Delhi District Court
Sh. Subhash vs Sh. Rajesh Kumar on 21 February, 2018
MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018
IN THE COURT OF SH. VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5493/16 (Old MAC Petition No. 83A/12)
Sh. Subhash,
S/o Sh. Ram Singh,
R/o H.No. 440, Gali No. 19,
Main Road, Swatantar Nagar,
Narela, Delhi. ........Petitioner
VERSUS
1. Sh. Rajesh Kumar,
S/o Sh. Sone Lal,
R/o Village Shahjanpur, Post Giror,
Tehsil Mainpuri, U.P(Driver)
2. Sh. Ramesh Kumar,
S/o Sh. Narain Singh,
R/o Bhudhpur,
Delhi (Owner)
3. HDFC Ergo General Insurance Company Ltd.
3Rd Floor, Pearl Best Heights - II,
Netaji Subhash Place,
C9, Pitampura, Delhi(Insurance company)
........Respondents
Date of Institution : 11.12.2012
Date of Arguments : 21.02.2018
Date of Decision : 21.02.2018
APPEARANCES: Sh. K.R. Sharma, Adv for petitioner/injured.
None for respondents no. 1 & 2.
Sh. Shailendra Rai, Adv for Insurance co.
Subhash Vs. Rajesh Kumar & Ors. Page 1 of 18
MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018
Petition under Section 166 & 140 of M.V. Act, 1988
for grant of compensation
AWARD
1. The petitioner had sustained grievous injuries in motor vehicular accident which occurred on 24.09.2012 at 9.00 am at Budhpur Ganda Nala, 2nd Pulia, Nasha Mukti Kendra Road, Budhpur, Delhi falling within the jurisdiction of PS. Alipur, involving Tempo bearing registration no. HR69 1846 (alleged offending vehicle).
2. According to DAR, on 24.09.2012, the petitioner/injured Subhash was going to attend his duty from his home on his motorcycle no. DL1SP3697. At about 9:00 am, when he reached at second pulia of Budhpur Nala, Delhi, one Tata 407 bearing registration No. HR691846 which was coming from front side and was being driven by its driver at very high speed, rashly and negligently, came and hit against the aforesaid motorcycle. As a result thereof, he fell down on the road and sustained injuries on his right leg and cheek as well as on his shoulders. Thereafter, he was removed to SRHC Hospital, where he was examined vide MLC No. 1828/12. It is claimed that the accident took place due to rash and negligent driving of TATA 407 No. HR691846 by its driver/R1 namely Sh. Rajesh Kumar, owned by Sh. Ramesh Kumar/R2 and the same was insured with HDFC Ergo General Insurance Company Ltd/R3 during the period in question. FIR No. 330/12, u/s. 279/337 IPC was registered at PS. Alipur with regard to accident in question.
3. In their joint Written Statement, respondents no. 1 & 2 i.e. Driver and Registered Owner have claimed that no such accident ever took place and respondent no. 1 was falsely implicated in the criminal case.
Subhash Vs. Rajesh Kumar & Ors. Page 2 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 Alternatively, they have claimed that the aforesaid Tata 407 was insured with respondent no. 3 as on the date of accident. On merits, they have simply denied the averments made in DAR. They have denied the claim for compensation raised by the petitioner and have prayed for dismissal of the claim petition.
4. Respondent no. 3/insurance company has filed its legal offer, wherein it has offered to pay a sum of Rs. 51,060/ to the petitioner/injured on account of compensation towards full and final settlement of the claim raised by him. Same was not acceptable to the injured.
5. Before proceedings further, it may be noted that the claim petition i.e. DAR was adjourned sineadie on 03.05.2013 by my Ld. Predecessor with liberty to get the same revived as and when so desired. Ultimately, the claim petition was revived/restored on 28.10.15 by my Ld. Predecessor subject to the condition that petitioner shall not be entitled to any interest w.e.f. 03.05.13 till the restoration of DAR. Thus, his right to claim interest, if any, has been curtailed from 03.05.13 till 28.10.15.
6. From pleading of the parties, the following issues were framed by Ld. Predecessor vide order dated 28.10.2015 :
1) Whether the injured Subash suffered injuries in road traffic accident on 24.09.2012 at about 9:00am at Budhpur, ganda nala, 2nd puliya, Nasa Mukti Kender road, Budhpur road, Delhi within the jurisdiction of PS Alipur due to rashness and negligence on the part of the Rajesh Kumar who was driving tempo TATA 407 bearing registration no. HR691846, owned by Subhash Vs. Rajesh Kumar & Ors. Page 3 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 Ramesh Kumar and insured with HDFC Ergo General Insurance Co. ? OPP.
2) Whether the petitioner is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
7. In support of his claim, the petitioner has examined four witnesses i.e. himself as PW1, PW2 ASI Kripal Singh, SIP Branch, DCP Office, North, PW3 Ct. Jagbir Singh, Account Branch, DCP Office, North and PW4 Dr. Ashutosh Gupta. He closed his PE through his counsel on 05.10.2016. On the other hand, the respondents no. 1 & 2 did not adduce any evidence towards their RE. RE of insurance company was closed on 05.10.2016 through its counsel.
8. I have already heard the arguments advanced by Ld counsels for the parties. I have also gone through the material available on record. My findings on the aforesaid issues is as under: Issue No. 1
9. For the purpose of this issue, the testimony of PW1 Subhash i.e. injured himself is relevant. PW1 has deposed in his evidence by way of affidavit (Ex. PW1/A) on the lines of averments made in DAR to the effect that on 24.09.2012, he was going on his duty from his residence by his motorcycle no. DL1SP3697. At about 9:00 am, when he reached near Budhpur Ganda Nala, 2nd Pulia Nasha Mukti Kendra Road, Budhpur, Delhi , one TATA 407 Tempo No. HR691846 which was coming from front side Subhash Vs. Rajesh Kumar & Ors. Page 4 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 being driven by its driver at very high speed, rashly and negligently, came and hit against his motorcycle. FIR No. 330/12, u/s. 279/337 IPC was registered at PS. Alipur with regard to said accident. He has relied upon the following documents: S.No. Description of documents Remarks
1. Copy of his office identity card Ex PW1/1
2. His original Fitness Certificate Ex. PW1/2
3. His original Medical Certificate Ex. PW1/3(colly)
4. Treatment/OPD Papers Ex. PW1/4(colly)
5. Criminal case papers Ex. PW1/5(colly)
6. Copy of DAR Ex. PW1/6(colly)
7. Copy of his Disability Ex. PW1/7 Certificate
8. Copy of his PAN Card Ex. PW1/8
10. During his crossexamination on behalf of insurance company, he admitted that there was head on collision. He volunteered that the offending vehicle came from the side of Nasha Mukti Kendra and climbed on the road at fast speed and took a sharp turn. He further deposed that he had seen the offending vehicle before the impact. The offending vehicle hit against his vehicle after coming from wrong side of the road. He denied the suggestion that he had not seen the offending vehicle on the turn. He further denied the suggestion that he had hit the offending vehicle. He also denied the suggestion that the accident in question took place due to his own negligence. Respondents no. 1 & 2 did not crossexamine this witness despite opportunity.
11. It is quite evident from the testimony of the aforesaid witness that the respondents including insurance company failed to impeach his testimony on the aspect of accident being caused due to rash and negligent Subhash Vs. Rajesh Kumar & Ors. Page 5 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 driving of TATA 407 Tempo by respondent no. 1, through litmus test of crossexamination.
12. Moreover, the respondent no. 1 /driver of the alleged offending vehicle was the other material witness who could have thrown sufficient light as to how and under what circumstances, the accident in question took place but still he preferred not to contest the claim petition. He did not enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to rash and negligent driving of TATA 407 Tempo No. HR691846 by him.
13. It is also pertinent to note that FIR No. 330/12 u/s 279/337 IPC (which is part of criminal case record Ex. PW1/5 colly) was registered at PS. Alipur with regard to accident in question on 24.09.2012 i.e. on the date of accident itself. Thus, FIR in question was promptly lodged with regard to the accident in question. Hence, there is no possibility of false implication of respondent no. 1 and / or false involvement of TATA 407 Tempo no. HR69 1846 at the instance of petitioner. Not only this, the respondent no. 1 namely Rajesh Kumar (accused in State case) has been charge sheeted (which is part of criminal case record Ex. PW1/5 colly) 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 TATA 407 Tempo No. HR691846 by him. Same also points out towards the rash and negligent driving of aforesaid vehicle by respondent no. 1 and corroborates the ocular testimony of PW1 to that extent.
Subhash Vs. Rajesh Kumar & Ors. Page 6 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018
14. Copy of MLC of injured Subhash (which is part of medical treatment record Ex. PW1/4 colly.) prepared at SRHC Hospital, would show that he had been removed to said hospital on 24.09.2012 at 10:15 am 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.
15. Not only this, mechanical inspection report dated 26.09.2012 (which is part of DAR Ex. PW1/6 colly) of Tempo No. HR691846, would show that its right rear wheel front side mudguard plate was damaged; its Silencer Tail Pipe was damaged and its hood body right side middle lower side portion was found scratched. Likewise, the copy of mechanical inspection report dated 26.09.2012 of Motorcycle No. DL1SP3697(which is part of DAR Ex. PW1/6 colly), would show that there were fresh damages on its front wheel mudguard; its front both shockers were bended; its headlight and right side indication light were damaged; its handle was bended and its right side mirror was also found damaged. Same also corroborate the ocular testimony of PW1 to the extent that the aforesaid tempo had hit the motorcycle of injured from front side.
16. Apart from above, the notice u/s. 133 M.V. Act (which is part of DAR Ex. PW1/6 colly) was served upon respondent no. 2/registered owner of the aforesaid vehicle. In reply thereto, he mentioned that the said vehicle was being driven by his driver namely Sh. Rajesh Kumar/R1 on 24.09.2012 at about 9:00 am. Said reply also corroborates the ocular testimony of PW1 to that extent.
Subhash Vs. Rajesh Kumar & Ors. Page 7 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018
17. 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 preponderance of probabilities that Subhash had sustained grievous injuries in road accident which took place on 24.09.2012 at about 9.00 am near Budhpur Ganda Nala, 2nd Pulia, Nasha Mukti Kendra Road, Budhpur, Delhi, due to rash and negligent driving of Tempo No. HR691846 by respondent no.1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 218. 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
19. PW1 Sh. Subhash i.e. the injured himself, has deposed in his evidence by way of affidavit Ex. PW1/A that after the accident, he was removed to SRHC Hospital, Narela, Delhi. Thereafter, he was referred to Park Hospital, Delhi. He also deposed that although, he had been treated in panel hospital but he had spent about Rs. 30,000/ on purchase of medicines but the bills thereof, have been misplaced by him. He has relied upon copies of his treatment record as Ex. PW1/1 to Ex. PW1/4(colly). During crossexamination on behalf of insurance company, he denied the suggestion that he had not spent Rs. 30,000/ on medicines. He was not crossexamined by respondents no. 1 & 2 despite grant of opportunity.
Subhash Vs. Rajesh Kumar & Ors. Page 8 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 Considering the fact that petitioner/injured himself deposed in his affidavit(Ex. PW1/A) that apart from the amount which was reimbursed to him by his employer, he had no document to show that he had spent Rs. 30,000/ on medicines as the bills in respect of purchasing of those medicines have been misplaced, no amount is being awarded to the petitioner under this head.
LOSS OF INCOME/LEAVES
20. Injured namely Sh. Subhash (PW1) has categorically deposed in his evidence by way of affidavit Ex PW1/A that he was working as Head Constable in Delhi Police and was getting monthly salary of Rs.33,000/ at the time of accident in question. Due to the accident in question, he had sustained injuries including permanent disability of 45% in relation to his both upper limbs as well as of right lower limb. During crossexamination on behalf of insurance company, he deposed that he was working with Delhi Police. He had informed his department regarding his permanent disability. However, he has not filed any documentary proof in this regard. He denied the suggestion that he had not suffered any financial loss due to permanent disability. He was not crossexamined by respondents no. 1 & 2 despite grant of opportunity.
21. PW2 is the Official from the office of employer of injured. He produced the leave record of injured Sh. Subhash. He exhibited the same as Ex. PW2/1. The said record shows that injured Subhash remained on leave from his office for 136 days. During his crossexamination, he deposed that the petitioner/injured remained on medical leave for 106 days and he remained on earned leave for 30 days.
Subhash Vs. Rajesh Kumar & Ors. Page 9 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018
22. PW3 is also the Official from the office of employer of injured. He produced salary record of HC Subhash for the period September, 2012 to March 2013. He exhibited attested copy of salary record as Ex. PW3/1(colly). The said record shows that the gross salary of HC Subhash for the month of September 2012 was Rs. 26,833/ per month. During his crossexamination, he deposed that the salary was paid to HC Subhash from September 2012 to March 2013. He further deposed that there was no deduction in the salary of HC Subhash for the above said period. He also deposed that their department had not received any information regarding the permanent disability of the petitioner.
23. As noted above, the petitioner/injured was working as HC in Delhi Police and was drawing monthly salary of Rs. 26,833/ at the time of accident. The relevant portion of the testimony of petitioner examined as PW1, has gone unchallanged and unrebutted from the side of respondents. Moreover, the petitioner has also proved his salary slip for the month of September 2012 which is Ex. PW3/1(Colly). Petitioner has also proved that he took 136 days leaves from his office due to the injuries sustained by him in the accident in question. He exhibited the said leave record as Ex. PW2/1. The ocular testimony of PW1 is also corroborated by the testimonies of PW2 & PW3 and the record produced by them during the course of inquiry is already noted above. In view of said leave record and payslip, there is no iota of doubt that the petitioner was drawing monthly salary of Rs. 26,833/ at the time of accident. Hence, a sum of Rs.1,21,642.93 paise (Rs. 26,833/ x 136 /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 Subhash Vs. Rajesh Kumar & Ors. Page 10 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 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
24. 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: " 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".
25. Injured himself as PW1 has deposed in his evidence by way of affidavit Ex PW1/A that he had sustained Fracture Left Clavicle, Fracture Right Tibia Fibula, Fracture 5th Proximal Phalynx Right Finger, Sepsis and Dyselectrolytemia. He has sustained permanent disability to the extent of 45% in relation to his both upper limbs and 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 with his medical treatment record (which are Ex. PW1/2 to Ex. PW1/4 colly)filed by him. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in Subhash Vs. Rajesh Kumar & Ors. Page 11 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 question. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs. 1,00,000/ towards pain and sufferings to the petitioner. (Reliance placed on Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors bearing MAC.APP. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
LOSS OF AMENITIES OF LIFE
26. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered Fracture Left Clavicle, Fracture Right Tibia Fibula, Fracture 5 th Proximal Phalynx Right Finger, Sepsis and Dyselectrolytemia due to accident in question. He has also sustained permanent disability of 45 % in relation to both upper limbs and right lower limb, which is duly established from the testimony of PW4 Dr. Ashutosh Gupta and Disability Certificate (Ex. PW1/7) issued by SRHC Hospital, Narela, Delhi. 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. 1,00,000/ towards loss of amenities of life to the petitioner. (Reliance placed on Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors bearing MAC.APP. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET AND ATTENDANT CHARGES
27. The petitioner/injured as PW1 has deposed that he had spent Rs. 50,000/ on conveyance and special diet. He further deposed that he had also availed the services of attendant upto six months. However, he has Subhash Vs. Rajesh Kumar & Ors. Page 12 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had sustained Fracture Left Clavicle, Fracture Right Tibia Fibula, Fracture 5 th Proximal Phalynx Right Finger, Sepsis and Dyselectrolytemia. 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 also 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. 10,000/ for conveyance charges and Rs. 20,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
28. As noted above, the petitioner is shown to have sustained 45% permanent disability in relation to his both upper limbs and right lower limb. Same is quite evident from the testimony of PW4 Dr. Ashutosh Gupta. He proved the Disability Certificate dated 16.02.16 of injured already exhibited as Ex. PW1/7. The certificate(Ex. PW1/7) recites that said disability was permanent in nature. Nothing material could be elicited during cross examination of PW4 from the side of respondents.
29. It is pertinent to note that the petitioner is still working in Delhi Police. It is argued on behalf of insurance company that as per testimonies of PW2 & PW3, 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.
Subhash Vs. Rajesh Kumar & Ors. Page 13 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 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.
30. 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 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.
31. 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.
Subhash Vs. Rajesh Kumar & Ors. Page 14 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 Ltd. Vs. Hari Om Const. & Ors., bearing MAC APP No. 464/2011 decided on 03.11.17.
32. Now, turning back to the facts of the present case. As already noted above, the petitioner is still working in Delhi Police and he would in normal circumstances, retire from the services after attaining the age of 60 years and he shall be getting pension from his employer. He is shown to have sustained permanent physical impairment to the extent of 45% in relation to both upper limbs and right lower limb. He had sustained Fracture Left Clavicle, Fracture Right Tibia Fibula, Fracture 5th Proximal Phalynx Right Finger, Sepsis and Dyselectrolytemia due to the accident. Having regard to the percentage of loss of earning capacity in the light of injuries sustained by petitioner, as noted above, his functional disability is taken as 45% in relation to whole body. Applying the ratio of law discussed by Hon'ble Delhi High Court in the above cited decision, the loss of future income of petitioner comes out to Rs. 13,04,083.80 paise (Rs. 26,833X45/100X12X9). The pension to the extent of 50% would come out to Rs. 6,52,041.90 paise. Thus, a sum of Rs. 6,52,000/(rounded off) is awarded in favour of petitioner under this head.
Thus, t he total compensation is assessed as under:
1. Loss of income/leaves Rs. 1,21,642.93/
2. Pain and suffering Rs. 1,00,000/
3. Loss of enjoyment of amenities of life Rs. 1,00,000/
4. Conveyance, special diet and attendant Rs. 50,000/ charges
5. Loss of future income Rs. 6,52,000/ Total Rs. 10,23,642.93 paise Rounded off to Rs. 10,24,000/ Subhash Vs. Rajesh Kumar & Ors. Page 15 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018
33. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/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. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided in favour of petitioner and against the respondents.
ISSUE NO. 3 RELIEF
34. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 10,24,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 11.12.2012 till the date of its realization(except from 03.05.13 till 28.10.15). (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
35. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 09.02.2017. 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. 1,25,000/ shall be immediately released to the petitioner through his saving bank account no. 36268029348 with State Bank of India, Narela Bawana Road Branch, Narela, Delhi, having IFSC Code. SBIN0006812 and remaining amount alongwith interest amount be Subhash Vs. Rajesh Kumar & Ors. Page 16 of 18 MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018 kept in the form of FDRs in the multiples of Rs. 10,000/each for a period of one month, two months, three months having cumulative interest and so on and so forth and 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 account of the Claimant/petitioner.
(ii) The maturity amount(s) of the FDR(s) shall be credited to the savings bank account of the claimant(s) in a nationalized bank near the place of his residence.
(iii) No cheque book/Debit Card be issued to the claimant(s) in respect of the savings bank account in which the award amount is to be sent/credited, without permission of the Court. However, in case the debit card and/or cheque book have already been issued, the Court shall direct the bank to cancel the same before the disbursement of the award amount. The bank shall make an endorsement on the passbook(s) of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court. The claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
36. During the course of hearing final arguments, counsel for claimant was asked as to whether claimant was entitled to exemption from deduction of TDS or not. Counsel for claimant states at Bar that claimant was not entitled to exemption from deduction of TDS under Income Tax Act.
Subhash Vs. Rajesh Kumar & Ors. Page 17 of 18MACP No. 5493/16 (Old MACP No. 83A/12) FIR No. 330/12.; PS. Alipur DOD:21.02.2018
37. Respondent No. 3, being the insurer, is directed to deposit the award amount alongwith interest 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. 1,25,000/ immediately in the aforementioned Saving Bank Account of petitioner, on completing necessary formalities as per rules. He be also 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 the award be given dasti to the petitioner/injured and counsel for the insurance company for compliance. 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 V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in open Court on 21.02.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Subhash Vs. Rajesh Kumar & Ors. Page 18 of 18