Delhi District Court
Anila Mathew vs . Deepak Kumar & Ors. on 11 January, 2022
IN THE COURT OF SH. HARJYOT SINGH BHALLA
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS
TRIBUNAL, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
ANILA MATHEW VS. DEEPAK KUMAR & ORS.
DAR No. 168/2017
Smt. Anila Mathew
D/o Sh. Mathew,
R/o H.No. 107C, DDA Flats,
Jhilmil, Vivek Vihar, Delhi.
......Petitioner/Injured
Versus
1. Sh. Deepak Kumar
S/o Sh. Puttu Lal,
R/o Village Steti, PS Belshi,
District Budayoun, U.P.
2. Sh. Madan Gopal,
S/o Sh. Ran Singh,
R/o 380, Old Seemapuri, Shahdara, Delhi.
3. M/s IFFCO Tokio General Insurance Co. Ltd.
Registered office : IFFCO Sadan, C1 District Centre,
Saket, New Delhi110017.
.....Respondents
DAR No. 168/17 Page no.1 of 27
Date of filing of DAR : 01.03.2017
Date of framing of issues : 09.05.2017
Date of concluding arguments : 11.01.2022
Date of decision : 11.01.2022
AWARD/JUDGMENT (ORAL)
1. The claim for compensation raised in the present Detailed Accident Report (DAR) relates to injuries and physical disability suffered by petitioner in a road accident that took place on 05.10.2016, at about 07.15 AM, at Sector12, R.K. Puram, Near Bus Stop, opposite Aradhana Enclave, Delhi, regarding which one FIR bearing no.421/16, under Sections 279/338 IPC was registered at PS R.K. Puram. The offending vehicle involved in this case is a TSR Auto bearing registration no. DL1RN7528, which at the relevant time of accident was being driven by R1 (respondent no.1), owned by R2 (respondent no.2) and insured with R3 (respondent no.3).
2. The case of petitioner, briefly stated, is that on the above said date, time and place of accident, the petitioner was going to Dhaula Kaun in the TSR bearing No. DL1RN7528. When she reached Sector12, R.K. Puram, opposite Anuradha Enclave red light, the auto driver did not stop his auto at the red light and hit Innova car which was stationary on the side of the road, due to which the petitioner fell on the road and sustained grievous injuries. The said TSR was being driven by R1 in a very high speed and in a rash and negligent manner without following the traffic rules at the time of accident. The petitioner was removed to Trauma Centre, where she received DAR No. 168/17 Page no.2 of 27 emergency treatment and her MLC was also prepared by the doctors of the concerned hospital.
3. R1 and R2 had not filed their written statement to the DAR.
4. R3/Insurance Company had filed reply cum written statement to the DAR admitting the issuance and existence of a valid policy of insurance in the name of Mr. Madan Gopal, w.e.f. 20.02.2016 to 19.02.2017. It has further been claimed that R1 was not holding a valid and effective driving license at the relevant time of accident and therefore, the police charged R1 under Section 3/181 of the Motor Vehicles Act. Hence, the Insurance Company is not liable to pay compensation as there is a violation of terms and conditions of the insurance policy.
5. On 09.05.2017, the following issues were framed by this tribunal for disposal of the DAR :
1. Whether the injured Ms. Anila Mathew sustained injuries in the accident which occurred on 05.10.2016 at about 07.15 am, at Sector12, R.K. Puram, Near Bus Stop, opposite Aradhana Enclave, Bus Stop, New Delhi caused by rash and negligent driving of vehicle No. DL1N7528 being driven by respondent Deepak Kumar, owned by respondent Madan Gopal and insured with respondent IFFCO Tokio General Insurance Co. Ltd. ? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
DAR No. 168/17 Page no.3 of 27
3. Relief.
6. I have heard the arguments advanced by Ld. counsel for petitioner and Ld. Counsel for R3/insurance. The case record has also been perused. My findings on the above issues are as under : ISSUE No. 1
7. 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 established on preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubt as is required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
8. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others, 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc.
9. Petitioner in support of her claim examined on record total two DAR No. 168/17 Page no.4 of 27 witnesses. Petitioner examined herself as PW1. She also examined Dr. O.P. Meena, Senior Medical Officer, Department of Orthopedics, Dr. RML Hospital, New Delhi as PW2. It is the testimony of petitioner only which matters for determination of present issue.
10. In his affidavit Ex.PW1/A, the petitioner has categorically deposed regarding the factum as well as manner of the said accident which has already been discussed herein above. During cross examination of above witness, she deposed that she did not remember the number of the offending vehicle. She has volunteered that she was removed to the hospital by the police officials and they told her the number of the offending vehicle. She further denied the suggestion that the accident took place due to her negligence. No suggestion was put to her that the TSR was not involved in the accident or how her negligence had led to the accident. Clearly, nothing material could be extracted out from her in her crossexamination which can make this tribunal to disbelieve or discard her testimony. There is no reason or ground as to why this tribunal should not believe and act upon her testimony as the same is found trustworthy and convincing.
11. Moreover, the oral testimony of petitioner is also found substantiated from records of the criminal case, which have been filed with the DAR and have not been challenged or disputed on behalf of the respondents. R1 has already been chargesheeted in the above criminal case for offences punishable under Sections 279/338 IPC for causing grievous hurt on the petitioner by his rash and negligent driving of the said TSR and DAR No. 168/17 Page no.5 of 27 the same in itself is a strong circumstance to corroborate the testimony of petitioner on above aspects.
12. Apart from above, R1 was the best witness who could have challenged or controverted the testimony of this witness by deposing on record about manner of the said accident, but he had not done so. Hence, an adverse inference can also be drawn against the respondents on this aspect, in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, 2009 (3) AD (Delhi) 310.
13. Therefore, in view of the above, it is held that oral evidence led on record by the petitioner on this issue is duly substantiated by the documentary evidence and it stands proved by the principle of preponderance of probabilities that the above accident resulting into injuries on the person of petitioner took place due to rash and negligent driving of the above offending TSR bearing no. DL1N7528, which was being driven by R1, owned by R2 and insured with R3 at the relevant time of accident. Hence, this issue is accordingly decided in favour of the petitioner and against the respondents.
14. ISSUE NO.2 As the issue no.1 has been proved in affirmative and in favour of petitioner, the petitioner has become entitled to be compensated for the injuries and disability suffered in above accident, but the computation of compensation and liability to pay the same are required to be decided.
DAR No. 168/17 Page no.6 of 27 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 the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as nonpecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the nonpecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R. D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011)1 SCC
343.
DAR No. 168/17 Page no.7 of 27
15. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:
(i) Medical or Treatment Expenses
16. In her above affidavit Ex.PW1/A, the petitioner has tendered on record her medical bills as Ex. PW1/D (colly) which are totalling to a sum of Rs. 3,51,407/. During her cross examination, she deposed that she has placed on record all the medical bills on record whatever in her possession. These documents have not been disputed during trial nor any suggestion was given regarding the medical bills during cross examination. It has been observed that all these bills and receipts produced by her on record are in consonance with her treatment record and nature of injuries suffered by her in the above said accident and hence, she is being awarded a sum of Rs. 3,51,407/ towards his medical expenses.
(ii) Loss of actual earnings
17. As stated above, the petitioner has suffered grievous injuries resulting into 5.8% permanent physical disability in the above accident. The petitioner has tendered on record her discharge summary of JPNA Trauma Centre as Ex. PW1/B (colly) and discharge summary of Matha Hospital, DAR No. 168/17 Page no.8 of 27 Kerala as Ex. PW1/C. The discharge summary of JPNA Trauma Centre reflects that the petitioner was admitted in the said hospital on 05.10.2016 and was discharged on 20.10.2016. Her discharge summary further reflects that she was diagnosed with fracture of neck of femur (Transcervical) with fracture of head of femur along with posterior dislocation of head left side (Brumback type 3B) plus fracture of shaft of tibia left (undisplaced). The petitioner had also undergone open reduction and internal fixation was done. Her treatment continued over an year and she infact had to go through a hit replacement surgery at Matha Hospital, Kerala. The discharge summary of Matha Hospital, Kerala Ex. PW1/C reflects that the petitioner was admitted in the said hospital on 09.06.2017 and was discharged on 17.06.2017. This discharge summary reflects that the petitioner was diagnosed with non union fracture neck and head of left femur with neck resorption and AVN of head with implant migration and had also undergone surgery.
18. In her affidavit Ex. PW1/A, the petitioner has claimed that she is working as staff nurse with Shree Chitra Tirunal Institute for Medical Science and Technology at Kerala and earning Rs. 39,000/ per month. She has tendered on record her salary slip, medical certificate, employment ID card along with relieving certificate as Ex. PW1/F (colly). As per salary slip, the gross salary of petitioner was Rs. 38,565/ per month and this tribunal has no hesitation in taking it as salary of the petitioner at the time of accident and thus, the annual earnings of the petitioner come to Rs.4,62,780/ (Rs.38,565/ X 12) and in view of the settled law on subject, only the tax DAR No. 168/17 Page no.9 of 27 liability, if any, of the petitioner is to be reduced from her above annual earnings as her 'income' means the actual income less than the tax paid, as was also approved in the case of Pranay Sethi (Supra). As per the income tax rates prevailing at the time of accident, an amount of Rs. 16,767/ is required to be deducted towards tax liability. Hence, after deduction of tax, the annual income of deceased comes out to be Rs. 4,46,013/ (Rs.4,62,780/ Rs. 16,767/) and the monthly income of deceased comes out to be Rs. 37,168/ (rounded off) (Rs. 4,46,013/12).
19. In her affidavit, the petitioner has claimed that she was on leave for a period of 75 days from the date of accident as the trauma centre doctor advised her 75 days bed rest. She further deposed in her affidavit that she could not recover from her injury and finally she was relieved from her job. As per relieving letter which is a part of Ex. PW1/F (colly), the petitioner was working as staff nurse on temporary basis and she was relieved from the service on medical grounds.
20. Hence, keeping in view the nature of injuries suffered by petitioner and the extent and duration of her treatment etc., she is held entitled to be compensated for loss of her actual earning equivalent to period of eight months.
21. Therefore, the petitioner is being awarded an amount of Rs. 2,97,344/ (Rs.37,168/ X 8) under this head pertaining to loss of her actual earnings.
DAR No. 168/17 Page no.10 of 27
(iii) Loss of future earnings due to disability
22. The nature of injuries suffered by petitioner as well as the extent and duration thereof have already been discussed in detail. It has also been stated above that the petitioner has suffered 5.8% permanent physical disability in the accident.
23. The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it was held as under : "4..........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 equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a humanbeing. Permanent disability refers to the residuary incapacity or loss of use of some part of the DAR No. 168/17 Page no.11 of 27 body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. 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. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine DAR No. 168/17 Page no.12 of 27 loss of dependency)."
24. Coming back to the present case, in order to prove the disability of petitioner, the petitioner has examined on record PW2 Dr. O.P. Meena who has brought the disability certificate of petitioner which is already on record as Ex. PW1/J. As per disability certificate, the petitioner is a case of fracture of neck of femur with fracture of head of femur left side and posterior dislocation of left hip along with fracture of shaft of left tibia and her permanent physical disability is 5.8% in relation to left lower limb. The petitioner had to undergo total hip replacement of left hip. PW2 in his examination in chief has volunteered that in case she had not undergone the hip replacement, then the disability could have been more. She further deposed that she might need a review for surgery after approx. 20 years, though it can be done earlier also in case any complications are developed. He further volunteered that the normal life of hip replacement is 20 years approx. He could not comment upon the expenses required for further hip replacement as the same may vary and depend upon different factors. He further deposed that the petitioner will have some problem in sitting cross legs, long standings and squatting, but in normal routine or work as a nurse, the petitioner will not face any problem.
25. Hence, considering the legal position already discussed above and the facts and circumstances of this case, the functional disability of the petitioner is being taken as 6% by rounding off the percentage of disability DAR No. 168/17 Page no.13 of 27 mentioned in her disability certificate Ex. PW1/J.
26. In her examination in chief by way of his affidavit Ex. PW1/A, the petitioner has tendered on record copy of her Aadhar card and PAN card as Ex. PW1/H (OSR). As per these documents, the date of birth of petitioner is found recorded as 01.05.1989. Hence, going by this document, her age at the relevant time of accident, i.e. 05.10.2016, comes to about 27 years, 5 month and 4 days. Therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Supreme Court in a recent judgment dated 31.10.2017 given in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, the multiplier of 17 is held applicable for calculating the loss of future earnings of the petitioner arising out of her above disability.
27. Further, the petitioner is also held entitled to 40% future prospects in view of the law laid down by the Hon'ble Delhi High Court in the cases of Bajaj Alliance Gen. Insurance Co. Ltd. Vs. Rajeshwar Prasad & Ors., MACA 858/15 decided on 19.07.2017 and Faiyaz Ahmad Khan Vs. Chandra Pal Singh & Ors., MACA No.351/17 decided on 08.08.2017 as well as in the Constitution Bench Decision of the Hon'ble Supreme Court in case of Pranay Sethi (Supra) as she was below the age of 40 years at the time of accident and her job was permanent in nature.
DAR No. 168/17 Page no.14 of 27
28. Thus, the loss of future earnings and prospects caused to the petitioner due to his above injuries and permanent disability comes to Rs.6,36,911/ (rounded off) (Rs. 37,168/ X 140/100 X 6/100 X 17 X 12) and the said amount is being awarded to him under this head.
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
29. As discussed above, the petitioner had suffered grievous injuries in the above accident and 5.8% permanent physical disability and her functional disability has also been taken by this tribunal to be the same. 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 as stated above, an effort 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 petitioner and duration of the treatment taken by her etc., an amount of Rs.60,000/ each is being awarded to her towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.30,000/ is also awarded to her towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs.1,50,000/ under this head.
(v) Conveyance, Special Diet and Attendant Charges DAR No. 168/17 Page no.15 of 27
30. In her affidavit Ex. PW1/A, the petitioner has claimed that she had spent an amount of Rs. 40,000/ towards conveyance, Rs. 20,000/ towards special diet and Rs. 20,000/ towards attendant. The petitioner has tendered on record her conveyance bills along with boarding pass as Ex. PW1/D1 (colly). This tribunal can take notice of the fact that she would have travelled to and fro for the purposes of treatment on several occasions and hence, a lumpsum amount of Rs.30,000/ towards the requirement of conveyance and an amount of Rs. 6,000/ per month for six months towards special diet for her early recovery from the injuries suffered because of above accident is being granted to the petitioner. Besides above, an amount of Rs.6,000/ per month for one year is also being granted to her towards attendant charges or for the gratuitous services rendered by her family members during the period of hospitalization and immobility. Therefore, a total amount of Rs. 1,38,000/ is being awarded to her under this head.
(vi) Future treatment expenses
31. In her affidavit, the petitioner has claimed that the doctor has advised revision surgery after 15 years. The petitioner has tendered on record original doctor estimate for surgery as Ex. PW1/G (colly). As per this documents, the petitioner had undergone total hip replacement on 10.06.2017 and she might require revision hip replacement in future (approx. after 15 years), which will cost around Rs. 3 lakhs.
DAR No. 168/17 Page no.16 of 27
32. Therefore, in view of the above, this tribunal feels it just and reasonable that the expenses of implant if any, shall be paid directly by R3 to the company concerned on production of requisite invoices and other related documents or bills pertaining to the same.
Issue No.3/Relief
33. The petitioner is thus awarded a sum of Rs. 15,73,662/ (Rs. 3,51,407/ + Rs. 2,97,344/ + Rs. 6,36,911/ + Rs. 1,50,000/ + Rs. 1,38,000/ (Rupees Fifteen Lakhs Seventy Three Thousand Six Hundred Sixty Two only) along with interest. 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 above amount and calculations of compensation.
RELEASE
34. Out of the awarded amount, 70% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of 60 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 60 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as DAR No. 168/17 Page no.17 of 27 implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account opened/to be opened near the place of her residence, as directed vide order dated 04.08.2018. The remaining 30% amount is directed to be released into her above said account, which can be withdrawn and utilized by the petitioner.
35. To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier.
36. The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any.
37. The bank shall not permit any joint name (s) to be added in the savings bank account or MACAD scheme account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
38. The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amounts shall be released in account of the petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
DAR No. 168/17 Page no.18 of 27
39. The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner.
40. No loan, advance or withdrawal or premature discharge be allowed on MACAD without permission of the Court.
LIABILITY
41. It is the case of R3/Insurance Company that R1/driver was not holding a valid and effective driving license at the time of accident and therefore, the police charged the driver under Section 3/181 MV Act. The respondents no. 1 and 2 never stepped into the witness box to establish a the above claim regarding the validity and issuance of driving license.
42. On the contrary, the respondent no. 3 produced one Ms. Sunidhi Mittal, Executive Legal from their office who exhibited attested copy of insurance policy as Ex. R3W1/1 (colly), office copy of notice under Order 12 Rule 8 CPC as Ex. R3W1/2, postal receipt as Ex. R3W1/3 (colly) and DAR filed by the IO already Ex. PW1/E.
43. On perusal of chargesheet filed by the IO, it is found that Section 3/181 MV Act has been invoked against the respondent no. 1 due to non possession/production of a valid driving license. Therefore, a presumption has to be drawn that the vehicle was being plied without a valid driving license. Hence, it is held that the respondent no. 1 was not having a valid driving license at the time of accident. In view of the law laid down by DAR No. 168/17 Page no.19 of 27 the Hon'ble Delhi High Court in case Giriraj Vs. Viniti Kohli & Anr., MACA No. 639/19, decided on 23.09.2019, R3/Insurance Company is only held entitled to a right of recovery of the awarded amount from R2, i.e. owner of the offending vehicle. Therefore, R3 is first liable to deposit the awarded amount with UCO Bank, Patiala House Court Branch, along with interest @ 6% per annum from the date of filing of DAR either by way of crossed cheque/DD in name of the petitioner or by way of deposit in any e form in bank account being maintained in the above said bank in name of this tribunal within 30 days from today. In case even after passage of 90 days from today, R3 fails to deposit this compensation with interest, in that event R3 shall be liable to pay interest at the rate of 9% per annum for the period of delay beyond 90 days from today and in light of judgment of the Hon'ble High Court 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 R3 with a cost of Rs.5,000/.
44. R3 shall inform the petitioner and his counsel through registered posts that the cheque/DD of the awarded amount is being deposited so as to facilitate him to collect his cheque/DD.
45. 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.
DAR No. 168/17 Page no.20 of 27
46. 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.
47. The particulars of FormV of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 05.10.2016
2. Date of intimation of the accident by the Investigation Officer to the Not given Claims Tribunal.
3. Date of intimation of the accident by the Investigating Officer to the Not given Insurance company.
4. Date of filing of Report under Section 173 Cr.PC before the Not given Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating 01.03.2017 Officer before Claims Tribunal.
6. Date of service of DAR on the do Insurance Company.
7. Date of service of DAR on the do claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR No DAR No. 168/17 Page no.21 of 27
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency on the part of the DAR has been filed after Investigating Officer? If so, whether five months of accident any action/direction warranted?
12. Date of appointment of the Designated Officer by the Insurance Not given Company.
13. Name, address and contact number of the Designated Officer of the Not given Insurance Company.
14. Whether the Designated Officer of the Insurance Company submitted his No report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the No Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance No Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Legal offer not filed.
the offer of the Insurance Company.
18. Date of the award 11.01.2022
19. Whether the award was passed with No the consent of the parties?
DAR No. 168/17 Page no.22 of 27
20. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank 04.08.2018 not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced the passbook of their savings bank account near the place Yet to be furnished of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o House No. 107C, Claimant(s) DDA Flats, Jhilmil, Vivek Vihar, Delhi.
24. Details of savings bank account (s) of the claimant(s) and the address of the Yet to be furnished bank with IFSC Code.
25. Whether the claimant(s) savings bank account(s) is near his place of Yet to be furnished residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
DAR No. 168/17 Page no.23 of 27
49. File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on 30.04.2022.
Announced in the open court (Harjyot Singh Bhalla) on 11.01.2022 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format DAR No. 168/17 Page no.24 of 27 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORMXVI
1.Date of accident : 05.10.2016
2.Name of the injured : Anila Mathew
3.Age of the injured : 27 years, 5 months and 4 days
4.Occupation of the injured : Nurse (temporary)
5.Income of the injured : Rs. 37,168/
6.Nature of injury : Grievous
7.Medical treatment taken by the injured : As discussed above
8.Period of hospitalization : As discussed above
9.Whether any permanent disability? : 5.8% permanent physical disability, but taken as 6% (rounded off)
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 3,51,407/
(ii) Expenditure on conveyance Rs. 30,000/
(iii) Expenditure on special diet Rs. 36,000/
(iv) Cost of nursing/attendant Rs. 72,000/
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.2,97,344/
(vii) Any other loss which may require Nil any special treatment or aid to the injured for the rest of his life
12. Nonpecuniary Loss:
(i) Compensation for mental and Rs.60,000/ physical shock DAR No. 168/17 Page no.25 of 27
(ii) Pain and suffering Rs.60,000/
(iii) Loss of amenities of life Rs.30,000/
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil hardships,disappointment,frustrati on, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed 5.8% permanent physical and nature of disability as disability permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of earning 6% functional disability
relation to disability
(iv) Loss of future income Rs.6,36,911/
14. Total Compensation Rs.15,73,662/
15. Interest Awarded 6% pa from date of filing of
DAR till deposit in 90 days
and 9% after 90 days.
16. Interest amount up to the date of Rs.4,59,681.76
award
17. Total amount including interest Rs.20,33,343.76/ (rounded
off to Rs. 20,34,000/)
18. Award amount released 30% of the amount
DAR No. 168/17 Page no.26 of 27
19. Award amount kept in the FDRs/ 70% of the amount
Motor Accident Claims Annuity
Deposit (MACAD)
20. Mode of disbursement of the Through bank
award amount to the claimant (s)
21. Next date for compliance of the 30.04.2022
award
(Harjyot Singh Bhalla)
PO/MACT, New Delhi
11.11.2021
DAR No. 168/17 Page no.27 of 27