Delhi District Court
Surender Kumar(Dar) vs Updesh Kumar Dubey (Fir 216/20 Ps Saket ... on 26 February, 2024
Surender Kumar vs. Updesh Kumar Dubey and ors.
IN THE COURT OF SH. SUDESH KUMAR-II :
PRESIDING OFFICER : MACT : SOUTH DISTT. : SAKET
COURTS : NEW DELHI
Petition No. : 24/22
CNR No. DLST01-001171-2022
SURENDER KUMAR VS. UPDESH KUMAR DUBEY AND
ORS.
FIR NO.216/20 PS SAKET
Sh. Surender Kumar
S/o Sh. Bal Kishan
R/o H.No. 126-27 Block-4,
Dakshinpuri Extension,
Dr. Ambedkar Nagar,
New Delhi. ....PETITIONER
Versus
1. Updesh Kumar Dubey
S/o Sh. Rajaram Dubey
R/o H.No. D-47, Amanpuri
Nagloi, New Delhi - 110041 ...respondent no.1/ driver
2. Sh. Chander Prakash
S/o Sh. Barahampal
R/o D 742 Jahagirpuri
New Delhi - 110033 ...respondent no. 2/owner
3. Shriram General General Insurance Company Ltd.
New Delhi. ...respondent no. 3/
insurance company
Date of Institution : 14.02.2022
Date of reserving of judgment/
order : 06.02.2024
Date of pronouncement : 26.02.2024
JUDGMENT:
1. This is a claim for compensation arising out of the Detailed Accident Report filed u/s 158(6) Motor Vehicle Act, qua Suit No.24/22 1/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
petitioner Surender Kumar for the injuries suffered by him in a vehicular accident which occurred on 30.05.2022 with respect to which FIR No. 216/2020 was registered at Police Station Saket against R-1 Updesh Kumar Dubey, driver of the offending vehicle. The same is treated as petition under Section u/s 166 and 140 MV Act.
2. The IO has filed copies of the criminal proceedings including FIR and the charge-sheet in the DAR.
3. Brief facts of the vehicular accident as averred in the DAR are that on 30.05.2020 at about 6.10 PM the injured Surender Kumar was driving his motorcycle bearing no. DL-3SDS-2916 'Bullet' and going towards Gurudwara, Sheikh Sarai Red Light, when all of a sudden a car Wagon-R bearing no. DL-1RTA-1803 which was being driven by respondent Updesh Kumar Dubey, in a very rash and negligent manner came and hit him. Due to this forceful impact, the injured fell down on the road and sustained grievous injuries. As a result thereof, the claimant suffered 45% permanent physical impairment in respect of left mid foot amputation.
4. Vide order dated 15.03.2022, right of the respondent no. 1 to file WS was struck off by my Ld. Predecessor.
5. Written statement was filed by the respondent no. 2/ owner of the offending vehicle stating that the petitioner just has filed the present petition to extort money from the respondent. He Suit No.24/22 2/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
stated that in the year 2016 with a view to start his own business and after investing his life time savings, he had purchased the taxi/cab bearing no. DL-1RTA-1803. After attaching the same with an application based taxi services OLA and UBER, he started plying the cab and started earning his livelihood. During the initial three years, he had himself driven the taxi/ vehicle but in the month of June 2019 he started facing back pain due to long hours of driving and for this reason, he hired the respondent no. 1 to ply the taxi during the day hours and himself started driving during night hours. It is submitted that at the time of hiring the respondent no. 1, he had produced a commercial driving licence which was issued from Transport Authority of Mainpuri, UP and valid till June 2025. The respondent no. 2 had not verified the authenticity/ genuineness of the licence provided by him and on the demonstration of the respondent no. 1 had allowed him to ply his vehicle.
6. Reply was filed on behalf of the insurance company on 11.05.2022 submitting therein that during the investigation conducted by the IO, the DL of the respondent no. 1 was found to be fake, as such there is a violation of terms and conditions of policy. Hence, the insurance company is not liable to indemnify the insured. It is further contended that as per the DAR it has come up that the injured was also driving a bike, however there is nothing on record which suggest that the injured cum driver of the victim's vehicle was holding DL or holding proper RC or wearing helmet. Hence, the insurance company is not liable to pay the compensation.
Suit No.24/22 3/25Surender Kumar vs. Updesh Kumar Dubey and ors.
7. After completion of the pleadings, vide order dated 11.05.2022 following issues were framed by my ld. Predecessor :-
1. Whether injured Surender Kumar received injuries in the road accident on 30.05.2020 at 6.00 PM at Pushp Vihar, Sector -07, Near Gurudwara, Delhi due to rash and negligent driving of Wagon R bearing no. DL-1RTA-
1803 being driven by the respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 (Shri Ram General Insurance Company)....(OPP)
2. To what amount of compensation the injured is entitled and from whom?
3. Relief.
8. Thereafter the matter was referred to Local Commissioner for recording of the evidence. Ld. Local Commissioner after the evidence filed his report.
9. I have heard Ld. Counsels for the parties and have carefully perused the court record.
My findings on the issues are as under:-
ISSUE NO. 110. In a claim petition, onus is on the petitioner to prove that he or she suffered injuries in the vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
11. In order to establish his claim, the petitioner Surender Kumar has examined himself as PW1. In his affidavit filed in Suit No.24/22 4/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
evidence Ex.PW1/A, he deposed that on 30.05.2020 at about 6.10 PM near Gurudwara, Sheikh Sarai, Red Light, he was going towards Gurudwara Sheikh Sarai, when all of a sudden a Car Wagon-R bearing no. DL-1RTA-1803 which was being driven by respondent Updesh Kumar Dubey in a very rash and negligent manner came and hit him. Due to this forceful impact, he fell down on the road and sustained grievous injuries in his right forearm and other injuries on all over his body. He was immediately taken to MAX hospital, Saket, where the MLC was prepared. Thereafter, he was treated at AIIMS Trauma Center and surgery was done in Sama Nursing home. He stated that he remained under treatment/observation of the doctors of the abovesaid hospital for about one year. He was 60 years at the time of accident. He has a meat shop working as a butcher and was earning more than Rs.50,000/- per month. He was hale and healthy and active person, however due to the said accident he is unable to do his work till date. He has relied upon following documents in support of his contention :-
• Copy of aadhar card Ex.PW1/1• Copy of driving licence Ex.PW1/2 • DAR Ex.PW1/3 • Medial bills Ex.PW1/4 • Duplicate attested bill issued from Shama Hospital dated
24.08.2020 alongwith discharge summary Mark A • Copy of disability certificate issued from Pt. Madan Mohan Malaviya Hospital Ex.PW1/5.
In his cross-examination by Mohd. Mustafa, Ld. counsel for the insurance company, he stated that somebody had made PCR call. Police met him in the hospital. He admitted that he has mediclaim policy and whatever expenses he had incurred Suit No.24/22 5/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
in his treatment were paid by mediclaim policy. Apart from mediclaim policy, he has also paid from his own pocket the bills and documents which were already placed with judicial file. He is owner of a meat shop in the name and style 'Janta Meat Shop'. He submitted that he has a license to run a meat shop issued from MCD, however he filed his income tax returns pertaining to the assessment year 2009-2010. He admitted that he has not filed income tax return prior and after the said period. He also produced copy of the payment receipt for veterinary license for the year 2023-2024. He could not produce any license pertaining to the year of the accident. He denied the suggestion that the accident has occurred due to his own negligence.
12. The respondent no. 2 Sh. Chander Prakash, owner of the offending vehicle examined himself as R2W1. He deposed on the lines of his reply and deposed that the petitioner has not approached this Court with clean hands and deliberately suppressed material facts. The DAR file is a misrepresentation of facts just to harass and torture him, hence the present DAR is liable to be rejected. He further deposed that he was working as a driver from the past 10 years to earn his livelihood. In the year 2016, he with a view to start his own business and after investing his life time savings, purchased the taxi/cab bearing no. DL- 1RTA-1803. He had hired the respondent no. 1 to ply the taxi during day hours and he himself started driving during night hours. At the time of hiring, the respondent no. 1, the respondent no. 1 had produced the commercial driving licence to him, which was issued from the Transport Authority of Mainpuri, UP and Suit No.24/22 6/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
which was valid till June 2025. I trusted the words of the respondent no. 1 and had not verified the authenticity/ genuineness of the licence provided by him. He has relied upon the following documents:-
• Copy of aadhar card Ex.R2W1/1.
• Copy of registration certificate which is already Ex.PW1/3. • Copy of insurance policy which is already Ex.R3W1/1. • Copy of fitness certificate which is already Ex.PW1/3.
In his cross-examination by the counsel for the respondent no. 3, he stated that the driver Updesh Kumar was appointed in the year 2020, the driver produced the driving licence which was not issued in the form of a card but it was paper based driving license. The driver was also having Ola-Uber ID as he had been working with ola-uber earlier. There was no agreement regarding the payment of salary to the driver. He got to know through the police that his driver was having a fake DL. He denied the suggestion that he was aware that the driver was having a fake DL.
13. The insurance company Shree Ram General Insurance Company Ltd. also examined Sh. Parth Arya, Official (Legal) as R3W1 who deposed that the policy no. 10019/31/20/029403 has been issued in the name of Mr. Chander Prakash for vehicle bearing no. DL-1RTA-1803 (Wagon R) and it was valid from 22.01.2020 to 21.01.2021. As per the verification of DL, it was found that the DL has not been issued from RTO Mainpuri (UP) as such the DL of the driver was found to be fake and due to this reason the IO added Section 471 IPC. Hence the insurance company is not liable to pay compensation but entitled to get Suit No.24/22 7/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
exoneration. In support of his contention, he has relied upon following documents:-
• Attested copy of insurance policy Ex.R3W1/1. • Copy of notice under Order 12 Rule 8 CPC Ex.R3W1/2. • Original postal receipts of speed post and tracking record Ex.R3W1/3 • Copy of DL and its verification report Ex.R3W1/4. • The authorization letter Ex.R3W1/5.
In his cross-examination by the respondent no. 2, he stated that the policy of offending vehicle was valid at the time of accident.
14. Ld. Counsel for the petitioner has argued forcefully that from the evidence of PW1 coupled with the criminal record filed by the IO, the petitioner has proved the fact that it was the respondent no. 1 who had caused the grievous injuries to the injured by his rash and negligent driving.
15. Ld. counsel for the insurance company however contended that the DL of the respondent no. 1 was found to be fake. IO has also invoked offence u/s 471 IPC against the driver of the offending vehicle. Therefore, the insurance company is not liable to pay any compensation.
16. On the other hand, Ld. Counsel for the respondent no. 2 stated that he was not aware that the driver/ respondent no. 1 was having a fake DL.
17. In the present case, the Investigating Officer had filed the Suit No.24/22 8/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
DAR containing FIR, Charge sheet, site plan, MLC etc. Charge sheet has been filed against the respondent no.1. PW1 Surender Kumar had categorically deposed about the occurrence of the accident due to rash and negligent driving of the Respondent No.1. The statement of the injured that the offending vehicle hit him finds support from the fact that the I.O. seized the offending vehicle and got it mechanically inspected.
18. It is a settled legal position that while deciding a petition u/s 166 of the M V Act, the Claims Tribunal has to decide negligence on the touchstone of preponderance of probabilities. Reference in this regard is made to the observations of the Hon'ble Supreme Court of India in Kaushnumma Begum and Others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, wherein it was held that the issue of wrongful act or omission on the part of the driver of motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable u/s 166 & 140 of the M V Act.
19. DAR and copies of criminal proceedings filed alongwith it are admissible in evidence and deemed to be correct under Rule 7 of the Motor Accident Claims Tribunal Rules, 2008 until proved to be contrary. Copies of criminal proceedings filed include FIR, chargesheet, site plan, MLC of the petitioner, mechanical inspection report of the offending vehicle besides the documents of the offending vehicle. In the mechanical inspection report filed Suit No.24/22 9/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
by the IO pertaining to the offending vehicle, it has come up that there were damages due to accidental impact. The front bumper was damaged, front bonnet was dented, front left and right fenders were dented, front windscreen was also broken. The respondents have failed to explain the said damages on the offending vehicle.
20. The petitioner in his affidavit Ex.PW1/A has clearly deposed that the driver of the offending vehicle was driving it rashly and negligently. His testimony is uncontroverted and unrebutted. As already observed, the entire investigation conducted by the IO also support the version of the petitioner.
21. In this regard observations made by the Hon'ble Supreme Court in New India Assurance Company Ltd. vs. Pushpa Rana and Ors. reported in 2007 SCC online DEL 1700 has to be considered wherein it was held that :-
"the wife of the deceased had produced (1) certified copy of criminal record of criminal case in FIR No. 955/2004 pertaining to involvement of the offending vehicle; (2) Criminal record showing completion of investigation of police and issue of charge-sheet under Section 279/304-A IPC against the driver; (3) certified copy of FIR wherein criminal case against the drive was lodged; and (4 ) recover memo and mechanical inspection report of the offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent."
22. In this regard, reliance can also be placed upon the observations made by the Hon'ble Supreme Court in Oriental Suit No.24/22 10/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
Insurance Co. Ltd. Vs. Meena Variyal; 2007 (5) Scale 269 wherein it was observed that the petitioner wife of the deceased having produced the (1) certified copy of the criminal record showing completion of investigation by the police filing of the chargesheet against the driver, (II) certified copy of FIR registered against the driver, (III) recovery memo and (IV) mechanical inspection report of the offending vehicle and the vehicle of the deceased. It was held that these documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. There is ample evidence on record to prove negligence on the part of the driver.
23. Further, it is pertinent to note that the respondent no. 1/ driver of the aforesaid vehicle was the material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box during the course of the inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of offending vehicle. The driver did not enter into the witness box to controvert the claim of the petitioners or even to explain the circumstances of accident. The evidence led by petitioners is unrebutted and un-controverted.
24. On the basis of evidence on record, above observation and discussion it is proved that the abovesaid accident took place due Suit No.24/22 11/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
to rash and negligent driving of R1 Updeshy Kumar Dubey due to which the injured received injuries. Accordingly, issue no. 1 is decided in favour of the petitioner.
Findings on Issue no.2:
To what amount of compensation, the petitioner is entitled and from whom?
25. Now, the court has to assess as to how much compensation be awarded to the claimants and by whom? First of all the court has to decide as to whom the liability to pay the compensation is fastened.
26. Ld. counsel for the respondent no. 3 in order to exonerate the insurance company from its liability contended that the offending vehicle was being driven by the driver (respondent no.
1) using a fake licence. He has relied upon the testimony of R3W1/ Parth Arya in this regard.
27. I have considered the submissions and perused the record.
28. It has been held by Hon'ble Apex Court in the case titled as Lal Chand Vs. Oriental Insurance Company Ltd. reported as 2006 (3) TAC-321 SC that Insurance Company has to show and prove on record that due and adequate care was not taken by the owner or owner had the knowledge that driver was not holding a valid driving license. Only in that eventuality the Insurance Company can be absolved of its contractual obligation, not otherwise.
Suit No.24/22 12/25Surender Kumar vs. Updesh Kumar Dubey and ors.
29. As per the DAR, the IO on investigation found that the DL of the respondent no. 1 was found to be fake and for this reason the IO added offence Section 471 IPC in the chargesheet. The respondent no.2/ owner stated in his evidence that at the time of hiring the respondent no. 1, he had produced his commercial driving licence to him which was issued from Transport Authority of Mainpuri, Uttar Pradesh. He further stated that he trusted the words of the respondent no. 1 and had not verified the authenticity/ genuineness of the licence provided by him. As per the terms of the policy, any person driving a vehicle must hold an effective driving licence and should not be disqualified from holding or obtaining such a licence. This very act on the part of respondent no. 2 amounts to breach of the insurance policy. It was held in the case of Kamala Mangalal Vayani & Ors. Vs. United India Insurance Co. Ltd. and others (2010) 12 SCC 488 that once a comprehensive insurance policy is admitted, proving any breach of insurance conditions, is on the insurer and not claimants. In the present case, the insurance company i.e. respondent no. 3 has been able to establish that the vehicle was not plying on the road in consonance with the terms of the policy. Thus, the liability to compensate the petitioners would remain with that of respondent no. 1 and respondent no. 2 i.e. driver /owner of the offending vehicle jointly and severally.
30. However, balancing the "twin interest" of the Insurance Company at one hand and that of the third party i.e. petitioner Suit No.24/22 13/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
for whose benefit the present legislation was brought on the statute book, it is directed that the Insurance Company shall pay the compensation awarded to the petitioner within the time given in this award and shall have the right to recover the same from respondent No(s). 1 and 2 jointly and severally.
31. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and non-pecuniary damage.
32. Let assess the compensation which the claimant is entitled for under different heads;
MEDICAL EXPENSES :
33. As per the record, the petitioner has not filed photocopies of the bills. Therefore, he is not entitled towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
34. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain vs. Jai Kisan, FAO No.:709/02, date of decision: 02.02.2007 can be considered:
12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
13. The objective facts relatable to pain and suffering Suit No.24/22 14/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
would be :
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment.
Applying the above criteria to the facts of the present case where petitioner/injured has suffered 45% permanent physical impairment in relation to his Left Mid Foot amputation and keeping in view the period of hospitalization and duration of treatment, I am of the opinion that an amount of Rs.1,50,000/- would be just and fair compensation towards his pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
35. In the present case the petitioner has not placed on record any document with regard to his special diet, conveyance and attendant charges. However, the injuries on the person of the injured were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant. Therefore, looking into all the facts, I award Rs.50,000/- to the petitioner/ injured towards his special diet, conveyance and attendant charges.
LOSS OF INCOME/ FUTURE LOSS OF INCOME
36. The petitioner/ injured stated that at the time of accident he was running a meat shop and was earning Rs.50,000/-. He has placed on record copy of veterinary license Ex.PW1/7. However the same pertains to year 2023-2024 and not for the year of accident. No document to show the earnings for the date of Suit No.24/22 15/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
accident or the previous year has been produced. In these facts and circumstances, hence, the earnings as averred can not be considered. In these facts, hence, the minimum wages for a un- skilled person of Delhi at the time of accident i.e. Rs.15,899/- per month is taken as salary of the injured.
The injuries on the person of petitioner were such that he might have remained out of work for about 10 months. Hence I award a sum of Rs.1,58,990/- (Rs.15,899/- x 10) towards loss of income during period of treatment.
37. So far so, the future loss of the income of the victim/ petitioner is concerned, this court is guided by the various judgments pronounced by the Hon'ble Apex Courts. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" :-
"In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle- rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for Suit No.24/22 16/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.
The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289, in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.Suit No.24/22 17/25
Surender Kumar vs. Updesh Kumar Dubey and ors.
In a more recent decision in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations:
Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
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 Suit No.24/22 18/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.
38. In a very recent judgment announced by the Supreme Court of India in case title Sri Anthony alias Anthony Swamy v. The Manging Director, K.S.R.T.C. on 10.06.2020. Hon'ble Supreme Court of India has reiterated the principles set out for grant of compensation in cases of permanent physical functional disability in case title Rajkumar v. Ajay Kumar & Anrs., 2011(1) SCC 343 :-
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity and consequently, if the evidence produced show Suit No.24/22 19/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
45% as the permanent disability will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
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). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. However, in the recent judgment passed by Hon'ble Supreme Court of India in case title Pappu Deo Yadav vs. Naresh Kumar and Ors., Civil Appeal No. 2567 of 2020 wherein it was held that future prospects must be considered even in the case of permanent disability.
39. Here, in the present case, the petitioner has suffered 45% permanent physical impairment in relation to his Left Mid Foot amputation. As per the aadhar card, the date of birth of the injured is 25.07.1959 and the accident took place on 30.05.2020, therefore, the age of the injured was 61 years at the time of accident. As a matter of rule half of the disability percentage has Suit No.24/22 20/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
to be taken as functional disability for the purpose of calculation of future prospects. Therefore, I take his functional disability as 23% of the whole body. Taking a multiplier of '7', the future loss of income comes to Rs.15,899/- x 12 x 7 x 23% = Rs.3,07,168/-. I therefore, award Rs.3,07,168/- to the petitioner towards Future Loss of Income on account of permanent disability.
Loss of Amenities :
40. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations.
The injuries would also have an effect his social. I therefore, award Rs.50,000/- to the petitioner towards loss of amenities.
COMPENSATION FOR ARTIFICIAL LIMB :
41. The petitioner has not filed any quotation with regard to the amputation in his left mid foot. No such claim has been made in his affidavit filed in evidence for requirement of a artificial limb. No such claim was raised even during the final arguments.
The total compensation of the petitioner hence comes out to be :
MEDICAL EXPENSES :Nil.
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE :Rs.1,50,000/-
SPECIAL DIET, CONVEYANCE &
ATTENDANT :Rs.50,000/-
LOSS OF INCOME :Rs.1,58,990
FUTURE LOSS OF INCOME :Rs.3,07,168/-
LOSS OF AMENITIES : Rs.50,000/-
Suit No.24/22
21/25
Surender Kumar vs. Updesh Kumar Dubey and ors.
==========
TOTAL :Rs.7,16,158/-
===========
RELIEF
42. In view of my findings on the issues, I award a sum of Rs.7,16,158/- (Rupees Seven Lakhs Sixteen Thousand One Hundred Fifty Eight only) to petitioner Surender Kumar as compensation along-with interest @ 9% per annum from the date of filing the DAR till its realization.
Out of this amount, an amount of Rs.2,00,000/- (Rupees Two Lakhs) is directed to be kept in the form of fixed deposit in the following phased manner :
• Rs.1,00,000/- for a period of 01 year. • Rs.1,00,000/- for a period of 02 years.
Remaining amount be released to him.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
43. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no.3 is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which respondent no. 3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
44. The respondent no. 3 is directed to credit the amount Suit No.24/22 22/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the Ld. counsel for the respondents
45. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT SOUTH SAKET COURT A/c 42706751873 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
46. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP)
47. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :-
1. The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to petitioner/claimant without the permission of this Court.Suit No.24/22 23/25
Surender Kumar vs. Updesh Kumar Dubey and ors.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5. The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10.The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11.The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12.The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 41125-41127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT NO.3 Suit No.24/22 24/25 Surender Kumar vs. Updesh Kumar Dubey and ors.
• The Respondent no. 3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
• The Respondent no. 3 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
• The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
• Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no.3. • The case is now fixed for compliance by the respondent no. 3 for 12.04.2024.
Pronounced in the open court on 26th February, 2024 (SUDESH KUMAR-II) Presiding Officer : MACT (S) Saket Courts : New Delhi Suit No.24/22 25/25