Delhi District Court
Also At : vs Santosh Kumar & Ors on 18 August, 2017
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
In the Court of Sh. G. N. Pandey
Additional District Judge(NE)
Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
MACT No. 150/17
IN THE MATTER OF :
Anshu
W/o Sh. Kundan Singh
R/o Presently H. No. E202,
Gali No. 1, MA Rama Bai Mohalla,
Jauhari Pur, ( Khasra No. 334),
Delhi110094
Also at :
B169, Gali No. 8,
Meet Nagar, Gopal Pur,
North East, Delhi110094
................ Petitioners
V E R S U S
1. Santosh Kumar
S/o Sh. Komal Singh
R/o Dhileshwar, PS Nidholi Kalan,
Distt. Eata, UP
(Driver)
2. UP Roadways Transport Corporation,
Depo Kash Ganj, UP.
O. V. No. UP 81 BT 0576
( Owner)
................. Respondents
Date of Institution of petition : 25.03.2017 Date of Judgment/Order : 18.08.2017 MACT No. 150/17 1 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
A W A R D:
1. By this order, I shall dispose off the claim petition filed by the petitioner / injured for grant of compensation in view of the provisions of Motor Vehicle Act, 1988.
2. Briefly the facts of the case are that on 28.07.2016, the injured with her family was traveling by UP Roadways Bus No. UP 81 BT 0576 from Village Than Pur, Kulwara, Distt. Kashganj to Delhi. The bus was being driven by driver of the bus in very rash and negligent manner at very high speed. Many request was made to bus driver by the passengers not to operate the bus in rash and negligent manner but of no avail. On dt. 29.07.2017 at about 3 AM, when the abovesaid bus reached at in front of Badal Pur police station, Distt. Gautambudh Nagar, UP, the driver of the bus hit the one forwarded vehicle No. UP 16 DT 6373 Truck. Due to which, the injured fell down on the floor of bus and sustained grievous injuries all over her body. PCR Van took the injured as well other passengers to local hospital thereafter referred to GTB Hospital, Delhi. Injured was under the medical attendance and treatment from the date of accident i.e. 29.07.2016 to 16.08.2016 in GTB Hospital. The treatment of the injured is still continued.
3. The respondent No. 1 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, answering respondent No. 1 has not caused any accident; answering respondent No. 1 was driving the vehicle on normal speed. It is further contended that vehicle in question was duly insured as vehicle belongs to UP Roadways Transport Corporation. While MACT No. 150/17 2 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
denying rest of the claim of the petitioner in the petition, the respondent No. 1 prayed to dismiss the petition with cost.
The respondent No. 2 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, accident took place due to the fault of the vehicle No. UP 16 DT 6373 TATA 709 Truck. It is further contended that vehicle of the answering respondent did not cause any injury to the petitioner. While denying rest of the claim of the petitioner in the petition, the respondent No. 2 prayed to dismiss the petition with cost.
4. On the basis of the pleadings of the parties, following issues were framed:
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle No. UP 81 BT 0576 at in front of PS Badal Pur, GB Nagar, UP by respondent No. 1 on 29.07.2016 at about 3:00 AM within the jurisdiction of PS Badal Pur, GB Nagar, UP. ?OPP
2. Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP
3. Relief.
5. Petitioner filed her affidavit by way of evidence Ex. PW 1/A and examined herself as PW1. The witness deposed nothing but deposed regarding the contention in the petition. She also deposed regarding the relevant documents i.e. copy of election I Card Ex. PW 1/ 1, copy of adhar card Ex. PW 1/ 2, copy of salary slip Ex. PW 1/3, photocopy/ certified copy of medical treatment Ex. PW 1/ 4, photocopy/ certified copy of criminal case MACT No. 150/17 3 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
record Ex. PW 1/ 5 and uncertified photocopy of criminal case record mark A. The PE was thereafter closed.
6. Respondent No. 1 examined himself as R1W1 by way of affidavit Ex. R1W1/A who deposed nothing but as deposed in the WS. RE was thereafter closed.
7. I have heard Ld. Counsel for petitioner, ld. Counsel for respondent No. 1 and Ld. Counsel for respondent No. 2 and considered the relevant materials on record. My issue wise findings are as below : ISSUE No. 1.
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle No. UP 81 BT 0576 at in front of PS Badal Pur, GB Nagar, UP by respondent No. 1 on 29.07.2016 at about 3:00 AM within the jurisdiction of PS Badal Pur, GB Nagar, UP. ?OPP
8. To succeed in the claim petition in view of Section 166 of the MV Act, it is for the claimant to prove that vehicle which caused the accident was being driven rashly and negligently by its driver. Petitioner deposed about the facts of the case. She was crossexamined by Ld. Counsel for respondent and during crossexamination nothing has come forward in her testimony to disbelieve the version of PW. On the other hand, the testimony of RW did not rebut the testimony of PW to deny the claim of the petitioner and mere denial is not sufficient to rebut the claim of the petitioner. No witness was produced or examined by respondents as well to prove as to how accident occurred due to the negligence of the petitioner ; the respondent No. 1 was not at fault and was not driving the vehicle in rash and negligent manner. Certified copy of MACT No. 150/17 4 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
criminal case record Ex. PW 1/ 5 which includes copy of FIR, MLC etc. There is no reason to disbelieve the testimony of witnesses. I have gone through the record and documents in respect of the accident caused to the petitioner which is prima facie suggestive of negligence of respondent No. 1 in driving the vehicle at the time of accident.
Relied judgment in (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530 and the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC
646).
Hon'ble Supreme Court in Bimla Devi and Ors. V/s Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. In judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh, 2009 (3) AD (Delhi) 310, an MACT No. 150/17 5 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the Claimant had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
10. I have gone through the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana to examine the aspect of negligence wherein in the Hon'ble High Court held that: In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
Further, in Kaushnumma Begum and others V/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to MACT No. 150/17 6 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one. Further the Hon'ble High Court of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. V/s. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Delhi High Court, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit.
11. Therefore, in view of the material on records and testimony of witnesses, it is proved that the petitioner/ injured sustained grievous injuries in the accident which occurred on 29.07.2016 due to rash and negligent driving of offending vehicle bearing No. UP 81 BT 0576 driven by its driver i.e respondent No. 1. The issue No. 1 is decided accordingly. Issue No. ii :
(ii) Whether petitioner is entitled to compensation? If so at what amount and from whom? OPP
12. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in MACT No. 150/17 7 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
injury cases. As held:
4. The provision of the Motor Vehicles Act, 1988 ( Act for short) makes it clear that the award must be just, which means that compensation should , to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court of tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd. MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages) MACT No. 150/17 8 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of
treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Nonpecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities ( and/ or loss of prospects of
marriage).
(vi) Loss of expectation of life ( shortening of normal
longevity).
In routine personal injury cases, compensation will be awarded only under heads (I), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b),
(iii), (v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of MACT No. 150/17 9 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. Award under the head of future medical expenses item (iii) depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non pecuniary damages items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant. Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head MACT No. 150/17 10 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability ( this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. Hon'ble Supreme court laid down the principles in respect of the MACT No. 150/17 11 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
assessment of compensation regarding injuries as below:
(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability ( except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentage of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
13. I have gone through the testimony of the witnesses alongwith complete medical records. It is deposed that due to the accident, the injured fell down on the floor of bus and sustained grievous injuries all over her body. PCR Van took the injured as well other passengers to local hospital thereafter referred to MACT No. 150/17 12 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
GTB Hospital, Delhi. It is further stated that injured was under the medical attendance and treatment from the date of accident i.e. 29.07.2016 to 16.08.2016 in GTB Hospital. The treatment of the injured is still continued. The petitioner claimed that she is aged about 29 years of age and employed as a post of DEO Cum office Asstt. in East Delhi Municipal Corporation community Service Department, Delhi and earned Rs. 15,000/ per month. In support of contentions, petitioner has filed copy of salary slip Ex. PW 1/ 3 and as per salary slip Ex PW 1/ 3, the salary of the petitioner was Rs. 12,142/ per month as per minimum wages act. The accident took place on 29.07.2016 therefore income of the petitioner has to be considered on the basis of minimum wages act applicable to the graduate on the date of accident i.e. 29.07.2016 as petitioner is graduate. Therefore, income of the petitioner is assessed as Rs. 12,622/ per month.
14. There is nothing on record in support of the affidavit of PW1 that she suffered any loss of earnings from her work. However, with the kind of injuries suffered by her, it can be safely assumed that she would have been under treatment for about three months. He is thus awarded Rs. 37,866/ (Rs. 12,622/ X 3) for three months for Loss of Wages.
15. The petitioner has claimed compensation without giving any specific head. She/ attendant must have incurred some expenditure on the conveyance, medication, special diet etc. It is also claimed that after the accident, the petitioner could not perform her routine and required attendant/ assistance for her day to day business; she also suffered financial losses due the accident and her family suffered mental pain and agony.
16. While fixing compensation for pain and sufferings, as also for loss of MACT No. 150/17 13 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
amenities of life, the features like the age and unusual deprivation undertaken by a person in her life generally are to be reckoned. From the overall assessment, I assess Rs. 40,000/ as compensation towards Pain, Shock and Suffering to the Claimant.
17. The ld. Counsel for petitioner submits that petitioner has spent amount for her treatment but no medical bill has been filed on record. Petitioner is not entitled for any amount towards medical bill.
18. The Claimant has not filed any document in support of the fact that she had incurred expenses on keeping an attendant, for conveyance and for extra nutritious diet. However, I guess she must have spent some amount for which she is awarded a lumpsum amount of Rs. 5,000/ for Special Diet and Rs. 5,000/ for Conveyance Charges.
19. Keeping in view the nature of injuries suffered by the petitioner and the fact that she was under constant treatment, she needed an Attendant to look after her and the petitioner is therefore, entitled to attendant charges. Petitioner has not filed any record to show that she has received help of special attendant however, some family member must have been attending him. A victim of accident has to be compensated in terms of money even if gratuitous services are under by a family members. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble High Court held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. In the circumstances, where the injured had suffered injury, it is deemed fit that a lump sum of Rs. 10,000/ be awarded as MACT No. 150/17 14 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
compensation towards Attendant charges.
20. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the Claimant :
1. Future Loss of Income Rs. 0/
2. Towards Pain Shock & Suffering Rs. 40,000/ 3 Towards Servant / Attendant Charges Rs. 10,000/
4. Towards Conveyance & Special diet Rs. 10,000/ 5 Towards medical bills Rs. 0/ 6 Towards loss of Wages Rs. 37,866/ Total= Rs. 97,866/ I accordingly award an amount of compensation of Rs. 97,866/ in favour of the Claimant and against Respondents. Liability:
21. Respondent No. 1 and 2 i.e. driver as well as owner are liable to pay the compensation. Interim award if any paid to injured/ petitioner be adjusted in the award amount.
Award:
22. Resultantly, the claim petition stands allowed. Respondent No. 1 and 2 are hereby directed to pay the compensation of Rs. 97,866/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Respondent No. 1 and 2 are directed to deposit the amount with UCO Bank, KKD Courts MACT No. 150/17 15 of 16 Anshu V/s Santosh Kumar & Ors.
Sh. G. N. Pandey, Addl. District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Branch, Delhi and the same be transferred to the Claimant's bank.
23. Withdrawal from the said Account shall be permitted to Claimant after due verification and Bank shall issue Photo Identity Card to Claimant to facilitate Identity.
24. On request of Claimant, bank shall transfer the Savings Account to any other branch.
25. The award amount alongwith interest be deposited by respondent No. 1 and 2, within 30 days in the court.
26. FormIV shall be read as a part of the judgment.
Announced in open Court on this 18th day of August, 2017 G. N. Pandey Additional District Judge(NE) Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
MACT No. 150/17 16 of 16 Anshu V/s Santosh Kumar & Ors.