Delhi District Court
Mintu @ Badal vs Sandeep Kumar on 5 September, 2022
:1:
IN THE COURT SH. NAVEEN KUMAR KASHYAP
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT, SOUTH EAST DISTRICT, SAKET COURTS: NEW DELHI
MACT No.: 1045/18
FIR No.: 150/2018
PS : Sunlight Colony
U/s 279/338 IPC
CNR No.: DLSE-01-009366-2018
Mintu @ Badal
S/o Sh. Rajender Mukhiya
R/o Village-Suhet, PS-Saur Bazar,
District-Sahara, Bihar,
.....Petitioner
Versus
1. Sandeep Kumar
S/o Sh. Mahak Singh
R/o Village-Sirsal Garh Baraut,
Distt.-Baghpat, U.P.
............Driver/Respondent no. 1
2. Delhi Transport Corporation Incharge Rajghat Depot, New Delhi-110009.
............Owner/Respondent no. 2
3. United Insurance Company Ltd.
E-85, Himalya House, K.G. Marg, Connaught Place, New Delhi.
.........Insurance Company/Respondent no. 3 MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 1 of 26 :2: Date of accident : 17.05.2018 Date of filing of DAR : 15.11.2018 Date of Decision : 05.09.2022 Compensation case regarding injury to Mintu @ Badal with 70 % permanent disability in relation to his left lower limb AWARD
1. In this case, a detailed accident report was filed by police in terms of provisions of Motor Vehicle Act and same is treated as Claim Petition in view of the provisions contained in such Act.
2. Brief facts of the case are that on 17.05.2018 at about 6.30 pm, petitioner was standing under the Flyover Sarai Kale Khan, New Delhi, all of a sudden, one vehicle bearing no. DL-1P-C-9946(DTC Low floor AC red) came at high speed and in negligent manner and hit the petitioner with great force. The wheel of the offending bus dashed over his left leg resulting of which, he received grievous injuries.
3. He was removed to Tramua Center at AIIMS. where his MLC bearing no. 500097350/18 was prepared. Further, Medical Board of Pt. Madan Mohan Hospital, Malviya Nagar, New Delhi sent disability report dated 16.01.2019 noticing 70% permanent physical impairment in relation to his left lower limb.
4. An FIR bearing No. 0150/18 u/s 279/338 IPC PS Sunlight colony, New Delhi was registered in this case.
5. In response to DAR, respondent No.1 and 2 filed their replies on 23.09.2019.
6. In response to claim petition, respondent no.3/ Insurance Company MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 2 of 26 :3: filed legal offer which was not acceptable to the petitioner. Hence, this matter proceeded further on merit.
7. From the pleadings of parties, the following issues were framed on 04.06.2018 by Predecessor of this Tribunal:
1. Whether the injured Mintu @ Badal suffered injuries in a road traffic accident dated 17.05.2018 involving vehicle bearing no. DL-1P-C-9946 (DTC bus) driven by R1 and owned by R2 and insured with R3 due to rash and negligent driving of R1? OPP
2. Whether the petitioner is entitled to any compensation, if so, to what extent and from whom?OPP
3. Relief.
8. Petitioner Mintu @ Badal, tendered his evidence by way of affidavit as Ex.PW1/A. He relied upon MLC as Ex. PW-1/1, Discharge summary as Ex. PW-1/2, Medical Prescription as Ex. PW-1/3(colly), Medical bills as Ex. PW-1/4 (colly), Aadhar card as Ex. PW-1/5, copy of DAR as Ex. PW-1/6 (colly) and Disability certificate as Ex. PW-1/7.
9. No other evidence has been led on behalf of petitioner.
10. Respondent no.1 tendered his evidence by way of affidavit as Ex.
R-1W/A. He relied upon copy of his Aadhar card as Ex. R-1W-1/1 and video CD alongwith certificate under Section 65 Cr.P.C. as Ex. R-1W-1/2(colly). He was cross-examined by counsel for petitioner. He told that he is driver with DTC and was driving bus bearing no. DL-1PC-9946 at the time of accident. He denied the suggestion that injured suffered injuries due to his fault as he was driving rashly and negligently. He admitted that he was arrested in case FIR no. 150/18 u/s: 279/338 IPC and released on bail later on. He also admitted that vehicle was impounded by police and released on superdari later on.
11. Arguments were addressed by counsels for petitioner and MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 3 of 26 :4: respondents. Further Ld. Counsel for petitioner as well as insurance company also filed written arguments.
12. On the basis of material on record, evidence adduced and arguments addressed, issue wise findings are as under :-
Issue No. 1Whether the injured Mintu @ Badal suffered injuries in a road traffic accident dated 17.05.2018 involving vehicle bearing no. DL-1P-C-9946 (DTC bus) driven by R1 and owned by R2 and insured with R3 due to rash and negligent driving of R1? OPP
13. Negligence in a compensation case before Claims Tribunal is to be proved by preponderance of probability and the test is not as strict as in a criminal case.
14. It is well settled that the proceedings before the Claims Tribunal are in the nature of inquiry and the finding of rash and negligent driving by driver of the offending vehicle is to be returned only at the touch stone of preponderance of probabilities. The factors noted above are sufficient to conclude that preponderance of probability is made out showing negligence of respondent No. 1 in causing the accident.
15. In the present case, police after investigation had filed charge-sheet against respondent no.1 under section 279/338 of IPC which is also suggestive of negligence of respondent in causing the accident. The IO has filed Detailed Accident Report before this Tribunal. In National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of chargesheet u/s 279/338 IPC are sufficient proof of negligence of the driver of the offending vehicle.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 4 of 26 :5:
16. In his examination in chief PW-1/ Victim/ Injured / Petitioner deposed that on 17.05.2018 at about 06:30 PM he was standing under the Sarai Kalen Kha flyover, Delhi in a proper way and correct side, then all of a sudden offending vehicle in questioned/DTC Bus came in high speed driven by R-1 without blowing any horn and without giving any indicator. That such bus turned over under the flyover and hit the petitioner with great force due to which petitioner fell down on the road and sustained injury as wheal of such offending vehicle dashed over his left leg and he received multiple injuries. That he was moved to AIIMS Trauma Centre for his medical treatment. It was further deposed that due to rash and negligent driving of the R-1, the accident in question took place.
17. PW-1/petitioner was cross examined by Ld. Counsel for R-1 and R-2 as well as by insurance company/ respondent no.3. During cross examination by Ld. Counsel of R-1 & R-2, he deposed that he was going back to his room near Sarai Kale khan for which he had to take a bus. He was working as Mistri at a site in a colony which was about 2 km away from Sarai Kale khan. He further denied the suggestion that someone pushed him in front of bus resulting which he suffered injuries. He deposed that he was standing and offending bus crushed him. He denied other suggestions given by R-1 and R-2.
18. Further, PW 1 was also cross examined by counsel for insurance company/RC. During his cross examination he denied the suggestion that he was taking drug with his three companions and they pushed him against a moving bus at the time of accident in questioned. He further denied the suggestion that the accident was not caused because of the negligence of the driver. But he admitted that FIR was registered after 10 days of accident.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 5 of 26 :6:
19. Further, R-1/driver of the offending vehicle in question also examined himself as R-1 W-1. He filed his examination in chief by way affidavit. He further deposed that on 17.05.2018, he was driving the bus in question towards Saraikale Khan Bus depot and he spotted 4 persons quarreling under the flyover of Saraikale Khan. He further deposed that all of a sudden one of the four persons was pushed by rest of three persons and those three starting fleeing away from the spot. That such fourth person could not keep his control by sudden push and came under the left wheal of the bus. It is further deposed that he stopped the bust and raised the alarm. And after the chase one of out of three was caught hold of. It is further deposed by R-1 W-1 that present petitioner told that such three persons were trying to pickpocket of wallet of the injured and they assaulted him and pushed him.
Such R1W1 also placed on record the copy of the admission of such third person, during his interrogation by police by way of recording in mobile of R1W1 EXRW1/2. It is further deposed still he was surprised that such co-accused and eye witness is left of by police without any justified reason. It is further deposed by R1W1 that police has not properly investigating the case.
20. During his cross examination by ld. Counsel for petitioner R1W1 denied the suggestion due to his negligence accident in question took place. But he admitted that he did not file any police complaint against the police who made him accused in the FIR in question.
21. As per record, insurance company R3 and owner of the DTC did not lead any evidence.
22. On perusal of evidence on record and other material, their appears to be two versions. One of the petitioner supported by IO of the case. Second of the respondent/driver of the offending bus. But it may be noted in any case even MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 6 of 26 :7: as per the version/evidence of R1W1, on close scrutiny, it can be noted that from the point of the view of the victim/injured it is not because of any voluntarily or intentional act or negligence on his part, he sustained the injury in question. Rather even as per the version of R1W1, some other three persons, pick-pockets , pushed all of a sudden the petitioner/injured and as such his leg come under the left wheel of the offending vehicle in question. Thus, in any case it is not the fault of the petitioner. Not only this it is admitted by the R1W1, in his examination in chief, that he is quoted all four of them including the petitioner. Thus, if he is already seen then he should have applied brakes timely, particularly at such crowded place of Kale Khan under the flyover which is a congested place being ISBT. Thus, having regard to the parameters to be seen in a case of present nature and in view of the evidence proved on record and charge-sheet against R1, the issue No.1 is decided accordingly, in favour of the petitioner.
23. It may further be noted for the sake of record only, that if there is some lapses on the part of IO in not taking action against some culprit in the present case as claimed by the R1, then that is a matter to be appreciated by the Criminal Court separately as per law.
Issue no. 2 Whether the petitioner is entitled to any compensation, if so, to what extent and from whom?OPP
24. At this stage, before proceeding further, by rely upon the judgments of C.K. Subramania Iyer v. T. Kunhikuttan Nair, R.D. Hattangadi v. Pest Control (India) (P) Ltd. and Baker v. Willoughby which are referred and relied in Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 Supreme Court cases MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 7 of 26 :8: 343 decided by Hon'ble SC, it can be noted that the provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
25. Further it can be noted that the heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 8 of 26 :9: injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
25.1. In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv).
25.2. It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 25.3. Assessment of pecuniary damages under Item (i) and under Item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence.
25.4. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof.
25.5. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)-- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of Hon'ble SC and Hon'ble High Courts contain necessary guidelines for award under these heads, if necessary.
25.6. It was observed by Hon'ble Sc in such case of Raj Kumar (supra) that what usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii) (a). 25.7. We are concerned with that assessment in this case.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 9 of 26 : 10 : Assessment of future loss of earnings due to permanent disability.
26. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation.
Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity.
Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident.
27. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 10 of 26 : 11 :
28. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).
29. 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 on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
30. Thus ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. 30.1. 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 MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 11 of 26 : 12 : the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
30.2. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
30.3. The third step is to find out whether :
(i) the claimant is totally disabled from earning any kind of livelihood, or
(ii)whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
31. In the present case, inter alia, PW -1 deposed in his examination in chief by way of affidavit that he was removed to Trauma Center at AIIMS, where his MLC bearing no. 500097350/18 was prepared. Further, Medical Board of Pt. Madan Mohan Hospital, Malviya Nagar, New Delhi sent disability report dated 16.01.2019 noticing 70% permanent physical impairment in relation to his left lower limb.. His left leg is amputated. Such disability certificate issued by Pndit Madan Mohan Malviya Hospital is not disputed by any of the party. Further from the photograph of the petitioner, as well as his examination it is noted that his half of left leg is amputated.
32. PW-1 further deposed that he belonged to district Saarsha State Bihar and had come to Delhi only 10-15 days prior to accident and working as "mistri". Further, he told that he had not filed any documentary proof regarding his earning of Rs.15,000/- p.m. as Rajmistri. It is further deposed by MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 12 of 26 : 13 : PW1 because of such loss of one leg, he is made unemployed for life and he can not walk or even stand without support/stick. It is further deposed that he was a labour and he can not perform the same and his whole saving is already spent on his medical treatment. It has further come on record that he was unmarried at the time of accident.
33. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
Sl. no. Pecuniary loss : - Quantum
1. (I) Expenditure on treatment : Rs. 761/-
Petitioner has filed medical bills Ex.PW1/4 (colly)
(ii) Expenditure on Conveyance : The Rs. 25,000/- petitioner has not filed any bill for conveyance. The nature of injuries are grievous and petitioner suffered 70% permanent physical impairment in relation to his left leg amputation. As per record, petitioner was residing and working in the area of Saraikalen Kha, Delhi at the time of accident. Further his medical treatment was carried out in AIIMS, New Delhi. By guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : Rs.30,000/- There is no prescription for special diet.
The nature of injuries are grievous and petitioner suffered 70% permanent physical impairment in relation to his left leg amputation. By guess work, compensation can be awarded for special diet.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 13 of 26 : 14 :
(iv) Cost of nursing / attendant : Even Rs.25,000/- in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : The petitioner has Rs. 70,000/- deposed in his evidence by way of affidavit that at the time of accident, he came to Delhi to work as Mistri for the last about 10-15 days.
It is further claimed that due to such claim, he could not work at all as labourer since accident.
On the other hand, as per insurance company, he can be given compensation, if so at all for unskilled worker minimum wage at the relevant time of Bihar as he is permanent resident of Bihar as per record and not of Delhi.
But from perusal of record although it is clear that he was resident of Bihar, but from evidence laid by PW 1, which remain almost unreburtted, he was working in Delhi as labour class at the time of accident otherwise there is not cogent reason for his presence in Delhi at that time.
Considering the nature of injury and disability report and the evidence on record, it is held that petitioner/injured working as unskilled labour at the time of accident. The date of accident is 17.05.2018. The minimum wages in MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 14 of 26 : 15 : Delhi for unskilled labour at that time was 14,000/-.
Further, it is held based on material on record, including based on medical treatment period/bills that he could not work since accident date September 2018 which is the period of treatment of AIIMS Hospital from the OPD Card placed on record.
As such, compensation towards loss of income is Rs. 14,000/- x 5.
(vi) Cost of artificial limbs (if Rs. 4,50,000/- applicable) : Detail submissions heard from both the sides on this aspect.
Further, attention of this Tribunal is drawn to the criteria adopt by the Committee appointed in Hon'ble High Court of Delhi regarding such issue.
Having regard to the criteria adopted and the nature of amputation in the left leg suffered by injured/petitioner and the cost of such artificial limb alongwith connected expenditures, a sum of Rs.
4,50,000/- is awarded towards such artificial limb. But such Rs. 4,50,000/- or the actual price whichever is less would be directly paid to the company/seller of such artificial limb on the quotation/bill to be furnished by the petitioner in this Tribunal.
(vii) Any other loss / expenditure : Not applicable
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.50,000/-
physical shock : As the petitioner has suffered grievous injuries and suffered MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 15 of 26 : 16 : '70% permanent physical impairment in relation to his left leg amputation, he would have undergone great mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 50,000/- for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
(iii) Loss of amenities of life : The Rs.1,00,000/- petitioner has suffered grievous injuries and suffered 70% permanent physical impairment in relation to his left leg amputation.
(iv) Disfiguration : Rs. 50,000/-
(v) Loss of marriage prospects : Rs. 1,00,000/-
Petitioner was unmarried at the time of
accident.
3. Disability resulting in loss of earning
capacity
(I) Percentage of disability assessed The petitioner has suffered and nature of disability as permanent 70% permanent physical or temporary impairment in relation to left leg amputation.
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability : The petitioner has suffered 70% permanent physical impairment in relation to left leg amputation.
(iii) Percentage of loss of earning 25% capacity in relation to disability:
1. Petitioner has suffered grievous injury in the accident which led to 70% permanent physical impairment in relation to left leg amputation.
In view of judgment of Raj MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 16 of 26 : 17 : Kumar(supra) ,it can be noted that in the present case petitioner suffered 70% permanent physical impairment in relation to left leg amputation.
2.Further as per evidence on record, same is permanent disability in relation to such left leg, and in fact there is amputation of half left leg.
3.Further in such case of Raj Kumar Vs. Ajay Kumar, the Hon'ble Supreme Court laid down a three step approach to decide compensation for the injured persons who have suffered permanent disability and same are as under:
i) Tribunal should see as to what the injured can do inspite of permanent disability and what the injured cannot do:
In the present case as per the evidence on record, after the accident is question , petitioner can not perform the duty of a labourer/mistri as effectively as before. Same required continuous manual work particularly use of both leg in climbing the stairs or standing over temporary structures for doing various aspect of mistri work.
But apart from such labour/mistri work and other occupation which predominately needs use of left leg/both leg, although it can not be said that he cant do the same at all , but yes he can not do the same as effectively as he was doing before accident.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 17 of 26 : 18 :
ii) Tribunal should see the age of the injured and what the injured used to do before the accident:
As per evidence on record, the date of birth of petitioner is 18.10.1984 and date of accident is 17.05.2018. Therefore, the petitioner was about 34 years old at the time of accident.
iii) Further as per record, the petitioner claimed that he was a mistri. But he has not placed on record any other material in support of his contention but at the same no evidence to the contrary is place on record by the respondent side. As such it is taken the injured is held to be unskilled labour at the time of accident.
iv) Tribunal should see if petitioner is totally disabled from earning any kind of livelihood or whether he can carry out that activity which he was doing earlier or if he could do some other kind of activity to earn his livelihood. It is held that case of petitioner is not that petitioner is totally disabled from earning any kind of livelihood .
But from the evidence on record it is held that as far as his job as mistri/mason is concerned, petitioner can not perform the duty of a mistri as effectively as before, as such work involves continuous and repeating climbing, standing and working at different floors.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 18 of 26 : 19 : Further it is held that apart from physical work involving such intense labour work of mistri he can do all other works.
In the present case, as per record he has suffered 70% permanent physical impairment in relation to his left leg which is amputated. Due to accident, his working capacity would have been reduced. But apart from mistri/labour work, he can perform rest of the job which do not involve mainly the use of legs. In the circumstances, his functional disability is treated as 25 % to the whole body.
(iv) Loss of future Income: The 25 % of ( (14,000/- x 12) x disablement is taken as 25%. Injured 16)) was 34 years old at the time of accident, = Rs. 6,72,000/-
hence multiplier of 16 is applicable Total Compensation Rs. 16,22,761/-
Interest Simple interest @9% p.a.
from the date of filing of
DAR i.e. 15.11.2018 till
actual realization of Award
amount/compensation.
LIABILITY:-
34. Since there is no statutory defence, therefore, the compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of DAR i.e. 15.11.2018 till actual realization.
35. The award amount shall be deposited with State Bank of India, MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 19 of 26 : 20 : Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any to the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
36. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
37. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
38. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 20 of 26 : 21 : frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi- illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 21 of 26 : 22 : Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 22 of 26 : 23 : The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
39. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, it is held in present case that his financial earning is restricted in future to some extent as noted above. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same as well as to ensure that his future earning is augmented, in the same manner in which he would have otherwise earned.
40. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, out of compensation amount/Award amount:
(I) The sum of Rs. 4,50,000/- awarded towards artificial limb to the petitioner or the actual price whichever is less would be directly paid to the company/seller of such artificial limb on the quotation/bill to be furnished by the petitioner in this Tribunal.
MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 23 of 26 : 24 : (II) An amount of Rs. 7,50,000/- is kept in form of monthly FDRs of Rs. 20,000/- each.
(III) Remaining amount is released to the petitioner/injured, alongwith simple interest @ 9% p.a. from the date of filing of DAR till its actual realization, in his bank account near his place of residence as per rule/ directions.
41. The following conditions are to be adhered to by SBI, Saket Courts, Delhi with respect to the fixed deposits:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) 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(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 amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) 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 be 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 along with the duly MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 24 of 26 : 25 : signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
42. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 17.05.2018 2 Name of injured Mintu @ Badal 3 Age of the injured 34 years 4 Occupation of the Raj Mistri injured 5 Income of the injured Rs. 14,000/- p.m. MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 25 of 26 : 26 : 6 Nature injury Grievous 7 Medical treatment AIIMS Trauma Center taken by the injured:
8 Period of 18.05.2018 to 07.06.2018 Hospitalization 9 Whether any 70% permanent functional disability.
permanent disability?
43. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate.
44. Put up on 06.10.2022 for filing of bank details of petitioner and for compliance.
Announced in the open court on 05th September, 2022 (NAVEEN KUMAR KASHYAP) PO-MACT (South-East) Saket Court/ New Delhi MACT No. 1045/18 Badal v. Sandeep Kumar Page No. 26 of 26