Delhi District Court
Smt. Mansha Devi vs Shri R.K. Sharma on 1 May, 2013
IN THE COURT OF SHRI ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNALII,
DWARKA COURTS: NEW DELHI
MACT No. 193/12/10
IN THE MATTER OF :
Smt. Mansha Devi
W/o Late Shri Roshan Lal,
R/o E177B, Gali No. 13,
Raja Puri, Uttam Nagar,
New Delhi.
... Petitioner
Versus
1. Shri R.K. Sharma, (Driver/Owner)
S/o Shri P.N. Sharma,
R/o E104, Seema Apartment,
Plot No. 7, Sector - 11,
Dwarka, New Delhi.
2. National Insurance Company Ltd., (Insurer)
Divisional No. 10, Flat No. 101106,
N1, BMC House, Connaught Place,
New Delhi - 110 001.
Policy No. 4088721
For the period from 24.04.2008 to 23.04.2009
... Respondents
FILED ON : 21.09.2010
RESERVED ON : 26.04.2013
DECIDED ON : 01.05.2013
MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 1 of 15
J U D G M E N T :
1. This is a claim petition which is filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation in favour of the claimant.
2. Claimant is the widow of one Late Shri Roshan Lal (hereinafter referred as the deceased) who allegedly suffered fatal injuries in a Road Traffic Accident which took place on 17.05.2008 due to rash and negligent driving of a Wagon R Car bearing Registration No. DL3CM8526 driven and owned by Respondent No. 1 and insured by Respondent No. 2, the Insurance Company.
3. Claimant has stated in her claim petition that her husband Late Shri Roshan Lal was 66 years of age at the time of accident and he was working as a Security Supervisor in Skylark Apartment, Dwarka. He was earning Rs. 10,000/ per month as salary and was also a pensioner and was receiving a pension of Rs. 5,000/ per month.
4. Claimant has stated that on 17.05.2008, the deceased was doing duty at the gates of the said apartments when Respondent No. 1 came to paste some posters on the wall of the office of the society. On the directions of the manager, the deceased tried to stop Respondent No. 1 from pasting pamphlets, then Respondent No. 1 abused him and did not stop his vehicle and hit the deceased with his car intentionally.
5. It is stated that the deceased suffered serious and grievous injuries on his body at several places. The left leg of the deceased got multiple fractures due to wilful, rash and negligent act MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 2 of 15 of Respondent No. 1.
6. It is stated that the deceased was taken to Deen Dayal Upadhyay Hospital where MLC was prepared bearing No. 830/08.
7. Claimant has stated that the deceased remained under treatment from 17.05.2008 to 16.11.2008 and fought for his life but ultimately died on 16.11.2008.
8. It is also stated that the deceased had also remained under treatment from 13.10.2008 to 17.10.2008 in Base Hospital, Delhi Cantt., New Delhi.
9. It is stated that at P.S. Dwarka FIR No. 311/08 under Section 279/337 of IPC was registered.
10. Claimant has stated that she had spent Rs. 15,000/ as Cost of Operation of the deceased Rs. 20,000/ as Cost of Steel Rod, Rs. 8,000/ as Cost of Treatment, Rs. 18,000/ as Cost of Medicines, Rs. 25,000/ as Cost of Various Medical Tests, Rs. 2,00,000/ as Conveyance Charges, Rs. 54,000/ for Special Diet and Rs. 27,000/ for Personal Helper.
11. In these circumstances, claimant has claimed a compensation of Rs. 10 lacs with interest @ 18% per annum from the date of filing of this claim petition till its realization.
12. Respondent No. 1 filed his written statement and denied having caused any accident or there being any negligence on his part. He has stated that the police has falsely implicated him and in any case, the vehicle was insured with Respondent No. 2 who is liable to pay the compensation, if any.
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13. Rest of the contents of claim petition were denied.
14. Insurance company has stated in its written statement that the deceased has not died due to injuries sustained in a road side accident as the deceased had suffered leg injuries only. Therefore, insurance company has stated that this claim petition cannot be decided treating the injuries of the deceased as fatal injuries in road side accident.
15. Rest of the contents of claim petition were also denied but it was admitted that the offending vehicle was insured with the answering respondent in the name of Respondent No. 1 vide Policy No. 4088721 valid from 24.04.2008 to 23.04.2009 subject to terms and conditions of the policy issued by the insurance company.
16. From the pleadings of parties, following issues were framed: i. Whether Shri Roshan Lal, husband of petitioner Smt. Mansha Devi, had sustained fatal injuries on his person, in an accident which took place on 17.05.2008 caused due to negligent driving of the vehicle i.e. Wagon R Car bearing registration number DL3CM8526 being driven and owned by respondent no. 1 and insured with respondent no. 2 insurance company? OPP.
ii. In case, Issue No. 1 is decided in affirmative then to what amount of compensation, petitioner is entitled to and from whom? OPP iii. Relief.
17. Only claimant examined herself as PW1 and stated MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 4 of 15 similar facts in her evidence by way of affidavit as were already stated by her in the claim petition.
18. During her examinationinchief, she proved certified copy of chargesheet, FIR, Site Plan, Driving License of Respondent No. 1, Registration Certificate of the offending vehicle, insurance policy of offending vehicle and MLC as Ex. PW1/1, her voter card as Ex. PW1/2, treatment record of the deceased as Ex. PW1/3 and death certificate of her husband as Ex. PW1/4.
19. In crossexamination, she deposed that she is not an eye witness to the accident and her husband had suffered injuries in his leg in the accident. Rod was also inserted. She denied a suggestion that her husband had died due to natural death and not due to accidental injuries. She stated that the postmortem was not carried out on the body of her husband.
20. Rest of the suggestions contrary to her case were also denied by her.
21. No other witness was examined by any other party.
22. On the basis of pleadings of parties, issuewise findings are as under: ISSUE NO.1:
23. Burden of proving this issue is on the petitioner.
24. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claimant has to show that the death of the deceased had taken place due to accident arising out of the use of Motor Vehicle in a rash and negligent MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 5 of 15 manner by the driver of the offending vehicle.
25. Perusal of certified copy of chargesheet shows that the deceased had stated before the Investigating Officer that on 17.05.2008, Respondent No. 1 came in his Wagon R Car bearing No. DL3CM8526 and started pasting posters. When the deceased stopped Respondent No. 1 from pasting posters, Respondent No. 1 drove his vehicle in a rash and negligent manner and hit him resulting in grievous injuries.
26. Certified copy of MLC also shows that the patient was admitted with alleged history of RTA. The offending vehicle was seized by the police from the place of the accident.
27. Therefore, involvement of the offending vehicle in the accident is proved.
28. Respondent No. 1 has stated in his written statement that he was not driving the vehicle negligently. However, he has not given any evidence to prove his innocence.
29. 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.
30. Respondent No. 1 has not made any complaint to the police against his false implication in the case.
31. 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: MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 6 of 15 "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."
32. 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 MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 7 of 15 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."
33. In the case of 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 MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 8 of 15 and this is a legislation for the welfare of the society."
34. This case was noticed by Hon'ble High Court of 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.
35. Therefore, this issue is decided in favour of the claimant and against the respondents.
ISSUE NO. 2:
36. For returning findings on this issue, first it is to be decided whether the deceased had suffered fatal injuries in the accident or he had suffered injuries but died due to other reasons thereafter.
37. Certified copy of MLC prepared at Deen Dayal Upadhyay Hospital shows that the deceased had suffered fracture of Bimalleolar Left Ankle. The injuries were grievous. It is also mentioned in the MLC that the patient had absconded from the hospital on 18.05.2008.
38. As per discharge summary sheet, the deceased was again admitted in the hospital on 22.05.2008 and was discharged on 27.05.2008. The diagnosis is noted in the discharge summary as fracture Bimalleolar Left Ankle and Operation MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 9 of 15 performed was Open Reduction Internal Fixation of fracture Medial Malleolous by Screw and Lateral Malleolous by Plate.
39. At the time of discharge, the deceased was advised elevation and active movements of toes and non weight bearing till further advice.
40. Thereafter, the deceased had again gone to the hospital on 31.05.2008 for removal of stitches. He was advised to continue slab for three weeks and non weight bearing.
41. Again on 05.07.2008, POP Slabs were reapplied.
42. On 19.07.2008, the deceased was advised physiotherapy and non weight bearing.
43. On 23.08.2008, he was advised mobilisation exercise.
44. On 13.09.2008, it is noted in the OPD Ticket of the deceased that he has been walking and weight bearing. He was advised partial weight bearing and physiotherapy on 16.09.2008.
45. There is no other treatment record of the deceased for fracture Bimalleolar Left Ankle.
46. Thereafter, the deceased was admitted in Base Hospital, Delhi Cantt., New Delhi on 13.10.2008 and was discharged on 17.10.2008 as a case of nutritional anemia. His condition at the time of discharge was stable.
47. On 31.10.2008, the deceased had attended Base Hospital with complaints of constipation for two weeks, weaknesses and itching all over his body. He was diagnosed as a case of Megaloblastic Anemia.
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48. As per endoscopy report dated 08.11.2008, the conclusion was Pangastritis i.e. inflammation of the pancreas which is a serious and painful illness.
49. Deceased died on 16.11.2008.
50. There is no treatment record of the deceased on the date of his death. Postmortem on the body of deceased was not carried out. No doctor has given evidence that the cause of death of the deceased was due to accidental injuries.
51. Subsequent treatment of the deceased in Base Hospital, Delhi Cantt., New Delhi noted above shows that he had not died of accidental injuries but due to Pancreatitis and anemia. The deceased had not suffered fatal injuries in the accident.
52. However, the deceased had suffered grievous injuries in the accident which is fracture of Bimalleolous Left Ankle. He had remained admitted in the hospital for five days.
53. This claim petition is filed by the widow of a victim of a Road Traffic Accident after his death. During his life time, the victim had not filed any claim petition.
54. In the case of Sampati Lal & Ors. Vs. Hari Singh & Ors., 1(1986) ACC 134, it was held that where a victim of Road Traffic Accident dies for reasons other than accidental injuries and his legal heirs file claim petition, they are entitled to loss to the estate which is not covered by the exception contained in Section 306 of the Succession Act. However, they are not entitled for compensation for Pain and Suffering suffered by the victim because it is not a loss to the estate and the action for such compensation dies on the death of MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 11 of 15 victim of Road Traffic Accident.
55. Therefore, no compensation can be awarded in this case in favour of the claimant for Pain and Suffering suffered by the husband of the claimant in the accident.
56. Treatment of the deceased was in a government hospital. However, there are few bills of different chemists for purchase of medicines worth Rs. 2,215/.
57. Therefore, for Cost of Treatment, claimant is entitled to a compensation of Rs. 2,215/.
58. Perusal of record shows that the deceased continued with his treatment of fracture of Ankle till 16.09.2008. Even on that date, deceased was advised partial weight bearing and physiotherapy.
59. Therefore, claimant is entitled to loss of wages from the date of accident i.e. 17.05.2008 till 16.09.2008.
60. Claimant has stated in her claim petition as well as in her evidence by way of affidavit that the deceased was a Security Supervisor and was earning Rs. 10,000/ per month. No suggestion was given to PW1 that the deceased was not earning Rs. 10,000/ per month as a Security Supervisor.
61. Therefore, income of the deceased shall be taken as Rs. 10,000/ per month at the time of accident.
62. Therefore, claimant is awarded a compensation of Rs. 10,000/ x 4 = Rs. 40,000/ for Loss of Wages.
63. At least, for four months, the deceased would have needed the help of an attendant because till 16.09.2008 he was MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 12 of 15 advised partial weight bearing.
64. Even if the deceased was attended by his family members even then, claimant is to be compensated for attendant's charges. For this reliance can be placed on judgment in the case of Delhi Transport Corporation and Anr. v. Lalita: AIR 1981 Delhi 558, where the Hon'ble High Court of Delhi held 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 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)."
65. This judgment was again quoted with approval by the Hon'ble High Court of Delhi in the case of Narayan Bahadur Vs. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.2012.
66. Minimum wages payable to an unskilled workman on the date of accident were Rs. 3,633/.
67. Therefore, claimant is awarded a compensation of Rs. 3,633/x 4 = Rs. 14,532/ for Attendant's Charges.
68. Additionally, claimant is entitled to a compensation of Rs. 5,000/ for Special Diet and Rs. 5,000/ for Conveyance Charges.
69. The deceased was advised physiotherapy by treating doctors of DDU Hospital. There is no evidence of payment MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 13 of 15 given to any physiotherapist by the claimant.
70. Therefore, applying some guess work, a compensation of Rs.5,000/ is awarded for Physiotherapy Expenses.
71. Therefore, the compensation payable to the claimant will be Rs. 71,747/ with interest @ 7.5 % per annum from the date of filing of claim petition which is 21.09.2010 till its realization.
72. Since it is not a case of fatal injuries, claimant was not entitled to compensation of Rs. 50,000/ received by her vide interim award.
73. Therefore, compensation of Rs. 50,000/ already received by the claimant vide interim award shall be deducted from the compensation now payable to the claimant.
74. Let compensation be deposited by the insurance company within 30 days from today under intimation to the claimant as well as to the counsel for the claimant by registered post. On receiving information of deposit of compensation, Nazir will also send its information to the claimant and her counsel.
75. Address of counsel for the claimant for serving notice of intimation of deposit of compensation is as under: Shri Dewan Singh, Advocate, Chamber No. 300A, W. Wing, Tis Hazari Courts, Delhi.
Mobile No. 9871154317
76. Ahlmad will put up a copy of this order with report MACT No. 193/12/10 Smt. Mansha Devi Vs. Shri R.K. Sharma & Anr. Page No. 14 of 15 from Nazir regarding deposit of compensation again on 05.08.2013.
77. Copy of this order be given dasti to all the parties.
78. File be consigned to the Record Room.
Announced in the Open Court On the 1st day of May, 2013 (ARUN BHARDWAJ) PRESIDING OFFICER MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
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