Delhi District CourtSh. Santosh vs Sh. Sandeep (Driver) on 4 July, 2013IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL­II, 
             DWARKA COURTS, NEW DELHI

DAR No. 38/DAR/2013

IN THE MATTER OF : 

        Sh. Santosh 
        S/o Sh. Param Dase @ Prem Bahadur, 
        R/o D­135, Patel Garden, 
        Kakrola, New Delhi. 
                                                                              ... Claimant
                           Versus

     1. Sh.  Sandeep (Driver)
        S/o Sh. Sukhdev Raj, 
        R/o H. No. 242, DDA Flat, Pocket­E, 
        Sector­17, Dwarka, 
        New Delhi.
         
     2. Sh. Sukhdev Raj (Owner)
        R/o H. No. 242, DDA Flat, Pocket­E, 
        Sector­17, Dwarka, 
        New Delhi.
         
     3. Oriental Insurance Co. Ltd.   (Insurer)
        4­E/14, Azad Bhawan, IInd Floor, 
        Jhandewalan Extn., New Delhi. 
                                                                         ... Respondents

FILED ON     :                  24.01.2013
RESERVED ON  :                 03.07.2013
DECIDED ON :                    04.07.2013

J U D G M E N T :­1.                    This   report   of   the   Investigating   Police   OfficerDAR No. 38/DAR/13              Santosh Vs. Sandeep & Ors.                        Page 1 of 12(D.A.R) is filed in FIR No. 370/2012 underSection 279/338of IPC 
registered   at   Police   Station   Bindapur   in   which   the   claimant   has 
suffered grievous injuries.2.                    Respondent No. 1 is the driver,  Respondent No. 2 is 
the   owner   and   Respondent   No.   3   is   the   Insurer   of   the   offending 
vehicle.3.                    Perusal of charge­sheet, which is part of this report, 
shows that the claimant had stated before the Investigating Officer 
that on 23.11.2012, he along with his cousin brothers had stopped 
near Metro Pillar No. 772 to take tea and at that time the offending 
vehicle,   white   car   bearing   Registration   No.   DL   1CY   0200,   being 
driven   by   its   driver   in   a   rash   and   negligent   manner   had   hit   the 
claimant resulting in grievous injuries to him.   He had stated that 
the   driver   of   the   offending   vehicle   was   caught   at   site   by   the 
members of the general public and handed over to the police.4.                    Notice of this report was issued to all the parties.5.                    No written statement was filed by Respondent No. 1 
and   2   and   only   Insurance   Company   filed   the   written   statement 
stating therein that this report be adjudicated under the provisions 
of law which has been filed underSection 158 (6)of Motor Vehicles 
Act.6.                    Following   issues   were   framed   to   decide   the 
compensation payable to the claimant:­1.   Whether   the   petitioner   received   injuries   in   an  
                       accident on 23.11.2012 caused by Respondent No. 
                       1, while driving vehicle bearing No. DL­1YC­0200 
                       rashly and negligently, owned by Respondent No.  
                       2 and insured by Respondent No. 3?             ... OPPDAR No. 38/DAR/13             Santosh Vs. Sandeep & Ors.                   Page 2 of 122. If yes, what is the amount of compensation which 
                       the claimant is entitled to receive and from which  
                       respondent?3. Relief.7.                    Claimant entered in the witness box as PW 1 and 
stated   similar   facts   in   his   evidence   by   way   of   affidavit   vis­a­vis 
sequence of events leading to the accident as were already stated by 
him before the Investigating Officer.   Additionally he deposed that 
he   had   spent   Rs.3,309/­   on   medical   treatment,   Rs.50,000/­   on 
special   diet,   Rs.   40,000/­   on   attendant   and   Rs.20,000/­   on 
conveyance   charges.     Discharge   summary   of   DDU   hospital   was 
proved as Ex. PW1/1, medical bills for treatment were proved as Ex. 
PW1/2 and ration card was proved as Ex. PW1/3.8.                    In cross examination, he deposed that he had gone 
to the hospital once or twice for further treatment after his initial 
discharge from the hospital.9.                    Other suggestions contrary to his case were denied 
by him.10.                    Second witness examined by the claimant was Dr. 
Vineet Kumar Arora, Junior Specialist Orthopedics, DDU Hospital 
who proved the disability certificate   given to the claimant as per 
which he has suffered 38% temporary disability in relation to left 
lower limb as Ex. PW1/2.11.                    In   the   cross   examination,   PW   2   deposed   that 
claimant   needs   physiotherapy   treatment   and   if   he   gets 
physiotherapy treatment regularly, his disability can improve.12.                    No   witness   was   examined   on   behalf   of   theDAR No. 38/DAR/13             Santosh Vs. Sandeep & Ors.                  Page 3 of 12Insurance Company.13.                   On   the   basis   of   the   pleadings   of   the   parties, 
evidence   on   record   and   arguments   addressed,   the   issue­wise 
findings are as under: ­  
ISSUE NO. 1:­14.                   Burden of proving this issue is on the claimant.15.                   For   succeeding   in   a   claim   petition   filed   underSection 166of 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.16.                   This is sine qua non for getting the relief.17.                   The case of the claimant before the Investigating 
Officer   as   well   as   in   his   evidence   by   way   of   affidavit   before   this 
Tribunal is that on 23.11.2012, at around 3.30 a.m. he along  with his 
cousin brothers was taking tea at a place opposite Najafgarh Road 
when the offending vehicle being driven by its driver in a rash and 
negligent manner had hit him.18.                   Neither   Respondent   No.   1   cross­examined   the 
claimant nor he entered in the witness box to prove his innocence.19.                   Police   after   investigation   has   filed   charge­sheet 
against Respondent No. 1 underSections 279/337/338of IPC which 
is also prima facie suggestive of negligence of Respondent No. 1 in 
driving the vehicle at the time of accident.20.In the case ofNational 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.InBimla   Devi   and   Ors.   v.   Himachal   RoadDAR No. 38/DAR/13             Santosh Vs. Sandeep & Ors.                      Page 4 of 12Transport   Corporation   and   Ors.,   (2009)   13   SC 
                      530,   the   Supreme  Court   held   that   in   a   petition 
                      underSection 166of 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 theMotor 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 inBimla Devi(Supra) was relied on 
                      by the Supreme Court in its latest judgments inParmeshwari   v.  Amir   Chand(2011)   11   SCC   635 
                      and Kusum Lata v. Satbir, (2011) 3 SCC 646."21.In the case ofNational 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   inOriental   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)DAR No. 38/DAR/13          Santosh Vs. Sandeep & Ors.                   Page 5 of 12criminal   record   showing   completion   of 
                    investigation   of   police   and   issue   of   charge­sheet 
                    under   Sections   279/304­A,Indian   Penal   Codeagainst   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   theMotor  Vehicles 
                    Actare 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."22.In   the   case   ofRanu   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 and this is a legislation for the welfare of 
                    the society."DAR No. 38/DAR/13          Santosh Vs. Sandeep & Ors.                     Page 6 of 1223.                    This   case   was   noticed   by   Hon'ble   High   Court   of 
Delhi in the case titled asCholamandalam 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.24.                    Therefore,   this   issue   is   decided   in   favour   of 
claimant and against the respondents.
ISSUE NO. 2: ­25.                    In the  case of  Raj  Kumar  v. Ajay Kumar  & Anr., 
MANU/SC/1018/2010,   Civil   Appeal   No.   8981/2010   decided   on 
18.10.2010,   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,DAR No. 38/DAR/13             Santosh Vs. Sandeep & Ors.                   Page 7 of 12nourishing   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, future medical expenses, loss 
                         of   amenities   (and/or   loss   of   prospectus   of 
                         marriage) and loss of expectation of life.26.                    Perusal   of   discharge   summary   sheet   of   DDU 
Hospital   shows   that   the   claimant   had   remained   admitted   in   the 
hospital from 23.11.2012 to 22.12.2012 for a period of 29 days.27.                    The   diagnosis   of   the   treating   doctors   of   that 
hospital   shows   that   the  claimant   had   suffered   Fracture   of   Patella 
(Left).28.                    The extent of injuries was such that the claimant 
had suffered 38% temporary disability in relation to the Left Lower 
Limb.29.                    Therefore,   for  Pain   and   Suffering,    claimant   is 
awarded a compensation of Rs. 35,000/­.DAR No. 38/DAR/13              Santosh Vs. Sandeep & Ors.                     Page 8 of 1230.                 Few medical bills worth Rs. 3,309/­ are on record. 
Therefore, claimant is awarded a compensation of  Rs. 3,309/­   for 
Cost of Treatment.31.                 With the kind of injuries suffered by the claimant, 
it can be safely assumed that the claimant would have remained out 
of work at least for a period of six months.32.                 There is no proof of income of the claimant or his 
educational qualifications. Minimum wages payable to an unskilled 
workman on the date of accident were Rs. 7,254/­ per month.33.                 Therefore, for Loss of Wages, claimant is awarded a 
compensation of Rs. 43,524/­. i.e. Rs. 7,254/­ x 6.34.                 Furthermore, with the kind of injuries suffered by 
the claimant, he would have needed help of an attendant at least for 
a period of three months.35.                 It is well settled that a victim of an accident has to 
be compensated in terms of money even if gratuitous services are 
rendered by a  family member.36.                 In Delhi Transport Corporation and Anr. v. Lalita:AIR   1981   Delhi   558,   this   Court   held   that   there   cannot   be   any 
deduction if domestic help is obtained from a family member.  The 
High Court 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 those ofDAR No. 38/DAR/13          Santosh Vs. Sandeep & Ors.                     Page 9 of 12a   house­keeper   because   she   is   in   constant 
                    attendance   and   does   many   more   things   than   a 
                    house­keeper. (Regan v. Williamson (1976) 2 All E.R.241)."37.                  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 04.07.12.38.                  Therefore,   for  Attendant's   Charges,   claimant   is 
awarded a compensation of Rs. 21,762/­. i.e. Rs. 7,254/­ x 3.39.In   the   case   ofSanjay   Batham   v.   Munna   Lal 
Parihar & Ors.decided by the Hon'ble Supreme Court of India on 
01.11.2011,   in   Civil   APP.   No.   9013/11   arising   out   of   SLP(c)   No. 
8983/10,   it   was   held   that   temporary   disability   refers   to   the 
incapacity or loss of use of some part of the body on account of the 
injury, which will cease to exist at the end of the period of treatment 
and recuperation.40.                  Evidence   of   PW2   Dr.  Vineet   Kumar   Arora   shows 
that the claimant needs physiotherapy and only then the physical 
disability suffered by him may improve.41.                  Therefore, for Physiotherapy Treatment, claimant 
is awarded a compensation of Rs. 25,000/­.42.                  Counsel   for   the   insurance   company   had   argued 
that for assessing loss of earning capacity of the claimant in future 
due to temporary disability, disability be not taken into account as 
38%   because   this   disability   is   only   qua   Left   Lower   Limb   and 
functional   disability   vis­a­vis  entire  body   will  be  only   19%   which 
may   further   improve   with   physiotherapy   if   undertaken   by   the 
claimant. Presuming that the disability of the claimant will improveDAR No. 38/DAR/13          Santosh Vs. Sandeep & Ors.                  Page 10 of 12with   physiotherapy   and   by   applying   some   guesswork,   even   after 
best of physiotherapy treatment, he may be left with at least 10% of 
disability  and  would  suffer  a  loss  of  Rs.  725/­  per month  on  this 
account or Rs. 8,700/­ per annum.43.                   Since the claimant is only 18 years of age, applying 
a multiplier of 18 and granting increase of 50% for loss of future 
prospects. (SeeRajesh & Others Vs. Rajbir Singh & Others, 2013(6) 
SCALE 563   decided by the Hon'ble Supreme Court of India), the 
Loss of Future Prospects for the  claimant would be Rs. 2,34,900/­ 
i.e. Rs. 8,700  + 4,350 x 18.44.                   Therefore,  total   compensation  payable   to   the 
petitioner would  be  Rs. 3,63,495/­  which  shall be deposited  with 
interest   @   7.5%   per   annum   from   the   date   of   filing   of   this   claim 
petition which is 24.01.2013 till its realization.45.                   Out of this awarded compensation, a sum of  Rs. 
93,595/­  which the claimant has already incurred towards cost of 
treatment, loss of wages, cost of attendant, cost of conveyance and 
special diet and would be incurring towards physiotherapy shall be 
released   in   his   favour   forthwith.   However,   rest   of   the   balance 
amount will be kept in 5 FDRs of equal amount for a period of 2, 4, 
6, 8 and 10 years respectively in State Bank of India, Dwarka Courts, 
New Delhi.46.                   Compensation shall be deposited by the insurance 
company in State Bank of India, Dwarka Courts, New Delhi  within 
30 days from today under intimation to the claimant as well as to 
the counsel for the claimant by registered post.47.                     Address   of   the   counsel   of   the   claimant   forDAR No. 38/DAR/13            Santosh Vs. Sandeep & Ors.                   Page 11 of 12effecting service of notice of deposit of compensation is as under: ­
                          Shri Onkar Singh,
                          Advocate,
                          594, West Wing, 
                          Tis Hazari Courts,
                          Delhi.Mobile No. 971704723148.                        Nazir   of   this   court   will   also   send   intimation   of 
deposit of compensation to the claimant as well as to his counsel.49.                        Ahlmad will put up a copy of this order with report 
from Nazir regarding deposit of compensation again on 07.10.2013.50.                        Copy of this order be given dasti to all the parties.51.                         File be consigned to the Record Room.Announced in the Open Court.On the 4th  day of July, 2013
                                                                 (ARUN BHARDWAJ)
                                                                 PRESIDING OFFICER, 
                                         MOTOR ACCIDENT CLAIMS TRIBUNAL­II
                                                        DWARKA COURTS, NEW DELHI.DAR No. 38/DAR/13                  Santosh Vs. Sandeep & Ors.                 Page 12 of 12