Delhi District Court
Date Of Institution Of Claim Petition : ... vs Pushpa Rana on 29 May, 2015
IN THE COURT OF KIRAN BANSAL:
P.O. MOTOR ACCIDENTS CLAIMS TRIBUNAL
NORTH-EAST DISTRICT: KKD COURTS : DELHI
MACT No. 112/11
Unique Case Identification No. 02402CO069592011
RATAN SINGH
S/o Sh. Jagvir Singh
R/o H. No. A-57, Gali no. 2, Sushila Garden,
Mandoli Extension, Delhi 93.
Permanent Resident.
VPO Kashmpur (Kashampur) Kheri,
PS Rangala, Distt. Baghpat, UP.
Versus
1. YASHPAL SINGH
S/o Sh. Ramesh Singh
R/o Churkhi Dadri, PS Churkhi Dadri,
Distt. Gautam Budh Nagar, UP.
2. M/s ASHTECH MARKETING PVT. LTD.
268, Ram Nagar, Distt. Ghaziabad, UP.
Service through its Director.
3. NATIONAL INSURANCE COMPANY LTD.
141-142, Navyug Market, Hapur Road, Ghaziabad, UP.
....Respondents
1. Date of Institution of claim petition : 28.02.2011
2. Date of Decision : 29.05.2015 APPLICATION U/S 166 & 140 M.V. ACT 1988 FOR GRANT OF COMPENSATION AWARD
1. Petitioner being the injured filed the present claim petition u/s 166 & 140 MV Act seeking the compensation. It is the case of the petitioner that on 06.05.2010 at about 7:45 am, the petitioner was driving his mini bus bearing registration no. DL 1VA 7177 and he was driving the mini bus from Faridabad to Gurgaon, Haryana and the petitioner was driving his mini bus at a normal speed. When petitioner reached at near MACT NO. 112/11 Ms. Kiran Bansal PO-MACT Page no.1 /7 Vally Estate, DLF Phase-I, Gurgaon, Haryana, then all of a sudden Mixer Tralla bearing no. HR 38F 7341 which was driven by respondent no. 1 in a rash and negligent manner came and hit the mini bus of the petitioner, as a result of which, petitioner had sustained grievous injuries. The offending vehicle had also hit a scooterist, who expired due to the injuries sustained in the accident. Petitioner was taken to Paras Hospital, Gurgaon , Haryana , where he was medically treated and his MLC was prepared and thereafter the petitioner was medically treated in Trauma Center, ISBT Delhi. Police Station DLF , Phase I, Gurgaon, Haryana registered the offence vide FIR No. 88/10 U/s 279/337/304-A IPC against the respondent no.1. It is further averred that petitioner was driver by profession and earned Rs. 7,000/- per month. It is also averred that due to the injuries, petitioner was not in a position to attend to his duties for about one year.
2. Summons were served on the respondents. All the respondents contested the claim petition. Respondents no. 1 & 2 filed a joint written statement. It has not been specifically denied that FIR no. 88/10 was registered at PS DLF, Phase - I, Gurgaon against respondent no. 1. Vide order dated 06.12.2012, respondents no. 1 & 2 were proceeded ex-parte.
3. WS was also filed on behalf of respondent no. 3 stating that vehicle bearing no. HR 38F 7341 was insured with the respondent no. 3 vide policy no. 261203/31/09/6700000452 which is valid from 07.05.2009 to 06.05.2010.
4. After completion of the pleadings, following issues were framed :
1. Whether petitioner Ratan singh, son of Sh. Jagvir Singh, sustained injuries in motor accident caused by rash and negligent driving of vehicle i.e Mixer Trala No. HR 38 F 7341 by respondent no. 1 on 06.05.2010 at about 7:45 a.m., at Valley Estate, DLF-I, Gurgaon, Haryana, within the jurisdiction of Police Station DLF- Phase I, Gurgaon, Haryana?OPP
2. Whether petitioner is entitled to compensation? If so, what amount and from whom?
3. Relief
5. Petitioner has examined himself as PW1 and has tendered his affidavit Ex. PW 1/A and has also relied upon the documents ie. Treatment record of Paras Hospital mark A, treatment record of Sant parmanand Hospital Ex. PW 1/1, Treatment record of Lok MACT NO. 112/11 Ms. Kiran Bansal PO-MACT Page no. 2/7 Nayaak Hospital as Mark B, treatment record Ex. PW 1/ 2, voter I card as Mark C, photocopy of DL Ex. PW 1/3, certified copies of the criminal case record Ex. PW 1/ 4. Respondents have not led any evidence.
6. I have gone through the entire evidence on record carefully.
7. My issuewise findings are as below :
8. ISSUE NO.1 Whether petitioner Ratan singh, son of Sh. Jagvir Singh, sustained injuries in motor accident caused by rash and negligent driving of vehicle i.e Mixer Trala No. HR 38 F 7341 by respondent no. 1 on 06.05.2010 at about 7:45 a.m., at Valley Estate, DLF-I, Gurgaon, Haryana, within the jurisdiction of Police Station DLF- Phase I, Gurgaon, Haryana?OPP
9. PW1 i.e. petitioner has filed his chief affidavit reiterating the facts mentioned in the petition. FIR No. 88/10 u/sec 279/337/304A IPC was also registered at PS DLF Phase
-I, Gurgaon, Haryana in this respect. During cross examination he deposed he has not brought any document to show that he was employed as a driver with Sh. R. K. Puri. It is further deposed that was no divider at the place of the accident and the accident was head on collision between his tempo taveler bearing no. DL 1VA 7177 and the container/dumper. It is further deposed that he was conscious in Paras Hospital, Gurgaon where he remained for 5-6 hours and thereafter, he was transferred by his cousin brother Sh. Vinod Kumar to Sushruta Trauma Center and remained there for 1-2 hours. It is further deposed that he was also treated at Sant Parmanand Hospital and he was operated at Lok Nayak Jai Prakash Hospital and an iron rod was inserted in his right leg.It is further deposed that he is employed with Billa Bong School, Sector
-34, Noida where he drives a mini bus.
10. In the present case Criminal case record is filed which includes the copy of FIR, MLC report, mechanical inspection report, postmortem report and site plan and chargesheet.
To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana MACT NO. 112/11 Ms. Kiran Bansal PO-MACT Page no.3 /7 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 279/337/304 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 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 of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, 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. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
" 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 claiman 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."
MACT NO. 112/11 Ms. Kiran Bansal
PO-MACT
Page no. 4/7
11. Perusal of the file shows that injured has admitted there was head on collusion, thus it may be argued that injured has also contributed to the accident. However, I have perused the site plan , the site plan shows that the accident occurred at Pulia and the road where the accident occurred was a single lane road. The site plan also shows that the injured was driving his vehicle on the correct side of the road. In such circumstances, it cannot be said that the injured has also contributed to the accident. The chargesheet has been filed against the respondent no. 1. The respondent no. 1 has not entered in the witness box to depose that he was not at fault or to depose in manner in which the accident occurred.
12. Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.13. ISSUE NO. 2
Whether petitioner is entitled to compensation? If so, to what amount and from whom?
14. It is stated by the petitioner in his statement as well as in chief affidavit that he suffered injuries and initially he was treated at Paras Hospital, thereafter he was taken to Sushutra Trauma Center and Parmanand Hospital.
15. As far as income of the petitioner is concerned, it is stated by petitioner in the claim petition as well as chief affidavit Ex.PW1/A that he was doing the work of driving and earning Rs. 7,000/- p.m. However, no proof regarding the occupation & income of the petitioner has been filed. No Income Tax Returns have been filed nor any certificate regarding the educational qualification of the petitioner has been placed on record.
16. Therefore, the income of the petitioner is considered in terms of minimum wages of a skilled worker i.e driver as applicable which on the date of the accident is @ Rs. 6,448/- p.m. Also he must have taken rest for at least 6 months.
17. Keeping in view the nature of injuries suffered by the Claimant and the fact that he was under constant treatment, he needed an Attendant to look after his and the MACT NO. 112/11 Ms. Kiran Bansal PO-MACT Page no.5 /7 claimant is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble High Court held that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members, for the benefit of the tortfeasor. Looking to the nature of injuries of the injured, it is deemed fit that a lump sum of Rs. 10,000/- be awarded as compensation towards Attendant charges. Petitioner has not shown anything for spending money on special diet and conveyance but he must have gone for follow up check ups and must have been given special diet for speedy recovery.
18. Considering all the facts & circumstances and material on record, I am of the opinion that petitioner is entitled to compensation as under :
Pain & suffering Rs. 40,000/-
Special diet Rs. 5,000/-
Conveyance Rs. 5,000/-
Attendant charges Rs.10,000/-
Medical Bills Rs. 13,013/-
Loss of Income Rs. 38,688/-
( 6448 X6 )
_____________
Total Rs. 1,11,701/-
Thus, the total compensation amount is Rs. 1,11,701/-
19. Liability Respondent no.3 is the insurance company which admittedly has issued a valid insurance policy of the offending vehicle. Respondent no.3 being insurance company in its written statement has admitted that there is valid insurance policy issued. There is no evidence on behalf of respondent no.3 to show that there was any violation of the rules and terms of policy by the respondents no.1 & 2. Hence, I am of the opinion that respondent no.3 being insurance company is liable to pay the compensation on behalf of respondents no.1 & 2.
MACT NO. 112/11 Ms. Kiran Bansal
PO-MACT
Page no. 6/7
20. Relief
Award is passed directing Respondent no. 3 The National Insurance Company Ltd. being insurer of the offending vehicle to pay a sum of Rs. 1,11,701/- to the petitioner along with interest @ 9% per annum from date of filing of the petition (28.02.2011). Payment is to be made by depositing cross cheque in favour of petitioner in the tribunal. The respondent no. 3 is directed to deposit the award amount along with interest in court within thirty days from today under written intimation to the petitioner. In case of default, further penal interest shall begin to accrue @ 12% p.a thereon, for each day default.
Attested copies of the award be furnished to the concerned parties from court for compliance.
Pronounced in Open Court on (Kiran Bansal)
29.05.2015 P.O.MACT(North-East)
KKD Delhi
MACT NO. 112/11 Ms. Kiran Bansal
PO-MACT
Page no.7 /7
MACT NO. 112/11 Ms. Kiran Bansal
PO-MACT
Page no. 8/7