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Delhi District Court

Anil Chauhan Son Of Shri Hari Shankar vs Sher Singh S/O Fateh Singh (Driver) on 21 April, 2011

          IN THE COURT OF MS. NIRJA BHATIA :
       PRESIDING OFFICER: MOTOR ACCIDENT
          CLAIMS TRIBUNAL : NEW DELHI

Suit No.301/2010
Unique Case ID No.02403C0143722010

Anil Chauhan Son of Shri Hari Shankar,
R/o House No.32, Police Station,
Kalkaji, New Delhi-110019              ...... Petitioner

                                   VERSUS

1       Sher Singh S/o Fateh Singh            (driver)
        R/o Village Lahaski, Police Station Pali,
        District Aligarh, UP.

2       Mukesh Son of Balbir Singh (owner)
        R/o House No.132, Ishwar Colony,
        Bawana, Delhi-110039.

3       Shriram General Insurance Company Ltd.
        1001, LGF, Arya Samaj Road,
        Karol Bagh, New Delhi-110005.
                                                 .....Respondents
                    ----------------------------

Date of institution :                                 12.04.2010

Date of reserving the judgment :                      19.04.2011

Date of pronouncement :                 21.04.2011

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AWARD This judgment cum award shall decide the present petition filed under Section 166 read with Section 140 MV Act, 1988 as amended up to date (hereinafter referred as Act), for grant of compensation arising out of the injuries case.

2 The brief facts relevant for the decision are detailed by the petitioner claiming in petition that on 26.3.2010 at about 2.30 PM, while he was travelling on his Bajaj Discover Motorcycle, bearing registration No.DL 3S AL 9850 and was proceeding towards Dwarka via MB Road for going to his office and reached at Hamdard Redilght, all of a sudden, a truck bearing registration No.HR 63 6649, which was being driven by Sher Singh, driver, R-1 in rash and negligent manner, hit him on the right side as a result of which, he fell down and suffered injuries in his right leg, right hand and other body parts. As a result, he was admitted to AIIMS Trauma Centre and was later on, shifted for further management to Ortho Nova Hospital. The petitioner claimed that he spent huge amount in his treatment, diet and conveyance and other charges due to the accident and also underwent immense mental agony. Total compensation of about Rs.5 lac is prayed.

3 It be observed that the petition was filed subsequent to institution of AIR, filed under Section 158(6) Cr.PC in the present matter. WS was filed by R-1 and R-2 who denied and disputed their liability to pay any compensation to the petitioner. Subsequently, the insurance company also filed its reply and raised several objections for payment of compensation. However, the factum of insurance of the offending vehicle was admitted.

4 Subsequent to above, the issues were framed on 18.11.2010 to the following extent :

1 Whether the petitioner received grievous injuries in the accident which Suit No.301/2010 (Anil Chauhan Vs. Sher Singh etc.) Page 2 of 9 took place in between 2.30 PM on 26.3.2009 involving Truck, bearing No.HR 63 6649 due to rash and negligent driving of R-1, owned by R-2 and insured with R-3? OPP 2 To what amount of compensation, the petitioner is entitled to claim and from whom? 3 Relief.

5 The matter thereafter, was listed for PE. The petitioner was examined and cross-examined. The insurance company as well as other respondents did not tender their evidence and the RE was closed vide order dated 9.3.2011. I have heard the submissions from the parties orally. I now proceed to record my reasons on the issues framed above as below :

ISSUE NO.1 : NEGLIGENCE 6 As the present petition was filed under the provisions of Section 166 MV Act, the petitioner was under the obligation to establish the factum of negligence attributable to R-1. It be observed that in the petition itself, the petitioner has detailed the circumstances in which the accident has been caused. It has been clearly detailed by the petitioner that when he had reached at Hamdard Relight, Sangam Vihar, all of a sudden, Sher Singh, driver of the offending vehicle, hit him as he was driving the vehicle rashly and negligently and at a very violent speed. The version of the petitioner has been corroborated through the investigation carried out by the IO who on the complaint received from the petitioner against Suit No.301/2010 (Anil Chauhan Vs. Sher Singh etc.) Page 3 of 9 R-1, Sher Singh, prepared the site plan. The site plan clearly shows that the truck was being plied away from the lane meant for it and has stepped into the lane meant for the petitioner. Apart from the above, the mechanical inspection report also shows the involvement of the offending vehicle.

Besides, the charge-sheet filed under Section 173 Cr.PC is also reflection of inditement against the driver in plying the vehicle rashly and negligently. It be further observed that the petitioner affirmed the above facts against Sher Singh in his examination affidavit. However, the driver has opted not to cross-examine the petitioner of his version of alleged negligence attributable to the driver. Furthermore, despite being the best witness to controvert the allegations levelled against him, the driver has not brought any evidence from his side. In view of the above, adverse presumption is to be drawn against the driver, Sher Singh. In my view, sufficient material hence, is available on record to establish the negligence attributable to R-1, driver Sher Singh.

7 Even otherwise, it is pertinent to observe that the degree of proof required for proving the negligence on the part of the driver in the present proceedings, is not as vigorous as is required in proving the guilt of the accused in criminal trial. The intent of the present legislation is benevolent and the entire purpose of the legislation is likely to be defeated if in each case the petitioner is asked to prove beyond reasonable doubt the involvement and negligence on the part of the driver. In reaching to the above opinion, I am guided by the judgment of Khushnuma Begum and others Versus New India Assurance Limited, 2001 ACJ 421 SC as well as the Suit No.301/2010 (Anil Chauhan Vs. Sher Singh etc.) Page 4 of 9 case reported as National Insurance Company Limited Versus Pushpa Rana, 2009 ACJ 289, wherein it is held that mere involvement of a vehicle is sufficient to establish and hold the claim petition to be maintainable. It is held that even the certified copy of charge-sheet may not be asked for if the petitioner is able to satisfy on record the involvement of the offending vehicle through the copy of FIR and the mechanical inspection report. The issue hence, is decided in favour of the petitioner and against the respondents. ISSUE NO.2 : COMPENSATION MEDICAL BILLS 8 The petitioner has filed on record medical bills in respect of his treatment, amounting to Rs.10,115/-. The above amount is hence, awarded to the petitioner towards the medical expenses.

PAIN & SUFFERING 9 The petitioner has undergone fracture of bone bone and right leg as is revealed from the MLC prepared by the AIIMS Trauma Centre and subsequently through the x-ray report and the medical summary, prepared at Ortho Nova Hospital. In the celebrated judgment of R.D.Hattangadi Versus Pest Control (India) (P) Ltd., (1995) 1 SCC 551, the Hon'ble Supreme Court apart from having acknowledging the need of granting compensation to the accident victims on pecuniary grounds, has laid down the guidelines for due compensation on account of non-pecuniary heads as well. The award for accident victims for having undergone trauma due to pain & sufferings received in the accident, is now well Suit No.301/2010 (Anil Chauhan Vs. Sher Singh etc.) Page 5 of 9 recognized. The relevant observations of the judgment are detailed herein below :

"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant; (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

10 Though, there is no yard-stick fixed for measuring the pain & sufferings undergone by a victim of accident, yet it can be safely assumed that in the present case Suit No.301/2010 (Anil Chauhan Vs. Sher Singh etc.) Page 6 of 9 where the petitioner has undergone fracture, in my view, Rs. 25,000/- would be just amount towards pain & sufferings to the petitioner.

LOSS OF INCOME 11 As per the statement made in the affidavit, the petitioner has claimed that he was earning Rs.15,000/- per month. There is no cross-examination of the petitioner on the above aspect. There is no suggestion to the extent that the petitioner is not earning the amount of Rs.15,000/- as claimed by him. The petitioner has admitted and has filed on record the documents, Ex.PW1/4 collectively, issued by Concept Lightning Solutions Limited and the proof of his education. There is no denial or dispute to the above averment. There is no material to deny that the petitioner is not working with M/s.Concept Lightning Solutions Limited, having office at D-10/6, Okhla Industrial Area, Phase-I, New Delhi, rather there is an affirmative suggestion given to the petitioner that on the date of accident also, he was going to Dwarka for his duty purpose. In such circumstances, it can be concluded that the insurance company has believed the version of the petitioner. Accordingly, the income of the petitioner is assessed as Rs.15,000/- per month. Having regard to the nature of injuries undergone by the petitioner, loss of income for three months @ Rs.15,000/-, amounting to Rs.45,000/- is awarded to him.

DIET & CONVEYANCE 12 The petitioner has detailed in the affidavit that he spent about Rs.20,000/- on his special diet. In the cross-

examination, learned Shri Manish Tiwari, Advocate has given him a positive suggestion which has been admitted by the petitioner stating that it is correct that I have spent a sum of Rs.20,000/- on special diet and Rs.10,000/- on conveyance. Since, the insurance company has given the positive suggestion to the petitioner and there is no denial or dispute raised qua the above expense, an amount of Rs.20,000/- towards diet and Rs.10,000/- towards conveyance are awarded to the petitioner.

The total compensation is assessed as under :-

                 Treatment expenses :                 Rs. 10,115/-
                 Pain & Suffering :                   Rs. 25,000/-
                 Diet & Conveyance :                  Rs. 30,000/-
                 Loss of Income :                     Rs. 45,000/-
                           TOTAL :                    Rs.1,10,115/-

Hence, the petitioner is awarded a total amount of Rs.1,10,115/-.

RELIEF 13 I hereby award an amount of Rs.1,10,115/- as compensation with interest @ 7.5% per annum including interim award, if any, from the date of filing of the present petition, i.e., 12.4.2010 till the date of realisation of the amount, in favour of the petitioner and against the respondents.

14 The driver, R-1 is the principal tort feasor whereas R-2 being the owner and R-3, being the insurance company, the joint tort feasors, are jointly and vicariously liable to pay the award amount to the petitioner. Hence, the insurance company is directed to deposit the award amount Suit No.301/2010 (Anil Chauhan Vs. Sher Singh etc.) Page 8 of 9 within 30 days failing which interest @ 12% per annum for delay shall be charged.

15 The award amount shall be deposited in the account of petitioner, Anil Chauhan with State Bank of India, Saket Branch and shall be released whereafter to the petitioner. The petitioner is directed to get his account opened through the Nodal Officer, Shri H.S.Rawat (Mobile No. 09717044322) or Shri Manish Mishra, Branch Manager (Mobile No.9711001555), Saket Branch, after receiving the copy of the award. The copy of the award shall be given to the parties. It is directed that the insurance company shall make an endorsement of the title of the case, suit number, name of the parties and other relevant details while depositing the cheque in the bank. The compliance be made by all concerned.

16 Copy of the order shall be kept for receiving the compliance. File be consigned to the record room after completion of necessary formalities.

Announced in open Court                               ( NIRJA BHATIA )
Dated : 21.04.2011                                PO : MACT-02, (SE)
                                               Saket Courts, New Delhi




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