Delhi District Court
Kanta Prasad (Since Deceased) vs Sh. Pranjal Shukul (Driver) on 18 December, 2013
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
DAR No. 25/DAR/13
IN THE MATTER OF :
1. Kanta Prasad (since deceased)
through his LRs.
(a) Smt. Manju (widow)
(b) Sh. Dinesh Chauhan (son)
(c) Ms. Geeta (daughter)
(d) Rimjhim (daughter)
All R/o Village Churihar Pipra,
District Gonda, P.S. Khorare, U.P.
... Claimants
Versus
1. Sh. Pranjal Shukul (Driver)
S/o Sh. A.N. Shukul,
2. Sh. Prabhash Shukul (Owner)
S/o Sh. A.N. Shukul,
Both R/o B74A, Matiala Extn.,
Uttam Nagar, New Delhi110059.
3. Shri Ram General Insurance Co. Ltd. (Insurer)
Add: B08, Unit No. 402 & 403,
GD ITL Tower, Netaji Subhash Palace,
Pitampura, New Delhi110034.
... Respondents
DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 1 of 17
FILED ON : 16.01.2013
RESERVED ON : 13.12.2013
DECIDED ON : 18.12.2013
: J U D G M E N T :
1. This D. A. Report is filed by the Investigating Officer in FIR No. 102/12, registered at P.S. Bindapur under Section 279/338 of IPC in which Sh. Kanta Prasad, the claimant had suffered grievous injuries in a road traffic accident on 20.04.2012.
2. During pendency of this report, the claimant died and his Legal Heirs were brought on record.
3. Respondent no. 1 is the driver, Respondent No. 2 is the owner and Respondent no. 3 is the insurer of the offending vehicle.
4. Perusal of charge sheet shows that the Investigating Officer had recorded the statement of one Sh. Ram Udgar Yadav who had stated that on 20.04.12, at around 5.00 a.m., he alongwith his rehri was at TPoint of Matiyala Road near Pir Baba Ki Mazar, Sahyog Road, Bindapur, Delhi and at that time one Santro Car, Silver Coloured bearing no. DL3CBF2325 came being driven by its driver in a rash and negligent manner and hit his rickshaw. As a result of this impact, his rickshaw fell down on another person resulting in grievous injuries to both of them. He had stated that the driver of the offending vehicle had removed both the injured to Mata Chanan Devi Hospital for treatment.
DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 2 of 175. Notice of this report was issued to all the parties. However, written statement was filed only by insurance company. Insurance company stated in its written statement that as per post mortem report, there is no nexus or connection between the injuries received by the deceased in the accident and his cause of death. Therefore, insurance company denied liability to pay compensation to the LRs of the deceased. It is also stated that the cause of death as per post mortem report is septicemia subsequent to infection to multiple vital organs and death of deceased is not due to injuries received in the accident. Since it was denied that cause of death was attributable to accidental injuries, insurance company prayed that claim petition be dismissed.
6. Therefore, to decide the compensation payable to the LRs of the claimant, following issues were framed:
1) Whether the deceased Sh. Kanta Prasad died due to injuries suffered by him in a Road Traffic Accident dated 20.04.2012 when Respondent No. 1 was driving the offending vehicle bearing No. DL3CBF2325 rashly and negligently, owned by R1 and insured by Respondent No. 2? OPP
2) If yes, what is the amount of compensation payable to the claimants and by whom? If the deceased had not died due to accidental injuries, what is the amount of compensation payable to LRs of the deceased for injuries suffered in the accident?
3) Relief.
7. Dr. Pramod Pasari of DDU Hospital was examined DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 3 of 17 by LRs of claimant as PW1 who proved discharge summary of DDU Hospital where claimant was admitted on 20.04.12 and discharged on 03.05.12 as Ex. PW1/1. He deposed that Dr. Sudhir Singh who had prepared the MLC of Sh. Kanta Prasad is no more in the employment of DDU Hospital and PW1 identified signatures of Dr. Sudhir Singh at Point A on the MLC. He deposed that the injuries suffered by Sh. Kanta Prasad were intertrocentric fracture right hip. To a Court Question, whether the injuries suffered by the injured in the accident could have caused his death, he replied in negative. To second Court Question, whether injuries suffered by the injured in the accident could have caused septicemia, he again answered in negative and stated that only in case of compound injuries, septicemia may have been caused. He went on to state that it is a rare chance that with the kind of injuries suffered by the claimant, a patient would suffer with infection of multiple vital organs.
8. In cross examination by counsel for insurance company, he deposed that in case a patient informs that he was suffering from any major ailment before the accident, such a history is mentioned in MLC.
9. Second witness examined by claimants was Sh. Sushil Kumar, Medical Record Clerk as PW2 who identified signatures of Dr. Prabhav Chhaperwal on post mortem report at Point A.
10. Lastly, widow of the deceased entered in the witness box as PW3 and stated that on 20.04.12, at about 5.00 DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 4 of 17 a.m., when her husband Sh. Kanta Prasad was going at Matiyala Road, Near Baba Ki Mazar, Sahyog Road, Bindapur, Delhi, the offending vehicle bearing no. DL3CBF2325 being driven in a rash and negligent manner had caused accident resulting in grievous injuries to her husband and the accident victim died due to injuries in the accident 'during course of his treatment'. She stated that the deceased was doing a private job and earning Rs. 10,000/ per month. She proved Adhar Card of Sh. Dinesh Chauhan, son of the accident victim as Ex. PW3/1, her PAN Card as Ex. PW3/2, acknowledgment slip for her Adhar Card as Ex. PW3/3 and Birth Certificate of her child as Ex. PW3/4.
11. She denied a suggestion in cross examination that her husband had not died due to accidental injuries. She also stated that now they are surviving on scrap business which is being done by her son in place of her husband.
12. Claimants also examined Sh. Ram Udgar Yadav as PW4. He is an eye witness to the accident and stated in his evidence by way of affidavit similar allegations visavis negligent driving by Respondent No. 1 as were already stated by him before the Investigating Officer.
13. In brief cross examination, nothing could be elicited from him to show that he is not telling the truth.
14. No other witness was examined by any other party.
15. On the basis of pleadings of the parties, evidence on record and arguments addressed, issuewise findings are as under: DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 5 of 17 ISSUE NO. 1
16. Burden of proving this issue is on the LRs of the claimant.
17. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
18. This is sine qua non for getting the relief.
19. LRs of claimant have examined an eye witness Sh. Ram Udgar Yadav who was injured in the same accident. His statement was recorded by the police during investigation as is mentioned in the charge sheet. Testimony of PW4 leaves no manner of doubt that the accident was due to negligent driving of Respondent No. 1.
20. To prove his innocence, neither Respondent No. 1 entered in the witness box nor he cross examined the eye witness Sh. Ram Udgar Yadav.
21. Police after investigation in the matter has filed charge sheet against Respondent No. 1 under Section 279/338 of IPC which is also prima facie suggestive of negligence of the Respondent No. 1 in driving the offending vehicle in a rash and negligent manner.
22. 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 DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 6 of 17 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"
23. 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 DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 7 of 17 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."
24. 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."
25. This case was noticed by Hon'ble High Court of DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 8 of 17 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.
26. Therefore, this issue is decided in favour of claimant and against the respondents holding that the accident was due to negligence of Respondent No. 1.
27. The next question is whether this accident had caused grievous injuries or such injuries which resulted in the death of the accident victim?
28. The date of accident is 20.04.12 and date of death of the deceased is 19.03.13 i.e. he died after nearly 11 months of the accident.
29. In evidence by way of affidavit, widow of the deceased has stated that he had died "during the course of treatment". However, not a single document is filed on record to show that the treatment of the accident victim had continued even after his discharge from DDU Hospital on 03.05.12 till his death. No doctor was examined to prove that the accident victim had never recovered from the accident and ultimately succumbed to the injuries suffered in the accident.
30. One of the doctors examined by the LRs of DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 9 of 17 claimant themselves has deposed against their interests inasmuch as PW1 Dr. Pramod Pasari deposed that the injured could not have died due to injuries suffered in the accident and those injuries could not have caused septicemia which is shown as cause of death in post mortem report.
31. In post mortem report, in column giving brief history, it is mentioned that the patient was had alleged history of brought to DDU Hospital on 19.03.13 with history of Haemoptysis for two days and a known case of COPD. He (deceased) had expired during treatment on 19.03.13 at 11.00 p.m. as mentioned in death summary.
32. Learned Counsel for insurance company submitted that Haemoptysis is the expectoration of blood or of blood stained sputum from the bronchi, larynx, trachea or lungs (e.g. in Tuberclosis or other respiratory infections or cardiovascular pathologies).
33. She also submitted that COPD means Chronic Obstructive Pulmonary Disease which is also known as Chronic Obstructive Lung Disease and Chronic Obstructive Airway Disease, among others is a type of Obstructive Lung Disease characterized by chronically poor airflow. Tobacco smoking is the most common cause of COPD.
34. Though in MLC no previous ailment is noted but PW1 had clarified that in case a patient informs that he was suffering from any major ailment before the accident, only then such a history is mentioned in the MLC and not otherwise.
DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 10 of 1735. Perusal of post mortem report shows that both the lungs were exudating puss mixed with blood. The cause of death is due to septicemia subsequent to infection to multiple vital organs.
36. PW1 has already deposed that the injuries suffered by the deceased claimant could not have caused septicemia and only in case of compound injuries, septicemia may have been caused.
37. PW1 has deposed that it is a rare chance that with the kind of injuries suffered by the deceased claimant would have resulted in infection to multiple vital organs.
38. Therefore, in the opinion of this Tribunal, the accident victim had not died due to accidental injuries but for reasons of Haemoptysis and COPD which were not caused by accident.
39. However, learned Counsel for LRs of claimant have relied on a judgment passed by the Hon'ble High Court of Delhi in the case of Manju & Ors. v. Naresh Kumar & Ors. in MAC APP. No. 693/11 dated 26.07.13 to submit that in the case in hand also, the cause of death of accident victim be attributed to accidental injuries.
40. Perusal of the judgment relied upon by learned Counsel for LRs of claimant shows that in that case accident victim had died in close proximity of accident inasmuch as the date of accident was 10.07.07 but the victim had died on 18.09.07.
41. However, in present case the death has taken place DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 11 of 17 after a gap of 11 months and contrary to evidence of the widow of the deceased claimant that the treatment of the accident victim had continued till his death, there is no evidence to show that accident victim had not recovered from accidental injuries after his discharge from the hospital.
42. In the judgment relied upon by the LRs of the claimant, the accident victim was admitted for 7 days in Maharishi Valmiki Hospital and thereafter in Baba Saheb Ambedkar Hospital for more than 2 weeks.
43. However, in present case, after discharge from the hospital, the deceased claimant did not need any further hospitalization that is why he never visited any other doctor or hospital which shows that he must have recovered from accidental injuries.
44. Therefore, there are facts which distinguish case in hand from the facts of the case relied upon by counsel for LRs of the deceased claimant. For this reason, the said judgment relied upon by counsel for LRs of deceased claimant is not helpful to return a finding that accident victim had died due to accidental injuries.
ISSUE NO. 2:
45. In the case of Munni Devi and Ors. v. New India Assurance Co. Ltd. and Ors., 2004 ACJ 947, it was held that in case the compensation was awarded on the day the petition was filed, either the dependents of the deceased would have certainly enjoyed it during the lifetime of the injured or it would have been added to the estate. It was further held that DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 12 of 17 the parents of the claimants being partially dependent on the deceased and as such were entitled to claim compensation in the shape of loss to the estate of the deceased. Reference was made to the judgment passed by Hon'ble Supreme Court in the case of N. Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC) where compensation for pain and suffering suffered by deceased was found payable to his legal heirs. Further, amount spent by the injured/deceased on transport and nourishment was treated as loss of estate. Relying upon Section 306 of The Indian Succession Act, 1925, legal heirs of the deceased who was the injured/claimant in the claim petition were found entitled to interest on compensation from the date of filing of the petition itself for if the injured/deceased was to be given compensation on the date of filing of application, then injured was entitled to claim interest for delay and this amounted to loss to the estate of the deceased.
46. Therefore, in this case also even if accident victim had suffered grievous injuries, his LRs are entitled to compensation towards loss of estate because if on the day this report was filed, compensation was awarded in favour of claimant, either his Legal Heirs would have enjoyed that compensation or after his death, it would have become part of his estate. Therefore, at least LRs of claimant are entitled to an award to an extent of grievous injuries suffered by the accident victim.
47. In the case of Raj Kumar v. Ajay Kumar & Anr. ACJ DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 13 of 17 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, DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 14 of 17 future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
48. As noted earlier as per Ex. PW1/1 which is discharge summary of DDU Hospital, accident victim was admitted in that hospital on 20.04.12 and discharged on 03.05.12 i.e. for 14 days as a case of intertrocentric fracture right hip.
49. Therefore, for Pain and Suffering, LRs of claimant are awarded a compensation of Rs. 45,000/.
50. For Special Diet and Conveyance Charges, LRs of claimant are awarded a compensation of Rs. 7,500/ on each count i.e. a total of Rs. 15,000/.
51. It is well settled that a victim of road traffic accident has to be compensated in terms of money even if gratuitous services are rendered by his family members.
52. In Delhi Transport Corporation and Anr. v. Lalita:
AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. The Hon'ble High Court had observed as under: "........... A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All E.R. 463) The services of a wife and mother are worth more than DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 15 of 17 those of a housekeeper because she is in constant attendance and does many more things than a housekeeper. (Regan v. Williamson (1976) 2 All E.R.
241)."
53. This judgment was again quoted with approval 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.
54. Therefore, on lump sum basis, claimant is awarded a compensation of Rs. 15,000/ for Attendant's Charges for three months.
55. Claimant must have remained away from work for at least a period of three months. Minimum wages payable to an unskilled workman at the time of accident were Rs. 7,020/ per month. Therefore, claimant is awarded a compensation of Rs. 21,060/ for Loss of Wages.
56. Therefore, total compensation payable to the LRs of deceased claimant would be Rs. 96,060/ which will be paid with interest @ 7.5% p.a. from the date of filing of this D.A. Report which is 16.01.13 till its realization. This compensation shall be released in favour of widow of the deceased.
57. Insurance company has not proved any defence. Therefore, compensation shall be deposited by the insurance company under intimation to the widow of the deceased claimant as well as her counsel by registered post. In case even after passing of 90 days insurance company fails to deposit this compensation it shall be recovered by attaching its bank account with a cost of Rs. 5,000/ as per directions of the DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 16 of 17 Hon'ble High Court of Delhi in the case of New India Assurance Co. Ltd. v. Kashmere Lal & Ors., 2007 ACJ 688.
58. Nazir of this court will also send court notice to the widow of the deceased claimant as well as to her counsel when he receives intimation of deposit of compensation by the insurance company.
59. Ahlmad will put up the file with report from Nazir regarding deposit of compensation again on 20.03.2014.
60. Copy of this order be given dasti to all the parties.
61. File be consigned to the Record Room.
Announced in the Open Court.
On the 18th day of December, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
DAR No. 25/DAR/13 Sh. Kanta Prasad v. Sh. Pranjal Shukul & Ors. Page 17 of 17