Delhi District Court
Hemant vs Ashwani Kalia on 9 April, 2025
Hemant vs Ashwani Kalia and Ors. Page 1 of51
IN THE COURT OF MS. SHAMA GUPTA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
New No. 449530/16
UNIQUE ID No.: DLNW01-000334-2014
Hemant Kumar Chhabra
S/o Sh. Radha Ram Chhabra
R/o 3346, Mahindra Park,
Pitampura, Delhi
........ Petitioner/claimant
Versus
1. Ashwani Kalia
S/o Sh. Bhim Sen Kalia
R/o 29/30, 3rd Floor,
Old Rajinder Nagar, Delhi
....... Driver/R1
2. Dheeraj Kalia
S/o Sh. Bhim Sen Kalia
R/o 29/30, 3rd Floor,
Old Rajinder Nagar, Delhi
....... Owner/R2
3. Tata AIG General Insurance Company Ltd.
Unit No. 810-816m 8th Floor, World Trade Tower,
Plot No. C-001, Sector-16, Noida-201301
........Insurance Company/R3
..... Respondents
DATE OF INSTITUTION : 27.08.2014
DATE OF RESERVING JUDGMENT : 04.04.2025
DATE OF PRONOUNCEMENT : 09.04.2025
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
Page 1 of51
Hemant vs Ashwani Kalia and Ors. Page 2 of51
MENTIONED IN THE AWARD AS PER FORMAT
REFERRED IN THE ORDER PASSED BY THE HON'BLE
DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI Vs.
JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 12/13.06.2014
2. Date of intimation of the accident by the 27.08.2014
investigating officer to the Claims
Tribunal
3. Date of intimation of the accident by the 27.08.2014
investigating officer to the insurance
company.
4. Date of filing of Report under section Not available on
173 Cr.P.C. before the Metropolitan record
Magistrate
5. Date of filing of Detailed Accident 27.08.2014
Information Report (DAR) by the
investigating Officer before Claims
Tribunal
6. Date of Service of DAR on the 27.08.2014
Insurance Company
7. Date of service of DAR on the claimant 27.08.2014
(s).
8. Whether DAR was complete in all Yes
respects?
9. If not, whether deficiencies in the DAR No
removed later on?
10. Whether the police has verified the Yes
documents filed with DAR?
11. Whether there was any delay or No
deficiency on the part of the
Investigating Officer? If so, whether
any action/direction warranted?
12. Date of appointment of the Designated 27.08.2014
Officer by the insurance Company.
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Hemant vs Ashwani Kalia and Ors. Page 3 of51
13. Name, address and contact number of Sh. Vijay Kumar
the Designated Officer of the Insurance Gupta, Ld.
Company. Counsel for
insurance
company
14. Whether the designated Officer of the Yes
Insurance Company submitted his
report within 30 days of the DAR?
(Clause 22)
15. Whether the insurance company No
admitted the liability? If so, whether the
Designated Officer of the insurance
company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or N/A
deficiency on the part of the Designated
Officer of the Insurance Company? If
so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to Legal offer not
the offer of the Insurance Company . filed
18. Date of the Award 09.04.2025
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed Yes
to open saving bank account(s) near
their place of residence?
21. Date of order by which claimant(s) were 05.04.2019
directed to open saving bank account (s)
near his place of residence and produce
PAN Card and Aadhar 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).
22. Date on which the claimant (s) 25.01.2020
produced the passbook of their saving
bank account near the place of their
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Hemant vs Ashwani Kalia and Ors. Page 4 of51
residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned
Claimant(s) above
24. Details of saving bank account(s) of the Petitioner
claimant(s) and the address of the bank Hemant Kumar
with IFSC Code Chhabra, savings
bank a/c
No.38751431226
, SBI, Pitampura
Branch, Delhi
IFSC :
SBIN0040723
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of
residence?
26. Whether the claimant(s) were examined Yes
at the time of passing of the award to
ascertain his/their financial condition.
27. Account number/CIF No, MICR 41065170303,
number, IFSC Code, name and branch 110002427,
of the bank of the Claims Tribunal in SBIN0010323,
which the award amount is to be SBI, Rohini
deposited/transferred. (in terms of order Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High
Court in FAO 842/2003 Rajesh Tyagi vs
Jaibir Singh.
JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR), was filed in this case on 27.08.2014, with reference to FIR No. 424/14, U/s 279/337 IPC, PS North Rohini, Delhi, in respect of simple hurt, sustained by the petitioner Hemant Kumar Chhabra, in a road traffic accident, in the intervening night of 12/13.06.2014, at about 12.40 am, at Page 4 of51 Hemant vs Ashwani Kalia and Ors. Page 5 of51 Main Chowk, Sharda Niketan Red light, Pitampura, Delhi. The Ld. Predecessor of this Tribunal, vide order dated 27.08.2014, treated the DAR, as claim petition U/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act').
2. Brief facts of the case, as discernible from the DAR, including the documents annexed with the DAR, are that, in the intervening night of 12/13.06.2014, at about 11.30 pm, when the petitioner Hemant Kumar Chhabra (hereinafter referred to as the claimant/petitioner/injured), was going from Police Line Pitampura, Delhi, to his house at Anand Vihar, on his motorcycle, make Pulsar, bearing registration no. DL-6SG-1006 (hereinafter referred to as the victim's vehicle), he was hit by one car, bearing registration No. DL-13CC-3820 (hereinafter referred to as 'offending vehicle'), at Main Chowk, Sharda Niketan Red light, Pitampura, Delhi. It was further mentioned that at the time of accident, the offending vehicle was driven in a rash and negligent manner, by its driver Ashwani Kalia (hereinafter referred to as 'Respondent no.1/R1/driver), who was coming from the side of Keshav Mahavidyalaya. It was further alleged that as a result of the accident, the petitioner fell down from his motorcycle and sustained injuries. It was further alleged that thereafter, R1 along with one lady namely Ritu Verma, came out of the offending vehicle and took the petitioner, in the offending vehicle, to Bhagwan Mahavir Hospital, Pitampura, Delhi (hereinafter referred to Page 5 of51 Hemant vs Ashwani Kalia and Ors. Page 6 of51 as Mahavir Hospital), where he was medically examined, vide MLC No. 2790/14, as per which, injuries sustained by the petitioner was opined to be dangerous in nature. It was further averred that in the meanwhile, wife of the petitioner also reached at Mahavir Hospital and the petitioner was referred to AIIMS, Delhi. It was further averred that R1 along with Ritu Verma, also reached at AIIMS, Delhi, but, the petitioner had not been treated properly at AIIMS, therefore, his wife along with R1, has taken the petitioner, to Max Hospital, Pitampura, Delhi, in the offending vehicle.
3. After the accident, initially FIR No. 424/14, PS Rani Bagh, was registered against R1, for the commission of offence U/s 279/337 IPC, however, during the course of investigation, driver/R1 failed to produce his driving license and since, as per MLC, the injuries sustained by the petitioner was opined to be dangerous in nature therefore, chargesheet was filed against the driver/R1, for the commission of offence U/s 279/337/338 IPC r/w Section 3/181 of M.V.Act. Perusal of the record reveals that a separate claim petition was filed by the petitioner, during the pendency of the present DAR and same was clubbed with the DAR, vide order 26.04.2016.
4. As per DAR, at the time of accident, the offending vehicle was driven by R1, the same was registered in the name of Dheeraj Kalia S/o Sh. Bhim Sen Kalia (hereinafter referred Page 6 of51 Hemant vs Ashwani Kalia and Ors. Page 7 of51 as owner of the offending vehicle/respondent no.2/R2) and was insured with Tata AIG General Insurance Co. Ltd. (hereinafter referred as insurance company/R3), vide Policy No. 010099150600, valid for the period 04.06.2014 to 03.06.2015.
5. R1 and R2 though appeared at the time of filing of DAR however, R1 and R2 have chosen not to file any written statement to the DAR/claim petition and subsequently, R1 and R2 were proceeded Ex-parte, vide order 31.08.2017.
6. R3/Tata AIG General Insurance Company Ltd., has filed its reply/written statement, to the DAR, wherein R3 admitted that the offending vehicle was insured with R3, vide policy no. 010099150600, for the period 04.06.2014 to 03.06.2015, in the name of R2, however, it has taken the defence, that as per verification carried by the IO, since, R1/ driver of the offending vehicle was not holding a valid driving license thus, there is violation of terms and conditions of the insurance policy and provisions of M.V. Act/rules, on the part of driver and the insured, as such, R3 is not liable to indemnify the insured.
7. From the pleadings of the parties, following issues were framed by the Learned Predecessor, vide order dated 26.04.2016:-
Page 7 of51 Hemant vs Ashwani Kalia and Ors. Page 8 of51
1. Whether on 12/13.06.2014, at about 11.30 pm, adjacent to MCD Park on Parwana Road, Delhi, car bearing registration no. DL-13C-3820 which was being driven rashly and negligently by Sh. Ashwani Kalia, hit the petitioner and caused injuries to him? OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP.
3. Relief.
8. After framing of issues, opportunities were given to all the parties, to prove their respective averments, by leading evidence in support of the same. In support of their respective versions, the petitioner has examined 05 witnesses and R3/insurance company has examined one witness.
9. In support of his contention, the petitioner got himself examined as PW1, by way of evidence affidavit Ex.PW1/A. In his evidence, PW1 has placed reliance on the DAR filed by the IO as Ex.PW1/1 (Colly) and his original disability certificate as Ex.PW1/2. His deposition qua the accident and injuries sustained in the case accident, is reiteration of the facts mentioned in the DAR/claim petition. He further deposed that after the accident, R1 and one lady Ritu Verma, got down from the car and took him to Bhagwan Mahavir Hospital, where he received treatment, vide MLC no. 2790/14. He further deposed that in the meanwhile, his wife also came to Bhagwan Mahavir Hospital. He further Page 8 of51 Hemant vs Ashwani Kalia and Ors. Page 9 of51 deposed that the doctors at Bhagwan Mahavir Hospital referred him to AIIMS Trauma Center, therefore, he was taken to AIIMS Trauma Center and R1 and Ritu Verma, also accompanied him to the said hospital. He further deposed that he was severely hurt and since, he and his wife were not satisfied with the treatment, which was given at Trauma Center, he was shifted to Max Hospital, Netaji Subhash Place, Pitampura, Delhi, where he remains hospitalized, for about a month. He further deposed that he has spent an amount of Rs. 8,38,322.05/-, on his treatment and he has also became permanently disabled, to the extent of 36%, for the rest of his life. He further deposed that he was hale and hearty and maintaining six members in his family, who were completely dependent upon him. He further deposed that prior to the accident, he was earning Rs. 60,000/- per month. He further deposed that after the accident, he has not been able to earn and has become dependent on his other family members. He further deposed that he cannot sit or stand, for long durations and has to be in a lying position, most of the time. He further deposed that he is having hard time, supporting his family and he is finding difficult, to meet the ends, after the accident. He further deposed that the condition of his bike and the offending vehicle speaks ample, regarding the high speed and rash and negligent manner, in which R1 was driving his car, when he hit him. He further deposed that the respondents are jointly and severally liable to compensate him, for his loss.
Page 9 of51 Hemant vs Ashwani Kalia and Ors. Page 10 of51
10. PW1 was initially cross-examined by Ld. Counsel for the insurance company/R3, wherein he deposed that he does not know, how to read English Language properly, however he can somewhat read it. He further deposed that on the day of accident, he was going on his motorcycle, towards Anand Vihar and when he reached at Bank Vihar Society Chowk, suddenly, the offending vehicle came from his right side and hit his motorcycle, due to which, he fell down on the road and has sustained injuries. He denied the suggestion that his motorcycle had a head on collision, with the offending vehicle. He further denied the suggestion that the case accident had taken place, due to his rash and negligent driving. He further deposed that after the accident, the driver of the offending vehicle shifted him to the hospital. He further deposed that he does not know, who had called the police at 100 number. He further deposed that his statement was recorded by the police, in the hospital. He denied the suggestion that he has filed false and fabricated documents. He further deposed that at the time of accident, he was working in Sadar Bazar, doing the business of packing materials and was earning around Rs. 60,000/- to Rs. 70,000/- per month. He denied the suggestion, that he was not earning Rs. 60,000/- to Rs. 70,000/- per month, at the time of the accident or that he has filed false ITRs. He further deposed that he has already filed on record his ITR's, for the assessment year 2012- 2013 & 2013-2014. He further deposed that at the time of accident, he was also doing the business of property. He Page 10 of51 Hemant vs Ashwani Kalia and Ors. Page 11 of51 denied the suggestion that he had no loss of income, due to the case accident. He further denied the suggestion, that he has filed false and fabricated documents.
11. Thereafter, the application of R3, for recalling of PW1 was allowed, vide order dated 24.05.2018 and PW1 was further cross examined by Ld. Counsel for R3, wherein he deposed that the offending vehicle came from his right hand side. He further deposed that the accident took place, at a crossing. He further deposed that no traffic signal was working at the time of accident, at the spot. He further deposed that he has crossed about 1 meter, from the starting point of crossing, when the accident took place. He further deposed that he cannot tell, as to how much distance of crossing was left, from the spot of accident. He further deposed that before he started crossing the road, he had seen towards his right side but, he did not see the offending vehicle, at that time. He again said, it was impossible to see towards his right hand side, from where, the offending vehicle came, prior to the spot of accident and he could notice the offending vehicle, only when the accident took place. He denied the suggestion that the accident took place, due to his own negligence, as he failed to care, for the other traffic coming on the road, from his right side or that as he suddenly moved his vehicle, on the crossing, without caring for the traffic. He further denied the suggestion, that there was no fault at all, on the part of the driver of the offending vehicle Page 11 of51 Hemant vs Ashwani Kalia and Ors. Page 12 of51 or that the said vehicle had been falsey implicated in the present case. He further deposed that he was having a medi- claim policy, at the time of accident. He further deposed that he is not aware, whether any claim under his medi- claim policy has been lodged or not. He further deposed that no amount has been reimbursed to him, qua any bill on record. He further deposed that an amount of Rs 2.20,000/-, as appearing in the medical bill, has been paid by R1 and remaining amount of Rs. 6,10,572.73/-, has not been paid by anyone. He further deposed that he has not paid any amount, towards the medical bills. He further deposed that he has a shop in Sadar Bazar, for the last 20-25 years and he is dealing in packing material. He denied the suggestion that he has not suffered any permanent disability or loss of earning capacity. He admitted that the said shop is running. He voluntarily deposed that now the said shop is being run by his brother. He further deposed that he does not have any document, to show that he has transferred his business, to his brother. He further deposed that he has not filed any books of account, to show that he was doing any such business or that he was earning any such amount, as on the date of accident. He voluntarily deposed that he can produce such documents, if required. He denied the suggestion that he does not have any books of account and that is why, he has not filed the same on record. He further denied the suggestion, that he has not transferred any such business to his brother or that he was not doing any such business. He further denied the suggestion, that he was not Page 12 of51 Hemant vs Ashwani Kalia and Ors. Page 13 of51 holding any Driving License for the motorcycle, being driven by him. He further denied the suggestion, that he was not earning any amount, at the time of accident. He further denied the suggestion, that he has filed his income tax returns, after the accident. He further denied the suggestion, that his claim is false or that he is deposing falsely.
12. The petitioner further got himself examined as PW1, by way of additional evidence affidavit Ex.PW1/B, wherein he has placed reliance upon the documents i.e. DAR already exhibited as Ex. PW1/1 and original permanent disability certificate, already exhibited as Ex. PW1/2. He de-exhibited documents already Ex. PW1/1 to Ex. PW1/8, in his previous affidavit Ex. PW1/A. He re-exhibited the documents i.e mechanical inspection report of his bike and the offending vehicle, running into two sheets as Ex. PW1/3 (Colly), copy of his MLC of Bhagwan Mahavir Hospital as Ex. PW1/4, copy of his MLC and medical record of AIIMS Trauma center as Ex. PW1/5, list of medical bills paid by him as Ex. PW1/6, ITR for the assessment year 2011-12, 2012-13 and 2013-14, running into four sheets as Ex. PW1/7(Colly) (objected to, on the ground of mode of proof), copy of charge sheet along with FIR, arrest memo of R1 and insurance cover note as Ex. PW1/8 colly, original discharge slip of MAX hospital, OPD card of Parmarth Mission Hospital, MRI report, certificate of bed rest, as issued by Dr. Sonu Gupta and few original medical bills, Page 13 of51 Hemant vs Ashwani Kalia and Ors. Page 14 of51 running into 25 sheets as Ex PW1/9 colly (certificate of bed rest was objected to, on the ground of mode of proof) and copy of his Aadhar Card and Pan Card, running into 2 sheets as Ex. PW1/10 colly.
13. He deposed that he had filed his evidence by way of affidavit as Ex.PW1/A and he was examined, cross- examined and discharged lastly on 24.05.2018. He further deposed that after his evidence, he found some earlier treatment records and medical bills, at his home, which he has filed on record. He further deposed that one of his previous counsel exhibited documents as Ex.PW1/1 to Ex.PW1/8 but, while recording his evidence, the previous counsel exhibited only the DAR and his original disability certificate as Ex.PW1/1 and Ex.PW1/2 respectively, and he had also put the exhibit marks on the documents, lying in the judicial file as Ex.PW1/1 to Ex.PW1/8. He further deposed that he wanted to de-exhibit all the previous documents except Ex.PW1/1 and Ex.PW1/2 and now, he wants to re-exhibit rest of the documents, in proper manner, so that final award could be passed efficiently. He further deposed that on 12.06.2014, from the place of accident, he was taken to Bhagwan Mahavir Hospital, Pitampura, Delhi and from there, on 13.06.2014, he was shifted to Jai Prakash Narayan Apex Trauma Center, at New Delhi and on the same day, he was again shifted to Max Hospital, at Pitampura, Delhi, from where, he was discharged on Page 14 of51 Hemant vs Ashwani Kalia and Ors. Page 15 of51 10.07.2014. He further deposed that during the period of his admission at Max Hospital, debridement with soft tissue cover, with SSG was done on 13.06.2014. He further deposed that ORIF with TBW, medial malleolus right side was also done under G.A. on 13.06.2014. He further deposed that on 12.07.2014, he again got admitted at Bhagwan Mahavir Hospital, at Pitampura, Delhi, from where, he was discharged on 15.07.2014, after treatment. He further deposed that thereafter, he visited the OPD of MAX Hospital on 21.08.2014 and 29.08.2014. He further deposed that he also visited OPD of Parmarth Mission Hospital on 04.08.2019. He further deposed that he could not collect and retain all his medical records and bills, due to lack of knowledge.
14. PW1 was further cross-examined by Ld. Counsel for insurance company/R3, wherein he deposed that he does not have any books of accounts or any other document, except the ITRs, regarding his income/occupation. He further deposed that he did not file any income tax return, after assessment year 2014-15, till 2020-21 thereafter, he started filing his ITR again, from the assessment year 2021- 22 onwards, and he is filing the income tax return till date. He further deposed that on the date of accident, he was doing the trading work of packing material. He further deposed that he is still doing the same work of trading of packing material. He voluntarily deposed that he has started Page 15 of51 Hemant vs Ashwani Kalia and Ors. Page 16 of51 working in a partnership firm, with two other persons, since 2019. He further deposed that he has not filed on record, any document, to show that he has started working in a partnership since 2019. He further deposed that at present, he is earning Rs. 20,000/- to 22,000/- per month, since the year 2019. He further deposed that he has filed the ITR, for assessment year 2023-24, for Rs. 2 lakhs approximately. He denied the suggestion, that he has not started any partnership since 2019. He further denied the suggestion, that he has intentionally and deliberately not filed his complete ITRs on record, to conceal the facts. He voluntarily deposed that he can file the ITRs on record. He denied the suggestion, that he has not suffered any permanent disability or loss of earning capacity, due to the accident. He further denied the suggestion, that he did not incur any amount on his treatment or that the medical bills and treatment record, as well as other documents filed on record by him are false and fabricated or that the medical bills filed on record are without any prescription and does not pertain to the accident in question. He denied the suggestion, that his affidavit is false or that he is deposing falsely.
15. The petitioner further examined Dr. G.C. Verma, M.S. Ortho, Sanjay Gandhi Hospital, Mangol Puri, Delhi, as PW2. He was a summoned witness. He deposed that the patient Hemant, aged 51 years was medically examined by Page 16 of51 Hemant vs Ashwani Kalia and Ors. Page 17 of51 Board of Doctors of Dr. BSA Hospital, to ascertain his permanent disability, if any. He further deposed that he has seen the disability certificate No. 355, dated 10.08.2015, bearing his signatures, at point X, which was already exhibited as Ex.PW1/2. He further deposed that as per the said disability certificate, the patient has suffered permanent physical disability, to the tune of 36%, in relation to spine and right lower limb, with diagnosis of compression fracture D9 & D11 vertebra, with stiffness right ankle (without neurological deficit). He further exhibited the assessment record/chart, running into 4 sheets as Ex. PW2/1. A question was put to PW2, as to whether the patient can perform the work of packing material business, with the abovesaid disability, to which he answered, that he can perform the work of packing material business. He further deposed the patient is having difficulty, in lifting heavy weight and he will have difficulty, while standing on affected leg alone and squatting. PW2 was cross-examined by Ld. Counsel for the insurance company/R3, wherein he deposed that the patient can stand, with the support of other leg. He further deposed that the patient never remained under his treatment. He admitted that the patient will not have any difficulty in standing only, with the support of other leg. He further deposed that he cannot tell the disability qua the whole body, as there are no such guidelines. He denied the suggestion that the disability has not been assessed, as per the guidelines or that the patient is not suffering from any disability. He further denied the Page 17 of51 Hemant vs Ashwani Kalia and Ors. Page 18 of51 suggestion that the disability assessed by the Board, does not correlate with the injury, as mentioned in the MLC.
16. The petitioner further examined Sh. Suresh Kumar, Medical Record Clerk, Bhagwan Mahavir Hospital, Delhi as PW3. He was a summoned witness, who has brought the treatment record of the petitioner Sh. Hemant Chhabra. He deposed that the petitioner was admitted in the said hospital on 12.07.2014 and discharged on 15.07.2014. He exhibited the attested photocopies of entire treatment record, medical bills and receipts, running into 18 sheets as Ex. PW3/A (Colly). He further deposed that their hospital has raised a total bill of Rs. 8,420/-, which has been paid by the petitioner in cash. PW3 was cross-examined by Ld. counsel for the insurance company/R3, wherein he deposed that he has no personal knowledge of the treatment of the injured. He further deposed that original bills and receipts were given to the injured and the injured was not having any medi-claim policy as per record.
17. The petitioner further examined Ms. Dimple Singh, Record Clerk, MAX Hospital, Pitampura, Delhi as PW4. She was a summoned witness. She deposed that she has brought the summoned record i.e. treatment record of the patient Hemant Chhabra. She deposed that the petitioner was admitted in the said hospital on 13.06.2014 and discharged on 08.07.2014 and she exhibited the attested photo copies Page 18 of51 Hemant vs Ashwani Kalia and Ors. Page 19 of51 of entire treatment record and medical bills as Ex. PW4/1 (colly) (running into 353 sheets). She further deposed that as per record, out of the final bill of Rs. 8,30,572.73/, the patient had paid only Rs. 2.20,000/- and balance amount of Rs. 6,10,572.73/ is still due/outstanding. She further deposed that against this amount, the patient had given a cheque dated Nil, which is mark A, for a sum of Rs. 6,10,571/-. PW4 was cross-examined by Ld. counsel for the insurance company/R3, wherein she deposed that she has not brought the original cheque. She admitted that she does not have any document, to show that the patient ever gave any cheque, towards the medical expenses. She further deposed that she cannot tell, as to when the patient gave the said cheque to the hospital. She further deposed that she cannot tell anything, about the cheque and correspondence by the hospital, regarding the payment of bill amount and only accounts department can tell, whether the hospital ever demanded the said amount, from the patient or not. She denied the suggestion that the hospital never took any cheque from the patient or that no such amount is due from the patient. She further denied the suggestion that false and fabricated bills have been prepared, in collusion with the patient, to cheat the insurance company or that no such amount was ever payable by the patient. She further denied the suggestion, that she is very well aware, that no such amount was ever demanded or was due from the patient but, she is deliberately not admitting the said fact. She further denied the suggestion, that record brought by her, is Page 19 of51 Hemant vs Ashwani Kalia and Ors. Page 20 of51 false and fabricated. She admitted that she does not have any personal knowledge, about the treatment of the patient. She further admitted that no further amount has been paid by the patient till date.
18. The petitioner has further examined Sh. Kunal Sharma, Team Leader, MAX Hospital, Pitampura, Delhi, as PW5. He was a summoned witness, and he exhibited his authority letter as Ex. PW5/1. He deposed that their hospital had raised final bill of Rs. 8,30,572.73/-, against the treatment of Sh. Hemant Chhabra, however, he had deposited only Rs.2,20,000/- and the balance amount of Rs. 6,10,573/- was outstanding from the said patient, to be paid to the hospital, however, the said balance amount has been written off by the hospital, as a noble gesture, towards the patient. He further deposed that the said statement of account of writing off the said balance amount was exhibited as Ex. PW5/2.
19. In his evidence, R3 has examined Mr. Jarrar Ahmad, as R3W1, by way of evidence affidavit Ex.R3W1/A, wherein he deposed that he is posted as Executive Legal Claims, with the respondent i.e. Tata AIG General Insurance Co. Ltd., well conversant with the facts of the case and competent to make statement and swear this affidavit. He further deposed that the company served upon the Respondent No. 1 & 2, a notice under order XII Rule 8 of C.P.C, through Sh. Vijay Kumar Gupta, Advocate. He Page 20 of51 Hemant vs Ashwani Kalia and Ors. Page 21 of51 further deposed that the notice has not been replied or complied with by the addressee. He further deposed that the driver of the offending vehicle, was not holding a valid and effective driving licence, as on the date of accident and therefore, the police challaned the driver U/s 3/181 of the M.V. Act. He further deposed that there is willful violation of terms and conditions of the insurance policy, on the part of owner/insured and the insurer is not liable to pay any amount to the petitioner. In his evidence, R3W1 has placed reliance upon notice u/o XII Rule 8 CPC as Ex.R3W1/1, postal receipts as Ex. R3W1/2 and Ex.R3W1/3, true copy of the insurance policy as Ex.R3W1/4.
20. This Tribunal has heard the final arguments, as advanced by Ld. Counsel for the parties and have carefully perused the records.
21. On appreciation of evidence, as adduced by the parties, in support of their respective versions, the issue-wise findings of this Tribunal are reproduced herein below:
ISSUE No. 1Whether on 12/13.06.2014, at about 11.30 pm, adjacent to MCD Park on Parwana Road, Delhi, car bearing registration no. DL-13C-3820 which was being driven rashly and negligently by Sh. Ashwani Kalia, hit the petitioner and caused injuries to him? OPP Page 21 of51 Hemant vs Ashwani Kalia and Ors. Page 22 of51
22. Perusal of the chargesheet and other documents reveals that place of accident and registration number of offending vehicle, has been wrongly mentioned, while framing issue no.1, as MCD Park on Parwana Road, Delhi, and DL-13C-3820 whereas, the accident has taken place at Main Chowk, Sharda Niketan Red light, Pitampura, Delhi and registration no. of the offending vehicle is DL-13CC-3820. Therefore, same is rectified and the place of accident be read as Main Chowk, Sharda Niketan red light, Pitampura, Delhi and registration no. of offending vehicle be read as DL-13CC-3820, in issue no.1.
23. The onus of proving this issue, on preponderance of probabilities was upon the petitioner/claimant. For deciding the present issue, the testimony of PW1 Sh. Hemant Kumar Chhabra is relevant, being an eyewitness as well as the injured/petitioner. PW1 Sh. Hemant Kumar Chhabra has deposed that in the intervening night of 12/13.06.2014, at about 11.30 pm, when PW1 was going from Police Line Pitampura, Delhi, to his house at Anand Vihar, on his motorcycle, make Pulsar, bearing registration no. DL-6SG-1006, he was hit by one car, bearing registration No. DL-13CC-3820, at Main Chowk, Sharda Niketan Red light, Pitampura, Delhi. He further deposed that at the time of accident, the offending vehicle was driven in a rash and negligent manner by R1, who was coming from the side of Page 22 of51 Hemant vs Ashwani Kalia and Ors. Page 23 of51 Keshav Mahavidyalaya. PW1 further deposed that as a result of the accident, he fell down from his motorcycle and sustained injuries. He further deposed that thereafter, R1 along with one lady namely Ritu Verma, came out of the offending vehicle and took PW1, in the offending vehicle, to Bhagwan Mahavir Hospital, Pitampura, Delhi, where he was medically examined, vide MLC No. 2790/14, as per which, injuries sustained by the petitioner, was opined to be dangerous in nature. He further deposed that in the meanwhile, his wife also reached at Mahavir Hospital and he was referred to AIIMS, Delhi. He further deposed that R1 along with Ritu Verma, also reached at AIIMS, Delhi, but, he had not been treated properly at AIIMS, therefore, his wife along with R1, has taken the petitioner to Max Hospital, Pitampura, Delhi, in the offending vehicle.
24. PW1 was also cross-examined by Ld. Counsel for the insurance company/R3 but, Ld. Counsel for the insurance company/R3, failed to impeach the credibility of PW1 and failed to elicit any admissions, from the testimony of PW1, so as to prove, that the alleged accident had not taken place, with the offending vehicle or due to rash and negligent driving of the offending vehicle by R1. Though, during the course of cross examination of PW1, suggestions were put to PW1, that his motorcycle had a head on collision with the offending vehicle or that the case accident had taken place, due to his rash and negligent driving but, PW1 denied the said suggestions. Rather, Page 23 of51 Hemant vs Ashwani Kalia and Ors. Page 24 of51 testimony of PW1 reveals that immediately after the accident, R1 has taken the petitioner to Bhagwan Mahavir Hospital, for treatment and thereafter, when the petitioner was referred to AIIMS, Delhi, R1 also reached at AIIMS hospital and thereafter, R1 along with the wife of the petitioner has shifted the petitioner, to Max Hospital, Pitampura, Delhi. Had, R1 not caused the accident of the petitioner, then he would not have accompanied or visited various hospitals, in the night, on the date of occurrence of the accident. Even otherwise, since R1 failed to file any written statement and also failed to cross-examine PW1, despite being granted opportunity, therefore, he deemed to have admitted, that there was rashness and negligence, on the part of R1, in causing the accident in question. R1 further failed to lead any evidence, in his defence, to prove that there was no negligence on his part or that he was falsely implicated in this case by the IO, in connivance with the petitioner. Further, R1 also failed to prove, that he has ever approached to any higher authority, with respect to his false implication, in the present case. Consequently, in view of the unrebutted testimony of PW1, it stands duly proved, that the accident had taken place, due to rash and negligent driving of the offending vehicle by R1.
Issue no.1 is accordingly decided in favour of the petitioner and against the respondents.
Page 24 of51 Hemant vs Ashwani Kalia and Ors. Page 25 of51 ISSUE No. 2 Whether petitioner is entitled to compensation, if so, to what amount and from whom?OPP
25. In view of the findings of this Tribunal, qua issue no.1 regarding negligence of R1, resulting in the occurrence of the case accident, this Tribunal is of the considered opinion that the petitioner/claimant is entitled to compensation, in respect of pain and suffering, medical expenses, special diet charges, conveyance charges and other expenditure incurred by him, on the account of injuries sustained in the above-mentioned road traffic accident. This Tribunal shall now examine the entire evidence including the documents of the petitioner/claimant, for the purpose of arriving at a finding about the quantum of compensation, to which the petitioner/claimant is entitled.
26. Section 168 of the Act enjoins the Claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
27. To prove the expenditure, incurred by the petitioner, on his treatment, after the accident, the petitioner got himself Page 25 of51 Hemant vs Ashwani Kalia and Ors. Page 26 of51 examined as PW1. During the course of his cross- examination, as conducted by Ld. Counsel for the insurance company/R3, PW1 deposed that an amount of Rs 2,20,000/-, as appearing in the medical bill, has been paid by R1 and the remaining of Rs. 6,10,572.73/-, has not been paid by anyone. He further deposed that he has not paid any amount, towards medical bills. Thereafter, the petitioner examined Sh. Kunal Sharma, Team Leader, Max Hospital, Pitampura, Delhi, as PW5, who deposed that their hospital had raised final bill of Rs. 8,30,572.73/-, for the treatment of Sh. Hemant Chhabra, however, he had deposited only Rs.2,20,000/- and the balance amount of Rs. 6,10,573/-, which was outstanding from the said patient, to be payable to the hospital, has been written off by the hospital, as a noble gesture towards the patient. He exhibited the said statement of account, of writing off of the balance amount, as Ex. PW5/2. Thus, the petitioner is not entitled to claim compensation qua the said amount.
28. The petitioner has further placed reliance on copy of medical bill of Bhagwan Mahavir Hospital, as part of PW3/A, as produced by PW3, which was for a sum of Rs. 8,420/-. PW3 deposed that the original of the same was given to the patient but, the petitioner has failed to place on record, the original of the said bill and has also not claimed the said amount, at the time, when he has led his evidence. Further, the petitioner also failed to prove, as to who had Page 26 of51 Hemant vs Ashwani Kalia and Ors. Page 27 of51 made payment of Rs. 8,420/-. Thus, the petitioner is not entitled to claim compensation, qua the said amount.
29. Perusal of original medical bills Ex.PW1/6, as relied by the petitioner/PW1 reveals that the petitioner has claimed Rs.29,497.30/- towards medical expenses. Ld. Counsel for the insurance company/R3 has failed to prove that the said bills are not genuine or are forged and fabricated. Thus, this Tribunal deems it appropriate, to award compensation of Rs.29,497.30/-, to the petitioner, under the head of medical expenses.
SPECIAL DIET AND CONVEYANCE
30. The petitioner had sought compensation, on account of special diet and conveyance. He has however, not specified the exact amount of money, spent by him on special diet and conveyance. He has further not placed on record, any prescription slip of a doctor, medical practitioner or dietitian, issued in his name (the name of the petitioner), advising him to take any form of special diet or any bill of special diet, such as high protein diet or liquid diet or nutritional supplements for speedy recovery of the injuries sustained, in the case accident. In his evidence, the petitioner has placed reliance on a prescription dated 01.09.2014, allegedly issued by Dr. Sonu Gupta, from Max Hospital, advising bed rest to the petitioner for 1 to 2 Page 27 of51 Hemant vs Ashwani Kalia and Ors. Page 28 of51 months but, from the same, it is not clear, whether, the petitioner was advised bed rest for 1 month or 2 months.
31. Further, the petitioner has also not placed on record any bill of conveyance, such as bills raised by any private taxi service or ambulance service, availed by him, for travelling to the hospital, from his residence or vice versa, during his treatment period. In such circumstances, the requirement of special diet and conveyance, if any faced by the petitioner, during his treatment period, has to be ascertained in accordance with the nature of injuries sustained by the petitioner.
32. In this context, a perusal of court record reveals that as per the medical treatment papers of the petitioner Ex.PW1/2, he has sustained dangerous injuries, due to the accident and initially, he was taken to Bhagwan Mahavir Hospital, Pitampura, Delhi. Perusal of the record further reveals that the petitioner also took treatment at AIIMS, Delhi and thereafter, he was shifted to Max Hospital, Pitampura, Delhi, where he remains admitted from 13.06.2014 to 10.07.2014 and thereafter, admitted at Bhagwan Mahavir Hospital, Pitampura, from 12.07.2014 till 15.07.2014. The petitioner has further placed on record, bills towards purchase of medicines, and the last bill is dated 14.10.2014. The petitioner has not placed on record any further bill, either towards purchase of medicines or any prescription, to show his continuous treatment, except a prescription slip of Page 28 of51 Hemant vs Ashwani Kalia and Ors. Page 29 of51 Parmarth Mission Hospital, dated 04.08.2019. However, merely by placing on record a single prescription slip, it cannot be inferred, that the petitioner was under continuous treatment till 04.08.2019, as there is no medical documents for the intervening period i.e. 14.10.2014 to 04.08.2019.
33. Besides this, the petitioner has examined Dr. G.C. Verma, as PW2, who proved on record disability certificate of the petitioner, bearing No. 355, dated 10.08.2015, as Ex.PW1/2, as per which, the petitioner has sustained 36% permanent disability, in relation to spine and right lower limb, with diagnosis of compression fracture D9 & D11 vertebra, with stiffness right ankle (without neurological deficit). During the course of his examination, this Tribunal raised a query from PW3, as to whether, the patient can perform the work of packing material business, with the abovesaid disability, to which he answered that he can perform the work of packing material business. He further deposed that the patient is having difficulty, in lifting heavy weight and he will have difficulty, while standing on the affected leg alone and squatting. However, during the course of his cross-examination, by Ld. Counsel for R3, PW1 admitted that the patient will not have any difficulty in standing only, with the support of other leg.
34. Thus, the said disability certificate proves that the petitioner has sustained 36% permanent disability, in relation to spine and right lower limb. Accordingly, in view of the nature of Page 29 of51 Hemant vs Ashwani Kalia and Ors. Page 30 of51 injuries, sustained by the petitioner, as well as after considering the period of his hospitalization, coupled with 36% physical permanent disability, in relation to spine and right lower limb, sustained by the petitioner, the period of treatment cum recuperation, in case of the petitioner is ascertained to be about 06 months. Consequently, this Tribunal is of the opinion that during his treatment cum recuperation period, the petitioner must have incurred expenses, in procuring special diet, for speedy recovery, as well as in travelling from his residence to hospital and vice versa. Accordingly, a lump sum amount of Rs.50,000/-, is granted under this head, to the petitioner, which includes Rs. 25,000/- each, towards special diet and conveyance respectively.
ATTENDANT CHARGES
35. The petitioner had sought compensation, on account of expenditure incurred by him, towards attendant charges etc. He has however, not specified the exact amount of money, spent by him, towards attendant charges. The petitioner has further failed to place on record, any receipt, as to any payment being made by him to any agency, from which, he had hired any attendant or any document to show credit of any amount to any attendant or agency. He had also failed to examine any attendant, allegedly hired by him, during the said period. However, taking into consideration, the fact that the petitioner has duly proved that as a result of the Page 30 of51 Hemant vs Ashwani Kalia and Ors. Page 31 of51 accident, he has sustained grievous injuries, with 36% permanent disability, in relation to spine and right lower limb, and as his treatment cum recuperation period has already been assessed to be about 06 months, therefore, this Tribunal is of the opinion, that the petitioner must have felt compelled to avail services of a medical attendant or a family member as an attendant for self care activities, such as, bathing, dressing up, using the rest room, combing his hairs, eating etc., during his treatment cum recuperation period of 06 months. Accordingly, this Tribunal deems it appropriate, to award a lump sum amount of Rs.30,000/-, as compensation to the petitioner, under this head, towards attendant charges.
COMPENSATION DUE TO PERMANENT DISABILITY/ LOSS OF FUTURE EARNING CAPACITY DUE TO DISABILITY
36. In his evidence, the petitioner has claimed compensation, on account of loss of income, due to permanent disability sustained by the petitioner, in the case accident.
37. Perusal of the court record reveals that as per disability certificate bearing No. 355 dated 10.08.2015, issued by Disability Board, BSA Hospital i.e Ex.PW1/2, the petitioner has sustained 36% permanent disability, in relation to spine and right lower limb, with diagnosis of compression fracture D9 and D11 vertebra, with stiffness right ankle Page 31 of51 Hemant vs Ashwani Kalia and Ors. Page 32 of51 (without neurological deficit).
38. The Hon'ble Delhi High Court in its order passed in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held that same percentage of permanent disability may have different impact upon earning capacity of different individuals based upon the nature of their work. Relevant extract of observations made in para no.6.4 and 6.5 of the judgment passed by Hon'ble High Court of Delhi in the above named case is reproduced hereinbelow:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) 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 disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) 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
c) Whether he was prevented all 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 Page 32 of51 Hemant vs Ashwani Kalia and Ors. Page 33 of51 earn his livelihood."
39. In the light of above cited observations made by Hon'ble High Court of Delhi, in the decided case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors (supra), it can be safely concluded that same percentage of permanent disability can have different impact on functional capacity and earning potential of an individual depending upon the nature of his job. Therefore, the functional disability has to be ascertained, taking into consideration its impact on the work of the claimant.
40. In the present matter, the petitioner/PW1 deposed that prior to the accident, he was hale and hearty and maintaining six members in his family, who were completely dependent upon him and was earning Rs.60,000/- per month. He further deposed that after the accident, he has not been able to earn and has become dependent on other family members, as he has become permanently disabled, to the extent of 36%. He further deposed that he cannot sit or stand, for long durations and has to be in a lying position, most of the time. Further, during his cross-examination by Ld. Counsel for the insurance company/R3, PW1 deposed that at the time of accident, he was doing the business of packing material, in Sadar Bazar and was earning around Rs. 60,000/- to Rs. 70,000/- per month. He further deposed that he has already filed on record his ITRs, for the assessment year 2012-13 and 2013-14. He further deposed Page 33 of51 Hemant vs Ashwani Kalia and Ors. Page 34 of51 that at the time of accident, he was also doing the business of property. He further deposed that he has a shop in Sadar Bazar for the last 20-25 years and he is dealing in packing material. He admitted that the said shop is still running however, he voluntarily deposed that now the said shop is being run by his brother.
41. Though, by the deposition of PW2, the petitioner has been able to prove that he has sustained permanent disability of 36%, in relation to spine and right lower limb, with diagnosis of compression fracture D9 and D11 vertebra, with stiffness right ankle (without neurological deficit), as mentioned in Ex. PW1/2. However, when query was raised by this Tribunal from PW2, who was one of the Doctor, who has assessed the disability of the petitioner, as to whether, PW2 could perform the work of packing material business, to which, PW2 deposed, that even with the said disability, the petitioner can continue his packing business. Therefore, considering the effect of physical disability of the petitioner, on the functional capacity of the petitioner, to continue his previous work, this Tribunal deems it appropriate, to assess the functional disability of the petitioner and the effect of permanent disability, on his actual earning capacity as 18%.
42. In order to prove his income, the petitioner has proved on record, his income tax returns for the assessment year 2011- 12, 2012-13 and 2013-14 as Ex.PW1/7 (Colly). Therefore, Page 34 of51 Hemant vs Ashwani Kalia and Ors. Page 35 of51 this Tribunal is of the opinion that the annual income of the petitioner, can be ascertained, by taking into consideration his average annual income, on the basis of his last three ITRs. As per the ITR of the petitioner, for the assessment year 2011-12, his gross income was Rs. 2,31,660/- and after deduction of tax of Rs. 2,892/-, his net annual income was Rs. 2,28,768/-. Further, as per the ITR of the petitioner, for the assessment year 2012-13, his gross income was Rs. 2,39,123/- and after deduction of tax of Rs. 977/-, his net annual income was Rs. 2,38,146/- and as per his ITR for the assessment year 2013-14, his gross income was Rs. 2,48,423/- but, there is no deduction of income tax, therefore, his net annual income was Rs. 2,48,423/-. Therefore, average annual income of the deceased, is calculated, by taking into consideration, his net income, on the basis of his last 3 ITRs, as proved by PW1, which comes to Rs. 2,41,779/- per year (total income of three years Rs.7,25,337 divided by 3 years = Rs.2,41,779). Accordingly, the petitioner's monthly income is taken as Rs. 20,148.25/- per month.
Addition of Future Prospects.
43. In respect of entitlement of the petitioner to addition of future prospects in his monthly income, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP Page 35 of51 Hemant vs Ashwani Kalia and Ors. Page 36 of51 (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:-.
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) Page 36 of51 Hemant vs Ashwani Kalia and Ors. Page 37 of51
44. Reference is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court.
45. The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra), after referring to the judgment of the Constitution bench of Hon'ble Supreme Court of India, in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income, in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
46. As per Aadhar card of the petitioner, his date of birth is 19.04.1964 and the accident in question has occurred on 13.06.2014, therefore the age of the injured, at the time of accident was 50 years, 01 months and 25 days and he was a self-employed person. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 25% of the established income, as he was above the age of 50 years at the time of his accident. The monthly income of the petitioner is thus calculated as Rs.20,148.25/- + 25% of 20,148.25, which comes to Rs.22,178/-+ 5,037.06/- = Rs. 25,185.31/-.
Page 37 of51 Hemant vs Ashwani Kalia and Ors. Page 38 of51
47. The age of the petitioner, at the time of accident was about 50 years, 01 months and 25 days. In the said circumstances, the relevant multiplier has to be calculated, as per the judgment passed by Hon'ble Supreme Court of India in the case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298. As per the guidelines laid down in Sarla Verma case by Hon'ble Supreme Court of India, multiplier of 13 is to be applied for computing compensation payable to a victim of Road Traffic Accident aged between 46 to 50 years. The compensation is accordingly assessed towards loss of earning capacity at Rs.7,07,203.50/- [(Rs.25,185.31/- per month x 12 months x 13 (age multiplier) x 18/100 (functional disability)].
Loss of Amenities of Life.
48. In the present matter, the petitioner has duly proved, that as a result of the accident, he has sustained grievous injuries, with 36% permanent disability, in relation to spine and right lower limb, with diagnosis of compression fracture D9 & D11 vertebra, with stiffness right ankle (without neurological deficit) and as his treatment cum recuperation period has already been assessed to be about 06 months accordingly, it can be safely concluded that the petitioner must have suffered loss of enjoyment of life and its amenities, due to permanent disability sustained by him, which is 36%, on account of having met with the case accident and therefore, this Tribunal deems it appropriate, Page 38 of51 Hemant vs Ashwani Kalia and Ors. Page 39 of51 to grant a total sum of Rs. 50,000/-, as compensation to the petitioner, under the said head of loss of amenities of life.
Pain and Suffering
49. In the evidence, the petitioner has claimed compensation, on account of trauma suffered by him, due to the injuries sustained in the case accident. However, the petitioner has not specified the exact compensation amount, as claimed by the petitioner under this head. In the present matter, the petitioner has duly proved that as a result of the accident, he has sustained grievous injuries, with 36% permanent disability, in relation to spine and right lower limb, with diagnosis of compression fracture D9 & D11 vertebra, with stiffness right ankle (without neurological deficit), and as his treatment cum recuperation period has already been assessed to be about 06 months accordingly, this Tribunal is of the opinion that the petitioner must have suffered acute pain and mental agony, during his treatment and on account permanent disability suffered by him. Accordingly, a lump sum amount of Rs. 60,000/-, is granted in favour of the petitioner under the said head.
Loss of Income
50. Petitioner in his evidence by way of affidavit Ex. PW1/A, has deposed that prior to the accident, he was engaged in doing business of packing material. Further, in paragraph Page 39 of51 Hemant vs Ashwani Kalia and Ors. Page 40 of51 No. 42, his monthly income has already been assessed as Rs. 20,148.25/- and since the treatment-cum-recuperation period of the petitioner has already been determined as 6 months. Accordingly, a sum of Rs.1,20,889.50/- (Rs.20,148.25/- x 6 months), is awarded in favour of the petitioner, as compensation, under the head of loss of income.
51. Accordingly, the over all compensation which is to be awarded to the petitioner comes to Rs. 10,47,591/- which is tabulated as below:-
Sl. No Compensation Award amount
1. Pain and suffering Rs. 60,000/-
2 Special diet & Conveyance Rs. 50,000/-
3. Attendant Charges Rs. 30,000/-
4. Medical Expenses Rs. 29,497.30/-
5. Loss of income Rs.1,20,889.5/-
6. Loss of amenities of life Rs. 50,000/-
7. Loss of future earning capacity Rs. 7,07,203.5/-
Total Rs. 10,47,590.3/-
(Rounded off to Rs. 10,47,591/-) (Rupees Ten lacs Forty Seven thousand five hundred and ninety one only)
52. In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) of the back the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. Therefore, in Page 40 of51 Hemant vs Ashwani Kalia and Ors. Page 41 of51 the interest of justice, in the present case also this court is of the opinion that the claimant/petitioner is entitled to interest @ 7.50% per annum from the date of filing of DAR/petition i.e. w.e.f. 27.08.2014 till realisation of the compensation amount.
53. The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
LIABILITY
54. In the case in hand, Tata AIG General Insurance Co. Ltd/R3 has raised the defence, that driver of the offending vehicle / R1, was not holding a valid and effective driving license, on the date of accident and consequently, R3 is not liable to pay the compensation amount to the petitioner.
55. In the present matter, neither R1 nor R2 has filed any written statement, nor proved on record, that R1 was holding valid and effective driving license, at the time of accident. R3 has further proved on record, that R3 had issued notice u/o XII Rule 8 CPC Ex.R3W1/1 to R1 and R2, by examining its AR, as R3W1, and R1 and R2 failed to reply and comply with the said notice, by producing any valid and effective driving license of R1, at the time of accident.
Page 41 of51 Hemant vs Ashwani Kalia and Ors. Page 42 of51
56. Further, perusal of the chargesheet reveals that chargesheet was filed against R1, for the commission of offence under Section 3/181 of M.V. Act, as R1 failed to produce his driving license to the IO. Thus, R3 has been duly able to prove, that at the time of accident, R1 was driving the offending vehicle, without holding a valid and effective driving license. Further, R2 also failed to prove, that he has exercised due diligence, while authorizing R1, who was not having any valid driving license, to drive his vehicle. Thus, there is statutory breach of terms and conditions of the insurance policy by R2/insured but, as R3W1 in his evidence admitted that as on the date of accident, the offending vehicle was insured with R3, therefore, firstly R3 is liable to pay the entire compensation amount to the petitioner and thereafter, seek its recovery from R1 and R2, who are jointly and severally liable to pay the said amount to R3.
57. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Tata AIG General Insurance co./R3 is directed to deposit the awarded amount of Rs. 10,47,591/- within 30 days from today within the jurisdiction of this Tribunal at State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7.5% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his Page 42 of51 Hemant vs Ashwani Kalia and Ors. Page 43 of51 advocates and to show or deposit the receipt of the acknowledgment with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
58. Statement of petitioner in terms of clause 29 of MCTAP was recorded on 25.01.2020 regarding his savings bank A/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. I have heard the petitioner and learned counsel for the petitioner/claimant regarding the financial needs of the injured/petitioner and in view of the observations made by the Hon'ble Supreme Court of India in the judgment passed in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered:-
Page 43 of51 Hemant vs Ashwani Kalia and Ors. Page 44 of51
59. Keeping in view the facts and circumstances of the case, and clause 32 of MCTAP, regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs. 2,47,591/- be released to him in his MACT Claims SB A/c no. 38751431226 with SBI, Pitampura Branch, Delhi, as per rules, that is, the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in the form of FDRs of equal amount for a period of one month to 45 months respectively with cumulative interest without the facility of advance, loan and pre-mature withdrawal without the prior permission of the Tribunal.
60. The aforesaid award amount shall be disbursed to the claimant through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to following conditions:-
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim, that is, the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank Page 44 of51 Hemant vs Ashwani Kalia and Ors. Page 45 of51 in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to 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.
(g) 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.
(h) It is clarified that the endorsement made by the bank Page 45 of51 Hemant vs Ashwani Kalia and Ors. Page 46 of51 along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
RELIEF
61. As discussed above, National Insurance Company Limited/R3 is directed to deposit the award amount of Rs.10,47,591/- with interest @ 7.50% per annum from the date of filing of DAR/petition, that is, 27.08.2014 till realization within the jurisdiction of this Tribunal at SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
62. R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
63. A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
64. Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the Page 46 of51 Hemant vs Ashwani Kalia and Ors. Page 47 of51 granted time.
65. In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022-22741336/9414048606) {other details-Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai-400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
66. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
67. In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the Page 47 of51 Hemant vs Ashwani Kalia and Ors. Page 48 of51 statement of petitioner was also recorded on 25.01.2020. The record would show that the relevant documents including copy of aadhar card, PAN card, copy of bank pass book and form 15G of the petitioner have already been supplied to the ld counsel for insurance co. on 25.01.2020 itself.
68. Form IVB which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per Digitally signed rules. SHAMA GUPTA by SHAMA GUPTA Date:
2025.04.09 22:38:38 +0530 Announced in open court (SHAMA GUPTA) on 09th April, 2025 P.O. MACT N/W Rohini Courts, Delhi Page 48 of51 Hemant vs Ashwani Kalia and Ors. Page 49 of51 FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident: 13.06.2014
2. Name of injured: Hemant Kumar Chhabra
3. Age of the injured: About 50 years, 01 month and 25 days at the time of accident.
4. Occupation of the injured: Private Business
5. Income of the injured: Rs. 20,148.25/- per month.
6. Nature of injury: Dangerous
7. Medical treatment taken by the injured: About 06 months.
8. Period of hospitalization: As per record.
9. Whether any permanent disability ? If yes, give details: Yes.
36% Permanent Physical Disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.29,497.30
(ii) Expenditure on conveyance Rs.25,000/-
(iii) Expenditure on special diet Rs.25,000/-
(iv) Cost of nursing/attendant Rs.30,000/-
(v) Loss of earning capacity Rs.7,07,203.5/-
Page 49 of51
Hemant vs Ashwani Kalia and Ors. Page 50 of51
(vi) Loss of income Rs.1,20,889.5/-
(vii) Any other loss which may require N/A
any special treatment or aid to the
injured for the rest of his life
12. Non-Pecuniary Loss:
(I) Compensation for mental and N/A
physical shock
(ii) Pain and suffering Rs.80,000/-
(iii) Loss of amenities of life Rs.50,000/-
(iv) Disfiguration N/A
(v) Loss of marriage prospects N/A
(vi) Loss of earning, inconvenience, N/A
hardships, disappointment,
frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 36% Permanent Physical nature of disability as permanent or Disability temporary
(ii) Loss of amenities or loss of N/A expectation of life span on account of disability
(iii) Percentage of loss of earning 18% capacity in relation of disability
(iv) Loss of future income - (Income X Rs.7,07,203.5/-[(Rs.
% Earning capacity X Multiplier) 25,185.31/- per month x12
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Hemant vs Ashwani Kalia and Ors. Page 51 of51
months x 13(age multiplier)
x 18/100 (functional
disability)].
(v) Future Medical Expenses N/A
14. TOTAL COMPENSATION Rs. 10,47,590.3/- (rounded
off to Rs. 10,47,591/-)
15. INTEREST AWARDED 7.50%
16. Interest amount up to the date of Rs.8,34,362.58 award
17. Total amount including interest Rs.18,81,953.58 (rounded off to Rs. 18,81,954/-)
18. Award amount released Rs.2,47,591/-
19. Award amount kept in FDRs Rs.16,34,363/-
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) clause 29 of MCTAP (Clause29)
21. Next date for compliance of the 08.05.2025 award. (Clause 31) Digitally signed by SHAMA SHAMA GUPTA GUPTA Date:
2025.04.09 22:38:30 +0530 Announced in open court (SHAMA GUPTA) on 9th April , 2025 P.O. MACT N/W Rohini Courts, Delhi Page 51 of51