3 in his testimony. It is observed that all medical bills are original and are in order. These have not been challenged in any manner. In view of MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

above, a total sum of Rs.4,573/­ is granted to the petitioner as medical expenses.

PAIN AND SUFFERING:

29. PW1 deposed that he suffered number of injuries all over his body, especially fracture in left thumb and in tooth. He further stated that on account of injuries sustained in the accident, he is unable to do work properly. It is observed that apart from MLC, few treatment papers of Maulana Azad Institute of Dental Sciences have been placed on record showing that his dental treatment continued for about one year. Though, in MLC, only provisional diagnosis regarding nature of injuries i.e. fracture in left thumb and loss of tooth was done, however, the treatment record shows that there was avulsion of one tooth and it confirms the loss of one tooth on account of accident. Thus, considering the overall circumstances, a sum of Rs.50,000/­ is awarded to petitioner under this head.

LOSS OF INCOME (DURING TREATMENT):

30. Petitioner has mentioned that he was working as driver and earning Rs.12,000/­ per month. Since no proof of income is placed on record, his income may be considered at par with minimum wages of a skilled person (driver). Considering the aforesaid medical evidence, it may be safely assumed that petitioner might not have been able to do any work for at least two months after accident. In view of this, petitioner is awarded Rs.20,748/­ (Rs.10,374 x2) under this head.

MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

CONVEYANCE, ATTENDANT CHARGES & SPECIAL DIET:

31. Though, no specific evidence has been led in this regard but considering the period of treatment and nature of injuries suffered by the petitioner, an inference can be drawn that petitioner had to spend considerable amount to visit hospital number of times and for his special diet for the purpose of early recovery. Therefore, a sum of Rs.20,000/­ is awarded under this head.

32. Thus, the compensation awarded to the petitioner is summarized as under:­ Sl. No. Head of compensation Amount

1. Medical Expenses Rs. 4573/­

2. Pain & Suffering Rs. 50,000/­

3. Loss of Income Rs. 20,748/­ Conveyance, attendant & Rs. 20,000/­ 4. Special Diet Charges TOTAL Rs.95,321/­ ((rounded off Rs.96,000/­) (MACP No. 330/16 : In re­ Master Sourabh ) MEDICAL EXPENSES:

33. Though Petitioner Vijay Devi stated in her cross­examination that she had spent around Rs.10,000/­ on treatment on her son but no documentary evidence is placed on record. In view of this, no compensation can be awarded under this head. PAIN AND SUFFERING:

34. Petitioner Vijay Devi deposed that her son suffered injuries on his left hand and he was studying in 8 th class at the time of accident.

MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

It is observed that apart from MLC, no treatment papers have been placed on record. Further, in MLC also, only provisional diagnosis regarding nature of injuries i.e. fracture in left forearm was done. In absence of complete treatment record and final medical opinion, it cannot be opined about nature of injuries suffered by the petitioner. In view of this, this court is left with no option but to award compensation on the basis of oral testimony of the petitioner. Thus, considering the overall circumstances, a sum of Rs.20,000/­ is awarded to petitioner under this head.

LOSS OF INCOME (DURING TREATMENT):

35. Since the petitioner was student of class 8 th at the time of accident, no loss of income can be considered. CONVEYANCE, ATTENDANT CHARGES & SPECIAL DIET:

36. Though, no specific evidence has been led in this regard but considering the evidence brought on record, a nominal amount of Rs. 5,000/­ is awarded under this head.

37. Thus, the compensation awarded to the petitioner is summarized as under:­ Sl. No. Head of compensation Amount

1. Pain & Suffering Rs. 20,000/­ Conveyance, attendant & Rs. 5,000/­ 2. Special Diet Charges TOTAL Rs.25,000/­ MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

(MACP No. 329/16 : In re­ Baby Annu ) MEDICAL EXPENSES:

38. Though Petitioner Vijay Devi stated in her cross­examination that she had spent around Rs.70,000/­ on treatment on her daughter but no documentary evidence is placed on record. In view of this, no compensation can be awarded under this head. PAIN AND SUFFERING:

39. Petitioner Vijay Devi deposed that her daughter suffered fracture in her left leg and she was studying in 2 nd class at the time of accident. It is observed that apart from MLC, no treatment papers have been placed on record. Further, in MLC also, only provisional diagnosis regarding nature of injuries i.e. fracture in left femur was done. In absence of complete treatment record and final medical opinion, it cannot be opined about nature of injuries suffered by the petitioner. In view of this, this court is left with no option but to award compensation on the basis of oral testimony of the petitioner. Thus, considering the overall circumstances, a sum of Rs.20,000/­ is awarded to petitioner under this head.

LOSS OF INCOME (DURING TREATMENT):

40. Since the petitioner was student of class 2nd at the time of accident, no loss of income can be considered. CONVEYANCE, ATTENDANT CHARGES & SPECIAL DIET:

41. Though, no specific evidence has been led in this regard but considering the evidence brought on record, a nominal amount of MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

Rs. 5,000/­ is awarded under this head.

42. Thus, the compensation awarded to the petitioner is summarized as under:­ Sl. No. Head of compensation Amount

1. Pain & Suffering Rs. 20,000/­ Conveyance, attendant & Rs. 5,000/­ 2. Special Diet Charges TOTAL Rs.25,000/­ LIABILITY :

43. Admittedly, the vehicle was not insured at the time of accident. Thus, respondents would be jointly and severally liable to pay the aforesaid compensation amount.

44. The petitioners have conducted the proceedings in their case diligently. Therefore, they are entitled for interest @ 9% per annum on the aforesaid award amount from the date of filing of the petition till date of realization. (Refer: "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors, MAC. APP. 165/2011 decided on 22.02.2016).

RELIEF:

45. In view of the findings on said issues, this Tribunal awards a compensation of Rs.1,26,000/­ (Rs.One lakh twenty six Thousand Only) alongwith interest @ 9% per annum from the date of filing of the petition till the date of its realization, in favour of petitioner Vijay Devi (in MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;

MACP No.327/16); a compensation of Rs.35,000/­ (Rs.Thirty five thousand Only) alongwith interest @ 9% per annum from the date of filing of the petition till the date of its realization, in favour of petitioner Pramod Kumar (in MACP No.323/16); a compensation of Rs.96,000/­ (Rs. Seventy Seven thousand Only) alongwith interest @ 9% per annum from the date of filing of the petition till the date of its realization, in favour of petitioner Margub (in MACP No.328/16); a compensation of Rs.25,000/­(Rs. Twenty five thousand Only) alongwith interest @ 9% per annum from the date of filing of the petition till the date of its realization, in favour of petitioner Master Sourabh (in MACP No.330/16); and a compensation of Rs.25,000/­(Rs. Twenty five thousand Only) alongwith interest @ 9% per annum from the date of filing of the petition till the date of its realization, in favour of petitioner Bbay Annu (in MACP No.329/16) and against the respondents and same is required to be deposited with this Tribunal within 30 days. The respondents would be jointly and severally liable to pay the aforesaid compensation amount.

46. Copy of award be supplied to the petitioners and the respondents for compliance.

47. Form­IVB in terms of MCTAP is annexed herewith as Annexure­A. Digitally signed by VIVEK VIVEK KUMAR KUMAR GULIA GULIA Date: 2020.01.21 11:08:47 +0530 Announced in the open (Vivek Kumar Gulia) Court on 20.01.2020 Presiding Officer­MACT (East) (Total 18 pages) Karkardooma Courts, Delhi MACP No.323/16 ; MACP No. 327/16; MACP No. 328/16;