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Delhi District Court

Sh. Prabhakar Singh vs Sh. Amit (Driver) on 16 October, 2012

         IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL­II, 
             DWARKA COURTS, NEW DELHI

                           MACT NO. 261/12

IN THE MATTER OF : 

   1. Sh. Prabhakar Singh
      S/o Sh. Surender Singh 
      R/o RZ­338, Brahmpuri
      Pankha Road, New Delhi.

                                                                           ......Petitioner
                            Versus

   1. Sh. Amit         (Driver)
      S/o Sh. Surender
      R/o Village Nijampur
      Near Tikri Boarder
      Kanjhawla, New Delhi.
       
   2. Sh. Jai Bhagwan (Owner)
      S/o Sh. Bansidhar
      R/o 184, Nijampur
      Rashidpur, Bawana
      New Delhi.  

   3. Oriental Insurance Co. Ltd.  (Insurer)
      At SCO No. 119, 1st Floor
      Shyamji Complex
      Delhi­Rohtak Road
      Bahadurgarh, Haryana­124507.              
                                               .........Respondents

FILED ON                               :        02.03.2012
RESERVED ON                            :        10.10.2012
DECIDED ON                             :        16.10.2012


MACT No. 261/12      Sh. Prabhakar Singh v. Sh. Amit & Ors.                      Page 1 of 16
                          ­:      J U D G M E N T     :­

1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.

2. Respondent no. 1 is the driver, Respondent no. 2 is the owner and Respondent no. 3 is the insurer of the offending vehicle.

Case of the Petitioner:­

3. The case of petitioner in this claim petition is that on 27.04.11 at about 10.45 a.m., he was going to his house on his Scooty bearing no. DL­9S­AF­2198 from Stanford British School and when he reached at OPG School, Sector­19 near T­ Point, Goyla Dairy all of a sudden, driver of offending vehicle bearing no. HR­63­AT­5344, who was driving the vehicle in a rash and negligent manner, came from left side and hit the vehicle of the petitioner from left front side.

4. It is stated that due to the said impact, the injured fell down on the road and suffered multiple grievous injuries.

5. It is stated that the petitioner was removed to Ayushman Hospital where MLC No. 2131/11 was prepared.

6. It is stated that in P.S. Sector­23, Dwarka FIR No. 87/11 dated 27.06.11 under Section 279, 338, 465 and 471 of IPC is registered against Respondent No. 1.

7. It is stated that petitioner was 63 years of age at the time of accident. He was working as a Canteen Manager in Stanford British School, Main Road, Chhawla and was earning Rs. 25,000/­ per month.

8. It is stated that petitioner has spent a sum of Rs. 2 lacs on his treatment.

9. It is also stated that due to this accident petitioner lost his job and is not able to do any work.

10. In these circumstances petitioner has claimed a compensation of Rs. 7 lacs from the respondents. Case of Insurance Company:­

11. Reply to the D.A. Report filed by insurance company was treated as reply to the claim petition as well.

12. It was stated in the reply that Investigating Officer has submitted Driving License Verification Report bearing no. 1081/MTR/07 in which concerned Registration Authority of Mathura has mentioned that the said driving license was not issued in the name of Sh. Amit Kumar, S/o Sh. Surender Singh.

13. In view of this, insurance company stated that insurance company is not liable to pay even a single penny to the petitioner and prayed that insurance company be discharged from the array of the parties.

14. It was stated that vehicle bearing no. HR­63­ AT­5344 was insured with the insurance company vide policy no. 261602/312011/2286 for the period from 08.02.11 to 07.02.12 in the name of Sh. Jai Bhagwan which covers the date of accident i.e. 27.06.11 under the terms and conditions of insurance policy.

15. It was also stated that petitioner must prove that the offending vehicle was being driven rashly and negligently and must prove the expenses incurred on his treatment.

16. No reply was filed by other respondents.

17. From the pleadings of parties, following issues were framed:­

1) Whether the petitioner has received injuries on his person in an accident which took place on 27.04.2011 caused due to negligent driving of the vehicle bearing Registration No. HR 63AT 5344 being driven by driver Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3? OPP

2) If yes, what is the amount of compensation which the claimant is entitled to receive and from which respondent? OPP

3) Relief.

Evidence on behalf of Petitioner:­

18. Petitioner entered in the witness box as PW­1 and stated similar facts in his evidence by way of affidavit as were already stated by him in his claim petition. His Election I­ Card, Driving License, medical bills and Certificate of Stanford British School dated 18.07.11 were proved as Ex. PW1/1­4.

19. In cross examination, he deposed that he is an Ex­ Army man getting a pension of Rs. 13,000/­ per month. Bills for expenses incurred on his treatment at Ayushman Hospital were not given to Army Authorities for reimbursement as only select hospitals are on the panel of Army.

20. He stated that he was picked up by members of public and taken to Ayushman Hospital for which he was not entitled to get reimbursement of the expenses. He stated that MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 4 of 16 he was spending Rs. 100/­ on TSR for one trip from going from his house to the hospital and he had availed a TSR for 10 to 15 times.

21. Suggestions contrary to his case were denied.

22. Second witness examined by petitioner was Professor Jagdish Bhadaria, Principal of Stanford British School, Main Road, Chhawla.

23. PW­2 stated in his examination in chief that petitioner was working in his school since 01.07.09. He was a regular employee. However, due to accident petitioner could not perform his duties for long hours in canteen. He was not able to come at 7.00 a.m. in the morning. Therefore, petitioner had left the services w.e.f. 27.06.11.

24. PW­2 stated that petitioner was getting a salary of Rs. 25,000/­ per month. All the 42 employees working in the school including petitioner were being paid in cash. All the documents of employees who have left the services of school are kept in a store and those documents could not be searched at the moment and therefore he did not produce those documents in the court. He stated that if in future he finds those documents he will produce the same in the court.

25. However, he identified his signatures on Ex. PW1/4 which is a salary certificate given to the petitioner.

26. In cross examination, he stated that being Chairman of the Managing Committee of the school he is authorised to sign Ex. PW1/4, salary certificate.

27. PW­2 stated that no deduction for Provident Fund MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 5 of 16 or ESI was being made on the wishes of majority of employees and he would be deducting the same from December, 2012 onwards.

28. On behalf of insurance company, its Administrative Officer entered in the witness box as R3W1 and proved Certificate cum Policy Schedule as Ex. R3W1/1. He relied on D.A. Report filed by the Investigating Officer which he exhibited as Ex. R3W1/2.

29. R3W1 stated that driving license and fitness are fake. Therefore, insurance company be discharged from its liability.

30. No witness was examined on behalf of driver and owner.

31. Arguments were addressed by Sh. Ashutosh Kumar, learned Counsel for petitioner and Sh. Shyam Singh, learned Counsel for insurance company.

32. Counsel for petitioner has argued that petitioner was admitted in Ayushman Hospital from 27.06.11 to 30.06.11 and spent Rs. 18,000/­ on his treatment. Petitioner has not suffered any permanent disability.

33. He stated that petitioner was constrained to avail leave for six months due to this accident.

34. On the other hand, counsel for insurance company has argued that evidence of PW­2 is not reliable and he has not shown any document to show that petitioner was employed with him.

35. Counsel for insurance company also argued that MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 6 of 16 petitioner is an Ex­Army Man and was availing facility of canteen and hospital and it is a case of 'no driving license', therefore, insurance company be exonerated.

36. On the basis of pleadings of parties, evidence on record and arguments addressed, issue­wise findings are as under:­ ISSUE NO. 1

37. Burden of proving this issue is on the petitioner.

38. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.

39. This is sine qua non for getting the relief.

40. Petitioner has stated in claim petition that on the date of accident he was going towards his house on his Scooty bearing no. DL­9S­AF­2198 from Stanford British School and when he reached at OPG School, Sector­19 near T­Point Goyla Dairy all of a sudden driver of offending vehicle bearing no. HR­63­AT­5344 who was driving the vehicle in a rash and negligent manner came from left side and hit the vehicle of the petitioner from left front side. Petitioner has stated that the accident was caused due to sole negligence of Respondent No. 1.

41. Respondent No. 1 did not file any reply to the claim petition.

42. Petitioner reiterated allegations of rash and negligent driving against Respondent No. 1 in his evidence by MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 7 of 16 way of affidavit. However, Respondent No.1 did not cross examine the petitioner on the point of rash and negligent driving.

43. Respondent No. 1 did not enter in the witness box to prove his innocence.

44. Police has investigated in the matter and has filed charge sheet against Respondent No. 1 under Section 279 and 338 of IPC which is also prima facie suggestive of rash and negligent driving of Respondent No. 1.

45. In Ranu Bala Paul & Ors. v. Bani Chakraborty & Ors. 1999 ACJ 634, the Hon'ble Gawhati High Court has observed as under:­ "In deciding a matter tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the tribunal there must be some material on the basis of which the tribunal can arrive or decide things necessary to be decided for awarding compensation. But the tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society"

46. This case was noticed by Hon'ble High Court of MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 8 of 16 Delhi in the case titled as Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh: 2009 (3) AD (Delhi) 310 where adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there is nothing on record to show that the claimant had any enmity with the driver of offending vehicle so as to falsely implicate him in the case.

47. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12, the Hon'ble High Court of Delhi has held as under:­ "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder:­ "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."

48. In the case of National Insurance Company Ltd. v. Pushpa Rana & Ors.: 2009 ACJ 287, the Hon'ble High Court of Delhi has held that:­ "The last contention of the appellant insurance company is that the respondents­claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. Meena Variyal (Supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in F.I.R No. 955 of 2004, pertaining to involvement of the offending vehicle; (ii) criminal record showing completion of investigation of police and issue of charge­sheet under Sections 279/304­A, Indian Penal Code against the driver; (iii) certified copy of F.I.R., wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."

49. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:­

50. In the case of Raj Kumar v. Ajay Kumar & Anr. ACJ MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 10 of 16 2011 (Vol. I), following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims:­

(i) The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.

                     (ii)             Compensation   payable   in   injury 
                    cases   is   payable   under   two   heads.     They   are 

pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Non­pecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).

(iii) In routine personal injury cases compensation is awarded only under heads (i),

(ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads

(ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 11 of 16 future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.

51. As per discharge card of Ayushman Hospital, petitioner was admitted in that hospital on 27.06.11 and discharged on 30.06.11. Petitioner was diagnosed as a case of Road Traffic Accident with multiple injuries with fracture left clavical.

52. Therefore, for Pain and Suffering, petitioner is awarded a compensation of Rs. 25,000/­.

53. As per bill of Ayushman Hospital, he has spent a sum of Rs. 18,000/­ on his treatment. Petitioner has spent Rs. 13,619/­ on purchase of medicines during his treatment.

54. Therefore, petitioner is entitled to a compensation of Rs. 31,619/­ towards Purchase of Medicines and Cost of Treatment.

55. Petitioner has not shown that he was employed by Stanford British School. Although he has examined PW­2 who is Chairman of Managing Committee of the said School but the evidence of said witness does not inspire confidence because neither any appointment letter was proved nor any identity card given to petitioner was proved. There was no evidence of payment of salary by the said school to the petitioner. No attendance record was proved.

56. PW­2 stated that 42 employees were paid in cash which does not inspire confidence.

57. PW­2 stated that all the documents of employees MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 12 of 16 who have left the services of school are kept in store and those documents could not be searched at the moment.

58. PW­2 had stated that if those documents are found in future he will produce the same in the court. This statement was recorded on 20.07.12 but till the hearing of final arguments no document was filed to show that petitioner was employee of Stanford British School.

59. PW­2 stated that neither any deduction was being made for Provident Fund nor for ESI. This was on the basis of wishes of majority of employees. However, he stated that from December, 2012 onwards school will be deducting Provident Fund and ESI.

60. In the light of evidence of PW­2, this Tribunal is not persuaded to return a finding that petitioner was an employee of that school earning Rs. 25,000/­ per month.

61. Petitioner has not shown his educational qualifications.

62. Therefore, compensation for loss of wages can be ascertained on the basis of minimum wages payable to an unskilled workman on the date of accident i.e. 27.06.11 which were Rs. 6422/­ per month.

63. Considering nature of injuries of petitioner, it can be assumed that he would have suffered loss of wages atleast for three months.

64. Therefore, towards Loss of Wages, he is given a compensation of Rs. 19,266/­.

65. Besides this, petitioner is given a compensation of MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 13 of 16 Rs. 5,000/­ for Conveyance Charges and Rs. 5,000/­ for Special Diet.

66. Therefore, total compensation payable to petitioner would be Rs. 85,885/­ which will be paid with interest @ 9% p.a. from the date of filing of this claim petition which is 02.03.12 till its deposit in the Tribunal.

67. For granting interest @ 9% p.a. reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors. MAC APP. 997/11 dated 19.03.12 where in para 72 and 73 the Hon'ble High Court has held as under:­

72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.

73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount.

68. In the case of Sheela Devi & Anr. Vs. Naib Singh & Ors. : MAC Appeal No. 91/05 dated 11.05.2012 the Hon'ble High Court has held as under: ­ "7. The Claims Tribunal has awarded interest @ 6% MACT No. 261/12 Sh. Prabhakar Singh v. Sh. Amit & Ors. Page 14 of 16 per annum which is on a lower side. The Apex Court has awarded interest @ 9% per annum, in the recent case of MCD V. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."

69. As per report of the Investigating Officer driving license of driver of offending vehicle was fake that is why he was challaned under Section 465 and 471 of Motor Vehicles Act. This report has presumptive value unless proved otherwise. Therefore, it was for Respondent No. 1 to prove that he had a valid and effective driving license to drive the offending vehicle at the time of accident.

70. Respondent No. 1 has not adduced any evidence to show that he had a valid and effective driving license to drive the offending vehicle.

71. Insurance company relying upon D.A. Report has contended that it has no liability to pay compensation. As per D.A. Report not only driving license is fake even fitness was also fake. Inspite of opportunities given by this Tribunal, Respondent No. 1 and 2 failed to produce any valid and effective driving license or fitness. As D.A. Report has presumptive value, the insurance company has proved breach of terms and conditions of policy.

72. Therefore, in the first instance compensation will be given by insurance company but will have liberty to recover the same from driver/owner by filing execution petition before this Tribunal.

73. Therefore, compensation be paid by insurance company within 30 days from today under intimation to the petitioner by registered post.

74. Copy of award be given dasti to all the parties.

75. File be consigned to record room.

Announced in the Open Court.

On the 16th day of October, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL­II DWARKA COURTS, NEW DELHI.