Delhi District Court
Arifa Khatoon vs Dhara Singh on 26 February, 2024
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING
OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
MACT No.1056/2016
(1)Arifa Khatoon (widow of deceased)
w/o late Azimuddin Waiz
(2)Sajda Kulsum (daughter of deceased)
d/o late Azimuddin Waiz
(3)Mohd. Hassan Waiz (son of deceased)
s/o late Azimuddin Waiz
(4)Aamna (daughter of deceased)
d/o late Azimuddin Waiz
(5)Abdur Rehman Waiz (son of deceased)
s/o late Azimuddin Waiz
(6)Mohd. Anas (son of deceased)
s/o late Azimuddin Waiz
(7)Mohd. Ibrahim (son of deceased
s/o late Azimuddin Waiz
(8)Mohammad Waiz (father of deceased)
s/o Mohammed Tasleem
(9)Umera Khatoon (mother of deceased)
w/o Mohammad Waiz
all r/o House No.B-459,
Street No.6, Rajeev Nagar,
Mandoli Extn., Mandoli Saboli,
District North East,
Delhi-110093. ...Petitioners
Versus Digitally signed
by
SHAILENDER
SHAILENDER MALIK
MALIK Date:
2024.02.26
15:08:41 +0530
MACT Nos.1056/16 & 1682/16 Page 1
(1)Shri Dhara Singh
s/o Shri Bheem Singh
R/o Village Chona, Hapur,
Uttar Pradesh
Also at : c/o M/s Anuj Associates
Through its Manager/Partner
Mohalla Joshiyana, Jalaun,
Uttar Pradesh-285123.
(2)M/s Anuj Associates
Through its Manager/Partner
Mohalla Joshiyana, Jalaun,
Uttar Pradesh-285123.
(3)New India Assurance Co. Ltd.
Branch Office Jhansi (421500)
Kachari Chauraha,
Jhansi, U.P. 284001. ...Respondents
Date of Institution : 04.12.2015
Date of Arguments : 24.02.2024
Date of pronouncement : 26.02.2024
AND
MACT No.1682/2016
(1)Sharif Alam
s/o Late Abdul Aziz
r/o H.No.D-469/51, Gali No.9,
30 Feeta Road, Mohan Puri,
Maujpur, Delhi-110053. ...Petitioner
Versus
(1)Sh.Dhara Singh
s/o Sh.Bheem Singh
R/o Village Chona, Hapur (UP)
Also at : c/o M/s Anuj Associates Digitally signed
by
SHAILENDER
SHAILENDER MALIK
MACT Nos.1056/16 & 1682/16 MALIK Date:
2024.02.26
Page 2
15:08:51 +0530
Through its Manager/Partner
Mohalla Joshiyana, Jalaun,
Uttar Pradesh-285123.
(2)M/s Anuj Associates
Through its Manager/Partner
Mohalla Joshiyana, Jalaun,
Uttar Pradesh-285123.
(3)New India Assurance Co. Ltd.
Branch Office Jhansi (421500)
Kachari Chauraha,
Jhansi, U.P. 284001. ...Respondents
Date of Institution : 28.012016
Date of Arguments : 24.02.2024
Date of pronouncement : 26.02.2024
AWAR D
1. By this common judgment, I would dispose off claim petitions No.1056/2016 titled Arifa Khatoon vs. Dhara Singh and ors. and 1682/2016 titled Sharif Alam vs. Dhara Singh and others filed u/s 166 and 140 M.V. Act. Claim petition No. 1056/16 has been filed in respect of death of Mohd Azimuddin Waiz and claim petition MACT No. 1682/16 has been filed with regard to injury to petitioner i.e. Sharif Alam in an accident dated 01.11.2015.
2. These petitions have been filed by the petitioners with similar fact as accident in both the claim petition is common, stating that on 01.11.2015 deceased Mohd Azimuddin Waiz, as well as petitioner herein Sharif Alam along with his father Abdul Aziz and brother Atiq Alam (since both deceased) with friend namely Mohd. Haseen (since expired), were coming in Baleno car no.HR-29M-7542, being driven by deceased Azimuddin, from Gulawati, UP to their home at Delhi. When the said car Digitally signed MACT Nos.1056/16 & 1682/16 by SHAILENDER SHAILENDER MALIK Page 3 MALIK Date:
2024.02.26 15:09:01 +0530 reached Dhaulana Road, near UPSIDC police post within the jurisdiction of PS Masori Distt. Ghaziabad, U.P., a bus bearing registration no. UP-92-T- 4378 came at a very high speed and was being driven in a rash and negligent manner, struck the car of the deceased as a result of four occupant of the car including deceased herein died and petitioner Sharif Alam received grievous injuries.
3. It is stated that in that accident driver Azimuddin, Abdul Aziz, Mohd. Haseen and Atiq Alam expired whereas petitioner namely Sharif Alam suffered grievous injuries. It is stated that accident occurred due to rash and negligent driving of respondent no.1/driver of Bus No.UP-92-T-
4378. It is stated that in respect of the accident, on the same day FIR No. 520/15 was registered at PS Masoori, Distt. Ghaziabad. It is stated that during the investigation postmortem of deceased Azimuddin was conducted. It is stated that in claim petition no.1056/2016 deceased Azimuddin had a widow and six children beside old age parents. It is stated that deceased Azimuddin Waiz was working as Journalist cum Property Dealer and was drawing income of around Rs.30,000/- per month and was income tax payee.
4. Petitioner of MACT No.1682/16 i.e. Sharif Alam stated to have suffered multiple grievous injuries i.e. Fracture SOF right side which extended upto IC, Fracture of right femur, fracture of Zygomatic with knail sinus, Fracture of left clavicle, Fractures of anterior wall of B/L maxillary sinus and Fracture over B/L nasal bone and B/L Zygomatic sinus. The petitioner also suffered Thomas splint right leg, abrasion of right check and both lower eyes swollen and blackish discoloration. After the accident, he was taken to Gargi hospital Rajnagar where he was attended firstly and thereafter he was referred to Sushruta Trauma Centre, New Ashok nagar on Digitally signed by MACT Nos.1056/16 & 1682/16 SHAILENDER SHAILENDER MALIK MALIK Page 4 Date:
2024.02.26 15:09:10 +0530 01.11.2015. It is stated that petitioner expend medical expenses and at the time of accident petitioner Sharif Alam stated to be 48 years of age and his income was Rs. 2,40,000/- per annum.
5. WS has been filed on behalf of respondent no.1/owner of offending vehicle in both the claim petitions taking plea that present claim petition is misuse of judicial process and petitioner has concealed material facts. It is stated that the alleged vehicle in question is insured with the insurance company i.e. New India Insurance Company Ltd. Vide policy No. 421500311501000000659 valid from 27.04.2015 to 26.04.2016 and the DL of driver/respondent no. 1 is valid from 16.01.2013 to 15.01.2016 with valid permit and R.C.
6. Similarly in both the claim petitions, insurance company/R3 also filed the WS taking objections that no notice of the alleged accident was given to the insurance company by the owner/insured of the offending vehicle Bus No. UP-92T-4378 as required u/s 134 (C) of M. V. Act. Though it is admitted that offending vehicle was duly insured with respondent no.3 vide policy No. 42150031150100000659 effective for the period 27.04.2015 to 26.04.2016 issued in favour of Ms/ Anuj Associates (respondent no.2 herein). Facts of the claim petition have been denied in totality.
7. During the course of proceedings respondent no. 1 and 2 proceeded ex parte vide order dated 20.02.2020. On the basis of pleadings and material as come on the record, following issues were framed in both the cases on 16.08.2017 by ld. Predecessor :
In MACT No.1056/16(1)Whether respondent no.1 was driving vehicle bearing no. UP-
92T-4378 on 01.11.2015 at 03.30 pm near UPSIDC police post Digitally signed by SHAILENDER MACT Nos.1056/16 & 1682/16 SHAILENDER MALIK MALIK Date:
Page 5 2024.02.26 15:09:21 +0530 Daulana Road, PS Masoorie, District Ghaziabad, U.P. in a high speed and in a rash and negligent manner and hit against Boleno bearing no. HR-29M-7542 as a result its occupant namely Md. Azimuddin Waiz sustained fatal injuries? OPP (2) Whether the petitioners are entitled for any compensation, if so and for what amount? OPP (3) Relief.In MACT No.1682/16
(1)Whether respondent no. 1 was driving vehicle bearing no. UP-
92T-4378 on 01.11.2015 at 03:30 PM near Dhaulana Road, UPSIDC police post, PS, Masuri in high speed and in a rash and negligent manner and hit against car no. HR-29M-7542 as a result Sharif Alam i.e. petitioner who sustained grievous injuries? OPP.
(2)Whether petitioner is entitled for any compensation, if so, and for what amount? OPP (3) Relief.
8. It is matter of record that beside the present two claim petitions there were other claim petition no.44/2016 (in respect of death of Mohd. Haseen), 67/2016 (in respect of death of Atiq Alam) and 68/2016 (in respect of death of Abdul Aziz) were also filed. Those claim petitions have already been disposed off by ld. predecessor of this Tribunal by award dated 05.06.2018.
9. Vide order dated 20.02.2020, both the claim petitions (MACT no.1056/16 and 1682/16) arising out of the same accident, were consolidated by learned predecessor and it was directed that common evidence in both the cases would be recorded and kept in the main case i.e. MACT No.1056/16.
Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.02.26 15:09:31 +0530 MACT Nos.1056/16 & 1682/16 Page 6 Evidence in MACT petition no.1056/2016
10. On behalf of petitioner two witnesses have been examined. PW1 is Ms.Arifa Khatoon (Petitioner no.1 in MACT No.1056/2016), PW2 is Vijay Kishore Income Tax Officer for proving the income tax return of deceased Azimuddin Waiz.
11. No evidence has been led on behalf of the respondents and RE was closed by court order dated 27.10.2022.
Evidence in MACT petition no.1682/2016
12. On behalf of the petitioner three witnesses have been examined. Petitioner Sharif Alam has examined himself as PW-4 (also examined as PW3 in MACT No.1056/2016 on the same day of examination i.e. 27.11.2021). PW2 is Dr.Hitesh Sehrawat (examined in the record of MACT No.1056/2016), for proving the permanent disability certificate of petitioner Sharif Alam and PW5 (in MACT claim petition no.1682/2016) namely Mehtab Alam.
Submissions
13. I have heard the submissions in both the above mentioned claim petitions and have also gone through the written submissions. My findings on all the issues are following :
Issue No.1 in claim petition Nos.1056/16 & 1682/16
14. It is settled proposition of law that an action founded on the principle of fault liability, the proof of accident having occurred due to rash and negligent driving of the offending vehicle is sine qua non. As such, petitioner has to establish occurring of an accident and that accident took place due to rash and negligent driving of offending vehicle. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic Digitally signed MACT Nos.1056/16 & 1682/16 by SHAILENDER SHAILENDER MALIK Page 7 MALIK Date: 2024.02.26 15:09:42 +0530 view is to be taken while dealing with the claim petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others. (MAC APP. No. 550/2011 decided on 02.07.2012), Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018 Law Suit (SC) 303.
15. It is argued by Sh.Amitabh Jha, ld. counsel for the petitioners in MACT No.1056/2016 that in the accident in question, four persons have lost life and one is injured. It is argued that in respect of three other deceased in the accident, claim petitions have already been decided wherein ld. Predecessor of this Tribunal has already concluded that accident occurred due to rash and negligent driving of offending vehicle no. UP-92-T-4378 by respondent no.1. It is further submitted that it is matter of record that in respect of accident criminal case was registered wherein also respondent no.1 herein was prosecuted in that criminal case. It is further submitted that findings already rendered by way of award dated 05.06.2018 have not been challenged by the insurance company.
16. Sh.Sanjeev Mehta, ld. Counsel for petitioner in MACT No.1682/2016 has further argued that evidence of petitioner being injured in the accident also establish that accident has occurred due to rash and negligent driving of respondent no.1 while driving bus no. UP-92-T-4378. Counsel for petitioner has relied upon judgment in Desraj vs. Madan Lal (FAO No.309/2000 decided on 23.02.2007), Bahadur Singh vs. Bhagwati Yadav (MAC No.566/2013 decided on 20.11.2014), Ankur Kapoor vs. Digitally signed MACT Nos.1056/16 & 1682/16 by SHAILENDER SHAILENDER MALIK Page 8 MALIK Date:
2024.02.26 15:09:52 +0530 Oriental Insurance Company 2018 (1) SCC 136, G. Ravindranath vs. E Sriniwas and another 2013 ACJ 2131 SC, National Insurance Company Limited vs. Pranay Sethi and others 2017 ACJ 2700, Jiju Kuruvila and ors. vs. Kunjujamma Mohan and others 2013 ACJ 2141, National Insurance Co. Ltd. vs. Varshaben Bharatbhai Gohil 2013 ACJ 2150, Prabandhak, U.P. Rajya Sadak Parivahan Nigam vs. Rabia Begum and others 2015 ACJ 1492 and Martin F. D'Souza vs. Mohd. Ishfaq 2009 ACJ 1695.
17. Sh.Rajesh Goel, ld. Counsel for Respondent no.3/insurance on the other hand submitted that question of rash and negligent driving is to be decided by this Tribunal independently, irrespective of the findings already given in previous award as he submits that it is a head on collision and it came in the evidence of witness PW3/PW4 Sharif Alam that he saw the bus for the first time 20 meters distance. It is further argued by relying upon judgment of Apex Court in Minu B. Mehta and another vs. Balakrishna Ramchandra Nayan AIR 1997 SC 1248.
18. Having considered the submissions, taking into consideration the evidence of PW3/PW4 Sharif Alam (petitioner in MACT No.1682/2016), who in his examination in chief stated that on the fateful day of accident he along with his father Abdul Aziz, brother Atiq Alam as well as his two friends Mohd. Haseen and Azimuddin were coming from Gulawati to Delhi in their Baleno car no.HR-29M-7542, which was being driven by Azimuddin at a very normal speed. Witness states that at about 3.30 p.m. when their car reached Dhaulana road, near UPSIDC police post, a bus bearing no. UP-92-T-4378 came from the opposite side at a very high speed and being driven in a rash and negligent manner, over took a car going ahead of their Baleno car, on the wrong side of the road and in a Digitally signed by SHAILENDER MACT Nos.1056/16 & 1682/16 SHAILENDER MALIK MALIK Page 9 Date:
2024.02.26 15:10:04 +0530 opposite direction, that bus could not control and struck against their Baleno car. It is stated that even after accident respondent no.1 who was driving bus no. UP-92-T-4378 did not stop the bus and when the passengers of the bus raised hue and cry, then he left the vehicle and fled away.
19. PW3/PW4 has been cross examined wherein witness states that they had traveled the distance of about 10 kms when accident had occurred. Witness states that bus was about 20 meters away when they first saw the bus. Witness voluntarily stated that they saw the bus when it over took another car which was moving ahead of their car. Witness states that front portion of the bus hit front portion of their car and it was head on collision. PW3 further stated in cross examination that bus stopped after it dragged their car for some distance. PW3 says that general public standing by the side of the road made a hue and cry and then driver of the bus stopped it.
20. Having considered the evidence as come on the judicial record, evidence of PW3/PW4 is specific and consistent. There is no ambiguity or infirmity at all in the testimony of the witness Sharif Alam who suffered grievous injuries in the accident. No doubt it is a case of head on collision but it be noted that it is not that in every head on collision case there would be a contributory negligence. Rather in this case evidence of witness Sharif Alam clearly states that bus was at very high speed and it first over took one car which was going ahead of the vehicle in which that witness and deceased persons were coming from opposite side and thereafter hit the Baleno car no.HR-29M-7542 by coming on wrong side of the road and then it was head on collision. Head on collision as per the site plan placed on the record among other police documents also establish that it is offending bus no. UP-92-T-4378 which went on the wrong side of the Digitally signed MACT Nos.1056/16 & 1682/16 by SHAILENDER SHAILENDER MALIK MALIK Page 10 Date: 2024.02.26 15:14:51 +0530 road and collided with the Baleno car coming from the opposite side. As such the manner in which accident has occurred, as came in the evidence of PW3, site plan as well as the report u/s 173 Cr.PC filed by the IO in the criminal case the certified copy of which on the record clearly established that accident occurred only due to rash and negligent driving of respondent no.1 while driving bus no. UP-92-T-4378.
21. It is matter of record that the findings on the rash and negligent driving in respect of same accident has already been rendered by ld. Predecessor of this Tribunal vide award dated 05.06.2018, which has not been challenged at all by the insurance company. No doubt this Tribunal has to decide the question of issue no.1 independently but nothing came even in the evidence as discussed above, to take any different view.
Coming now to the judgment relied upon by the counsel for insurance company in Minu B. Mehta's case (supra) wherein following observation was given by the Apex Court :
"The mere fact that a party received an injury arising out of the use of a vehicle in a public place, cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the lynch pin to recover compensation. The various enactments have attempted to mitigate a possible injury to the claimant by providing for payment of the claims by insurance."
22. It be noted that facts of that case were altogether different than the present case, therefore that judgment cannot be relied upon as a universal application. It is not that in every head on collision case, on the Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date:
MACT Nos.1056/16 & 1682/16 2024.02.26
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+0530
basis of observation as given by Hon'ble Apex Court in peculiar circumstances of that case, same can be relied upon in every case of head on collision. In this case it has already come that it is bus driver who went towards wrong side of the road to cause head on collision to the car which was coming from the opposite side. Moreover when the criminal case has been registered against the driver of the offending vehicle who also faced the prosecution for accident, in such circumstance this Tribunal is of considered view that there is sufficient evidence for coming to conclusion that it is only respondent no.1 who because of rash and negligent driving of bus no. UP-92-T-4378 caused the accident. Issue accordingly decided in favour of the petitioners and against the respondents. Issue No.2
23. In view of the finding on issue no.1, petitioners are entitled to get compensation, however, the quantum of compensation still needs to be adjudicated. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall or a bonanza nor it should be pittance. A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) Ac 467 at page 492 per Lord Reid).
COMPUTATION OF COMPENSATION
24. In death cases, the guidelines for computation of compensation have been laid down by Hon'ble Supreme Court in case of Sarla Verma and Others v. Delhi Transport Corporation & Anr. (2009) 6 Supreme Court Cases 121. Further, the guidelines have been reiterated by the Digitally signed by MACT Nos.1056/16 & 1682/16 Page 12 SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.26 15:15:20 +0530 Constitution Bench of Hon'ble Supreme Court in a case titled as National Insurance Company vs. Pranay Sethi & Ors. Decided on 31.10.2017, laying down the general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
These issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/ deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
iii) the multiplier to be applied with reference to the age of the deceased.
If these determinations are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balanc expired e which is considered to be the contribution to the Digitally signed by MACT Nos.1056/16 & 1682/16 Page 13 SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.26 15:15:33 +0530 dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
25. Therefore, in view of the aforesaid judgment, it is essential to take into consideration the following parameters:-
In MACT No.1056/2016 (Death case) PECUNIARY DAMAGES:
Age of deceased :
26. As per PW1 Arifa Khatoon her husband late Azimuddin Waiz Digitally signed by SHAILENDER SHAILENDER MALIK MALIK MACT Nos.1056/16 & 1682/16 Page 14 Date:
2024.02.26 15:15:44 +0530 was 37 years 10 months old at the time of accident. As per Ex.PW1/14 and Ex.PW1/15 i.e. election identity card and Aadhar card of deceased, his year of birth is 1978 (date of birth 01.01.1978). As such it is proved that the deceased at the time of accident was 37 years 10 months old. Assessment of Income of deceased :
27. As per PW1 her late husband was working as a journalist cum property dealer and stated to be Chief Auditor of Aaina E Haq, President of Tanzim All India Soatul Islam, Vice President of Jamia Arabia Sirajil Ulam Delhi and Editor of Awaz ka Shola and Education Zone. PW1 says that her late husband was earning Rs.30,000/- per month and has paid income tax.
PW1 proved income tax return of year 2013-14 as per which annual income of the deceased was Rs.2,15,000/-, ITR of 2014-15 as per which his annual income was Rs.2,50,174/-.
28. Counsel for the petitioner submitted that the ITR proved in the evidence of PW1 which are Mark D, E coupled with education certificates Ex.PW1/17, PAN card Ex.PW1/18, establish the income of the deceased. Counsel for the petitioner further referred to evidence of PW2 Vijay Kishore from Income Tax Office who also proved attested copy of ITRs of deceased for assessment year 2014-15 as Ex.PW2/1 and assessment year 2013-14 as Ex.PW2/2.
29. Counsel for the insurance on the other hand submitted that there is no cogent evidence regarding the income of the deceased. He submits that income tax return of assessment year 2015-16 indicate that income of deceased was nil. Moreover PW2 Vijay Kishore who brought the ITR record has stated that ITR record of deceased is subject to verification from the Department. As such net income of deceased Rs.2,26,170/- is unproved due to lack of evidence.
Digitally signed by SHAILENDERSHAILENDER MALIK MACT Nos.1056/16 & 1682/16 MALIK Date: Page 15 2024.02.26 15:15:53 +0530
30. Having considered the evidence of PW1 and PW2, first of all it be noted that in entire cross examination of PW1 there is no suggestion regarding deceased was working as journalist as well as property dealer. There is no suggestion to the witness regarding income of deceased also. Moreover accident in this case has taken place on 01.11.2015. As such if in the income tax return for year 2015-16, income of the deceased has not been shown, that does not make any difference, when in the income tax return of year 2014-15 already Ex.PW2/1 the income of the deceased has been shown to be Rs.2,50,174/-. As such there is conclusive evidence that at or around the time of accident, the monthly income of the deceased was Rs.20,848/- per month (Rs.2,50,174/12).
Application of Multiplier:
31. As held above, deceased was around 37 years 10 months of age at the time of accident. An appropriate multiplier has to be determined for computation of compensation. The judgment titled as Sarla Verma v. DTC (2009) 6 SCC 121 is relevant to consider the multiplier. In Para 21 of the judgment, the guidelines for the multiplier were laid down in accordance with age are as under:
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age group between 15 to 20 & 21
to 25 years)
M-17 Age group between 26 to 30 yrs
M-16 Age group between 31 to 35 yrs
M-15 Age group between 36 to 40 yrs
M-14 Age group between 41 to 45 yrs
M-13 Age group between 46 to 50 yrs
M-11 Age group between 51 to 55 yrs
M-9 Age group between 56 to 60 yrs
Digitally
signed by
SHAILENDER
MACT Nos.1056/16 & 1682/16 SHAILENDER MALIK
MALIK Date:
Page 16
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M-7 Age group between 61 to 65 yrs
M-5 Age group between 66 and above
32. In view of the above, multiplier of 15 has to be applied against the age bracket of 36 to 40 years to determine the compensation. Future Prospects:
33. This issue was considered by the Hon'ble Supreme Court in the case of Pranay Sethi & Others (Supra). Relevant parts of the judgment are reproduced here as under:
"(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."
34. Since on the day of accident deceased was aged around 37 years 10 months, in view of said fact this Tribunal finds that 40% of the income of deceased (aged below 40 years) has to be considered towards future prospects.
Digitally
signed by
SHAILENDER
SHAILENDER MALIK
MALIK Date:
2024.02.26
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MACT Nos.1056/16 & 1682/16 Page 17
Deduction towards Personal Living Expenses:
35. After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in para 30, laid down the necessary deductions towards personal living and expenses of deceased as under :
Deductions out of earning of the Number of deceased dependents Where dependent is 1 Half Where the number of dependent family 1/3rd members is 2 to 3 Where the number of dependent family 1/4th members is 4 to 6 Where the number of dependent family 1/5th members exceeds 6 (six)
36. Instant claim petition has been filed by nine petitioners i.e. widow of deceased, minor children and parents of deceased. Since, the deceased was survived by nine dependents, one-fifth of the income of the deceased is to be deducted towards his personal living expenses. NON-PECUNIARY DAMAGES:
37. In case of Pranay Sethi (Supra), a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses. Therefore, a compensation of Rs.40,000/-, 15,000/- and Rs.15,000/- respectively on account of loss of consortium, loss of estate and funeral Digitally signed by SHAILENDER SHAILENDER MALIK MALIK MACT Nos.1056/16 & 1682/16 Page 18 Date:
2024.02.26 15:16:29 +0530 expenses is required to be granted and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.48,000/-, 18,000/- and Rs.18,000/- respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Hon'ble Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal no. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. Since, the deceased was survived by nine legal heirs, therefore, the claimants are entitled to a sum of Rs.4,68,000/- (48,000 X 9 + 18,000 + 18,000) under this head.
38. Considering the aforementioned factors, the total compensation is calculated as under:
S. No. Head Amount Awarded 1. Monthly income of deceased (A) Rs.20,848/- 2. Add future prospect @ 40% (B) Rs.8,339/-
3. Less 1/5th towards personal and living Rs.5,837/-
expenses of the deceased (C)
4. Monthly loss of dependency (A+B)- Rs.23,350/-
C=D
5. Annual loss of dependency (Dx12) Rs.2,80,200/-
6. Multiplier (E) 157. Total loss of dependency (Dx12xE=F) Rs.42,03,000/-
8. Compensation for loss of consortium Rs.4,32,000/-
(48,000 X 9) (G)
9. Compensation for loss of estate (H) Rs.18,000/-
10. Compensation for funeral expenses (I) Rs.18,000/-
Total compensation (F + G + H + I) Rs.46,71,000/-
39. Thus, petitioners in this case shall be entitled to a total Digitally signed by SHAILENDER SHAILENDER MALIK MACT Nos.1056/16 & 1682/16 MALIK Date:
2024.02.26 Page 19 15:16:37 +0530 compensation of Rs.46,71,000/- only. INTEREST ON AWARD
40. Petitioners shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization. LIABILITY
41. Now, the question arises as to which of the respondent is liable to pay the compensation amount. It is matter of record that the vehicle in question was duly insured with respondent no.3/insurance company. Therefore the amount of compensation is payable by respondent no.3/ insurance company to the petitioners.
Relief
42. This Tribunal awards a compensation of Rs.46,71,000/- to the petitioners along with interest @ 8% per annum from the date of filing of petition till realization to be paid by respondent no.3/insurance company. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3/insurance company is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, within 30 days from today. Respondent no.3/insurance company is also directed to give notice regarding deposit of the said amount to the petitioners.
Disbursement and Apportionment of Award Amount
43. The awarded amount is proportioned as under:
(i) Out of the awarded amount petitioner no.1 (widow of deceased) is entitled to 30% of compensation i.e. Rs.14,01,300/-, out of which a sum of Rs.4,67,100/- is ordered is directed to be released into the saving account of petitioner no.1 and remaining amount of Digitally signed MACT Nos.1056/16 & 1682/16 by SHAILENDER SHAILENDER MALIK Page 20 MALIK Date:
2024.02.26 15:16:45 +0530 Rs.9,34,200/- along with interest on entire awarded amount is directed to be kept in her name with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) in the form of 60 monthly FDRs (fixed deposit receipts), payable in equal amounts for a period of 1 to 60 months in succession, as per the scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in FAO No. 84/2003, titled as Rajesh Tyagi & Others v. Jaibir Singh & Others.
(ii) Out of the awarded amount petitioner no.2 to 7 (children of deceased) are entitled to 10% each of the amount of compensation i.e. Rs.4,67,100/- each which is ordered to be kept in their names in the form of FDRs for a period till they attain majoriy.
(iii) Out of the awarded amount petitioner no.8 and 9 (parents of deceased) are entitled to 5% each of the amount of compensation i.e. Rs.2,33,550/- each which is ordered to be released in their saving accounts.
44. The amount of FDRs on maturity shall directly be released in petitioners' MACT Saving Bank Account.
In MACT No.1682/2016 (Injury case) PECUNIARY DAMAGES:
Medical Expenses
45. Injured Sharif Alam in this case has appeared as PW3/PW4. In his examination in chief injured Sharif Alam has stated that after the accident he suffered grievous injuries. He suffered number of fractures over his body i.e. fracture SOF right side; fracture of right femur; fracture of zygomatic; with K nail sinus; fracture of left clavicle; fracture of anterior wall of B/L maxillary sinus and fracture of B/L nasal bone and B/L zygomatic sinus. It came in the evidence of PW3/PW4 that after the accident he was taken to Gargi Hospital, thereafter on the same day he was transferred to Sushruta Trauma Centre where he remained admitted from 01.11.2015 to 12.11.2015 and thereafter petitioner took treatment at LNJP Digitally signed by SHAILENDER SHAILENDER MALIK MACT Nos.1056/16 & 1682/16 MALIK Date:
2024.02.26 Page 21 15:16:54 +0530 Hospital as OPD patient w.e.f. 02.11.2015 and also later took treatment from Mehta Clinic w.e.f. 20.08.2016 to 15.09.2016. It further came in the evidence that petitioner was operated upon in Sushruta Trauma Centre.
46. PW3/PW4 further testified that on account of accidental injuries he was confined to bed and was advised by the doctor to remain on bed and to take physiotherapy on account of the accidental injuries. It is testified that petitioner had paid Rs.8,500/- in Gargi Hospital, Rs.2,070/- in Yashoda Hospital and Rs.24,150/- in Sushruta Trauma Centre for K nailing.
Beside this petitioner and his family members also spent Rs.25,000/- for medicines, Rs.20,000/- for doctor fees as well as Rs.30,000/- on physiotherapy charges.
47. Having considered the evidence as come on the record, there is no denial to the fact that petitioner suffered multiple grievous injuries and remained under treatment in different hospital including Sushruta Trauma Centre, LNJP Hospital and Mehta Hospital. Perusal of the record shows that during the pendency of present proceedings medical condition of petitioner Sharif Alam was referred to medical board of GTB Hospital for assessing permanent disability, if any. As per permanent disability certificate Ex.PW2/1, permanent physical impairment has been assessed by that medical board to the extent of 36% in relation to right lower limb.
48. There is one bill of Gargi Hospital of Rs.8,500/-. Beside there are medical bills/invoices of medicines etc lying on the record, the total of which comes out to be Rs.25,000/- approximately. PW3/PW4 has further proved physiotherapy charges vide Ex.PW4/4 which are total sum of Rs.30,000/-. PW3/PW4 in his deposition also stated that he spent Rs.2,070/- at Yashoda Hospital and Rs.24,150/- at Sushruta Trauma Centre, beside Rs.20,000/- on doctor fees. On all these counts there is no Digitally signed by SHAILENDER MACT Nos.1056/16 & 1682/16 SHAILENDER MALIK MALIK Date: 2024.02.26 Page 22 15:17:04 +0530 suggestion or denial in the cross examination of petitioner. As such petitioner is entitled for total sum of Rs.1,09,720/- towards medical expenses.
Loss of earning during treatment:
49. Petitioner in his deposition has stated that at the time of accident he was running a tent house under the name and style 'Five Star Tent House', from front portion of his residence. Witness further stated that on account of accidental injuries he remained under treatment for about one year.
50. Having considered the evidence as come on the record, in order to prove the income of the petitioner/injured witness has proved Five Star Tent House bills Ex.PW4/3. Perusal of those bills do not conclusively indicate about any specific annual or monthly income. Those bills at the most show supply of certain tent house material like curtain, chairs, tents, catering material etc. No document has been placed on record to establish the proprietorship of firm 'Five Star Tent House' was in the name of the petitioner. There is no income tax return filed by the petitioner. As such the above mentioned document Ex.PW4/3 is not conclusive evidence of income of the petitioner.
51. In this regard counsel for the petitioner has submitted that since the injured was self employed, if the Tribunal assess the income of a self employed person, by taking into consideration the minimum wages as prevalent at the time of accident, such income should be increased with 50% more of minimum wages. Reliance in this regard has been placed on the judgments of Desraj vs. Madan Lal (supra), Bahadur Singh vs. Bhagwat Yadav (supra).
52. Having considered the submissions Hon'ble Delhi High Court in Digitally signed by MACT Nos.1056/16 & 1682/16 SHAILENDER SHAILENDER MALIK Page 23 MALIK Date:
2024.02.26 15:17:13 +0530 Desraj vs. Madan Lal and others (supra), in para 10 has made following observation :
"10. In case of self employed people or people employed in the unorganized sector, it is difficulty to bring documentary evidence to sustain the income for the reason, poverty and ignorance in India leads people to be fairly un-officious in their daily lives."
53. Thus it is evident from the above observation, only point laid down by the Hon'ble Court is that in case of a self employed person, when income of such person is to be decided, same can be assessed on the basis of some guess work. It is not laid down as a matter of ratio that in case of self employed person 50% more should be add to minimum wages, for assessing the income of such person. First of all it be noted that Desraj was a case of death by accident, Hon'ble Delhi High Court noted that while assessing the income of a deceased for future prospects, inflation is to be also taken into consideration and then observed "surely the deceased would have earned higher wages, if working as somebody's employee or if self employed would have earned higher income. Not in context of future prospects but in the context of higher wages and income to neutralize inflation, benefit thereof ought to have been given by the Tribunal..."
54. Thus from the observation as given in the matter of Desraj (supra), Hon'ble High Court laid down that in case of assessing the income of the deceased, inflation and the fact that if he had been a self employed, his wages would have been higher and all those aspects ought to have been taken into consideration in the facts of that case. As such such observation was given while examining the evidence of that case. No ratio has been laid down for universal application in case of assessing the income of self employed person. Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.26 15:17:22 +0530 MACT Nos.1056/16 & 1682/16 Page 24
55. This has never been the legal proposition laid down in that judgment. Although there cannot be any denial that for deciding the future aspects, Tribunal would take into consideration income, the nature of injuries suffered, permanent medical disability as well as functional disability. That aspect would be assessed later in the judgment but it is nowhere laid down in above referred judgment that there would be a 50% increase of minimum wages, in case of self employed person.
56. Counsel for the petitioner further relied upon judgment of Delhi High Court in Bahadur Singh vs. Bhagwati Yadav (supra) wherein above mentioned judgment of Desraj has been referred to, however in that case also Hon'ble High Court noted that Tribunal assessed income of injured to be Rs.3,934/-, on the basis of minimum wages however High Court taking into consideration the evidence as noted in para 14 assessed income of the petitioner to be Rs.7,500/-. Even in that case also no ratio has been laid down for assessing the income of self employed person/injured in accident to be minimum wages along with 50% increase.
57. In the present case, if at all petitioner was self employed, he could have given evidence of pattern of his income for last 2/3 years, which could have been a guiding factor for this tribunal to decide the income of the petitioner at the time of the accident. When no such evidence has been led, this Tribunal would be left with no option except to assess the income of the injured on the basis of minimum wages of unskilled worker which comes out to be Rs.9,178/- per month.
58. Further taking into consideration the period of treatment taken by the petitioner in above mentioned hospitals as well as the fact that on account of multiple fractures petitioner remained on bed. Although there is no conclusive medical evidence showing the exact period of treatment and Digitally signed by MACT Nos.1056/16 & 1682/16 SHAILENDER SHAILENDER MALIK Page 25 MALIK Date:
2024.02.26 15:17:31 +0530 confinement of petitioner to bed, resulting into loss of his income. This Tribunal however taking into consideration nature of injuries, assesses that petitioner must have remain confined to bed for period of 09 months. As such he is entitled for sum of Rs.82,602/- (Rs.9,178 X 09 months). Loss of future earning due to disability :
59. In case of Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC 343, Hon'ble Supreme Court of India determined the broad criteria for assessment of permanent disability for ascertaining the purpose of future loss of earning and also laid down step by step procedure for assessment of disability and for ascertainment to the effect of the permanent disability on the actual earning capacity. Relevant paras of the judgment are reproduced as under:-
"9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) Whether the disablement is permanent or temporary;
(ii) If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.02.26 MACT Nos.1056/16 & 1682/16 15:17:39 +0530 Page 26 on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
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 of the claimant could carry on in spite of the permanent disability and what he could not do as a result of permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his 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 so that he continues to earn or can continue to earn his livelihood."
....If doctor has given evidence about percentage of permanent disability, Tribunal will have to seek doctors opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to whole body and if so to what percentage.
13. We may now summarize the principles discussed above:
(i). All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii). The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Digitally signed by MACT Nos.1056/16 & 1682/16 Page 27 SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.26 15:17:48 +0530 Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii). The doctor who treated an injured- claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv). 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, age, education and other factors."
60. Keeping in view the ratio as discussed above, in the present case it is evident on record that as a result of the injuries sustained by petitioner in an accident, he suffered 36% permanent disability in relation to right lower limb. In this regard PW2 Dr.Hitesh Sehrawat, Specialist Ortho, GTB Hospital, Delhi, produced the record relating to disability certificate no.333/20/04/18 dated 05.04.2018, issued to injured Sharif Alam which is Ex.PW2/A. The disablement and loss of earning capacity are two different aspects and may not corresponding to each other and the loss of income has to be seen considering the profession in which the petitioner was engaged at the time of accident. As per case of petitioner, he was self employed running a tent house. It came in the evidence of petitioner that due to accidental injury his working capacity stated to have affected adversely as he could not continue with his work.
61. PW2 Dr.Hitesh Sehrawat stated in cross-examination that petitioner/patient has suffered functional disability related to right lower Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.26 MACT Nos.1056/16 & 1682/16 15:17:55 +0530 Page 28 limb.
62. In Raj Kumar vs. Ajay Kumar (supra) Hon'ble Apex Court in para 11 and 12 has observed that Tribunal should not be a silent spectator when medical evidence is tendered regarding injuries. Tribunal is required to hold inquiry into the claim for determining just compensation by assessing the medical permanent disability as well as functional disability keeping in view nature of work, profession etc. of the injured. The percentage of permanent disability of whole body cannot be presumed to be percentage loss of earning. Therefore Tribunal is bound to assess corresponding functional disability to compute the future loss of income.
63. Having considered the entire evidence, medical documents reflect that petitioner suffered multiple fractures/grievous injuries and his permanent disability to the extent of 36% is also in relation to right lower limb. In such circumstances when petitioner was admittedly was self employed engaged in running his tent house business, he must be having difficulty in doing day to day work. As such this Tribunal finds that the functional disability to whole body of the petitioner may be considered to be 36% for the purpose of assessing corresponding loss of his future income as permanent physical disability must have affected his functional capacity upto 36%.
64. Further, law is well settled that there should be no departure from the multiplier method in injury cases also [refer: Sandeep Khanuja vs. Atul Dande & Anr., (2017) 3 SCC 351]. As per photocopy of election identity card Ex.PW4/5, age of petitioner as on 01.01.2008 is 42 years. As such age of petitioner as on date of accident i.e. 01.11.2015 was 49 years. As such multiplier to be applied in the present case would be 13 as applicable to age group between 46-50 years, would be applicable as per Digitally signed by MACT Nos.1056/16 & 1682/16 SHAILENDER SHAILENDER MALIK MALIK Page 29 Date:
2024.02.26 15:18:03 +0530 settled principle laid down in case of Sarla Verma v. DTC (2009) 6 SCC
121. Moreover, the law has been well settled by the decisions of Supreme Court in the cases of Sandeep Khanuja (supra) and Erudhaya Priya vs. State Express Transport Corporation Ltd., 2020 SCC OnLine SC 601, that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. Thus, considering the petitioner being in the age bracket of 40 to 50 years at the time of accident, an addition of income to the extent of 25% towards future prospects has to be counted.
65. As discussed above, the income of petitioner has been assessed as Rs.9,178/- + 25% (Rs.2,294.50), total Rs.11,472.50 (Rs.9,178 + Rs.2,294.50). Thus applying the functional disability to be 36% of Rs.11,472.50, amount comes out to be Rs.4,130/-. As such the loss of future income due to disability comes out to be Rs.4,130 X 12 X 13 = Rs.6,44,280/-.
Special Diet & Conveyance Charges:
66. Petitioner (PW3/PW4) has stated that he was advised to consume special diet which included juice, soup of non-veg., eggs, milk, milk and nutritious diet and family of the petitioner/injured spent a sum of Rs.300/- per day and till date spent a sum of Rs.20,000/- in this regard and there is possibility of spending about Rs.30,000/- over special diet during future treatment of petitioner. Petitioner/injured also stated that family members of the petitioner used to visit the hospital in taxi/TSR during his admission in the hospital and spent Rs.10,000/- in this regard.
67. Though petitioner has claimed expenditure towards special diet and conveyance charges but no conclusive evidence has been led in this regard. However fact remains that petitioner suffered multiple injuries Digitally signed by SHAILENDER MACT Nos.1056/16 & 1682/16 SHAILENDER MALIK MALIK Date:
Page 30 2024.02.26 15:18:18 +0530 on his different parts of body and remained admitted initially Sushruta Trauma Centre from 01.11.2015 to 21.11.2015 and thereafter he remained under continuous treatment. Thus this Tribunal assesses the amount of compensation of Rs.20,000/- under the head of special diet and Rs.10,000/- under the head of conveyance charges. Attendant Charges:
68. So far as attendant charges are concerned, petitioner (PW3/ PW4) in his evidence has testified that his family members kept an attendant from the date of his admission and his family was paying Rs.10,000/- per month. Witness says that since the petitioner suffered various fractures so the attendant helped him in bathing, to take medicine in time and to help in passing the stool and also to take him in hospital/ private doctors. Witness stated that family of the petitioner has paid Rs.60,000/- in this regard.
69. To further prove this fact, petitioner examined PW5 Mehtab Alam who deposed that he is labour by profession and used to get the work while sitting in the open market at Yamuna Vihar and he was idle for about a week and he worked as attendant at the request of Shokat Malik who is in his relation and known to family of Sharif Alam. PW5 says that he worked as an attendant with Sharif Alam w.e.f. 05.11.2015 and was getting Rs.10,000/- per moth and his services were taken for six months. During cross examination PW5 stated that since he was unemployed, Mr.Shoukat Malik came to him and asked to assist the injured persons. PW5 stated that he used to give him medicines and taken him to hospital and look after him at his residence for his daily needs. PW5 specifically stated that he used to get Rs.10,000/- per month for said work. Thus evidence of PW5 is specific that he worked as an attendant to petitioner/injured Sharif Alam for six Digitally signed by MACT Nos.1056/16 & 1682/16 Page 31 SHAILENDER SHAILENDER MALIK MALIK Date:
2024.02.26 15:18:28 +0530 months at a monthly salary of Rs.10,000/- and there is nothing on the record to disbelieve his testimony.
70. In view of testimony of petitioner/injured (PW3/PW4) and PW5 Mehtab Alam, this Tribunal awards compensation of Rs.60,000/- (Rs.10,000 X 6 months) to the petitioner under this head.. NON PECUNIARY DAMAGES :
Pain & Sufferings:
71. In view of the pronouncement of Hon'ble High Court of Delhi in Satya Narain v. Jai Kishan, FAO No: 709/02, date of decision:
02.02.2007, in the present case petitioner has suffered grievous injuries i.e. multiple fractures on different parts of his body due to accidental injuries.
Evidence has also come on the record that petitioner remained admitted in Sushruta Trauma Centre from 01.11.2015 to 21.11.2015 where even he was operated upon. Thereafter petitionere remained under continuous medical treatment. In such circumstance this Tribunal finds that the petitioner has suffered pain and suffering due to grievous and multiple injuries received in the accident in question. It is however very difficult to quantify the pain and suffering of anyone received injuries in an accident, in the circumstances of the present case having regard to medical difficulties faced by petitioner, age, this Tribunal finds that petitioner is certainly entitled for sum of Rs.50,000/- on account of pain and suffering. Loss of Amenities:
72. It is evident on record that in the accident in question petitioner received grievous injuries i.e. fracture SOF right side, fracture of right femur, fracture of zygomatic with k-nail sinus, fracture of left clavicle, fractures of anterior wall of B/L maxillary sinus and fracture over B/L nasal bone and B/L zygomatic sinus and for said injuries he was Digitally signed by SHAILENDER MACT Nos.1056/16 & 1682/16 SHAILENDER MALIK MALIK Date:
Page 32 2024.02.26 15:18:38 +0530 operated upon in Sushruta Trauma Centre. It cannot be ignored that with said injuries, petitioner is bound to face difficulties throughout his life and will not be able to enjoy the amenities of life to the fullest. In view of this, the petitioner is granted a compensation of Rs.25,000/- under this head.
73. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses Rs.1,09,720/-
Loss of earning during Rs.82,602/-
2.
treatment
Loss of future earning due Rs.6,44,280/-
to disability
Special diet Rs.20,000/-
Conveyance charges Rs.10,000/-
Attendant charges Rs.60,000/-
Pain & Suffering Rs.50,000/-
Loss of Amenities Rs.25,000/-
Total Rs.10,01,602/-
74. Thus, the total compensation amount to which the petitioner is entitled comes to Rs.10,01,602/-.
INTEREST ON AWARD
75. Petitioner shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization. LIABILITY
76. Since it has already been observed above that offending vehicle was duly insured with respondent no.3/insurance company, therefore respondent no.3/insurance company shall be liable to pay compensation to the petitioner.
Digitally
signed by
SHAILENDER
SHAILENDER MALIK
MALIK Date:
2024.02.26
15:18:49
+0530
MACT Nos.1056/16 & 1682/16 Page 33
Relief
77. This Tribunal awards a compensation of Rs.10,01,602/- to the petitioner along with interest @ 8% per annum from the date of filing of petition till realization to be paid by the respondent no.3/insurance company. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, within 30 days from today. The respondent no.3 is also directed to give notice regarding deposit of the said amount to the petitioner.
Disbursement and Apportionment of Award Amount
78. Out of awarded amount, a sum of Rs.1,01,602/- is directed to be released into the saving account of the petitioner and remaining amount of Rs.9,00,000/- along with the interest on the entire award amount is directed to be kept with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) in the form FDR (fixed deposit receipt) to be prepared in the name of petitioner for seven years. The amount of FDR on maturity shall directly be released in petitioner's MACT Saving Bank Account.
Direction to the petitioners (in both claim petitions)
79. The petitioners shall open a saving bank account near the place of their residence. Further, the bank of petitioners is directed to comply with the following conditions:
(a)The Bank shall not permit any joint name(s) to be added in the Digitally signed by SHAILENDER SHAILENDER MALIK MACT Nos.1056/16 & 1682/16 MALIK Date: 2024.02.26 15:18:58 +0530 Page 34 savings bank account or fixed deposit accounts of the claimant i.e., the savings bank account of the claimant shall be an individual savings bank account(s) and not a joint account(s).
(b)The original fixed deposit shall be retained by the bank 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.
(c)The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d)The maturity amounts of the FDR be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(e)No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant. 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 so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
(g)The bank shall make an endorsement on the passbook of the claimant 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 shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
80. Both the files be consigned to Record Room.
Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.02.26 15:19:04 +0530 Announced in the open Court ( Shailender Malik ) on 26.02.2024 PO MACT-02/SHD/KKD MACT Nos.1056/16 & 1682/16 Page 35