Delhi District Court
Ashok Kumar vs Shyam Pal on 23 May, 2023
IN THE COURT OF JAGDISH KUMAR: PO:MACT02 SOUTH
WEST): DWARKA COURTS: NEW DELHI
MACT No. 2441/16
FIR No. 348/2016
PS: CHHAWALA
Ashok Kumar
S/o Sh Kharku Ram
R/O H. No. 195, Pandwala Khurd,
Village Pandwala Khurd
Delhi
...... Petitioner
VERSUS
1. Shyam Pal
S/oBanwari Lal
R/o A6, Shyam Vihar Phase2
Najafgarh,
Delhi110043
2. Sube Singh
S/O Ram Kumar
R/o A6, Shyam Vihar Phase2
Najafgarh,
Delhi110043
Second Address:
VPO Jhamari
Tehsil Matanhel
Distt Jhajjar,
Haryana.
3. United India Insurance Company Ltd.
A1, Kirti Palace, Tagore Market
Opp Metro Pillar No.33 Kirti Nagar,
Delhi110015
....Respondents
DATE OF INSTITUTION : 09.12.2016
ARGUMENTS HEARD ON : 22.05.2023
MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 1 of 15
DATE OF AWARD : 23.05.2023
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident:19.09.2016
2. Name of injured: Ashok Kumar
3. Age of the injured: 41 years
4. Occupation of the injured: Driver ( as claimed )
5. Income of the injured: Rs.18,000/ p.m. ( as claimed )
6. Nature of injury: Grievous.
7. Medical treatment taken by the injured: Columbia Asia Hospital and Indian Spinal Injuries Center.
8. Period of hospitalization: About 15 days .
9. Whether any permanent disability ? If yes, 75%
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.9,14,000/
(ii) Expenditure on conveyance Rs. 25,000/
(iii) Expenditure on special diet Rs. 25,000/
(iv) Cost of nursing/attendant Rs. 50,000/
(v) Loss of earning capacity
(vi) Loss of income during treatment Rs. 95,680/
(vii) Any other loss which may require any special Rs.2,50,000/ treatment or aid to the injured for the rest of his life
12. NonPecuniary Loss:
(i) Compensation for mental and physical shock Rs. 50,000/
(ii) Pain and suffering Rs.1,00,000/
(iii) Loss of amenities of life MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 2 of 15
(iv) Disfiguration Rs. 50,000/
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, hardships, Nil disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and nature of 75% permanent disability disability as permanent or temporary in relation to left lower limb being disarticulation
(ii) Loss of amenities or loss of expectation of life Rs.50,000/ span on account of disability
(iii) Percentage of loss of earning capacity in 40% relation of disability
(iv) Loss of future income - ( 11,960/x 12 x 14 x Rs. 8,03,712/ ( In 40/100). lumpsum Rs. 8,03,800/
14. TOTAL COMPENSATION Rs. 24,13,480/
15. INTEREST AWARDED 7.5% per annum
16. Interest amount up to the date of compliance As per calculation
17. Total amount including interest As per calculation
18. Award amount released 10%
19. Award amount kept in FDRs 90%
20. Mode of disbursement of the award amount to Phased manner the claimant (s) (Clause29)
21. Next date for compliance of the award. (Clause
31) FORM - V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 19.09.2016
2. Date of intimation of the accident by the investigating No officer to the Claims Tribunal (Clause 2)
3. Date of intimation of the accident by the investigating No MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 3 of 15 officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. before Not known the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report N0 (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company (Clause No
11)
7. Date of service of DAR on the claimant(s). (Clause 11) No
8. Whether DAR was complete in all respects? (Clause 16)
9. If not, whether deficiencies in the DAR removed later on?
10. Whether the police has verified the documents filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on the part of the N.A. Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause20)
13. Name, address and contact number of the Designated do Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance Company No submitted his report within 30 days of the DAR? (Clause
20)
15. Whether the insurance company admitted the liability? If No so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part of the do Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the NA Insurance Company. (Clause 24)
18. Date of the Award 23.05.2023
19. Whether the award was passed with the consent of the No parties? (Clause 22) MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 4 of 15
20. Whether the claimant(s) were directed to open saving bank Yes account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were directed to open 21.05.2018 saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the passbook of 22.05.2023 their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) (Clause R/O H. No. 195,
27) Pandwala Khurd, Village Pandwala Khurd Delhi
24. Details of saving bank account(s) of the claimant(s) and the SB A/C No. address of the bank with IFSC Code (Clause 27) 41871379499 State Bank of India Khera Dabar Branch Nazafgarh Delhi IFSC Code:
SBIN0016737.
25. Whether the claimant(s) saving bank account(s) is near his Not known place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of No passing of the award.
27. Account number, MICR number IFSC Code, name and Account No. branch of the bank of the Claims Tribunal in which the 37665510911 award amount is to be deposited/transferred. MICR Number:
110002483 IFSC Code:
SBIN0011566 State Bank of India, Sector10, Dwarka Courts Complex Branch, MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 5 of 15 New Delhi AWARD
1. Brief facts of the case are that on 19.09.2016, at about 6:55 p.m, the petitioner Ashok Kumar S/O Kharkuram was going on his scooty from his residence to Najafgarh Delhi. When he reached near Jhatikara Road, in front of Rajwada Farm House, a vehicle bearing No. HR63A9939 was standing( stationed) in the middle of the road without any indication and signal of back light. As it was darkness and due to the act of R.1, the petitioner met with an accident with the aforesaid vehicle. The petitioner received multiple injuries all over his body. The petitioner was removed to Columbia Asia Hospital and from there he was shifted to Indian Spinal Injuries Center, Vasant Kunj, N Delhi. Due to the injury received in abovesaid accident the petitioner got his left leg amputation below knee. Hence the present application has been filed.
2. The respondent No.1 and 2 have not filed any reply/WS in support of their case.
3. The respondent No.3, insurance company has filed its W.S. It is stated that the alleged accident had taken place due to sole negligence and incompetent driving on the part of the petitioner.
4. After completion of the pleadings, following issues were framed on 08.01.2018 :
1. Whether Ashok Kumar sustained grievous injuries in a motor vehicle accident dt.19.09.2016 due to rash and negligent driving of vehicle No. HR63A9939 being driven by respondent no. 1 Shyam Lal , owned by respondent No.2 Sh Sube Singh and insured by respondent no.3 United India Insurance Co; Ltd. ? ...OPP.
2. Whether the petitioner in the above mentioned cases is entitled to claim compensation , if so , what amount and from whom? ... OPP.
3. Relief.
MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 6 of 15
5. In order to prove the present case, in PE, petitioner has examined himself as PW1. PW2 Dr Adarsh Srivastava. PW3 Dr Vineet Arora and PW 4 Sh Amit Dagar, an eye witness. Respondent No.3 has examined R3W1 ASI Ashok Kumar in support of its case.
6. The respondent No.1 has also appeared in the witness box as R3W1.
7. I heard ld. counsel Sh K.K. Dubey appearing on behalf of petitioner and Sh Vikas Sharma, Ld Counsel for respondent No.3. My issuewise findings are as under: ISSUE No.1: Whether Ashok Kumar sustained grievous injuries in a motor vehicle accident dt.19.09.2016 due to rash and negligent driving of vehicle No. HR63A9939 being driven by respondent no. 1 Shyam Lal , owned by respondent No.2 Sh Sube Singh and insured by respondent no.3 United India Insurance Co; Ltd. ? ...OPP.
8. The onus to prove this issue was upon the petitioner. To prove the present case, petitioner examined himself as PW1 and in his affidavit (Ex. PW1/A) he has deposed that on that on 19.09.2016, at about 6:55 p.m, he was going on his scooty from his residence to Najafgarh, Delhi. When he reached near Jhatikara Road in front of Rajwada Farm House. A vehicle bearing No. HR63A9939 was standing/stationed in the middle of the road without any indication and signal of back light in darkness. Due to this act of R.1 he met with an accident with the aforesaid vehicle and received multiple injuries all over his body. He has deposed that after the accident he was removed to Columia Asia Hospital and from there he was shifted to Indian Spinal Injuries Center, Vasant Kunj,New Delhi. He has deposed that due to accident his left leg imputed below knee.
9. PW 1 has been duly crossexamined. The testimony of the PW1 with respect to accident and the fact that offending vehicle bearing No. HR 63A9939 was standing in the middle of the road without any indication MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 7 of 15 and signal of back light in darkness and due this, he met with accident, could not be impeached. The accident occurred on 19 th September, 2016 at about 7.00 p.m. which clearly corroborate the version of petitioner qua the fact of darkness, as the sun sets about 6.30 p.m in the month of September.
Even otherwise, the proof of negligence while disposing off a claim under MACT is not that strict as it is under Section 279/338 of IPC. The evidence which has come on the file can be considered and becomes more relevant when there is no specific evidence led by other side in rebuttal. Being injured, petitioner is natural eyewitness of the case. Moreover, after investigation, police indicted respondent no.1 for offences punishable under Sections 279/338 of IPC .The FIR has been registered against respondent no.1 and he has not filed any complaint against the police or before any higher authority against his alleged false implication, if any. The fact of accident and the respondent no.1 is facing the trial as an accused is not disputed. Even otherwise strict rule that negligence is to be proved beyond reasonable doubt is not to be proved in MACT proceedings. Considering all these facts, it is proved on record that accident in question was caused due to negligent act of respondent no.1 while parking his vehicle bearing No. HR63A9939 in the middle of the road without any indication and signal of back thereby causing injuries to the petitioner.
10. The issue is decided in favour of the petitioner and against respondents by holding that petitioner suffered injuries in a vehicular accident due to rash and negligent act of respondent No.1 ISSUE No.2: ? Whether the petitioner in the above mentioned cases are entitled to compensation , if so , what amount and from whom?... OPP.
11. Being injured, petitioner is well within his rights to claim compensation. It is there on record, as per the deposition of PW 1 and medical record annexed with the claim application, the petitioner was firstly taken to MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 8 of 15 Columia Asia Hospital and from there he was shifted to Indian Spinal Injuries Center, Vasant Kunj,New Delhi. He remain admitted in hospital wef 20.09.2016 to 21.09.2016 and thereafter again on 26.09.2016 to 09.10.2016. He has taken treatment as outpatient for about six months. It is there on record that left leg of petitioner below knee has been amputated due to accident. It is deposed by him (PW1) that due to the said accident, he himself and his family members have suffered great mental pain, agony, love and affection, loss of income, loss of social activities etc. So considering all the facts compensation is awarded as under:
MEDICAL EXPENSES
12. The petitioner remained admitted in Columia Asia Hospital and from there he was shifted to Indian Spinal Injuries Center, Vasant Kunj,New Delhi. He remain admitted in hospital wef 20.09.2016 to 21.09.2016 and thereafter again on 26.09.2016 to 09.10.2016. He has also taken treatment as outpatient for about six months. The petitioner has placed on record medical bills amounting to Rs. 9,13,416/ Hence , seeing nature of injuries and disability suffered by petitioner as well as his admission in various hospitals, a lump sum amount of Rs.9,14,000/ is granted to him as compensation towards medical expenses.
LOSS OF EARNING
13. It is submitted by Ld Counsel for the Insurance company that there is no evidence qua proving monthly income of the petitioner. And merely possessing D/L does not mean that petitioner was a professional driver. In rebuttal to the submission Ld Counsel for the petitioner submits that petitioner was working as driver in Anubhav Services Pvt Ltd and earning Rs.18,000/ p.m . However Ld Counsel for the petitioner fairly admitted that he has not placed on record any document qua showing the income of petitioner and submits that income of the petitioner may be assessed as per MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 9 of 15 Minimum Wages Act. So this Tribunal while assessing the income of injured under Minimum Wages Act prevailing in Delhi has assessed the income of injured under the head of Unskilled labour as Rs.9,568/ p.m. The petitioner sustained left leg amputation below knee and suffered 75 % permanent disability. He remain admitted in hospital wef 20.09.2016 to 21.09.2016 and thereafter again on 26.09.2016 to 09.10.2016. He has also taken treatment as outpatient for about six months. Seeing the nature of injuries on the person of petitioner, which may took considerable time to heal up, so an amount of Rs.95,680/ ( ie Ten months Minimum wages of unskilled labour ) is awarded to the petitioner for loss of earning.
Attendant Charges , Conveyance and Special Diet.
14. There is no evidence except deposition of petitioner to verify that he spent any amount towards attendant. But seeing the nature of injuries being suffered by petitioner an amount of Rs.50,000/, is being awarded for attendant charges. Moreover, a sum of Rs. 25,000/ for special diets, Rs.25,000/ for conveyance is also awarded to petitioner.
Loss of Future Earnings, due to permanent disability.
15. PW1 has deposed that he has suffered left leg amputation and permanent disability to the extent of 75% in relation to his left lower limb due to the accident. In support of his submission he has examined PW3 Dr Vineet Arora, Sr Specialist Orthopedic, DDU Hospital New Delhi, who has proved the disability certificate Ex PW1/3.
16. Considering the law on disability of injured. His ability to earn in future has to be kept in mind while awarding compensation to injured. In the case in hand, the date of accident is 19.09.2016. This Tribunal has already assessed in preceding para, the income of injured under Minimum Wages MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 10 of 15 Act prevailing in Delhi under the head of unskilled labour as Rs.9,568/ P.M in the year 2016. As per disability certificate of the petitioner he has suffered 75% ( Seventy Five percent) permanent disability in relation left lower limb. The petitioner was about 41 years of age at the time of accident. In view of paragraph no. 61 (iv) of judgment in National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, decided on 31.10.2017 and the judgment of Hon'ble Delhi High Court in case of Sanjay Oberoi vs Manoj Bageriya, MAC Appeal no.829/2011 decided on 03.11.2017, the injured would be entitled to an addition of 25% of the established income. Counting in this way, his loss to future earnings comes to Rs. 11,960/ ( Rs.9,568/+2,392/) Accordingly, in view of the ratio of of law of Hon'ble High Court of Delhi in the matter of Shivani Sharma Vs Ram Chander & Ors, the loss of earning capacity by applying the multiplier of 14
17. As per the disability certificate Ex.PW1/3, the petitioner has suffered left leg amputation and permanent disability to the extent of 75% in relation to his left lower limb due to the accident. Today this Tribunal has also observed during the proceeding and enquiry that petitioner is unable to walk property. Seeing age and occupation of petitioner, his functional disability is taken as 40% qua the whole body as his income has been assessed as a Labourer and his working labour will affect from disability. Counting in this way, his loss to future earnings comes to Rs. 8,03,712/ (Rs. 11,960/x 12 x 14 x 40/100). This amount of Rs. 8,03,712/ ( in lump sum Rs.8,03,800/) is allowed to petitioner, as loss of future earnings, due to permanent disability.
Loss of amenities owing to permanent disability:
18. A person who became injured, in my opinion would have suffered a lot MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 11 of 15 than a person who had lost his life in an accident. An injured has to face lots of atrocities due to the injuries caused to him in an accident. Herein the present case the injured has a total permanent physical disability of 75% (Seventy Five percent). Considering, the mental agony which victim as well as his family members had suffered is immense and the eclipse that has come in the life of victim after the accident will never go away till he lives on this earth, hence, a sum of Rs. 50,000/ is awarded to him for loss of amenities.
Pain and suffering
19. The next point that is to be discussed is pain and suffering and to calculate the same, the nature of injuries caused to the injured due to the accident, duration for which he got medical treatment and he was constrained to live in bed are few factors which must be taken into account. The p etitioner sustained left leg amputation below knee and suffered 75 % permanent disability. He remain admitted in hospital wef 20.09.2016 to 21.09.2016 and thereafter again on 26.09.2016 to 09.10.2016. He has also taken treatment as outpatient for about six months. It is very much apparent that when a person is leading a normal life suddenly meets with an accident which changes his complete life, the mental agony which he faces cannot be considered. The whole life changes and everything looks darker to that person which can be beyond out of imagination, such a scenario could shake even braver of bravest. The physical pain which petitioner had undergone after the accident cannot be explained as to a miserable person every body sympathizes though it never pacifies a victim. To compensate petitioner under this head, a sum of Rs.1,00,000/ is awarded to him. Mental and physical shock:
20. The petitioner is 41 years of age at the time of accident , but due to this MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 12 of 15 mishappening with him, all his dreams and expectations got completely shattered which cannot be compensated in monetary terms. However, to console him to an extent, a sum of Rs.50,000/ is awarded to petitioner under this head.
Special treatment or aid to the injured for the rest of his life.
21. Though the petitioner has not led any evidence with regard to artificial limb being used by him. But this Tribunal after observing the fact that petitioner sustained left leg amputation below knee and suffered 75 % permanent disability and using artificial limb to walk . So this tribunal by taking guess work of limbs Prosthesis and orthotist amount to Rs.2,50,000/ and as such also awarded an amount of Rs.2,50,000/ for maintenance of artificial limbs for life under the head of Special treatment and aid for the rest of his life.
Disfiguration:
22. So far as disfiguration is concerned, petitioner is a case of permanent disability to the extent 75% in relation to left lower limb and he must have faced mental agony due to the accident. Hence, keeping his condition he is granted a sum of Rs. 50,000/ towards disfiguaration.
23. Thus making a total of Rs.24,13,480/ detail of which is given as under:
(i) Medical expenses Rs. 9,14,000/
(ii) Attendant charges Rs. 50,000/
(ii) Special diets Rs. 25,000/
(iii) Conveyance Rs. 25,000/
(iv) Loss of earning during treatment Rs. 95,680/
(v) Loss of amenities owing to permanent disability Rs.50,000/
(v) Pain & suffering Rs. 1,00,000/
(vi) Mental & physical shock Rs. 50,000/
(vii) Loss of future earnings, due to permanent Rs.8,03,800/ MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 13 of 15 disability.
(viii) Special treatment or aid for the rest of life Rs.2,50,000/
(ix) Disfiguration Rs.50,000/ Total Rs.24,13,480/
24. This issue is therefore decided in favour of the petitioner and against respondent by holding that accident in question took place due to rash or negligent driving of vehicle bearing No. HR-63A-9939 being driven by respondent no.1 and petitioner suffered injuries in that accident and petitioner is entitled for compensation.
25. This issue is therefore decided in favour of the petitioner and against respondents by holding that petitioner is entitled for compensation from respondent 3.
ISSUE No. 3 (RELIEF)
26. Petition in hands is allowed. Respondent no.3 is directed to pay Rs.
24,13,480/with interest @ 7.5% from the date of filing of petition i.e. 09.12.2016 till the date of compliance to the petitioner as compensation in this case, within 30 days from today. Amount of interim compensation (if any) be deducted from this amount. The awarded amount shall remain as tax free in view of the judgment of Hon'ble High Court in case in R/Special Civil Application No.4800 of 2021 titled The Oriental Insurance Co Ltd Vs Chief Commissioner of Income Tax (TDS) decided on 05.04.2022.
27. Considering circumstances of petitioner, as petitioner has spent a huge amount on his treatment as medical expenses, hence 10% of the amount of compensation alongwith awarded interest be released to the petitioner by way of transferring the same in his saving bank account. The petitioner would allowed to withdraw the same through withdrawal slip only and by no other mode/modes i.e. ATM/ debit card/credit card/letter/NEFT/RTGS etc. It is directed that 90% of amount alongwith MACT No.2441/2016 Ashok Kumar Vs Shyam & Ors . Page No. 14 of 15 awarded interest of compensation be kept in the form of FDRs ie 180 monthly FDRs of equal amount in any nationalized bank ( ie petitioner's bank) in the name of petitioner for a period of 01 month to 180 months with cumulative interest.
28. The salient features as pres cribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) Original fixed deposit receipt be retained by the bank in safe custody.
However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(ii) The original fixed deposit receipt be handed over to the claimant at the end of the fixed deposit period.
(iii) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(iv) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(v) No loan, advance or withdrawal or premature encashment shall be allowed on the fixed deposit without permission of the Court.
29. Respondent no.3 is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioner.
30. File be consigned to record room.
ANNOUNCED IN THE OPEN (JAGDISH KUMAR )
COURT ON 23.05.2023 PO, MACT02 SOUTH
WEST, DWARKA,
NEW DELHI
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