Delhi District Court
Narender Singh vs . Darshan Singh & Ors. on 21 March, 2023
IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
NARENDER SINGH Vs. DARSHAN SINGH & ORS.
DAR NO. 291/2015
Sh. Narender Singh
S/o Sh. Kirpal Singh
R/o 2159/1, Shadi Khampur, Patel Nagar,
New Delhi-110044.
........Claimant/Injured
Versus
1. Sh. Darshan Singh (Driver)
S/o Sh. Kunwar Singh
R/o 343, Mahipalpur,
New Delhi.
2. Bajaj Travels (Owner)
R/o E-186, Lajpat Nagar,
New Delhi.
3. Universal Sompo General Insurance Co. Ltd. (Insurer)
Flat No. 514, Shakuntala Building,
Nehru Place, New Delhi. ...........Respondents
Date of filing of DAR : 27.08.2015
Date of framing of issues : 05.11.2015
Date of concluding arguments : 06.03.2023
Date of decision : 21.03.2023
DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 1 of 32
AWARD/JUDGMENT
1. The claim for compensation in the present Detailed Accident Report (DAR) relates to injuries and disability suffered by the claimant in a road accident that took place on 31.03.2015, at about 06.15 pm at Jai Singh Road, Near YWCA, New Delhi, regarding which an FIR bearing No. 74/2015, under Sections 279/338 IPC was registered at PS Parliament Sreet. The offending vehicle involved in this case is a Car bearing registration No. DL-1N-6922, which at the time of accident was being driven by respondent No. 1, owned by respondent No.2 and insured with respondent No. 3.
2. Succinctly put, facts of the case as per DAR are that on the aforesaid date, time and place of accident, the claimant was going towards his shop on his scooter and when he reached at Jai Singh Road, one Car bearing registration No. DL-1N-6922 being driven by respondent No. 1 took a sharp 'U' turn with rash and negligent manner and hit the scooter of the claimant. Due to said forceful, the claimant fell on the road and sustained fracture of left femur and left tibia besides other grievous injuries and remained admitted in BLK Super Speciality Hospital from 31.03.2015 to 04.04.2015.
3. Separate written statements have been filed on behalf of respondents No. 1 & 2. It is stated in the written statement of respondent No. 1 that he was driving the offending vehicle at the DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 2 of 32 time of alleged accident, however, the said accident had not taken place due to his rash and negligent rather the claimant was solely responsible for said accident, who hit his car while driving his scooter in a high speed with rash and negligent manner. It is further stated that respondent No. 1 was holding a valid driving license and the vehicle was insured with M/s. Universal Sompo General Insurance Company Ltd. at the time of alleged accident.
4. Written Statement has also been filed on behalf of respondent No. 3/Insurance Company stating that the respondent No. 1/driver of the offending vehicle was holding a license for LMV (NT), however RC of the offending vehicle shows that the same was for commercial use only.
5. On 05.11.2015, the following issues were framed by the Ld. Predecessor of this Court as:-
1. Whether Sh. Narender Singh sustained injuries in the accident which occurred on 30.03.2015 at about 06.15 pm at Jai Singh Road, Near YWCA, New Delhi caused by rash and negligent driving of vehicle No. DL-1N-6922 being driven by Sh. Darshan Singh, owned by Bajaj Travels and insured with Universal Sompo General Insurance Company Ltd.? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 3 of 32
3. Relief.
6. It is pertinent to mention herein that vide order dated 28.03.2022, the Ld. Predecessor of the Tribunal passed an interim Award for an amount of Rs.25,000/ with upto date interest @ 6% per annum from the date of filing of claim petition till realization.
7. Vide order dated 24.09.2022 passed by the Ld. Predecessor of the Tribunal, all the respondents were proceeded ex- parte.
8. Ex-parte written arguments have been filed by Sh. Sumit Gupta, Ld. Counsel for the claimant. The case record has also been perused. The finding on the aforesaid issues is reproduced in succeeding paragraphs hereinafter.
ISSUE No. 11. Whether Sh. Narender Singh sustained injuries in the accident which occurred on 30.03.2015 at about 06.15 pm at Jai Singh Road, Near YWCA, New Delhi caused by rash and negligent driving of vehicle No. DL-1N-6922 being driven by Sh. Darshan Singh, owned by Bajaj Travels and insured with Universal Sompo General Insurance Company Ltd.? OPP.
9. The onus to prove this issue was upon the petitioner. In order to prove negligence of respondent No. 1, the petitioner has DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 4 of 32 examined himself as PW-2 and has filed his evidence by way of affidavit as Ex.PW-2/A wherein he has narrated the mode and manner of accident as well as the injuries sustained by him and treatment taken thereafter. Despite opportunity granted to the respondents, they chose not to cross examine the said witness.
10. Moreover, it has not been disputed that respondent No.1 has been charge-sheeted in the aforesaid FIR for offences punishable under Sections 279/338 IPC for rash and negligent driving of the offending vehicle. The Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle rashly and negligently. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal.
11. Pertinently, Respondent No. 1 himself was the best witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident, which he has failed to do. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh reported in 2009 (3) AD (Delhi) 310.
12. It is well settled that the procedure followed for DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 5 of 32 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 and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in case titled as Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability.
13. In view of foregoing discussion, it is held that oral evidence led on record by the petitioner on this issue is duly substantiated by the documentary evidence i.e. chargesheet, and thus, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing No. DL-1N-6922 which was being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No.3 at the relevant time of accident. Hence, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 Whether the petitioner is entitled for compensation? If so, to what amount and DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 6 of 32 from whom?
14. As the issue No.1 has been proved in favour of the petitioner, he has become entitled to be compensated for the injuries suffered by him in the accident, but the computation of compensation and liability to pay the same are required to be decided.
15. In terms of Section 168 of the Motor Vehicle Act, 1988, the compensation which is to be awarded by this Tribunal is required to be 'just'. In injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non- pecuniary damages. The Hon'ble Apex Court in Raj Kumar Vs. Ajay Kumar reported in (2011) 1 SCC 343, has laid down heads under which compensation is awarded in personal injury cases as:-
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages) DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 7 of 32
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
16. Having considered the ratio of aforesaid judgment, the compensation payable to petitioner is assessed hereinafter under the following heads as:-
(i) Medical or Treatment Expenses
17. In his affidavit Ex. PW2/A, the claimant has tendered his original discharge summaries issued by Dr. BLK Super Speciality Hospital, New Delhi as Ex. PW2/1. As per discharge summary dated 04.04.2015 (Ex. PW2/1), the petitioner was admitted in the said hospital on 31.03.2015 and was discharged on 04.04.2015. The petitioner was diagnosed with supracondylar fracture left femur and had undergone ORIF with plates and bone graft was done on 02.04.2015. Further, discharge summary of BLK Hospital, which is part of Ex.PW2/8 (colly), reflects that the petitioner was admitted in the said hospital on 22.03.2017 for the removal of plate from femur and tibia left side with bone grafting for fracture non union S/C Femur left side and he was discharged on 24.03.2017.
18. The petitioner has placed on record his original medical DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 8 of 32 bills Ex.PW2/1 (colly) amount to Rs.1,70,899.25. It is an admitted case of the petitioner that out of said amount, Rs.1,42,289 was paid by the Insurance Company (Medical Insurer). Apart from the said medical bills, the petitioner has also placed on record medical bills Ex.PW2/8 (Colly) to the tune of Rs.4,05,062/-. Petitioner has examined Sh. Gaurav Singh, Record Clerk, BLK Hospital, who proved the bill summary of Rs. Rs.1,70,899.25 as Ex.PW1/1.
19. Now coming to reimbursement of claim to the petitioner by his medi-claim company, in a recent decision dated 19.03.2019 of the Hon'ble Mumbai High Court in First Appeal No.1620/2012 titled as Royal Sundaram Alliance Insurance Co. Ltd. Vs. Ajit Chandrakant Rakvi & Anr. this question was directly in issue before his Lordship andafter considering the propositions of law laid by a Division Bench of Hon'ble Calcutta High Court in the case of New India Assurance Co. Ltd. Vs. Bimal Kumar Shah & Anr., 2018 SCC OnLine Cal. 10368 as well as the observations made by the Hon'ble Supreme court in the case of Helen C. Rebello Vs. MSRTC, AIR No. 1998 SC 3191, and it has been held that the contractual payments made under a medi-claim policy are not deductible from payments to be made under the statutory liability.
The relevant observations made in this case are as under :-
"27. It must, however, be noted that there is a cleavage of judicial opinion on the point as to whether the amount of DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 9 of 32 reimbursement received under a mediclaim policy, be deducted from the compensation payable under the Act, in the judgments of various High Courts. A Division Bench of Calcutta High Court in the case of New India Assurance Company Limited Vs. Bimal Kumar Shah & Anr.6 elaborately considered the judgments which hold the view that such amount is required to be deducted and those which record a contrary view and, thereafter, by placing reliance upon the observations of the Supreme Court in the case of Helen C. Rebello (Supra), especially paragraph Nos.35 to 37, extracted above, came to the conclusion that the reimbursement of medical expenses under a contract of insurance is not deductible. While arriving at the aforesaid conclusion, the Calcutta High Court observed as under :-
"..................However, the Hon'ble Supreme Court has been pleased to go on and make it clear that an amount earned out of one's own contribution cannot be said to be "pecuniary gain" only on account of the accident. After all, it is not the case that the 6 2018 SCC OnLine Cal. 10368 Shraddha Talekar PS 14/20 15 FA-1620-2012.doc employer paid the Mediclaim of the victim in this or any other case of third party risk. The victim took out a medical insurance as and by way of a general insurance contract by paying premium. It was his contribution. If he gets something out of his own contribution, for an accident, under an insurance policy he has taken out himself, can a statutory liability on a different insurer who has taken on the risk towards third parties due to an accident caused by the offending vehicle which he has insured, then claim deduction of the amount the victim got from a different insurer based on his own DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 10 of 32 contributions? I most respectfully think not, going by the spirit of the opinion delivered by the Hon'ble Supreme Court.
.................However, in the instant case, I cannot lose sight of the principles which control the entire ratio first, that the liability of an insurer of the offending vehicle to pay a third party compensation for injury or death caused in an accident by the offending vehicle, is statutory whereas the liability to pay a sum to the insured victim for such accidental death or injury, or for any other kind of death, is contractual, and second that the sum paid by the insurer of the victim (rather than the offending vehicle) in both cases is due to the premium paid by the victim from his own earnings. Once these important differences and similarities as I have extracted above are appreciated, it will appear, with the greatest of respect to the learned coordinate benches of the other Hon'ble Courts or the learned Single Benches of those Hon'ble Courts, that none of the judgments referred to in paragraph 7 and sub-paragraphs a, b, c, d, or e, lay down the law, in the teeth of the ratio laid down by the Hon'ble Supreme Court in the case of Rebello (supra) as noticed by me above."
(emphasis supplied)
28. In the light of aforesaid enunciation as regards the statutory liability of the insurer, the nature of general contract of medical insurance needs to be noted. The medical insurance covers a variety of ailments and medical expenses therefor, which are not otherwise DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 11 of 32 specifically excluded. Often there is a upper limit. The duration is also stipulated by the terms of the contract. In this backdrop, the matter can be looked at from another angle. If the claimant exhausts the upper limit or substantial part of the insured amount, for meeting the expenses of treatment, for the injury which is suffered in an accident, the claimant would not be entitled to the benefit of the medical insurance, if the occasion again arises on account of certain other ailments unconnected with the accident. If the policy is in the nature of Family Floater Plan and the limit is exhausted for meeting the expenses in connection with an injury suffered in an accident, by one member, the other members of the family cannot have the benefit of the medical insurance.
29. In the backdrop of these variables, the nature of the proceedings under the Act, becomes significant. A claim petition for compensation in regard to a motor accident filed by the injured before Tribunal constituted under Section 165 of the Act, is neither a suit nor an adversarial lis in the traditional sense. Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (United India Insurance Co. Ltd. Vs. Shila Datta & Ors. 7). This being the nature of the proceedings before the Tribunal, even in respect of the parties before it, in my view, the benefits emanating from an independent and unconnected contract of insurance cannot be considered by the Tribunal, as it besets with variables rooted in contract.
30. From this stand point, in the context of the distinction between the contractual liability under the contract of insurance (medical) and the statutory liability under the Act, the aforesaid proposition, not to deduct the amount of reimbursement received, under a mediclaim policy, appears to be in consonance with the principle of beneficial interpretation and advances the object of the DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 12 of 32 Act. Hence, I am not persuaded to agree with the submission on behalf of the appellant that the said amount of Rs.1,20,000/- ought to have been deducted."
20. During cross-examination, PW-1 has denied the suggestion that the documents regarding his treatment and medical expenses are forged and frivolous. Needless to say, the respondents have not led any evidence to show that the said bills do not relate to the injuries suffered by the petitioner in the aforesaid accident. Thus, the testimony of PW-1 that he had spent the aforesaid amount towards medical expenses remained unrebutted and uncontroverted. In the absence of any plausible evidence produced by respondents on record, there is no reason to disbelieve the testimony of PW-1 that he had spent the aforesaid amount towards medical expenses.
21. In view of foregoing discussions, the petitioner is held entitled to Rs.5,75,951/- towards his medical expenses.
(ii) Loss of actual earnings
22. The petitioner in his affidavit Ex.PW2/A has claimed that he was running a general store at Gurudwara Bangla Sahib, New Delhi and was earning a sum of Rs. 55,000/- per month at the time of accident. In order to prove his income, the petitioner has placed on record copy of income tax returns for the assessment years 2013-14, 2014-15 and 2015-16 as Ex. PW2/5 (colly). Perusal of income tax returns for the assessment year 2015-16 reveals that the income of petitioner is mentioned as Rs. 686,475/- and tax paid is Rs. 28,533/-. In view of the settled law on subject, the tax liability DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 13 of 32 of the deceased, if any, is to be reduced from his above annual earnings as his 'income' means the actual income less the tax paid, as was also approved in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., SLP (Civil) No. 25590 of 2014 dated 31.10.2017. After deducting the tax amount of Rs. 28,533/- from earnings of the deceased, his net annual income comes out to be Rs. 6,57,942/- (Rs.6,86,475/- (-) Rs. 28,533/-) and his monthly income comes out to be Rs. 54,829/- (Rs.6,57,942/- - Rs. 28,533/-).
23. The petitioner in his affidavit Ex. PW1/A has further claimed that he is unable to do his work and earn his livelihood due to the injuries sustained in the accident. He further claimed that he is unable to bend his left leg, lift any weight, squat, run, climb stairs and even to walk properly. Keeping in view the duration of treatment of the petitioner, this tribunal feels it just and reasonable to compensate him for loss of earning equivalent to a period of six months. Therefore, under this head, he is being awarded an amount of Rs. 3,28,974/- (Rs. 54,829 X 6 months).
(iii) Loss of future earnings due to disability
24. As per Disability Certificate dated 17.10.2018 Ex.PW4/1 issued by Dr. RML Hospital, the petitioner is a case of fracture of distal femur left side and fracture of proximal tibia left side, his knee movements are restricted and his permanent physical disability is 45.6% in relation to left lower limb.
25. The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 14 of 32 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 has been held as under :-
"4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation 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 equitable manner. The court or tribunal shall 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 the 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 lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 15 of 32 avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 16 of 32 future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may............."
26. In order to prove his disability certificate, the petitioner has examined on record one Dr. Rahul Khare, Professor, MS Ortho, Senior Orthopedic Surgeon, Dr. RML Hospital who has proved the disability certificate Ex. PW4/1. He deposed that the petitioner will have difficulty in climbing stairs, walking long distance and sitting on the floor. During cross examination, he has placed on record the computation sheet of assessment of disability of petitioner as Ex.PW4/R3/1. He denied the suggestion that the disability of petitioner will be removed by any medical treatment or therapy. He further denied the suggestion that there is any room for improvement of said disability by modern medical science.
27. Considering the legal position already discussed above and the facts and circumstances of the present case including work of the petitioner, the functional disability of the petitioner is taken as 45.6% in relation to whole body.
28. To apply the multiplier, it is necessary to ascertain the DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 17 of 32 age of the petitioner. However, the petitioner has not placed on record any document in order to prove his age. Perusal of record reveals that age of petitioner is recorded as 54 years, 6 months and 3 days in the discharge summary issued by BLK Hospital. Further, in the written submissions filed on behalf of Insurance Company, the age of petitioner is mentioned as 54 years. Hence, it is clear from the above that the age of the petitioner on the date of accident was around 54 years. 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 Apex Court in a judgment of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., SLP (Civil) No. 25590 of 2014 dated 31.10.2017, the multiplier of '11' is applicable for calculating the loss of future earnings of the petitioner arising out of above disability.
29. Further, the petitioner is also held entitled to 10% future prospects in view of the law laid down by the Hon'ble Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi & Ors.(Supra) as he was between the age of 51 to 60 years at the time of accident and self employed. Thus, the loss of future earnings caused to the petitioner due to his permanent disability comes to Rs.36,30,294/- (Rs. 54,829/- X 12 X 45.6/100 X 11 X 110/100).
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
30. As stated above, the petitioner had suffered grievous DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 18 of 32 injuries in the accident. Though, it is not possible to exactly compensate her for the shock, pain and sufferings etc. which he had actually suffered because of the above injuries and disability, but an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by him etc., an amount of Rs.50,000/- each is being awarded to him towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.40,000/- is also awarded to him towards the loss of amenities suffered by him during the said period of his treatment. Thus, he is awarded total amount of Rs.1,40,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges
31. The petitioner in his affidavit Ex. PW1/1 has claimed that he had spent a sum of Rs.30,000/- each towards conveyance and special diet. However, he has not placed on record any document in order to substantiate his above claim. Still this Tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with his treatment and special diet for his early recovery from the injuries suffered because of the accident. Considering the facts and circumstances of the present case, an amount of Rs.20,000/- each is being awarded to the petitioner towards conveyance and special diet.
DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 19 of 3232. The petitioner in his affidavit has claimed that he had hired an attendant @ Rs. 10000/- per month for six months as he was unable to do his daily routine works due to the injuries sustained in the accident. Keeping in view the nature of disability, this Tribunal is of the opinion that the petitioner would have required assistance of attendant for doing his daily routine work for atleast six months, therefore, a sum of Rs. 10,000/- per month for six months is also being awarded to the petitioner towards attendant charges. The injured/claimant is thus entitled to an amount of Rs.1,00,000/- (Rs.20,000/- + Rs. 20,000 + Rs. 10,000/- per month X 6 months) under this head.
(vi) Future Treatment Expenses
33. The petitioner in his affidavit has claimed that he has to undergo prolonged treatment and surgeries in future as per advice of doctors and he has to incur atleast three lakhs on his future medical treatment and surgery. The petitioner has placed on record one estimate dated 11.01.2016 issued by BLK Super Specialty Hospital as Ex. PW2/4 for his future treatment.
In order to prove the same, the petitioner has examined on record Dr. Ishwar Bohra, Consultant Orthopedics, BLK Super Specialty Hospital as PW3 who admitted that the estimate Ex. PW2/4 has been issued by him. He deposed that the cost of surgery as mentioned in the said estimate is variable as it depends on the final stage of recovery of the patient.
DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 20 of 3234. In view thereof, this tribunal feels it just and reasonable that the future expenses if any, shall be paid directly by the respondent no.3 to the company concerned on production of requisite invoices and other related documents pertaining to the same.
ISSUE No. 3/Relief
35. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.47,75,219/- (Rupees Fourty Seven Lakhs Seventy Five Thousand Two Hundred Nineteen only) (Rs. 5,75,951/- + Rs.3,28,974/- + Rs. 36,30,294/- + Rs. 1,40,000/- + Rs. 1,00,000/-) along with 7.5% interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
RELEASE
36. Out of amount awarded, 60% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 150 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 150 months in succession, as per 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 implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 21 of 32 FDRs on maturity would be released in his savings/MACT Claims SB Account opened/to be opened near the place of his residence, as directed vide order dated 20.01.2018 and the remaining 40% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
The disbursement to the petitioner is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his share.
The bank shall not permit any joint names to be added in the savings bank account or MACAD scheme account of petitioner i.e. the bank account of petitioner shall be individual account and not a joint account.
The original fixed deposits shall 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 amount shall be released in account of petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of his residence.
The maturity amount of the FDR (s) on monthly basis DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 22 of 32 net of TDS be credited by Electronic Clearing System (ECS) in the above account of petitioner.
No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
LIABILITY
37. During the course of final arguments, Ld. Counsel for Insurance Company has taken a defence that the driver of the DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 23 of 32 offending vehicle was not holding a valid driving license for driving transport vehicle as the respondent no. 1 was having LMV NT license at the relevant time of accident.
In order to prove the same, the Insurance Company has examined on record Sh. Abhishek Gaur, Assistant Manager (Claims) as R3W1 who tendered his evidence by way of his affidavit Ex. R3W1 and relied upon the attested copy of insurance policy as Ex. R3W1/1, notice under Order 12Rule 8 CPC issued to owner and driver as Ex. R3W1/2 (colly) along with its postal receipts as Ex. R3W1/3 (colly), DAR filed by the IO as Ex. R3W1/4 (colly), copy of driving license of respondent no. 1/driver as Ex. R3W1/5 and copy of verification report of driving license of respondent no. 1 as Ex. R3W1/6.
38. Perusal of verification report of driving license of respondent no. 1 reveals that the driving license of respondent no. 1 was valid for NT category upto 17.05.2030 and the same was not valid for TR category.
Reliance has also been placed upon the law on the point laid down in judgment of the Hon'ble Apex Court in case Mukund Dewangan Vs. Oriental Insurance Co. Ltd., Civil Appeal No. 5826 of 2011, decided on 03.07.2017 wherein it was held as under :-
"....46 (i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 24 of 32 virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg.
or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses
(e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 25 of 32 transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
39. In view of the foregoing discussions, the Tribunal is of the considered view that the defence of Insurance Company is not tenable in law as the respondent no. 1 was holding a valid and effective driving license at the time of accident.
40. All the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioners, but respondent no. 3 being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of DAR by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Respondent no. 3 with a cost of Rs.5,000/-.
41. The respondent No. 3 shall inform the petitioner and his counsel through registered post that the awarded amount has been deposited so as to facilitate him to collect the same.
DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 26 of 3242. The copy of this award be given to the parties free of cost or be sent by email. 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.
43. 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.
44. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 31.03.2015
2. Date of filing of Form I- First NA Accident Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from NA the Driver
5. Date of receipt of Form-IV from NA the owner
6. Date of filing of the Form-V- NA Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and NA Form VIB from the Victim (s)
8. Date of filing of Form-VII- 27.08.2015 DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 27 of 32 Detailed Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) Legal offer not filed of the offer of the Insurance Company.
14. Date of the Award 21.03.2023
15. Whether the claimant(s) were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which claimant(s) 20.01.2018 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 not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 28 of 32
17. Date on which the claimant(s) Yet to furnish produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of R/o 2159/1, Shadi the Claimant(s) Khampur, Patel Nagar, New Delhi-
110044.
19. Whether the claimant(s) savings Yet to furnish bank account(s) is near his place of residence?
20. Whether the claimant(s) were Yes examined at the time of passing of the award to ascertain his/their financial condition?
45. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 28.04.2023.
Announced in the open court. (Shefali Barnala Tandon) on 21.03.2023 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 29 of 32 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 31.03.2015
2. Name of the injured : Sh. Narender Singh
3. Age of the injured : 54 years
4. Occupation of the injured : General Store at Gurudwara Bangla Sahib, New Delhi.
5. Income of the injured : Rs. 54,829/- per month
6. Nature of injury : Grievous
7. Medical treatment taken by : BLK Super Specialty the injured Hospital
8. Period of hospitalization : 31.03.2015 to 04.04.2015
9. Whether any permanent : 45.6% permanent disability? physical impairment
10. Computation of Compensation Sr.N Heads o.
11. Pecuniary Loss
(i) Expenditure on treatment : Rs. 5,75,951/-
(ii) Expenditure on conveyance : Rs. 20,000/-
(iii) Expenditure on special diet : Rs. 20,000/-
(iv) Cost of nursing/attendant : Rs. 60,000/-
(v) Loss of earning capacity : Nil
(vi) Loss of Income : Rs. 3,28,974/-
(vii) Any other loss which may : Nil
require any special
treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 30 of 32
(i) Compensation for mental : Rs. 50,000/-
and physical shock
(ii) Pain and suffering : Rs. 50,000/-
(iii) Loss of amenities of life : Rs. 40,000/-
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
(vi) Loss of earning, : Nil
inconvenience, hardships,
disappointment,frustration,
mental stress, dejectment
and unhappiness in future
life etc.
13. Disability resulting in
loss of earning capacity
(i) Percentage of disability : 45.6% permanent
assessed and nature of physical disability disability as permanent or temporary
(ii) Loss of amenities or loss of : Nil expectation of life span on account of disability.
(iii) Percentage of loss of : 45.6% functional earning relation to disability disability
(iv) Loss of future income : Rs. 36,30,294/-
14. Total Compensation Rs. 47,50,219/- (after deducting the amount of interim award)
15. Interest Awarded : 7.5% pa from date of filing of DAR till the date of award to be deposited in 30 days and 9% thereafter.
16. Interest amount up to the : 26,96,888.03 date of award DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 31 of 32
17. Total amount including : 74,47,107.02 (rounded interest off to Rs. 74,47,500/-)
18. Award amount released : 40% share
19. Award amount kept in the : 60% share FDRs/ Motor Accident Claims Annuity Deposit (MACAD)
20. Mode of disbursement of : Through Bank the award amount to the claimant (s)
21. Next date for compliance : 28.04.2023 of the award (Shefali Barnala Tandon) PO/MACT, New Delhi 21.03.2023 DAR No. 291/15 Narinder Singh Vs. Darshan Singh & Ors. Page 32 of 32