Delhi District Court
51714 Mohd. Kareem vs Pawan Kumar Page 1 Of 21 on 8 October, 2018
51714 Mohd. Kareem vs Pawan Kumar Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 4943416
MACT PETITION No. : 51714
UNIQUE ID No. : DLNW010002382014
Mohd. Karim S/o Sheik Amroodin
R/o H.No. 591, FBlock, Indra Enclave,
PartII, Budh Bazar Road, Delhi86
........ Petitioner
Vs.
1. Sh. Pawan Kumar S/o Sh. Ghyan Chand
R/o H. No. 159, Village Rani Khera, Delhi.
....... Driver/R1
2. M/s Shyama Shyam VSK Water Management
at J15A, Street No. 40, Raja Puri, Uttam Nagar, Delhi.
...... Owner/R2
3. National Insurance Co. Ltd.
94 Hari Kripa, Jawahar Nagar, Swaimadhopur, Rajasthan.
..... Insurance co/R3
Other details
DATE OF INSTITUTION : 01.12.2014
DATE OF RESERVING JUDGMENT : 01.10.2018
DATE OF PRONOUNCEMENT : 08.10.2018
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
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51714 Mohd. Kareem vs Pawan Kumar Page 2 of 21
1. Date of the accident 28.08.2014
2. Date of intimation of the accident by the 01.12.2014
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 01.12.2014
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
(Clause 10)
5. Date of filing of Detailed Accident Information 01.12.2014
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 01.12.2014
Company (Clause 11)01.12.2014
7. Date of service of DAR on the claimant (s). 01.12.2014
(Clause 11)
8. Whether DAR was complete in all respects? Yes
(Clause 16)
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents Yes.
filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No.
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 01.12.2014
by the insurance Company. (Clause20)
13. Name, address and contact number of the Sh. S.C. Sharma,
Designated Officer of the Insurance Company. Advocate
(Clause 20)
14. Whether the designated Officer of the Insurance No.
Company submitted his report within 30 days of
the DAR? (Clause 20)
15. Whether the insurance company admitted the No.
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on N/A
the part of the Designated Officer of the
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51714 Mohd. Kareem vs Pawan Kumar Page 3 of 21
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer No Legal offer given.
of the Insurance Company .(Clause 24)
18. Date of the Award 08.10.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 21.05.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 13.08.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner Mohd.
claimant(s) and the address of the bank with Karimsavings bank
IFSC Code (Clause 27) a/c no.
607410110011840
with Bank of India,
Rohini Branch, Delhi,
IFSC : BKID0006074
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
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JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 01.12.2014 with reference to FIR No. 927/14 U/s 279/337 IPC PS Aman Vihar in respect of grievous hurt sustained by the petitioner Mohd. Karim in a road accident on 28.08.14 at about 6:55 am at main Mubarakpur road near Chanchal Nursing home, Delhi. The ld. Predecessor of this court vide order dated 01.12.2014 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act').
2. Brief facts of the case as mentioned in the DAR/file are that on 28.08.2014 petitioner along with his neighbour namely Raja were going towards Haidwar vatika to their home at Indra Enclave on Hero Honda Splendor motorcycle bearing registration no. DL11SB6354. At about 6:58 am when they crossed Chanchal Nursing Home, they slowed the speed of their motorcycle. Suddenly, a water tanker bearing registration no. DL1GC1205 (hereinafter referred to as "offending vehicle" ) came in front of their motorcycle, petitioner further slowed down the speed of the motorcycle, however, the driver of the offending vehicle did not slow down the speed and due to it the offending vehicle from the driver side hit the motorcycle. Due to said impact, the motorcycle got disbalanced due to which the petitioner and his neighbour Raja fell down, the driver side tyre of the offending vehicle crushed the left hand of the petitioner/injured and due to it he received injuries on his left hand and stomach. It has been stated that the petitioner sustained injuries due to rash and negligent driving of the offending vehicle by its driver. It has been stated that petitioner was admitted in Safdarjung Hospital, Delhi, where his MLC was prepared. The FIR no.927/14 PS Aman Vihar was registered u/s 279/337 IPC.
3. Sh.Pawan Kumar/R1/driver of the offending vehicle filed his written statement wherein he has stated that the offending vehicle was fully insured at the time of accident with NIC/R3 vide policy which was valid 51714 Mohd. Kareem vs Pawan Kumar Page 4 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 5 of 21 till 29.05.2015. He deposed that no such accident had been caused by him and further that he was having a valid driving licence. He deposed that a kalandra u/s 3/181 and 146/196 M.V. Act has already been made out against the claimant.
4. M/s Shyama Shyam VSK/R2/owner of the offending vehicle filed its written statement wherein it has stated that the offending vehicle was fully insured at the time of accident with NIC/R3 vide policy from 30.05.2014 to 29.05.2015 in the name of R2. It was stated that R1 was having a valid driving licence bearing no. DL1120040034952 valid upto 23.05.2015 for LMV (NT), MCYL, LMV Com and HTV. It was further stated that the case accident occurred due to rash and negligent driving of the petitioner.
5. National Insurance Co/R3 has filed its written statement wherein it has submitted that injured was driving the vehicle without valid and effective driving licence and was charged u/s 3/181 of M.V. Act. It was further mentioned that the offending vehicle was insured with R3 vide policy bearing no. 371200/31/14/630000186 valid from 30.05.2014 to 29.05.2015 i.e. covering the date of accident 28.08.2014.
6. From the pleadings of the parties, the issues were framed by learned Predecessor of this court vide order dated 25.05.2015 as under :
1. Whether on 28.08.14 at about 6:55 am, at Main Mubarakpur road, near Chanchal Nursing home, Delhi , one water tanker bearing registration no. DL1CG1205, which was being driven rashly and negligently by Pawan Kumar hit the motorcycle bearing registration no. DL11SB6354 and caused injuries to Mohd. Karim?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
The petitioner/injured in support of his case has examined 51714 Mohd. Kareem vs Pawan Kumar Page 5 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 6 of 21 himself as PW1, Ms. Nisha Mundotiya, Associate Prosthetist & Orthotist, Otto Bock Health Care India Ltd as PW2 and Dr. Prateek Aggarwal, S.R. (Orthopedic), Dr. BSA as PW3.
The record would show that respondents have not examined any witness in support of their case.
It is pertinent to note that vide statement recorded on 01.10.2018, the petitioner/Mohd. Karim stated that he did not want to get himself examined by the Committee formed by the Hon'ble Delhi High Court in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 order dated 09.03.2018 and did not want any compensation under the head of artificial limb. He made the said statement in the presence of his ld counsel.
7. I have heard arguments addressed on behalf of ld counsel for petitioner, ld counsel for R1, AR of R2 and ld counsel for insurance co/R3 and have carefully perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
The petitioner/injured has examined himself as PW1. He has filed his evidence by way of affidavit as Ex. PW1/A. He has proved the entire DAR as Ex. PW1/1 (colly).
He deposed in his evidence by way of affidavit Ex. PW1/A that on 28.08.2014 he along with his neighbour namely Raja were going towards Haidwar vatika to their home at Indra Enclave on Hero Honda Splendor motorcycle bearing registration no. DL11SB6354. He deposed that when they crossed Chanchal Nursing Home, they slowed the speed of their motorcycle, suddenly, a water tanker bearing registration no. DL1GC1205 (offending vehicle ) came in front of their motorcycle, he further slowed down the speed of the motorcycle, 51714 Mohd. Kareem vs Pawan Kumar Page 6 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 7 of 21 however, the driver of the offending vehicle did not slow down the speed and due to it the offending vehicle from the driver side hit the motorcycle. He deposed that due to said impact, the motorcycle got disbalanced due to which he and his neighbour Raja fell down, the driver side tyre of the offending vehicle crushed his left hand and due to it he received injuries on his left hand and stomach. He deposed that he sustained injuries due to rash and negligent driving of the offending vehicle by its driver. He deposed that he was admitted in Safdarjung Hospital, Delhi.
PW1 was cross examined on behalf of R1 and R2 wherein he inter alia deposed that Raja who was sitting as a pillion rider with him at the time of accident was not working with him, the duty hours were from 6:30 am to 5:30 pm and that there was no divider on the road where the accident had taken place. He denied the suggestion that no such accident was caused by the water tanker driven by R1. PW1 was cross examined on behalf of insurance co/R3 wherein he inter alia deposed that at the time of accident, he was going to Rohini and when he reached near Chanchal hospital, Agar Nagar, the offending vehicle hit him. He deposed that at the time of accident, he was driving a two wheeler scooter. He deposed that he had not filed driving licence on record. He denied the suggestion that the accident took place due to his rash and negligent driving, as he was driving the same without licence.
Nothing material has come on record in cross examination of PW1 to shake his version regarding the manner in which the said accident was caused by R1 while driving the above said offending vehicle in a rash and negligent manner.
In the facts and circumstances, the copies of FIR and charge sheet u/s 279/338 IPC against respondent no. 1 can also be looked into to determine the negligence on the part of respondent no. 1. There is thus nothing on record to suggest even remotely that 51714 Mohd. Kareem vs Pawan Kumar Page 7 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 8 of 21 R1 did not cause the said accident in the manner as deposed on behalf of the petitioner. Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material as placed on record and in view of above discussion, there is no reason to disbelieve the version of the petitioner and hence, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent no.1.
Copy of one kalandra u/s 3/181 & 146/196 M.V. Act against the petitioner has been placed on record.
It has been argued that some amount due to contributory negligence be deducted from the compensation amount as the petitioner was not having any driving licence and thus contributed to the accident.
As far as the facts and circumstances of the case are concerned, it can be safely held that even if the petitioner was not having a valid driving licence at the time of accident, it cannot be said that he contributed to the accident or he was negligent in driving the motorcycle in any manner as it has come on record in his testimony and it is also evident from the charge sheet and copy of FIR placed on record with the DAR that there was negligence of R1 while driving the offending vehicle/water tanker which lead to the case accident. The petitioner has specifically deposed that immediately prior to the accident, he had slowed down his motorcycle but the water tanker/offending vehicle came all of a sudden at a high speed and hit the motorcycle of the claimant due to which it got disbalanced and the petitioner along with his pillion rider fell down with the motorcycle. It is evident that the case accident occurred due to fault on part of R1 and the petitioner even if he was driving the motorcycle without the driving licence did not contribute 51714 Mohd. Kareem vs Pawan Kumar Page 8 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 9 of 21 at all to the accident as he could not have evaded the accident which occurred due to negligence on the part of R1.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
9. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
Petitioner has filed his evidence by way of affidavit as Ex. PW1/A. He deposed that due to the accident, he sustained multiple injuries and other injuries, wound fractures and pain the different parts of the body. He deposed that he was admitted in Safdarjung hospital where the concerned doctor had to cut his badly injured left hand to save his life.
Petitioner has examined Dr. Prateek Aggarwal, S.R. (Orthopedic), Dr. BSA hospital as PW3 who has proved the disability certificate of petitioner as Ex. PW3/A. He deposed that as per the disability certificate, the patient suffered 65% permanent disability in relation to left upper limb and was diagnosed with below elbow amputation of left upper limb.
He was cross examined only on behalf of insurance co/R3 wherein he deposed that he did not have any personal knowledge about Ex. PW3/A and he was deposing only from the record.
Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner has not placed on record any medical bill. Therefore, nothing is granted under this head.
B. Special Diet and conveyance PW1/petitioner deposed in his evidence by way of affidavit that he had spent all his money on conveyance, special diet and operation etc. Petitioner suffered grievous injuries with 65% permanent disability in relation to left upper limb and was diagnosed with below elbow amputation of left upper limb. In view of above said discussion and taking the probable period 51714 Mohd. Kareem vs Pawan Kumar Page 9 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 10 of 21 of treatment for about 5 months, a lump sum amount of Rs. 40,000/ is granted under the said head.
C. Attendant Charges Petitioner suffered grievous injuries with 65% permanent disability in relation to left upper limb and was diagnosed with below elbow amputation of left upper limb. Due to his said medical condition, it is evident that he must have required the services of an attendant at least during his treatment period. In view of above said discussion and taking the probable period of treatment for about 5 months, a lump sum amount of Rs. 40,000/ is granted under the said head.
D. Loss of future earning capacity due to disability Petitioner suffered 65% permanent disability in relation to left upper limb and was diagnosed with below elbow amputation of left upper limb. PW3 has proved the disability certificate of petitioner as Ex. PW3/A. The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still 51714 Mohd. Kareem vs Pawan Kumar Page 10 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 11 of 21 effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
Petitioner in his affidavit Ex. PW1/A has deposed that he was doing private service and was earning Rs. 12,000/ per month. Petitioner/PW1 in his cross examination has deposed that he used to repair vehicles at the time of accident and has admitted that he had not filed on record any document to prove his monthly income from the said work. He further admitted that he had also not filed on record any document to show that he used to work as a motor mechanic at the time of accident.
Petitioner has also not proved his any educational certificate. In view of above discussion, petitioner has failed to prove his nature of work as well as monthly income as stated in his affidavit. In view of above he be treated as an unskilled worker.
It further seems that due to the said permanent disability, he can do some work but would not be able to work with same efficiency after the said accident and permanent disability.
In view of above discussion, the injuries suffered by the petitioner and his nature of work, the functional disability of the petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 50%. In view of above said discussion, it would be appropriate to assess the income of the claimant on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of an unskilled worker at the relevant time on the date of accident was Rs. 8554/ p.m. Accordingly, it would be reasonable and just to consider the income of 51714 Mohd. Kareem vs Pawan Kumar Page 11 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 12 of 21 petitioner as Rs. 8554/ per month on the date of accident in question. The copy of aadhar card of petitioner is on record which mentions his date of birth as 06.08.1985 which shows that petitioner was aged about 29 years at the time of accident.
E. Addition of Future Prospects.
In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:.
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
51714 Mohd. Kareem vs Pawan Kumar Page 12 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 13 of 21(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 by Hon'ble Delhi High Court.
The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra) after referring to the judgment of the constitution bench of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
In the case in hand, the petitioner was self employed and thus while determining her income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just 51714 Mohd. Kareem vs Pawan Kumar Page 13 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 14 of 21 compensation under Section 168 of M.V. Act.
The age of the petitioner, as discussed above, in the present case was about 29 years and he was self employed. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 40% of the established income as he was below the age of 40 years at the time of his accident.
The monthly income of petitioner is thus calculated as 8554/ +40% of 8554/ which comes to Rs. 8554/+ Rs. 3421 (after rounding of)= Rs. 11,975/.
The age of petitioner at the time of accident was about 29 years at the relevant multiplier of "17" is to be adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra). Accordingly, the relevant multiplier would be "17" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra). The compensation is accordingly assessed towards loss of earning capacity at Rs. 12,21,450/ [(Rs. 11,975/per month x12 months x 17 (age multiplier) x 50/100(functional disability)]. F. Loss of Amenities of Life.
As discussed above, the petitioner suffered grievous injuries and above mentioned permanent physical disability with below elbow amputation of left upper limb. In view of the said discussion, above mentioned injuries suffered by him including the said amputation, a lump sum amount of Rs. 1,00,000/ is granted under the said head. G. Pain and Suffering As discussed above, the petitioner suffered grievous injuries and above mentioned permanent physical disability with below elbow amputation of left upper limb. In view of the said discussion, above mentioned injuries suffered by him including the said amputation, 51714 Mohd. Kareem vs Pawan Kumar Page 14 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 15 of 21 a lump sum amount of Rs. 1,00,000/ is granted under the said head. H. Loss of Income As discussed above, his monthly income has been taken as Rs. 8554/ p.m at the time of accident. As per record, the probable period of treatment of petitioner was about 5 months. Therefore, loss of income of Rs. 42,770/ (Rs. 8554/x 5 months) is granted for 5 months. I. Artificial limb.
Petitioner has given his statement on 01.10.2018 that he did not want to get himself examined by the committee formed by the Hon'ble Delhi High Court in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 order dated 09.03.2018 and did not want any compensation under the head of artificial limb.
In view of his abovesaid statement, the evidence of PW2 Ms. Nisha Mundotiya, Associate & Prosthetist and Orthotist, Otto Bock Health Care India Pvt Ltd, shall not help the petitioner in this case and nothing is granted under the head of artificial limb. For the said reason, the testimony of PW2 is also not being discussed in detail.
10. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 15,44,220/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 1,00,000/ 2 Special diet & Conveyance Rs. 40,000/
3. Attendant Charges Rs 40,000/
4. Medical Expenses Nil.
5. Loss of income Rs. 42,770/
6. Loss of Earning/disability Rs. 12,21,450/
7. Loss of amenities of life Rs. 1,00,000/ Total Rs. 15,44,220/ Rounded of to Rs. 15,44,500/ ( Rupees Fifteen Lakhs Forty four Thousand Five hundred only) 51714 Mohd. Kareem vs Pawan Kumar Page 15 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 16 of 21 The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 01.12.2014 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
11. Liability In the case in hand, the National Insurance co/R3 has not been able to show anything on record that R1 and R2, who were the driver and owner of the offending vehicle were not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law. Since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law.
Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., National Insurance co/R3 is directed to deposit the awarded amount of Rs. 15,44,500/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is 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 awarded amount starts earning interest 51714 Mohd. Kareem vs Pawan Kumar Page 16 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 17 of 21 from the date of clearance of the cheque.
APPORTIONMENT
12. Statement of wife of petitioner in terms of clause 27 MCTAP was recorded. I have heard the petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: Further, an amount of Rs. 2,00,000/ be released to petitioner in cash in her saving bank a/c no. 607410110011840 with Bank of India, Sector 24, Rohini branch, Delhi i.e. the branch near his place of residence as mentioned in his statement recorded under clause 27 MCTAP with necessary endorsement regarding no cheque book and debit card in terms of orders of Hon'ble Mr. Justice J.R. Midha in FAO No. 842/2013 dated 15.12.2017 and 18.01.2018 and remaining amount be kept in 72 FDRs of equal amount for a period of one month to 72 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further conditions and directions in terms of order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in case of Sobat Singh vs Ramesh Chandra Gupta and case of Rajesh Tyagi vs Jaibir Singh, MAC.APP . 422/2009 and FAO 842/2003 :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, 51714 Mohd. Kareem vs Pawan Kumar Page 17 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 18 of 21 date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(g) The bank shall make an endorsement on the passbook 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 and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
13. Relief National Insurance co/R3 is directed to deposit the award amount of 15,44,500/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 01.12.2014 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3/insurance to the petitioner and his advocate failing which the National Insurance co/R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
National Insurance co/R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimant and complete details in respect of calculations of interest etc in the court within 30 days from today. A 51714 Mohd. Kareem vs Pawan Kumar Page 18 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 19 of 21 copy of this judgment/award be sent to R3 for compliance within the granted time. Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
14. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded wherein he had stated that petitioner was entitled to exemption from deduction of TDS and that he would submit form 15G to the insurance co. so that no TDS is deducted.
15. Form IVB has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. The insurance co./R3 is also directed to obtain the copy of PAN card of the petitioner from the record. Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.10.08 17:17:18 +0530 Announced in open court (AMIT BANSAL) on 08th October, 2018 PO MACT N/W Rohini Courts, Delhi.
51714 Mohd. Kareem vs Pawan Kumar Page 19 of 21 51714 Mohd. Kareem vs Pawan Kumar Page 20 of 21FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 28.08.2014
2. Name of injured Mohd. Karim
3. Age of the injured 33 years
4. Occupation of the injured: Self Employed
5. Income of the injured. 11,975/ per month
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 5 months
8. Period of hospitalization: 7 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 65% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Nil.
(ii) Expenditure on conveyance Rs. 20,000/
(iii) Expenditure on special diet Rs. 20,000/
(iv) Cost of nursing/attendant Rs. 40,000/
(v) Loss of earning capacity Rs. 12,21,450/
(vi) Loss of income Rs. 42,770/
(vii) Any other loss which may require any
special treatment or aid to the injured for
the rest of his life
12. NonPecuniary Loss:
(I) Compensation for mental and physical
shock
(ii) Pain and suffering Rs. 1,00,000/
(iii) Loss of amenities of life Rs. 1,00,000/
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51714 Mohd. Kareem vs Pawan Kumar Page 21 of 21
(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, inconvenience,
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 65% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 50% relation of disability
(iv) Loss of future income - (Income X 12,21,450/ %Earning capacity X Multiplier) (8554+40% of 8554x12x17x50%)
14. TOTAL COMPENSATION Rs. 15,44,500/
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 5,21,262/
17. Total amount including interest Rs. 20,65,762/
18. Award amount released Rs. 2,00,000/
19. Award amount kept in FDRs Rs. 18,65,762/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 26.11.2018 (Clause 31) Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.10.08 17:17:29 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
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