Delhi District Court
Shri Iqbal Alam vs Shri Subhash Sharma on 3 February, 2015
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No. 305/14
Date of Institution: 29.10.2013
IN THE MATTER OF:
Shri Iqbal Alam
S/o Shri Mohd. Hanif
R/o D42, Gali No.2
Ratiya Marg, Sangam Vihar
New Delhi. ...Petitioner
Versus
1. Shri Subhash Sharma
S/o Shri Satyapal Sharma
R/o VPO Pilana
Bada Gaon Khekra
Baghpat
Uttar Pradesh.
2. Shri Shoram
S/o Shri Risal Singh
R/o VPO Pilana, Baghpat
Uttar Pradesh.
3. IFFCOTOKIO General Insurance
Sadan C1, Distt. Centre
Saket, New Delhi110017. ...Respondents
Suit No. 305/14 Page No. 1 of 41
Iqbal Alam Vs. Subhash Sharma & Ors.
Final Arguments heard : 12.01.2015 Award reserved for : 03.02.2015 Date of Award : 03.02.2015 AWARD
1. Vide this judgmentcumaward, I proceed to decide the petition filed u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 24.08.2013, the petitioner along with his friend Manjeet Singh was coming from Vasant Kunj and was proceeding towards Nizamuddin Railway Station on motorcycle No.DL3SBW7593 being driven by the petitioner. At about 04:40 AM, when they reached near Dhaula Kuan red light, after crossing the red light while proceeding towards Dhaula Kuan, suddenly the offending vehicle i.e. Truck bearing No. UP17D3129, being driven by the respondent No.1 in a very negligent and rash manner at a very high speed without obeying the traffic rules and regulations, without blowing the horn and without taking care of the persons traveling on the road, came and hit the motorcycle of the petitioner from the back side in a forceful manner. It is averred that due to the impact, the petitioner and his friend fell down on the road and the offending vehicle ran over the leg of the petitioner and he sustained grievous injuries as per the MLC. Thereafter, the petitioner was taken to AIIMS Hospital where the doctors conducted the medical examination and prepared MLC No.384787/13 and he Suit No. 305/14 Page No. 2 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
had to undergo a major surgery of his left leg which was crushed in the accident. It is averred that the petitioner is still under treatment and has already spent about Rs.3,00,000/ on medical treatment, medicines, special diet, conveyance, attendant charges etc. It is averred that due to the accident, there is every likelihood of the petitioner developing permanent disability and the petitioner is unable to do his routine work, job etc. which was the source of his income for providing financial support to his family. It is stated that in respect of the accident FIR No.274/13 under Sections 279/337 IPC was registered at PS Delhi Cantt. It is averred that the offending vehicle was driven by the respondent No.1 and the same was owned by and under the control and supervision of the respondent No.2 and was under the insurance cover of the respondent No.3, thus the respondents were fully liable to pay the compensation, jointly and severally for the wrongful act to the petitioner.
3. It is averred that the petitioner was aged about 26 years at the time of the accident and was employed with Domino's Pizza at Vasant Kunj, Delhi. It is averred that the petitioner was a hale and hearty person and was maintaining a good health and physique and was doing his work efficiently before the accident. It is averred that the petitioner at the time of the accident was earning Rs.18,000/ per month and was providing financial support to his family. Due to the accident, the petitioner till day was unable to discharge his daily work and was unable to work and had suffered a loss of income, medical, lot of pain, agony and depression, medical treatment and medicines, special Suit No. 305/14 Page No. 3 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
diet, conveyance, attendant charges and enjoyment of life and other pecuniary benefits. It is prayed that an amount of Rs.35,00,000/ be awarded as compensation in favour of the petitioner and against the respondents.
4. Written statement on behalf of the respondents No.1 and 2 was filed taking the preliminary objections that the petition is liable to be dismissed against the respondents No.1 and 2 as the driver was holding a valid and effective license by whom the vehicle No.UP17D3129 was being driven at the time of the accident. The respondent No.2 is the owner of the offending vehicle and the vehicle was fully insured with the respondent No.3 i.e. IFFCO TOKIO General Insurance Company Ltd. vide Policy No.83621625 valid from 12.04.2013 to 11.04.2014 at the time of the accident, therefore if any award was passed the same shall be deposited by the respondent No.3. The averments made in the claim petition were denied. It is averred that the amount claimed by the petitioner is too excessive. It is averred that the driver of the respondent No.1 was driving the vehicle No.UP17D3129 according to traffic rule and in normal speed and the accident as alleged occurred due to the mistake and fault of the petitioner/injured.
5. Legal offer cum reply was filed on behalf of the insurance company averring that the insurance policy No.83621625 was valid from 12.4.2013 to 11.4.2014 which was issued by the respondent No.3 in the name of Shri Sheo Ram for vehicle bearing No.UP17D3129. An offer of Rs.95,538/ + medical bills was made.
Suit No. 305/14 Page No. 4 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
6. Detailed Accident Report was filed by the IO on 29.10.2013 and on the same day the claim petition was filed. An application was filed on behalf of the petitioner for issuance of disability certificate which was allowed vide order dated 20.3.2014. From the pleadings of the parties, the following issues were framed vide order dated 31.03.2014:
1. Whether the petitioner/ injured sustained injuries in the accident which occurred on 24.08.2013 at about 04:40 am after crossing red light, near Metro Station Dhaula Kuan (GGR to Dhaula Kuan), caused by rash and negligent driving of vehicle No.UP 17D 3129 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the petitioner/ injured is entitled for compensation?
If so, to what amount and from whom?
3.Relief.
An application under Section 170 MV Act was filed on behalf of the insurance company which was allowed vide order dated 19.5.2014.
7. The petitioner Shri Iqbal Alam appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/1 reiterating the averments made in the claim petition. He deposed that due to the accident he was unable to discharge his daily work and he could still not move properly and do his routine work and job which was the source of his income for livelihood and for providing financial support to his family. Copy of DL of the Suit No. 305/14 Page No. 5 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
petitioner is Ex.PW1/2, copy of RC of the motorcycle of the petitioner is Ex.PW1/3, copies of medical record and bills of the petitioner are Ex.PW1/4 (colly) and disability certificate is Ex.PW1/5. Salary certificate is Mark A.
8. Shri Sunil Kumar Srivastava, AR, Jubilant Food Works Ltd. was produced in the witness box as PW2 and he had brought the pay slips of the petitioner/injured Mohd. Iqbal for the months of June, July and August 2013 which are Ex.PW2/A (colly). PE was closed on 22.9.2014. It was stated by the learned counsel for the insurance company that no RE was to be led.
9. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.3 and perused the record. Written arguments were also filed on behalf of the respondent No.3 which I have perused. The petitioner was also examined on 12.11.2014 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in MACA No.792/2006 titled Oriental Insurance Co. Ltd. v. Ranjit Pandey and Ors.
10. My findings on the specific issues are as under:
Issue No. 1
11. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to Suit No. 305/14 Page No. 6 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle 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. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Suit No. 305/14 Page No. 7 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
12. The case of the petitioner is that on 24.08.2013, the petitioner along with his friend Manjeet Singh was coming from Vasant Kunj and was proceeding towards Nizamuddin Railway Station on motorcycle No.DL3SBW7593 being driven by the petitioner. At about 04:40 AM, when they reached near Dhaula Kuan red light, after crossing the red light while proceeding towards Dhaula Kuan, suddenly the offending vehicle i.e. Truck bearing No. UP17D3129, being driven by the respondent No.1 in a very negligent and rash manner at a very high speed without obeying the traffic rules and regulations, without blowing the horn and without taking care of the persons traveling on the road, came and hit the motorcycle of the petitioner from the back side in a forceful manner. It was averred that due to the impact, the petitioner and his friend fell down on the road and the offending vehicle ran over the leg of the petitioner and he sustained grievous injuries as per the MLC. Thereafter, the petitioner was taken to AIIMS Hospital where the doctors conducted the medical examination and prepared MLC No.384787/13 and he Suit No. 305/14 Page No. 8 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
had to undergo a major surgery of his left leg which was crushed in the accident. It was stated that in respect of the accident FIR No.274/13 under Sections 279/337 IPC was registered at PS Delhi Cantt. In paras 2 to 4 and 6 and 7 of his affidavit Ex.PW1/1 the petitioner had reiterated the mode and manner of the accident as stated in the claim petition.
13. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of FIR; copy of site plan; copy of MLC, copy of seizure memos; copy of mechanical inspection report of the offending vehicle No.UP17D3129 and of the motorcycle No.DL3SBW7593, copies of photographs, copy of pay slips of the petitioner and copy of bills, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of fitness certificate and its verification report and copy of permit and its verification report. As per the FIR No.274/13 under sections 279/337 IPC, PS Delhi Cantt the case was registered on the basis of complaint of Manjeet Singh who was stated to be with the petitioner at the time of the accident, wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under sections 279/338 IPC.
Suit No. 305/14 Page No. 9 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
14. The respondents No.1 and 2 had filed the written statement averring that the driver of the respondent No.1 was driving the vehicle No.UP17D3129 according to traffic rule and in normal speed and the accident as alleged occurred due to the mistake and fault of the petitioner/injured. However they did not appear to crossexamine PW1 or to lead their evidence. During cross examination by the learned counsel for the insurance company PW1 stated that he was driving the motorcycle at the time of the accident. He denied the suggestion that he did not have a valid DL to drive the motorcycle. He admitted that he was going straight from Gurgaon to Dhaula Kuan on his motorcycle. He denied the suggestion that the accident had taken place due to rashness and negligence of his driving. Thus PW1 stated that he was driving the motorcycle at the time of the accident and the same is not even in dispute. A suggestion was put to him that he did not have a valid DL to drive the motorcycle which he denied and he had placed on record a copy of his DL which is Ex.PW1/2. He admitted that he was going straight from Gurgaon to Dhaula Kuan on his motorcycle and the site plan also shows the same. Thus nothing material has come out in the crossexamination of PW1 to doubt his testimony. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/338 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was Suit No. 305/14 Page No. 10 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.UP17D3129. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved. It was argued on behalf of the insurance company that the accident had taken place on account of the rash and negligent driving of the petitioner or at least he was liable for contributory negligence. However nothing has come on record to suggest the same.
15. It was stated that due to the impact of the accident, the petitioner and his friend fell down on the road and the offending vehicle ran over the leg of the petitioner and he sustained grievous injuries as per the MLC. Thereafter, the petitioner was taken to AIIMS Hospital where the doctors conducted the medical examination and prepared MLC No.384787/13 and he had to undergo a major surgery of his left leg which was crushed in the accident. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and Suit No. 305/14 Page No. 11 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
against the respondents.
Issue No.2
16. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
17. The case of the petitioner is that due to the impact of the accident on 24.8.2013, he fell down on the road and the offending vehicle ran over his leg and he sustained grievous injuries as per the MLC. Thereafter, the petitioner was taken to AIIMS Hospital where the doctors conducted the medical examination and prepared MLC No.384787/13 and he had to undergo a major surgery of his left leg which was crushed in the accident. It was averred that Suit No. 305/14 Page No. 12 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
the petitioner was still under treatment and he had already spent about Rs. 3,00,000/ on medical treatment, medicines, special diet, conveyance, attendant charges etc. It was averred that due to the accident, there was every likelihood of the petitioner developing permanent disability and the petitioner was unable to do his routine work, job etc. which was the source of his income for providing financial support to his family. It was averred that the petitioner was a hale and hearty person and was maintaining a good health and physique and was doing his work efficiently before the accident. Due to the accident, the petitioner till day was unable to discharge his daily work and was unable to work and had suffered a loss of income, medical, lot of pain, agony and depression, medical treatment and medicines, special diet, conveyance, attendant charges and enjoyment of life and other pecuniary benefits. The petitioner in paras 2 to 5 and 8 of his affidavit Ex.PW1/1 had deposed to that effect. He deposed that due to the accident he was unable to discharge his daily work and he could still not move properly and do his routine work and job which was the source of his income for livelihood and for providing financial support to his family. Copies of medical record and bills of the petitioner are Ex.PW1/4 (colly) and disability certificate is Ex.PW1/5.
18. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents filed with the DAR show that the petitioner had sustained right SOF fracture with cut off of femoral artery. The Suit No. 305/14 Page No. 13 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
documents also show that the petitioner remained admitted in hospital from 24.8.2013 to 3.10.2013. Thus the injuries were grievous in nature. Further the petitioner had got disability due to the injuries sustained in the accident and as per the disability certificate the petitioner had total permanent impairment of 33% with respect to both lower limbs and he was a case of shaft femur fracture right side with arterial injury and left compartment syndrome leg. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that his medical bills were forged and fabricated. He admitted that his treatment was done at a Government Hospital volunteered he had filed medical bills on record and he had spent Rs.3 lacs on medical expenses. He denied the suggestion that he had not spent Rs.3 lacs on medical expenses. He stated that he was not able to walk without a stick. He denied the suggestion that he could walk properly and freely and could also do his routine work to earn his source of income. Thus PW1 admitted that his treatment was done at a Government Hospital though he volunteered that he had filed medical bills on record and he had spent Rs.3 lacs on medical expenses. He stated that he was not able to walk without a stick.
19. PW2 who is the AR of the company with which the petitioner was working was also crossexamined in respect of medical expenses and during crossexamination by the learned counsel for the insurance company PW2 stated that they get medical insurance done for the employees. He had not brought any document to show how much reimbursement the petitioner had Suit No. 305/14 Page No. 14 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
taken from the said policy. He could not admit or deny the suggestion that the petitioner had taken reimbursement of the entire medical expenses from the insurance volunteered he was covered by the insurance policy. Thus PW2 stated that they get medical insurance done for the employees. He had not brought any document to show how much reimbursement the petitioner had taken from the said policy and he could not admit or deny the suggestion that the petitioner had taken reimbursement of the entire medical expenses from the insurance and volunteered that he was covered by the insurance policy. As such PW2 had stated that the petitioner was covered by the insurance policy though he could not say how much reimbursement the petitioner had taken for the medical expenses under the policy. There is also nothing to show that the petitioner had taken any reimbursement and he was not crossexamined specifically in that regard. Further the petitioner has placed on record original bills in respect of the treatment. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he had spent about Rs.3,00,000/ on medical treatment, medicines, special diet, conveyance, attendant charges etc. The petitioner had filed bills for an amount of Rs.93,371/ approximately. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner would incur some expenses even subsequently. Accordingly an amount of Rs. 1,00,000/ is awarded towards medical treatment and expenses including the amount of the bills.
Suit No. 305/14 Page No. 15 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
20. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment."
The case of the petitioner is that due to the impact of the accident on 24.8.2013, he fell down on the road and the offending vehicle ran over his leg and he sustained grievous injuries as per the MLC. Thereafter, the petitioner was taken to AIIMS Hospital where the doctors conducted the medical examination and prepared MLC No.384787/13 and he had to undergo a major surgery of his left leg which was crushed in the accident. It was averred that the petitioner was still under treatment and that due to the accident, there was every likelihood of the petitioner developing permanent disability and the petitioner was unable to do his routine work, job etc. which was the source of his income for providing financial support to his family. It was averred that the Suit No. 305/14 Page No. 16 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
petitioner was a hale and hearty person and was maintaining a good health and physique and was doing his work efficiently before the accident. Due to the accident, the petitioner till day was unable to discharge his daily work and was unable to work and had suffered a loss of income, medical, lot of pain, agony and depression, medical treatment and medicines, special diet, conveyance, attendant charges and enjoyment of life and other pecuniary benefits. The petitioner had deposed that due to the accident he was unable to discharge his daily work and he could still not move properly and do his routine work and job which was the source of his income for livelihood and for providing financial support to his family. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents filed with the DAR show that the petitioner had sustained right SOF fracture with cut off of femoral artery. The documents also show that the petitioner remained admitted in hospital from 24.8.2013 to 3.10.2013. Thus the injuries were grievous in nature. Further the petitioner had got disability due to the injuries sustained in the accident and as per the disability certificate the petitioner had total permanent impairment of 33% with respect to both lower limbs and he was a case of shaft femur fracture right side with arterial injury and left compartment syndrome leg. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2013, the petitioner is awarded Rs.75,000/ (Rs.Seventy Five Thousand only) for pain and suffering. Suit No. 305/14 Page No. 17 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
21. The petitioner was about 26 years of age at the time of the accident and it was so stated in the claim petition. Copy of DL of the petitioner is on record as per which the date of birth of the petitioner is 10.7.1988. As such he would have been more than 25 years old on the date of the accident i.e. 24.8.2013. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.25,000/ (Rs.Twenty Five Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life or towards disfiguration. CONVEYANCE AND SPECIAL DIET
22. The petitioner in para 5 of his affidavit Ex.PW1/1 had stated that he had already spent about Rs.3,00,000/ on medical treatment, medicines, special diet, conveyance, attendant charges etc. The petitioner had filed bills for an amount of Rs.12,000/ towards ambulance charges. Further notice can be taken of the fact that after the accident the petitioner was taken to AIIMS and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.15,000/ (Rs.Fifteen Thousand only) would be just and proper towards conveyance charges. Suit No. 305/14 Page No. 18 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
23. The petitioner in para 5 of his affidavit Ex.PW1/1 had stated that he had already spent about Rs.3,00,000/ on medical treatment, medicines, special diet, conveyance, attendant charges etc. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.5,000/ (Rs.Five Thousand only) for special diet.
24. The petitioner in para 5 of his affidavit Ex.PW1/1 had stated that he had already spent about Rs.3,00,000/ on medical treatment, medicines, special diet, conveyance, attendant charges etc. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs. 12,000/ is awarded towards attendant charges.
LOSS OF INCOME
25. It is the case of the petitioner that he was aged about 26 years at the time of the accident and was employed with Domino's Pizza at Vasant Kunj, Delhi. It was averred that the petitioner was a hale and hearty person and was maintaining a good health and physique and was doing his work efficiently Suit No. 305/14 Page No. 19 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
before the accident. It was averred that the petitioner at the time of the accident was earning Rs.18,000/ per month and was providing financial support to his family. Due to the accident, the petitioner till day was unable to discharge his daily work and was unable to work and had suffered a loss of income, medical, lot of pain, agony and depression, medical treatment and medicines, special diet, conveyance, attendant charges and enjoyment of life and other pecuniary benefits. The petitioner in paras 3, 5 and 8 of his affidavit Ex.PW1/A had deposed to that effect. He deposed that due to the accident he was unable to discharge his daily work and he could still not move properly and do his routine work and job which was the source of his income for livelihood and for providing financial support to his family. Salary certificate is Mark A. During crossexamination by the learned counsel for the insurance company PW1 stated that he was a Manager in Domino's. He stated that at present he was not doing anything. He admitted that at the time of the accident, his salary was Rs.7,000/ volunteered his in hand salary was Rs. 18,000/. He stated that he had not been discharged from his work. He denied the suggestion that he was still working and getting full salary. He denied the suggestion that there was no loss of his income due to the accident. He denied the suggestion that he was not drawing a salary of Rs.18,000/ at the time of the accident. He stated that he was not able to walk without a stick. He denied the suggestion that he could walk properly and freely and could also do his routine work to earn his source of income. He denied the suggestion that he was not liable for an award of Rs.35 lacs. Thus PW1 stated that he was a Suit No. 305/14 Page No. 20 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
Manager in Domino's. He stated that at present he was not doing anything. He admitted that at the time of the accident, his salary was Rs.7,000/ and volunteered that his in hand salary was Rs.18,000/. He stated that he had not been discharged from his work though he denied the suggestion that he was still working and getting full salary. He stated that he was not able to walk without a stick.
26. The petitioner in support of his case had produced PW2 in the witness box who had brought the pay slips of the petitioner/ injured Mohd. Iqbal for the months of June, July and August 2013 which are Ex.PW2/A (colly). During crossexamination by the learned counsel for the insurance company PW2 could not say the date of joining of the petitioner. He stated that the petitioner was working as Senior Assistant Manager. He stated that every employee gets entertainment allowance and it is a part of the regular salary. Thus PW2 could not say the date of joining of the petitioner, however the salary slips show the date of joining as 10.11.2007. The accident had taken place on 24.8.2013 and the petitioner has placed on record salary slips for the months of June, July and August, 2013 (though pay slips for the months of September, 2012 and April, 2013 are also on record) and the same show the total earnings of the petitioner as Rs.20,171/ for July, 2013 and Rs.19,627/ for August, 2013. However the amount towards transport allowance and washing allowance cannot be included while computing the income of the petitioner for loss of earning capacity. PW2 had stated that every employee gets entertainment Suit No. 305/14 Page No. 21 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
allowance but the same cannot also be included in computing the income. Further the performance bonus which is a variable amount cannot also be included nor the HRA. During examination by the Tribunal the petitioner had stated that he is 30 years at present. He stated that at the time of the accident he was working with Jubilant Food Works and was earning more than Rs. 18,000/ p.m. He stated that he had rejoined the company in October, 2014 but he could not work properly and he was getting the same salary. However during crossexamination the petitioner himself had admitted that at the time of the accident, his salary was Rs.7,000/ though he had volunteered that his in hand salary was Rs.18,000/ but the same includes various allowances. As such the income of the petitioner would be taken as Rs.7,000/ p.m. i.e. Rs. 84,000/ p.a. The learned counsel for the insurance company had relied upon the Hon'ble Apex Court judgment in Rajesh & Ors. v Rajbir Singh & Ors. (2013) 9 SCC 54 wherein it was reiterated that the actual income would mean income after paying tax and it was argued that the income of the petitioner must be taken after deducting the tax paid by the petitioner. However the income of the petitioner would not fall in the bracket of taxable income.
27. The petitioner has not shown that he was advised bed rest for any particular period or that he remained on bed rest for any particular period. The petitioner has also not filed any advice of the doctor by which he was prescribed rest for any specific period. During crossexamination by the learned counsel for the insurance company PW2 stated that the petitioner had Suit No. 305/14 Page No. 22 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
not joined after the accident in August 2013. He stated that they had received a notice of accident from the petitioner. They had received only verbal communication from the petitioner extending his leave. He stated that the petitioner was not receiving any salary since September 2013. He had not brought any record to show that the petitioner was on leave since the time of the accident. He denied the suggestion that the petitioner had not suffered any loss of income or that there was no deduction towards salary. He stated that the petitioner was medically unfit but they did not have any document in that regard and he could not tell the nature of leave as the leave had not yet been sanctioned. Thus PW2 stated that the petitioner had not joined after the accident in August 2013 and the petitioner during examination by the Tribunal had stated that he had rejoined the company in October, 2014. PW2 stated that they had received a notice of accident from the petitioner but he also stated that they had received only verbal communication from the petitioner extending his leave. He had not brought any record to show that the petitioner was on leave since the time of the accident. He stated that the petitioner was medically unfit but they did not have any document in that regard and he could not tell the nature of leave as the leave had not yet been sanctioned. As such no record has been produced either by the petitioner or PW2 to show the period for which the petitioner actually remained on leave. PW2 stated that the petitioner was not receiving any salary since September 2013. In the absence of any advice of doctor, notice can be taken of the fact that petitioner may not have been able to perform his avocation for some period on account of the Suit No. 305/14 Page No. 23 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
injuries sustained in the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.35,000/ on account of loss of income for the period for which he was not able to work.
28. It is the case of the petitioner that he had sustained 33% permanent impairment in respect of both the lower limbs. In Raj Kumar v Ajay Kumar & Anr.,(2011)1 SCC 343, the Hon'ble Supreme Court has held that :
"4..........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 tribunal has 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 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 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. Thus Tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.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 Suit No. 305/14 Page No. 24 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
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. The permanent disabilities that may arise from motor accidents 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 ('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''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently 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)."
Thus it has been held that what requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured i.e. the functional disability and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at Suit No. 305/14 Page No. 25 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
the future loss of earnings.
29. The petitioner in support of his case has not examined any doctor who could state about the effect of the disability on the earning capacity of the petitioner. As per the disability certificate the petitioner had total permanent impairment of 33% with respect to both lower limbs and he was a case of shaft femur fracture right side with arterial injury and left compartment syndrome leg. It is pertinent that during crossexamination by the learned counsel for the insurance company PW1 had stated that at present he was not doing anything though he also stated that he had not been discharged from his work and there is nothing to show that he was terminated from his services. In fact during examination by the Tribunal the petitioner had stated that he had rejoined the company in October, 2014 but he could not work properly and he was getting the same salary. In view of the same considering the nature of disability, the age of the petitioner and other attending circumstances the functional disability in his respect is taken as 20% in relation to the whole body. Accordingly the loss of income of the petitioner shall be 20% of Rs. 84,000/ i.e. Rs.16,800/ p.a.
30. As observed above the petitioner was more than 25 years old at the time of the accident and suffered disability. As per Sarla Verma v. DTC (2009) 6 SCC 121 the appropriate multiplier applicable for the age group of 21 to 25 years is 18 and for the age group 26 to 30 years is 17. However as the Suit No. 305/14 Page No. 26 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
petitioner was not yet 26 years old the appropriate multiplier shall be of 18. As regards the future prospects in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors. MAC. APP.189/2014 decided on 12.1.2015 which has been further relied on in Shriram General Insurance Co. Ltd. v. Preeti & Ors. MAC. APP. 1145/2013 decided on 28.1.2015 and U.P. State Road Transport Corporation v. Shahida & Ors. MAC. APP. 325/2013 decided on 28.1.2015 it was heldthat the judgment in Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 shall be taken as a binding precedent. It was observed in paras 9 to 21 of the report in Lalta Devi as under: "9. The learned counsel for the Claimants has referred to a three Judge Bench decision of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to contend that the future prospects have to be added in all cases where a person is getting fixed wages or is a seasonal employee or is a student. It is urged by the learned counsel for the Claimants that the law laid down in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 was extended in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 to hold that future prospects ought to be extended in all cases.
30.On the other hand, the learned counsel for the Insurance Company refers to a three Judge Bench decision of the Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 wherein while approving the ratio with regard to future prospects in Sarla Verma (Smt.) & Ors. (supra) and relying on General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. Suit No. 305/14 Page No. 27 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
(1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 (3) SCC 148, the Supreme Court held as under: "38. With regard to the addition to income for future prospects, in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], this Court has noted the earlier decisions in Susamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Sarla Dixit[(1996) 3 SCC 179] and Abati Bezbaruah [Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746] and in para 24 of the Report held as under: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], SCC p. 134) "24. ... In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary‟ should be read as actual salary less tax‟). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of Suit No. 305/14 Page No. 28 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
39.The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was selfemployed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
12.The learned counsel for the Insurance Company relies upon a Constitutional Bench judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94; and Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 to contend that in case of divergence of opinion in judgments of benches of coequal strength, earlier judgment will be taken as a binding precedent.
13. It may be noted that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65; the three Judge Bench was dealing with a reference made by a two Judge Bench (S.B. Sinha and Cyriac Joseph, J.J.). The two Hon'ble Judges wanted an authoritative pronouncement from a Larger Bench on the Suit No. 305/14 Page No. 29 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
question of applicability of the multiplier and whether the inflation was built in the multiplier. The three Judge Bench approved the two Judge Bench decision of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 with regard to the selection of multiplier. It further laid down that addition towards future prospects to the extent of 50% of the actual salary shall be made towards future prospects when the deceased had a permanent job and was below 40 years and addition of 30% should be made if the age of the deceased was between 4050 years. No addition towards future prospects shall be made where the deceased was selfemployed or was getting a fixed salary without any provision of annual increment.
14.Of course, three Judge Bench of the Supreme Court in its later judgment in Rajesh relying on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (6) SCC 421 observed that there would be addition of 30% and 50%, depending upon the age of the deceased, towards future prospects even in the case of self employed persons. It may, however, be noted that in Rajesh, the three Judge Bench decision in Reshma Kumari (supra) was not brought to the notice of their Lordships.
15.The divergence of opinion was noted by another three Judge Bench of the Supreme Court in Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210. In paras 14 and 15, the Supreme Court observed as under: "14. Certain parallel developments will now have to be taken note of. In Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044] , a twoJudge Bench of this Court while considering the following questions took the view that the issue(s) needed resolution by a larger Bench: (SCC p. 425, para
10) Suit No. 305/14 Page No. 30 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
"(1) Whether the multiplier specified in the Second Schedule appended to the Act should be scrupulously applied in all the cases?
(2)Whether for determination of the multiplicand, the Act provides for any criterion, particularly as regards determination of future prospects?"
15.Answering the above reference a threeJudge Bench of this Court in Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] (SCC p. 88, para 36) reiterated the view taken in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121:
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was selfemployed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression "exceptional and extraordinary circumstances" is not capable of any precise definition, in Shakti Devi v. New India Insurance Co. Ltd.
[(2010) 14 SCC 575 : (2012) 1 SCC (Civ) 766 : (2011) 3 SCC (Cri) 848] there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death."
16.Further, the divergence of opinion in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65 and Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 was noticed by the Suit No. 305/14 Page No. 31 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
Supreme Court in another latest judgment in National Insurance Company Ltd. v. Pushpa & Ors., CC No.8058/2014, decided on 02.07.2014 and in concluding paragraph while making reference to the Larger Bench, the Supreme Court held as under: "Be it noted, though the decision in Reshma (supra) was rendered at earlier point of time, as is clear, the same has not been noticed in Rajesh (supra) and that is why divergent opinions have been expressed. We are of the considered opinion that as regards the manner of addition of income of future prospects there should be an authoritative pronouncement. Therefore, we think it appropriate to refer the matter to a larger Bench."
17.Now, the question is which of the judgments ought to be followed awaiting answer to the reference made by the Supreme Court in Pushpa & Ors. (supra).
18.In Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr., (2005) 2 SCC 673 in para 12, the Supreme Court observed as under: "12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:
(1)The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2)[Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 332005.] A Bench of Suit No. 305/14 Page No. 32 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 1712005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273]."
Suit No. 305/14 Page No. 33 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
19.Similarly, in Safiya Bee v. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 in para 27, the Supreme Court observed as under: "27. However, even assuming that the decision in WP No. 35561 of 1998 did not operate as res judicata, we are constrained to observe that even if the learned Judges who decided WP No. 304 of 2001 did not agree with the view taken by a coordinate Bench of equal strength in the earlier WP No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in overruling the statement of the law by a coordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the wellaccepted and desirable practice is that the later Bench would refer the case to a larger Bench."
20.In Union of India & Ors. v. S.K. Kapoor, (2011) 4 SCC 589 while holding that the decision of the Coordinate Bench is binding on the subsequent Bench of equal strength, held that the Bench of Coordinate strength can only make a reference to a larger Bench. In para 9 of the report, the Supreme Court held as under: "9. It may be noted that the decision in S.N. Narula case [(2011) 4 SCC 591] was prior to the decision in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] . It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior Suit No. 305/14 Page No. 34 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case [(2011) 4 SCC 591] was not noticed in T.V. Patel case [(2007) 4 SCC 785 : (2007) 2 SCC (L&S) 98] , the latter decision is a judgment per incuriam. The decision in S.N. Narula case [(2011) 4 SCC 591] was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
31.This Court in New India Assurance Co. Ltd. v. Harpal Singh & Ors., MAC APP.138/2011, decided on 06.09.2013, went into this question and held that in view of the report in S.K. Kapoor (supra), the three Judge Bench decision in Reshma Kumari & Ors. (surpa) shall be taken as a binding precedent."
31. As per the documents on record the petitioner had joined the company on 10.11.2007. Though no specific evidence has been led regarding the future prospects it can be said that the petitioner was in a permanent job at the time of the accident. As his age was less than 40 years the petitioner would be entitled to an increase of 50% in his income for award of compensation towards loss of earning capacity. After applying the multiplier of 18, the petitioner shall be entitled to loss of income i.e. Rs.16,800/X18 = Rs. 3,02,400/ + 50% towards future prospects i.e. Rs.3,02,400/ + Rs. 1,51,200/ = Rs.4,53,600/ (rounded off to Rs.4,54,000/). Thus the total amount towards loss of income would be Rs.4,89,000/. Suit No. 305/14 Page No. 35 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.1,00,000/ Pain and suffering Rs.75,000/ Loss of Amenities of life Rs.25,000/ Conveyance Rs.15,000/ Special Diet Rs.5,000/ Attendant charges Rs.12,000/ Loss of Income Rs.4,89,000/ TOTAL Rs.7,21,000/
Thus the total compensation would be Rs.7,21,000/. RELIEF
32. The petitioner is awarded a sum of Rs.7,21,000/ (Rs.Seven Lacs Twenty One Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner.
33. For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgment the award amount is to be disbursed as follows:
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Iqbal Alam Vs. Subhash Sharma & Ors.
a) 40% of the amount be released to the petitioner by transferring it into his savings account and remaining amount be kept in FDRs in UCO Bank, Patiala House Court, New Delhi in the following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
b)The respondent No.3 is directed to deposit the amount directly by way of crossed cheque in terms of the above order in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Iqbal Alam within 30 days of the passing of the award.
c) Cheque be deposited within thirty days herefrom under intimation to the petitioner. In case of default, the respondent No.3 shall be liable to pay further interest @ 12% per annum for the period of delay.
d) On the deposit of the award amount, the Branch Manager of UCO Bank, Patiala House Court, New Delhi is directed to prepare Fixed Deposit Receipts as ordered above and the balance amount be released to the petitioner. Suit No. 305/14 Page No. 37 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
e) The interest on the fixed deposits shall be paid monthly by automatic credit of interest in the saving accounts of the petitioner.
f) The withdrawal from the aforesaid account shall be permitted to the petitioner after due verification and the bank shall issue photo identity card to the petitioner to facilitate his identity.
g) No cheque book shall be issued to the petitioner without the permission of the court.
h) The original fixed deposit receipts shall be retained by the bank in safe custody. However, the original pass books shall be given to the petitioner along with the photocopy of the fixed deposit receipts. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of the beneficiary.
i) The original fixed deposit receipts shall be handed over to the petitioner on the expiry of the period of the fixed deposit receipts.
j) No loan, advance, or withdrawal shall be allowed on the said FDRs without the permission of the court.
Suit No. 305/14 Page No. 38 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
k) On the request of the petitioner, the bank shall transfer the saving account to any other branch/bank, according to the convenience of the petitioner.
l) The petitioner shall furnish all the relevant documents for opening of the saving bank account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
34. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. APPORTIONMENT OF LIABILITY:
35. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. Thus the respondents No.1, 2 and 3 are held jointly and severally liable. No evidence has been led on behalf of the respondent No.3. Respondent No.3 i.e. IFFCO Tokio General Insurance Co. Ltd. being the insurance company in its reply Suit No. 305/14 Page No. 39 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
had stated that the insurance policy No.83621625 was valid from 12.4.2013 to 11.4.2014 which was issued by the respondent No.3 in the name of Shri Sheo Ram for vehicle bearing No.UP17D3129. There is no evidence on behalf of the respondent No.3 to show that there was any violation of the rules and terms of policy by the respondents No.1 and 2 and in fact the duly verified documents regarding the offending vehicle were placed on record by the IO with the DAR. Hence, the respondent No.3 being the insurance company in respect of the offending vehicle is liable to pay the compensation on behalf of the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the bank account of the claimant in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
36. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of Suit No. 305/14 Page No. 40 of 41 Iqbal Alam Vs. Subhash Sharma & Ors.
interest on 5.5.2015.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi. File be consigned to record room.
Announced in open court
on this 3rd day of February, 2015 (GEETANJLI GOEL)
PO: MACT2
New Delhi
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Iqbal Alam Vs. Subhash Sharma & Ors.