Delhi District Court
Sh. Manjeet Singh vs Sh. Sunil Kumar on 10 December, 2018
MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 4692/16 (Old MACP No. 222/11)
Sh. Manjeet Singh,
S/o Sh. Jaipal,
R/o Village Tatesar,
Delhi.
..........Petitioner
VERSUS
1. Sh. Sunil Kumar,
S/o Sh. Sultan Singh,
R/o. V.P.O Karala,
Delhi (Drivercumowner)
2. The Oriental Insurance Company Ltd.
215, Rama Market,
Pitam Pura,
Delhi (Insurer) ............Respondents
Date of Institution : 25.08.2011 Date of Arguments : 06.12.2018 Date of Award :10.12.2018 APPEARANCES: Sh. Ram Kumar Prabhakar, Adv for petitioner.
None for respondent no. 1.
Sh. Manoj Bhandari, Adv for respondent no. 2.
Manjeet Vs. Sunil Kumar & Anr. Page 1 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner has sought compensation to the tune of Rs. 15,00,000/ with interest @ 18% per annum from the date of filing of petition till the date of realization, for the injuries sustained by him in Motor Vehicular Accident which occurred on 18.04.2011 at about 5:00 pm, near Arya Gurukul Village Tatesar, Delhi, involving Car bearing registration no. DL2CR4206 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner.
2. It is averred in the claim petition that on 18.04.2011, the petitioner was returning to his home from Qutubgarh by motorcycle bearing no. DL8SAN9155. At about 5:00 pm, when he reached near Arya Gurukul Village Tatesar, Delhi, one Car bearing registration no. DL2CR4206 which was being driven by respondent no. 1 at high speed and in rash and negligent manner, came and hit against the aforesaid motorcycle. As a result thereof, he fell down on the road and sustained grievous injuries. He was removed to Brahm Shakti Hospital, Budh Vihar, Delhi, where he was medically examined. It is further averred that the petitioner was employed as driver with DTC and was getting monthly salary of Rs. 15,000/ at the time of accident. FIR No. 89/11, U/s. 279/338 IPC was registered at PS. Kanjhawala in respect of accident in question. The said vehicle i.e. Car bearing registration no. DL2CR4206 was found to be owned by respondent Manjeet Vs. Sunil Kumar & Anr. Page 2 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 no. 1 himself and it was insured with The Oriental Insurance Company Ltd /respondent no.2 during the period in question.
3. It may be noted here that Detailed Accident Report (DAR) was also filed by the police corresponding to the investigation carried out in case FIR No. 89/11 (supra) on 06.02.12. Same was ordered to be merged with claim petition vide order dated 06.02.12 passed by my Ld. Predecessor.
4. The respondent no. 1 i.e. drivercumowner although put his appearance before the Claims Tribunal on 06.02.12 at the time of filing of DAR, however, he failed to file his WS despite grant of sufficient opportunities and his defence was struck off vide order dated 05.06.13 passed by my Ld. Predecessor.
5. In its WS/reply, the respondent no. 2/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act. It has claimed that there was no cause of action to file the present petition since the accident never took place due to rash and negligent driving of Maruti Car No. DL2CR4206 by its driver, but due to own negligence of petitioner as he was driving the motorcycle no. DL8SAN9155 in negligent manner. It has further claimed that both the vehicles were going in opposite directions and the alleged accident was head on collision. On merits, it has admitted that vehicle bearing no. DL2CR4206 was insured with it in the name of Sh. Sunil Kumar (R1), having validity w.e.f. 25.04.10 to 24.04.11. It has Manjeet Vs. Sunil Kumar & Anr. Page 3 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 simply denied the averments made in the claim petition for want of knowledge and has prayed for its dismissal.
6. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 05.06.2013:
1. Whether the petitioner received injuries in the road side accident occurred on 18.04.2011 at about 5:00 pm near Arya Gurukul Village Tatesar, Delhi due to rash and negligent driving of R1/ driver of offending vehicle no. DL2CR4206?OPP.
2. Whether the petitioner is entitled for compensation as prayed for, if so to what extent and from which of the respondents?OPP.
3. Relief.
7. In support of his claim, the petitioner has examined four witnesses i.e. himself as PW1, PW2 Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital, PW3 Sh. Karam Singh, Ticket Telly Clerk, DTC, Kanjhawala Depot and PW4 Sh. Shahbuddin, Pay Bill Clerk, Wazirpur Depot, Delhi. He closed PE on 01.12.2017 through his counsel. On the other hand, no evidence was adduced by either of the respondents. RE of respondent no. 1 was closed vide order dated 08.03.18 and RE of insurance company was closed vide order dated 16.05.18.
8. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were Manjeet Vs. Sunil Kumar & Anr. Page 4 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 directed to submit their respective submissions in Form IV B, vide order dated 22.11.2018. Petitioner has filed his submission in Form IV B, however, the respondents have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
9. For the purpose of this issue, the testimony of PW1 Sh. Manjeet Singh (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he has deposed on the lines of averments made in the claim petition that on 18.04.2011, he was returning to his home from Qutub Garh by motorcycle bearing no. DL8SAN9155. At about 5:00 pm, when he reached near Arya Gurukul Village Tatesar, Delhi, one Car bearing registration no. DL2CR4206 which was being driven by respondent no. 1 at high speed and in rash and negligent manner, came and hit against the aforesaid motorcycle. As a result thereof, he fell down on the road and sustained grievous injuries. He was removed to Brahm Shakti Hospital, Budh Vihar, Delhi, where he was medically examined. He has relied upon the following documents: Sr. No. Description of Remarks documents
1. DAR Ex. PW1/1(colly)
2. Medical Prescriptions Ex.PW1/2(colly)
3. Medical Bills Ex.PW1/3(colly) 4. Copy of DL Ex. PW1/4 Manjeet Vs. Sunil Kumar & Anr. Page 5 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
10. During his crossexamination on behalf of respondent no. 2, he deposed that at the time of accident, he was on his motorcycle no. DL8S AN9155. He was having DL to drive the motorcycle at that time. However, he did not produce said DL. He denied the suggestion that since he was not having any DL to drive the motorcycle, that is why, he had not produced the same. He remained conscious for about 1015 minutes whereafter, he became unconscious. When he regained consciousness, no public person was found present at that point of time. He could not say as to what had happened after he became unconscious. He deposed that the number of offending vehicle was informed to him by one of the Pandits of his village. He again said that same was informed to him by some unknown person and then again said that the number of the offending vehicle was informed to him by his family members. The number of offending vehicle was informed to him in the hospital. He could not tell the date, day and year when he was informed about the number of the vehicle. He volunteered that he had seen the number of vehicle at that time. He denied the suggestion that accident took place due to his own negligence. He further denied the suggestion that the accident was not caused by vehicle bearing no. DL2CR 4206. His statement was recorded by the police on the date of accident itself, when he was admitted in the hospital. Respondent no. 1 did not crossexamine this witness at all.
11. It is evident from the testimony of PW1 that the respondents, more particularly the insurance company, could not impeach his testimony Manjeet Vs. Sunil Kumar & Anr. Page 6 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, FIR No. 89/11(supra)(which is part of DAR Ex. PW1/1 colly) would show that car no. DL2CR4206 and the motorcycle of the victim, were found lying at the place of accident itself when SI Ravi Kumar alongwith Ct. Satbir had visited the spot on receipt of accidental call vide DD No. 21A registered in PS. Kanjhawala. Moreover, the respondents have not led any evidence to rebut the testimony of aforesaid witness. Thus, there is no reason to disbelieve the unchallenged and uncontroverted testimony of this witness made on oath.
12. It is pertinent to note that the respondent no.1/driver of aforesaid Car, was the other 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 and to stay away from the proceedings during the course of inquiry. Thus, an adverse inference is liable to be drawn against him in terms of Section 114(g) of Evidence Act to the effect that the accident in question occurred due to rash and negligent driving of Car bearing no. DL2CR4206 by him.
13. Moreover, it is an undisputed fact that FIR No. 89/11 (supra) was registered at PS. Kanjhawala with regard to accident in question. Copy Manjeet Vs. Sunil Kumar & Anr. Page 7 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 of said FIR as also the copy of charge sheet arising out of said FIR (which are part of DAR Ex. PW1/1 colly), would show that FIR was registered on 18.04.11 i.e. on the date of accident itself. Thus, FIR is shown to have been registered promptly and without any delay. Hence, there is no possibility of false implication of respondent no. 1 and/or false involvement of Car bearing registration no. DL2CR4206 at the instance of petitioner herein.
14. Not only this, the respondent no. 1 namely Sunil Kumar (accused in State case) has been charge sheeted for offences punishable U/s 279/338 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Car bearing registration no. DL2CR4206 by him. Same would also point out towards rash and negligent driving of aforesaid vehicle by respondent no. 1.
15. Apart from above, copy of MLC (which is part of DAR Ex. PW1/1 colly) of injured prepared at Brahm Shakti Hospital, Budh Vihar, Delhi, shows that he had been removed to said hospital on 18.04.2011 at 5.40 pm with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
Manjeet Vs. Sunil Kumar & Anr. Page 8 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
16. Furthermore, copy of mechanical inspection report dated 21.04.2011 (which is part of DAR Ex. PW1/1 colly) of Car No. DL2CR4206, would show that there were fresh damages i.e. its front indicator was damaged; its right headlight was damaged; its view mirror was damaged; its bumper (front) from right corner was damaged; its bonnet from right corner was damaged; its body sheet above front right wheel and its main windscreen were found cracked. Likewise, copy of mechanical inspection report dated 21.04.2011 (which is also part of DAR Ex. PW1/1 colly) of Motorcycle No. DL8SAN9155 of victim, would show that there were fresh damages i.e. its rear brake padle was damaged and was coming out; its right side leg guard and engine kick were found bended; its body from right side was found dented and scratched and its battery cover was damaged from right side. Said reports, which have gone unchallenged and unrebutted from the side of respondents, also corroborate the ocular testimony of PW1 to the aforesaid extent. Moreover, the offending Car is shown to have been seized from the place of accident. This fact gets strengthened from copy of its seizure memo dated 18.04.11 (date of accident being 18.04.11)(which is also part of DAR).
17. Moreover, in response to notice U/s 133 M.V Act (which is part of DAR Ex. PW1/1 colly) served upon respondent no. 1 i.e. drivercum owner of Car bearing no. DL2CR4206, he gave written reply that said vehicle was being driven by him on 18.04.11 at about 5:30 pm. Same would also corroborate the testimony of PW1 to the extent that the Manjeet Vs. Sunil Kumar & Anr. Page 9 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 aforesaid vehicle was being driven by respondent no. 1 at the time of accident.
18. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 18.04.2011 at about 5:00 pm, near Arya Gurukul Village Tatesar, Delhi, due to rash and negligent driving of Car bearing no. DL2CR4206 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
19. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
20. PW1 Sh. Manjeet i.e. injured himself, has deposed in his evidence by way of affidavit(Ex. PW1/A) that after the accident, he was taken to Brahm Shakti Hospital, Budh Vihar, Delhi, where he was medically Manjeet Vs. Sunil Kumar & Anr. Page 10 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 examined. He further deposed that he had sustained grievous injuries i.e. multiple fracture on right thigh and leg due to the accident in question. He deposed to have spent about Rs. 1,00,000/ on his medical treatment. During his crossexamination on behalf of respondent no. 2, he deposed that his department had reimbursed approximately a sum of Rs. 80,000/ incurred by him on his treatment. He volunteered that he had spent more than Rs. 2 lacs on his treatment. He deposed that he could not show the treatment record and bills to his counsel after preparation of his affidavit. He has relied upon medical bills to the tune of Rs. 1,34,828/ only, which are exhibited as Ex. PW1/3 (colly). Respondent no. 1 did not crossexamine this witness at all. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Accordingly, a sum of Rs. 1,34,828/ is awarded to the petitioner under this head.
LOSS OF INCOME
21. Injured namely Sh. Manjeet (PW1) has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was working as driver with DTC and was getting Rs. 15,000/ per month. Due to the injuries sustained by him in the accident, he remained on bed rest for 18 months for which he had suffered loss of income of Rs. 3,24,000/. During his cross examination on behalf of respondent no. 2, he deposed that he was still working with Delhi Transport Corporation and he had been assigned sitting job. He was getting monthly salary of Rs. 14,000/ 15,000/(approx) in the Manjeet Vs. Sunil Kumar & Anr. Page 11 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 year 2011 when the accident in question took place. He further deposed that at the time of his examination, he was getting monthly salary of Rs. 23,000/ Rs. 24,000/ after necessary deduction. He volunteered that he was driver in DTC. He was appointed in DTC in 200809. He denied the suggestion that he had not suffered any financial loss due to accident in question. He had not filed any document to show that he had remained on bed rest for 18 months as stated in his affidavit. He denied the suggestion that he had suffered any financial loss or he had received any amount from his department as salary for the period he remained on bed. Respondent no. 1 did not crossexamine this witness at all.
22. PW3 is the Official from the office of employer of injured. He produced the leave record of injured Manjeet Singh, who was employed as driver with their department. He exhibited the said leave record as Ex. PW3/1. During his crossexamination on behalf of respondent no. 2, he deposed that he was not aware whether any application for leave was given by injured Manjeet Singh or not. He explained that he was not in a position to disclose about the same as the relevant record in that regard is maintained in the office of concerned DTC Depot. He further deposed that as per relevant notification/circular issued by their department, department does not give increment to the employees who were on leave for more than 179 days and retire the employees who have suffered permanent disability, at the age of 55 years. He produced the relevant office order no. 99 dated 04/07.10.1963, copy of which was exhibited as Ex. PW3/R1, regarding age Manjeet Vs. Sunil Kumar & Anr. Page 12 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 of superannuation of employees of DTC. He also produced relevant annexure of 6th Pay Commission Recommendation in respect of Central Government Employees and exhibited copy thereof as Ex. PW3/R2. He admitted that in copy of payslip Ex. PW3/R3 for the month of April 2011, the basic pay of injured Manjeet Singh is shown as Rs. 8,720/ but he could not explain the said discrepancy. However, he denied the suggestion that injured Manjeet Singh was given increment in the year 2011 or that he was not covered with Office Order Ex. PW3/R1. He has not been cross examined at all by respondent no. 1.
23. PW4 is again the official from the office of Employer of injured. He produced leave record for the period from 08.11.11 to 17.10.12 in respect of injured Manjeet Singh and exhibited copy thereof as Ex. PW4/1. During his crossexamination on behalf of insurance company, he deposed that petitioner had taken medical leave during the aforesaid period and admitted that no salary is deducted in case of medical leaves availed by the employee. In response to court question, he explained that no salary was paid to Manjeet Singh from 08.11.11 till September 2012. Although, he admitted that Manjeet Singh was shown to be on sick leave from 24.09.12 onwards and he was shown to be on medical leave prior to the said period but explained that there was no difference between medical leave and sick leave. He denied the suggestion that Manjeet Singh was paid salary for the period during which he was shown to be on sick leave as well as on medical leave. He has not been crossexamined at all by respondent no. 1.
Manjeet Vs. Sunil Kumar & Anr. Page 13 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
24. As per the documentary evidence brought on record, the petitioner/injured was working as driver with DTC and was drawing monthly salary of Rs. 17,352/ at the time of accident. The accident in question took place on 18.04.2011. The petitioner has proved his salary slip for the month of April 2011(Ex. PW3/R3). Hence, monthly salary of the petitioner/injured for the month of April 2011, is taken as Rs. 17,352/. Petitioner has also proved that he took medical leaves from 08.11.2011 till 17.10.12. It is quite established from the testimony of PW4 and the copies of leave record (Ex. PW4/1 colly) brought on record that no salary was paid to him from 08.11.11 till September 2012. Hence, a sum of Rs. 1,86,824/(rounded off) (Rs. 17,352/ x 10 x 23/30) is awarded in favour of petitioner for loss of leaves. (Reliance placed on "Nathu Lal Vs. Sandeep Gulati & Ors, MAC APP No. 770/11, decided on 21.05.12, Sandeep Mishra Vs. Vijay Kumar Yadav & Ors., MAC APP No. 215/10, decided on 04.09.12, Satyawati Wadhwa Vs. Jitender Singh & Ors, MAC APP No. 73/13, decided on 10.05.16 and The New India Assurance Company Ltd. Vs. Constable Mohar Singh & Ors., MAC APP No. 657/2015 decided on 16.10.17, by Hon'ble Delhi High Court) PAIN AND SUFFERING
25. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: Manjeet Vs. Sunil Kumar & Anr. Page 14 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
26. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries i.e. multiple fractures on right thigh and leg. As already noted above, his treatment record as available on file, would show that he had sustained grievous injuries including fracture shaft femur(right) with fracture both bone leg(right) with fracture 5th Metatarsal (right) with lacerated wound anterior. Said record also reveals that he was operated on 19.04.2011 in the said hospital for reduction of fracture shaft femur under image intensifier and internal fixation with interlocking nail, locked proximally and distally with locking screws and also for reduction of fracture shaft tibia under image intensifier and internal fixation with solid interlocking nail, locked proximally and distally with locking screws was done. Apart from this he remained admitted in Brahm Shakti Hospital on 18.04.11, whereafter, he remained admitted in Saroj Hospital from 18.04.11 till 25.04.11.
Manjeet Vs. Sunil Kumar & Anr. Page 15 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
27. Not only this, petitioner is also shown to have sustained permanent disability to the extent of 19% in relation to his right lower limb. Apart from the fact that the relevant portion of his testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, his ocular testimony is duly corroborated by his medical treatment record (Ex. PW1/2 colly and Mark A) as well as Disability Certificate (Ex. PW2/1) filed by him and the ocular testimony of PW2 Dr. Ashutosh Gupta of SRHC Hospital. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him, I hereby award a sum of Rs. 1,50,000/ towards pain and sufferings to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
28. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered grievous injuries i.e. fracture shaft femur(right) with fracture both bone leg(right) with fracture 5 th Metatarsal (right) with lacerated wound anterior. Said record also reveals that he was operated on 19.04.2011 in the said hospital for reduction of fracture shaft femur under image intensifier and internal fixation with interlocking nail, locked proximally and distally with locking screws and also Manjeet Vs. Sunil Kumar & Anr. Page 16 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 for reduction of fracture shaft tibia under image intensifier and internal fixation with solid interlocking nail, locked proximally and distally with locking screws was done. Apart from this he remained admitted in Brahm Shakti Hospital on 18.04.11, whereafter, he remained admitted in Saroj Hospital from 18.04.11 till 25.04.11. He has also sustained permanent disability of 19% in relation to his right lower limb, which is duly established from the Disability Certificate (Ex. PW2/1) issued by SRHC Hospital, Delhi as well as from the ocular testimony of PW2 who was one of the members of Medical Board of SRHC Hospital. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,50,000/ towards loss of general amenities and enjoyment of life to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
29. Although, the petitioner/injured as PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) that he had spent Rs. 35,000/ on account of special diet and Rs. 10,000/ on conveyance but he has failed to lead any cogent evidence on record in this regard. At the same time, it Manjeet Vs. Sunil Kumar & Anr. Page 17 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 cannot be overlooked that he had sustained grievous injuries fracture shaft femur(right) with fracture both bone leg(right) with fracture 5th Metatarsal (right) with lacerated wound anterior. He has also sustained permanent disability of 19% in relation to his right lower limb, which is duly established from the Disability Certificate (Ex. PW2/1) issued by SRHC Hospital, Delhi as well as from the ocular testimony of PW2 who was one of the members of Medical Board of SRHC Hospital. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
30. As already stated above, the petitioner is shown to have sustained 19% permanent disability in relation to his right lower limb. Same is quite evident from Disability Certificate dated 09.11.2015 (Ex. PW2/1) of Medical Board of SRHC Hospital, Delhi. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been crossexamined by the respondents on this aspect.
Manjeet Vs. Sunil Kumar & Anr. Page 18 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
31. As per the testimony of PW2 Dr. Ashutosh Gupta, who was one of the members of Medical Board constituted at SRCH Hospital, the petitioner was found to have suffered 19% permanent disability in relation to his right lower limb. He deposed that the aforesaid Medical Board assessed the disability of the patient to be permanent in nature which as not likely to improve. He exhibited the Disability Certificate as Ex. PW2/1. He had also brought the calculation chart with disability evaluation details and exhibited the same as Ex. PW2/2. He deposed that on account of nature and extent of disability sustained by the claimant Manjeet Singh, he would have mild difficulty in going upstairs and downstairs, in walking, in standing, in running, in squatting, in crosslegs sitting and in kneeling etc. He further deposed that said claimant can not drive any type of vehicle on account of the aforesaid disability in future. During his crossexamination on behalf of respondent no. 2, he deposed that apart from Discharge Summary dated 18.04.11 and MLC No. 3349 of injured issued from Brahm Shakti Hospital and Saroj Hospital, he had not seen any other medical treatment record of said patient prior to issuance of Disability Certificate. He could not tell whether the permanent disability suffered by the patient, could be on account of not following the medical treatment as advised by his treating doctor. He denied the suggestion that the patient had not suffered any permanent disability due to the accident in question. He further denied the suggestion that the disability was not going to affect the working capacity of the patient. Respondent no. 1 did not crossexamine this witness at all.
Manjeet Vs. Sunil Kumar & Anr. Page 19 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
32. Before proceeding further, it is important to note that as per office order (Ex. PW3/R1) produced by PW3, the employees of DTC are supposed to be retired on attaining the age of 55 years in case they suffer with permanent disability. It is not in dispute that the normal age of superannuation of employees of DTC is 60 years. In this case, the claimant since sustained permanent disability of 19% in relation to his right lower limb and has been rendered unfit to work as a driver, would therefore retire from the services of DTC at an early age of 55 years and thus, he would have to suffer the complete loss of future income for a period of 5 years.
33. It is pertinent to note that the petitioner is still working with DTC. It is argued on behalf of insurance company that the petitioner has not suffered any loss of income after the accident and there is nothing on record to show that he would not be entitled for promotion due to the injuries suffered on account of the accident. Counsel for insurance company also argued that the petitioner shall be getting pension from his employer even after his retirement. Hence, no compensation should be awarded to the injured under this head.
34. Per contra, it is argued on behalf of petitioner that he is entitled to compensation under this head as he would not be able to effectively do any avocation after his retirement from the service. However, it is fairly conceded during the course of arguments that the petitioner shall be getting the pension from his employer after retirement. In support of his Manjeet Vs. Sunil Kumar & Anr. Page 20 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 submission, counsel for petitioner has placed reliance upon decision of Hon'ble Delhi High Court in the case of "Deshraj Singh Gautam Vs. Sunil Kumar & Ors.", bearing MAC APP No. 632/2007 decided on 20.05.16.
35. Similar question directly arose for consideration before Hon'ble Delhi High Court in recent case titled as "Raj Kumar Malik Vs. United India Insurance Company Limited & Ors., bearing MAC APP No. 161/2011 decided on 10.10.17. In the said matter, the injured/appellant was a government servant and had suffered permanent disability to the extent of 74% in relation to right upper limb. While dealing with the contention raised on behalf of claimant that no compensation for loss of earning capacity in future has been awarded, Hon'ble Delhi High Court held in para 5 of the order that loss of earning capacity post retirement, had to be considered by the award of compensation and for such purposes, the Tribunal could adopt the multiplier of 9. It further held that in such calculation, however, it would also need to be kept in mind that the claimant would have earned 50% of the last emoluments drawn as pension and thus, the consequent functional disability will have to make up for the loss against the balance. Similar view has been taken by Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors., bearing MAC APP No. 464/2011 decided on 03.11.17.
36. The disability certificate (Ex. PW2/1) of injured would reveal that he had suffered 19% permanent disability in relation to his right lower Manjeet Vs. Sunil Kumar & Anr. Page 21 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 limb. He was working as driver with DTC at the time of accident in question. It is mentioned in Disability Certificate that the case of injured Manjeet Singh was that post operated fracture of shaft femur and tibia apart from other multiple fractures. Thus, it would not be possible for him to engage himself in the avocation of driver or in any kind of employment requiring movement of lower limbs or even to do his day to day activities himself. After taking the overall facts and circumstances of the case including the nature of injuries i.e. multiple fractures sustained by petitioner and the kind of permanent disability sustained by him, his functional disability is taken as 15% in relation to whole body.
37 In copy of PAN Card of petitioner, his date of birth is mentioned as 06.03.1972. The date of accident is 18.04.2011. In view of said document, his age was about 39 years as on the date of accident. Hence, the appropriate multiplier would be 15 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
38. The monthly income of petitioner has been taken as Rs. 17,352/ per month as discussed above. Thus, the future loss of income for the period of five years i.e. from the period he would be aged between 56 years till 60 years and would not be serving as employee of DTC, would be Rs. 10,41,120/ (Rs. 17,352/ x 12 X 5 ). The loss of future income during Manjeet Vs. Sunil Kumar & Anr. Page 22 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 post retirement period i.e. after the age of 60 years, would be Rs. 2,81,103/ (rounded off) (Rs. 17,352/ x 15/100 x 12 x 9). (Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18). Thus, a sum of Rs. 13,22,223/ (10,41,120/ plus 2,81,103/) is awarded in favour of petitioner under this head.
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 1,34,828/
2. Loss of income Rs. 1,86,824/
3. Pain and suffering Rs. 1,50,000/
4. Loss of general amenities and Rs. 1,50,000/ enjoyment of life
5. Conveyance, special diet and Rs. 25,000/ attendant charges
6. Loss of future income Rs. 13,22,223/ Total Rs. 19,68,875/ Rounded off to Rs. 19,69,000/
39. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 2/insurance company did not adduce any evidence since it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured.
Manjeet Vs. Sunil Kumar & Anr. Page 23 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 Keeping in view the existence of valid insurance policy, respondent no. 2/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
40. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 19,69,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 25.08.11 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
41. Statement of petitioner in terms of Clause 27 MCTAP was recorded on 16.05.2018. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 3,00,000/ (Rupees Seventy Five Thousand Only) (since a sum of Rs. 1,34,828/ has already been spent by injured on his medical treatment) shall be immediately released to the petitioner through his saving bank account no. 90202010106479 with Syndicate Bank and remaining amount alongwith interest amount be kept Manjeet Vs. Sunil Kumar & Anr. Page 24 of 26 MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018 in the form of FDRs in the multiples of Rs. 20,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
42. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimant/petitioner.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
43. During the course of hearing final arguments, claimant was asked as to whether he was entitled to exemption from deduction of TDS or not. He stated on oath that he was not entitled to exemption from deduction of TDS.
Manjeet Vs. Sunil Kumar & Anr. Page 25 of 26MACP No. 4692/16; FIR No. 89/11; PS. Kanjhawala DOD:10.12.2018
44. Respondent no. 2, being insurer of offending vehicle, is directed to deposit the compensation amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 3,00,000/ in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant. Copy of this award be given dasti alongwith Form no. 15G furnished by claimant (after retaining its copy on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form IVB and Form V in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by VIDYA VIDYA PRAKASH
PRAKASH Date:
2018.12.10
Announced in the open 15:27:29 +0530
Court on 10.12.2018
(VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
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