Delhi District Court
Munna Devi vs . Kamruzaman & Ors. on 28 February, 2023
IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
MUNNA DEVI VS. KAMRUZAMAN & ORS.
MACP NO. 296/17
Smt. Munna Devi
W/o Late Sh. Mahabir Prasad,
R/o B-1/7, Indian Airlines Colony,
Vasant Vihar, New Delhi-110057.
......Petitioner/Injured
Versus
1. Md. Kamruzzaman (Driver)
R/o C/o Bangladesh High Commission
E.P. 39, Dr. S. Radhakrishan Marg,
Chankyapuri, New Delhi.
2. High Commission for the People Republic of Bangladesh
(Owner)
E.P. 39, Dr. S. Radhakrishan Marg,
Chankyapuri, New Delhi.
3. M/s Tata AIG General Insurance Co. Ltd. (Insurer)
Through its Manager
North Lotus Tower, 1st Floor, Community Centre,
New Friends Colony, New Delhi-110025.
.........Respondents
Date of filing of claim petition : 11.12.2017 Date of filing of DAR : 29.01.2018 Date of framing of issues : 23.05.2018 Date of concluding arguments : 08.02.2023 Date of decision : 28.02.2023 MACP NO. 296/17 Page 1 of 19 AWARD/JUDGMENT
1. The claim for compensation in the present petition relates to injuries suffered by petitioner in a road accident that took place on 22.09.2016, at about 08.10 pm in front of DPS School Vasant Vihar, New Delhi, regarding which one FIR bearing No.920/16, under Sections 279/337/304-A IPC was registered at PS Vasant Vihar. The vehicle involved in this case is a car bearing registration No. 7 CD 15 which at the relevant time of accident was being driven by respondent No.1 (R-1), owned by respondent no. 2 (R-2) and insured with respondent no. 3 (R-3).
2. The case of petitioner, briefly stated, is that on the aforesaid date, time and place of accident, the petitioner along with her husband Sh. Mahabir Prasad (since deceased) were crossing the road from designated spot/Zebra Crossing in front of Gate No. 1, DPS School, Vasant Vihar, New Delhi, after seeing left and right and giving hand signal, suddenly a car in a high speed bearing registration No. 7CD 15 (Make Maruti Suzuki Wagon-R) came from AB Block Road in a rash and negligent manner and hit them. It is further stated that the petitioner was removed to Safdarjung Hospital where her MLC was prepared by the doctors.
3. Reply has been filed on behalf of respondent No. 1 (Driver of the offending car) stating that he was neither negligent nor violated any traffic rule at the time of alleged incident. It is further stated that a speeding car was coming from East to West, which frightened the pedestrian, who was crossing the road and despite his best efforts to avoid hitting the pedestrian, they were hit by the car. It is further stated that respondent no.1 was having a valid and MACP NO. 296/17 Page 2 of 19 effective driving license and the vehicle was insured at the time of accident. It is further stated that respondent no. 1 and respondent No. 2 have been falsely implicated in the present case.
4. The respondent no.2 has also filed his written statement/reply stating the same facts as alleged by respondent no. 1 in his written statement.
5. The respondent no. 3/Insurance Company has filed written reasoned legal offer of Rs.7,000/- after deducting 30% contributory negligence, for settlement, however, the same was not accepted to the petitioner.
6. It is pertinent to mention that the claim petitions bearing MACP No. 295/17 qua the deceased Sh. Mahabir Prasad and MACP No. 296/17 qua the injured Smt. Munni Devi arose out of the same accident and hence, vide order dated 23.05.2018, they were consolidated for the purposes of trial and decision and MACP No. 295/17 was directed to be treated as the lead case in which the evidence is recorded. On the same day, following issues were framed by the Ld. Predecessor of this Court as:-
1. Whether the Sh. Mahabir Prasad (deceased in MACP No. 295/17) sustained fatal injuries and Smt. Munna Devi (injured in MACP No. 296/17) sustained injuries in the accident which occurred on 22.09.2016 at about 08.10 pm, on road in front of DPS School, Vasant Marg, Vasant Vihar, New Delhi caused by rash and negligent driving of vehicle No. 7CD-15 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?MACP NO. 296/17 Page 3 of 19
3.Relief.
7. Heard arguments advanced by Sh. Jatinder Kamra, Advocate for the petitioner and Ms. Vandana Kahlon, Advocate for the respondent No.3/Insurance Company and carefully perused the entire record of the case along with written submissions and case laws. The finding on the aforesaid issues is stated hereinafter in the succeeding paragraphs.
ISSUE NO. 1Whether the Sh. Mahabir Prasad (deceased in MACP No. 295/17) sustained fatal injuries and Smt. Munna Devi (injured in MACP No. 296/17) sustained injuries in the accident which occurred on 22.09.2016 at about 08.10 pm, on road in front of DPS School, Vasant Marg, Vasant Vihar, New Delhi caused by rash and negligent driving of vehicle No. 7CD-15 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
8. Onus to prove this issue was upon the petitioner. The first question that needs to be decided is as to whether the accident was caused by vehicle bearing registration No. 7CD-15. In order to prove the same, the petitioner have examined herself as PW1 in the connected petition bearing MACP No. 295/17. In her affidavit Ex. PW1/A1, she deposed that on the date of accident, she along with her husband Sh. Mahabir Prasad (since deceased) were crossing the road from Zebra Crossing in front of DPS School, Vasant Vihar, New Delhi, after watching the traffic and giving hand signal, suddenly a car bearing registration No. 7CD-15 (Make Maruti Suzuki Wagon-R) came in a rash & negligent manner and hit them.
MACP NO. 296/17 Page 4 of 19She further deposed that the said accident was due to rash and negligent driving of respondent No. 1, who violated the traffic rules.
During cross examination, she deposed that driver of the car took her as well as her husband to Primus Hospital. She further deposed that there was traffic signal at the spot. She volunteered that she was crossing the road using zebra crossing when the signal was red for traffic. She further deposed that her husband was walking on the left most side and towards the side from where the car came and hit them. She further deposed that she was hit on the zebra crossing.
9. During the course of final arguments, Ld. Counsel for Insurance Company has argued that this is a case of contributory negligence and she has relied upon the site plan as well as cross examination of PW1. On this aspect, she has relied upon the judgment of Delhi High Court in case Ajay Kumar Vs. Deepak Kumar, MAC Appeal No. 23/2017, decided on 27.07.2017.
10. This Tribunal has great regard for the judgment of superior court. However, the facts in the present matter are different from the aforesaid judgment. It has been categorically deposed by PW1/injured that she along with her husband were crossing the road from zebra crossing on the traffic signal. However, she has denied the suggestion regarding contributory negligence that they were crossing from the middle of the road where there were no zebra crossing and the site plan though does not mention zebra crossing, but reflects the point of accident on the crossing.
This being benevolent legislation, hypertechnical approach should never be taken as the object of the Act shall be MACP NO. 296/17 Page 5 of 19 frustrated, which has also been laid down time and again by superior courts. Accordingly, from the present facts and circumstances, it cannot said that there was contributory negligence on the part of injured.
11. Moreover, it is an admitted case of respondent No. 1, who in his reply to the claim petition stated that his car hit the petitioner No. 1 & her husband. It may also be noted that the charge sheet has been filed against the respondent no. 1/ driver of the offending vehicle for offences punishable under Sections 279/337/304A IPC. The Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle rashly and negligently. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal.
12. Pertinently, Respondent no. 1 himself was the best witness who could have stepped into the witness box to prove his innocence regarding driving of offending vehicle in a rash and negligence manner, which has not been done in the present case. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
13. It is well settled that the procedure followed for proceedings conducted by an accident Tribunal is similar to that followed by a Civil Court and in civil matters, the facts are required to be MACP NO. 296/17 Page 6 of 19 established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court in case titled as Bimla Devi and others Vs. Himachal Road Transport Corporation and others reported in (2009) 13 SC 530, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability.
14. In view of foregoing discussion, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing No. 7CD-15 and the said vehicle at that time was being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3. Hence, this issue is decided in favour of the petitioners and against the respondents.
ISSUE NO.2 Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
15. As the issue no.1 has been proved in favour of the petitioner, she has become entitled to be compensated for the injuries suffered by her in the accident, but the computation of compensation and liability to pay the same are required to be decided.
16. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non-
MACP NO. 296/17 Page 7 of 19pecuniary damages. The Hon'ble Apex Court in Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343) has laid down heads under which compensation is awarded in personal injury cases:-
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (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. Non-pecuniary 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).
17. Having considered the ratio of aforesaid judgment, the compensation payable to petitioner is assessed hereinafter under the following heads:-
(i) Medical or Treatment Expenses
18. The petitioner in her additional affidavit Ex. PW1/A1 has tendered on record her MLC as Ex. PW1/8 and medical prescriptions as Ex. PW1/10 (colly). As per MLC, the petitioner has MACP NO. 296/17 Page 8 of 19 alleged history of RTA and was diagnosed with headache and vomiting.
It is pertinent to mention that the petitioner had not suffered any physical permanent disability due to the injuries sustained in the accident.
19. The petitioner has tendered on record her medical bills along with summary as Ex. PW1/9 (colly) which are totalling to a sum of Rs. 11,853/- During cross examination, she denied the suggestion that her treatment record and medical bills after the date of 23.09.2016 are forged, fabricated and procured and not related to the accidental injury. She further denied that all her medical bills have been reimbursed by Air India.
Needless to say, the insurance company has not led any evidence to show that the said medical bills do not relate to the injuries suffered by the petitioner in the aforesaid accident. Thus, the testimony of PW-1 that she spent the aforesaid amount towards medical expenses remained unrebutted and uncontroverted. In the absence of any plausible evidence produced by respondents on record, there is no reason to disbelieve the testimony of PW-1 that she has spent the aforesaid amount towards medical expenses. Hence, she is held entitled to Rs.11,853/- towards her medical expenses.
(ii) Loss of actual earnings
20. The petitioner has claimed in the petition that she is home maker and used to provide all services as normally a housewife performs in Indian family context, starting from housekeeping to MACP NO. 296/17 Page 9 of 19 nursing and helping each member of family. She further claimed that she could not perform her functions as home maker for three months and engaged full time housemaid.
21. Reliance has been placed upon the judgment of the Hon'ble High Court of Delhi in case titled as Royal Sundaram Alliance Ins. Co. Ltd. Vs. Master Manmeet Singh & Ors., MACA No. 590/2011, decided on 30.01.2012 has laid down methodology regarding assessment of compensation incase of housewife as:-
"34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of a Matriculate where she is a Matriculate.
(iii) Minimum salary of a non-Matriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband‟s re-
marriage. In such cases, the loss of dependency MACP NO. 296/17 Page 10 of 19 shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and living expenses.
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto Rs. 25,000/- (on present scale of the money value) towards loss of love and affection and Rs. 10,000/- towards loss of consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate.
22. In view of the law laid down by the Hon'ble High Court in the case of Royal Sundaram Alliance Ins. Co. Ltd. vs Master Manmeet Singh & Ors., (Supra), the minimum wages of non- matriculate is to be applied which is also mentioned in the written submissions filed on behalf of petitioner. Hence, the minimum wages of non matriculates in Delhi are applicable, which at the relevant time of accident were Rs. 10,582/- per month.
23. Keeping in view the duration of her treatment, this tribunal feels it just and reasonable to compensate her for loss of earning equivalent to a period of one month. Therefore, s he is being awarded an amount of Rs. 10,582/- under this head.
(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
24. As stated above, the petitioner had suffered grievous injuries in the accident. Though, it is not possible to exactly compensate her for the shock, pain and sufferings etc. which she had actually suffered because of the above injuries and disability, but an effort MACP NO. 296/17 Page 11 of 19 has to be made to compensate her for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by her etc., an amount of Rs.10,000/- each is being awarded to her towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.10,000/- is also awarded to her towards the loss of amenities suffered by her during treatment. Thus, she is awarded total amount of Rs.30,000/- under this head.
(iv) Conveyance, Special Diet and Attendant Charges
25. The petitioner in her affidavit Ex. PW1/A1 has claimed that she has to undergo medical procedures, also spent amount on special diet, conveyance and nursing estimating to Rs. 25,000/-.However, she has not placed on record any document in order to substantiate her above claim. Still, this tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with her treatment and special diet for her early recovery from the injuries suffered because of the accident. Hence, an amount of Rs. 5,000/- each is awarded to the petitioner towards conveyance and special diet. This is simple injury matter and hence, no amount is being awarded to the petitioner towards attendant charges. Therefore, a total amount of Rs.10,000/- is being awarded to her under this head.
Issue No.3/Relief
26. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs. 62,435/- (Rs. 11,853/- + Rs. 10,582/- + Rs. 30,000/- + Rs. 10,000/-) (Rupees Sixty Two Thousand Four Hundred Thirty MACP NO. 296/17 Page 12 of 19 Five only) along with 7.5% interest from the date of filing of claim petition. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
RELEASE
27. The entire award amount is directed to be released in the saving bank of petitioner bearing No. 27980110078075, having IFSC Code UCBA0002798 and PAN Card No. AKBPD3611P, being maintained with UCO Bank, Uttam Nagar, New Delhi, through RTGS/NEFT or any other electronic mode.
LIABILITY
28. In view of foregoing discussion, all the respondents are held jointly and severally liable to pay the awarded amount of compensation to the petitioners, and respondent no. 3 being insurer of offending vehicle is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of claim petition by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Respondent no. 3 with a cost of MACP NO. 296/17 Page 13 of 19 Rs.5,000/-.
29. The respondent no. 3 shall inform the petitioner and her counsel through registered post that the awarded amount has been deposited so as to facilitate her to collect the same.
30. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
31. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
32. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 22.09.2016
2. Date of filing of Form I- First NA Accident Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from the NA Driver
5. Date of receipt of Form-IV from the owner NA
6. Date of filing of the Form-V- NA Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and NA Form VIB from the Victim (s) MACP NO. 296/17 Page 14 of 19
8. Date of filing of Form-VII- 29.01.2018 Detailed Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the 17.02.2018 Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) Legal offer of the offer of the Insurance filed, but not Company. acceptable to the petitioner.
14. Date of award 28.02.2023
15. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
16. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card 29.01.2018 and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).MACP NO. 296/17 Page 15 of 19
17. Date on which the claimant(s) produced the passbook of their savings bank account near the place 14.12.2022 of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of R/o B-1/7, the Claimant(s) Indian Airlines Colony, Vasant Vihar, New Delhi-
110057.
19. Whether the claimant(s) savings Yes bank account(s) is near his place of residence?
20. Whether the claimant(s) were examined at the time of passing of No the award to ascertain his/their financial condition?
33. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 31.03.2023.
Announced in the open court (Shefali Barnala Tandon) on 28.02.2023 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP NO. 296/17 Page 16 of 19 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 22.09.2016
2. Name of the injured : Munna Devi
3. Age of the injured : 58 years
4. Occupation of the injured: Minimum wages for non matriculates in Delhi
5. Income of the injured : Rs. 10,582/-
6. Nature of injury : Simple
7. Medical treatment taken by the injured: Safdarjung Hospital, Indian Spinal Injuries Centre & Holy Angel
8. Period of hospitalization : Discharged in one day
9. Whether any permanent disability?: Nil
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.11,853/-
(ii) Expenditure on conveyance Rs. 5,000/-
(iii) Expenditure on special diet Rs. 5,000/-
(iv) Cost of nursing/attendant Nil
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.10,582/-
(vii) Any other loss which may Nil
require any special treatment
or aid to the injured for the
rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental Rs.10,000/-
and physical shock
(ii) Pain and suffering Rs.10,000/-
(iii) Loss of amenities of life Rs.10,000/-
MACP NO. 296/17 Page 17 of 19
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, Nil
inconvenience,
hardships,disappointment,fru
stration, mental stress,
dejectment and unhappiness
in future life etc.
13. Disability resulting in
loss of earning
capacity
(i) Percentage of disability
assessed and nature of Nil
disability as permanent or
temporary
(ii) Loss of amenities or loss of Nil
expectation of life span on
account of disability.
(iii) Percentage of loss of Nil
earning relation to disability
(iv) Loss of future income Nil
14. Total Compensation Rs.62,435/-
15. Interest Awarded 7.5% pa from date
of filing of claim
petition till the date
of award to be
deposited in 30 days
and 9% thereafter.
16. Interest amount up to the Rs. 24,439.45
date of award
17. Total amount including Rs. 86,874.45
interest (rounded
off to Rs.
87,000/-)
18. Award amount released Entire
amount
released
19. Award amount kept in the Nil
FDRs/ Motor Accident
Claims Annuity Deposit
MACP NO. 296/17 Page 18 of 19
(MACAD)
20. Mode of disbursement of Through
the award amount to the bank
claimant (s)
21. Next date for compliance 31.03.2023
of the award
(Shefali Barnala Tandon)
PO/MACT, New Delhi
28.02.2023
MACP NO. 296/17 Page 19 of 19