Delhi District Court
Shiv Giri vs Prahlad Singh Page 1 Of 23 on 28 August, 2020
Shiv Giri vs Prahlad Singh Page 1 of 23
IN THE COURT OF SH. AMIT BANSAL, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
New No. 4963416
UNIQUE ID No. : DLNW010002982012
Sh. Shiv Giri Goswami S/o Late Sh. Lal Giri Goswami,
R/o House No. 266A, Sanjay Colony,
Faridabad, Haryana.
........ Petitioner/claimant
Vs.
1. Sh. Parhlad Singh S/o Sh. Karan Singh,
R/o Village Thakriya Vass, Tehsil Didwana,
District Nagour, Rajasthan.
....... Driver/R1
2. Sh. Karni Singh S/o Sh. Mal Singh,
R/o M528, MBlock, L.L. Colony,
Shakurpur, Delhi.
......Owner/R2.
3. Reliance General Insurance Company Ltd.,
Okhla Industrial Area, PhaseI,
Opposite Madi Mill Floor,
Delhi.
..... Insurance co/R3
..... Respondents
Other details
DATE OF INSTITUTION : 05.05.2011
DATE OF RESERVING JUDGMENT : 28.08.2020
DATE OF PRONOUNCEMENT : 28.08.2020
Digitally signed
AMIT by AMIT
BANSAL
BANSAL Date: 2020.08.28
16:57:44 +0530
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Shiv Giri vs Prahlad Singh Page 2 of 23
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 THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 17.03.2011
2. Date of intimation of the accident by the 05.05.2011
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 05.05.2011
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information 05.05.2011
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance 05.05.2011
Company
7. Date of service of DAR on the claimant (s). 05.05.2011
8. Whether DAR was complete in all respects? Yes
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?
11. Whether there was any delay or deficiency on N/A
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 05.05.2011
by the insurance Company.
13. Name, address and contact number of the Sh. A.K. Singh Ld
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of
the DAR? (Clause 22)
15. Whether the insurance company admitted the No
Digitally
signed by
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
AMIT
AMIT BANSAL
BANSAL Date:
2020.08.28
compensation in accordance with law.
16:57:59
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16. Whether there was any delay or deficiency on N/A
the part of the Designated Officer of the
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer Legal offer not filed.
of the Insurance Company .
18. Date of the Award 28.08.2020
19. Whether the award was passed with the consent No
of the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were 14.05.2018
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).
22. Date on which the claimant (s) produced the 10.12.2019
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned above
Claimant(s)
24. Details of saving bank account(s) of the Petitioner Shiv Giri
claimant(s) and the address of the bank with savings bank a/c no.
IFSC Code 82302010002362
with Syndicate Bank,
Tilpat Branch,
Haryana
IFSC : SYNB0008230
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition.
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Digitally
signed by
AMIT
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
AMIT BANSAL
BANSAL Date:
2020.08.28
16:58:07
dated 18.01.2018 of Hon'ble Delhi High Court in
+0530
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 05.05.2011 with reference to FIR No. 54/11 PS Bharat Nagar U/s 279/337 IPC & subsequent charge sheet U/s 279/338 IPC which was filed in respect of injuries sustained by petitioner Sh. Shiv Giri in a Motor Vehicular Accident. The Ld. Predecessor of this court vide order dated 04.02.2012 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988(hereinafter referred to as M.V. Act).
2. The facts mentioned in the DAR/file are that on 17.03.2011, Sh. Shiv Giri (hereinafter referred to as 'injured/petitioner') was going on his scooter bearing registration No. DL3SP9693 to Ashok Vihar for depositing water bill of Britania Guest House. He was sitting on his stationary scooter on the left side of the road on red light towards Wazirpur J.J. Colony. Thereafter, when the traffic light turned green, then the offending vehicle bearing registration No.DL1LG2123 (Tata 407) (hereinafter referred to as "offending vehicle") which was being driven by its driver/R1 at a very high speed and in a rash and negligent manner hit the scooter of the petitioner from back side. Due to said impact, petitioner fell down and sustained grievous injuries on his hand and other parts of the body. The injured was removed to Babu Jagjivan Ram Memorial Hospital (BJRM), Jahangir Puri, Delhi by PCR where his MLC bearing No.22692/11 was prepared by the doctors.
3. R1/Prahlad Singh who was the driver/R1 and Sh. Karni Singh/Owner/R2 of the offending vehicle have not filed their written statement and were ultimately proceeded against exparte vide order dt. 25.07.2017.
4. R3/Reliance General Insurance Company Ltd. has filed its written statement wherein it was admitted that the offending vehicle was insured with it vide policy no. 1303702334000812 in the name of R2 from 06.10.2010 to 05.10.2011 i.e. covering the date of accident 17.03.2011.
Digitally signed by AMIT
5. From the pleadings of the parties, the following issues were framed by AMIT BANSAL BANSAL Date:
2020.08.28 16:58:15 +0530 the Ld. predecessor of this court vide order dated 18.11.2015: Shiv Giri vs Prahlad Singh Page 4 of23 Shiv Giri vs Prahlad Singh Page 5 of 23 (1) Whether on 17.03.2011, at Red Light Wazirpur, J.J.Colony, Delhi, one Tata 407 Tempo, bearing registration no. DL1LG2123, which was being driven rashly and negligently by Prahlad Singh hit the scooter bearing registration No. DL3SP9693 and caused injuries to petitioner Shiv Giri?
(2). Whether petitioner is entitled to compensation, if so, to what amount and from whom?
(3). Relief.
6. Petitioner has examined himself as PW1 in support of his case and also examined Dr. Jitender Singh, HOD, Orthopedic, SGM Hospital, Mangol Puri, Delhi as PW2.
6.1 The record would show that the respondents have not examined any witness in support of their case.
7. I have heard the final arguments addressed on behalf of Ld. Counsel for petitioner and Ld. Counsel for insurance co/R3 through video conferencing during Covid19 situation. I have also 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 to prove this issue beyond preponderance of probabilities is upon the petitioner.
8.1 Petitioner/claimant has examined himself as PW1. He has tendered his evidence by way of affidavit as Ex. PW1/A. He has proved the DAR as Ex.PW1/1 (colly) and his medical bills as Ex.PW1/2 (colly).
8.2 PW1/injured deposed that he was working at Britania Guest House. He further deposed that on 17.03.2011, he was going on his scooter bearing registration No. DL3SP9693 to Ashok Vihar for depositing water bill of the Digitally signed by AMIT guest house. He deposed that he stopped his scooter on the left side of the AMIT BANSAL BANSAL Date:
road at the red light of Wazirpur J.J. Colony. He deposed that thereafter, 2020.08.28 16:58:21 +0530 Shiv Giri vs Prahlad Singh Page 5 of23 Shiv Giri vs Prahlad Singh Page 6 of 23 when the traffic light turned green, the offending vehicle bearing registration No.DL1LG2123 (Tata 407) ("offending vehicle") which was being driven by its driver/R1 at a very high speed and in a rash and negligent manner hit his scooter from back side. He deposed that due to said impact, he fell down on the road alongwith his scooter and sustained multiple serious injuries on his hand and other parts of the body. He deposed that he was removed to Babu Jagjivan Ram Memorial Hospital (BJRM), Jahangir Puri, Delhi by PCR where his MLC bearing No.22692/11 was prepared by the doctors.
8.3 PW1 was not cross examined on behalf of R1& R2 and his cross examination by them was nil, opportunity given. In the said circumstances R1 & R2 shall be deemed to admit the abovesaid testimony of PW1 to the effect that the case accident was caused due to rash and negligent driving of R1 vide which he drove the offending vehicle rashly and negligently, hit it with the scooter of the petitioner and caused grievous injuries to him.
8.4 PW1 was crossexamined by Ld. Counsel for the insurance co./R3 wherein he admitted that the date of accident was 17.03.2011. He denied the suggestion that alleged accident had been caused due to his sole negligence.
8.5 Nothing has appeared in the cross examination of PW1 to discredit his above said testimony which would show that the case accident had occurred due to rash and negligent driving of R1 while driving the offending vehicle leading to the injuries to the petitioner. The testimony of PW1 who is the injured in the said accident is reliable and trustworthy. The circumstances in which the accident occurred also show that it occurred solely due to the rash and negligent driving of R1. 8.6 The copy of criminal case record as part of DAR Ex.PW1/1 (colly) would show that the case FIR No. 54/11 PS Bharat Nagar U/s 279/337 IPC was registered and that the charge sheet U/s 279/338 IPC was also filed against R1/driver of the offending vehicle.
Digitally signed by 8.7 The issue no. 1 is only to be proved by claimant beyond preponderance AMIT AMIT BANSAL BANSAL Date:
2020.08.28 16:58:28 of probabilities as distinguished from beyond reasonable doubt. In the facts +0530 Shiv Giri vs Prahlad Singh Page 6 of23 Shiv Giri vs Prahlad Singh Page 7 of 23 and circumstances of the case, the charge sheet U/s 279/338 IPC against R1 can also be relied upon to show that the case accident was caused due to rash and negligent driving of R1 while driving the offending vehicle. In the said circumstances, testimony of PW1 and other record including charge sheet against R1, it has been clearly proved beyond preponderance of probabilities that the case accident was caused at the abovesaid date, time and place and in the abovesaid manner by the rash and negligent driving of R1 by which he drove the offending vehicle rashly and negligently and thereby caused injuries to the petitioner.
Issue no.1 is decided in favour of petitioner and against the respondents accordingly.
9. Issue No. (2) In view of my findings on issue no.1, the petitioner is entitled to compensation.
9.1 Petitioner has filed his evidence by way of affidavit as Ex. PW1/A. 9.2 He deposed that due to the accident, he sustained multiple serious injuries on his hand and other parts of his body. He deposed that after the accident he was shifted to BJRM Hospital by PCR where his MLC No. 22692/11 was prepared by the doctors and the nature of injuries was opined as grievous. He further deposed that thereafter he got his medical treatment from Mittal Hospital & Research Center, Pushkar Road, Ajmer (Rajasthan). He further deposed that he has suffered 86% permanent disability on his right hand due to the fractures sustained by him in the accident.
9.3 Petitioner has also examined Dr. Jitender Singh, HOD, Orthopedic, SGM Hospital, Mangol Puri, Delhi as PW2. PW2 deposed that he was one of the member of the Disability Board at Dr. BSA Hospital, Sector6, Rohini, Delhi. He proved the disability certificate of the petitioner as Ex.PW1/4. He Digitally deposed that as per the said disability certificate, the petitioner/patient signed by AMIT suffered permanent physical disability to the tune of 86% in relation to right AMIT BANSAL BANSAL Date:
2020.08.28 16:58:35 +0530 Shiv Giri vs Prahlad Singh Page 7 of23 Shiv Giri vs Prahlad Singh Page 8 of 23 upper limb with diagnosis of post traumatic stiffness of right shoulder, right elbow and right wrist joints with radial nerve palsy of right upper limb. 9.4 To a court question, PW2 deposed that the petitioner could not work as a cook with the abovesaid disability because he could not use his right hand for the said purpose with the abovesaid permanent disability. PW2 was cross examined by Ld. Counsel for the insurance co./R3 wherein he deposed that the petitioner could work with his left hand and that he could sit on a shop but would require an assistant. He volunteered that he would not be able to do any work where use of both the hands was required.
Accordingly, the petitioner is entitled to following compensation:
10. Medical Expenses.
10.1 The petitioner has proved the medical bills as Ex. PW1/2 (colly) and the entire DAR as Ex. PW1/1 (colly). The total of the said bills come to Rs. 2,48,352/. Therefore, Rs.2,48,352/ are granted to the petitioner under this head.
11. Special Diet and conveyance 11.1 Petitioner as PW1 has deposed that he had spent more than Rs. 3 lakhs on his medical expenses, special diet, attendant etc. 11.2 Petitioner/PW1 during his cross examination as conducted on behalf of insurance co/R3 denied the suggestion that he had spent Rs. 3 lakhs on his treatment.
11.3 Petitioner has neither examined any witness to prove the expenditure on special diet nor proved any bill in that regard. 11.4 The MLC which is the part of DAR Ex. PW1/1 (colly) would show that the petitioner suffered grievous injuries. As per the discharge summary of Safdarjang Hospital, New Delhi and Mittal Hospital & Research Center, Ajmer, Rajasthan, the petitioner suffered compound fracture of shaft of humers right with radial nerve palsy.
11.5 PW2 Dr. Jitender Singh, HOD, Orthopedic, SGM Hospital, Mangol Puri, Digitally AMIT signed by AMIT BANSAL Delhi has proved the disability certificate of the petitioner as Ex.PW1/4. He BANSAL Date:
2020.08.28 deposed that as per the disability certificate, the petitioner suffered permanent 16:58:49 +0530 Shiv Giri vs Prahlad Singh Page 8 of23 Shiv Giri vs Prahlad Singh Page 9 of 23 physical disability to the tune of 86% in relation to right upper limb with diagnosis of post traumatic stiffness of right shoulder, right elbow and right wrist joints with radial nerve palsy of right upper limb. 11.6 In view of above said discussion, injuries and fractures sustained by the petitioner and taking the probable period of treatment for about 8 months, a lump sum amount of Rs. 60,000/ is granted under this head.
12. Attendant Charges
12.1 Petitioner as PW1 has deposed that he had spent more than Rs. 3 lakhs on his medical expenses, special diet, attendant etc. 12.2 Petitioner/PW1 during his cross examination as conducted on behalf of insurance co/R3 denied the suggestion that he had spent Rs. 3 lakhs on his treatment.
12.3 Petitioner has neither examined any witness to prove the expenditure on attendant nor proved any bill in that regard. 12.4 The MLC which is the part of DAR Ex. PW1/1 (colly) would show that the petitioner suffered grievous injuries. As per the discharge summary of Safdarjang Hospital, New Delhi and Mittal Hospital & Research Center, Ajmer, Rajasthan, the petitioner suffered compound fracture of shaft of humers right with radial nerve palsy.
12.5 PW2 Dr. Jitender Singh, HOD, Orthopedic, SGM Hospital, Mangol Puri, Delhi has proved the disability certificate of the petitioner as Ex.PW1/4. He deposed that as per the disability certificate, the petitioner suffered permanent physical disability to the tune of 86% in relation to right upper limb with diagnosis of post traumatic stiffness of right shoulder, right elbow and right wrist joints with radial nerve palsy of right upper limb. 12.6 Keeping in view the abovesaid grievous injuries and permanent disability suffered by the petitioner, it is evident that the petitioner must have required the services of an attendant. In view of abovesaid discussion and taking the probable period of treatment for about 8 months, a lump sump amount of Rs. 50,000/ is granted under the said head.
Digitally
signed by
AMIT
AMIT BANSAL
BANSAL Date:
2020.08.28
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13. Loss of future earning capacity due to disability 13.1 The MLC which is the part of DAR Ex. PW1/1 (colly) would show that the petitioner suffered grievous injuries. As per the discharge summary of Safdarjang Hospital, New Delhi and Mittal Hospital & Research Center, Ajmer, Rajasthan, the petitioner suffered compound fracture of shaft of humers right with radial nerve palsy.
13.2 PW2 Dr. Jitender Singh, HOD, Orthopedic, SGM Hospital, Mangol Puri, Delhi has proved the disability certificate of the petitioner as Ex.PW1/4. He deposed that as per the disability certificate, the petitioner suffered permanent physical disability to the tune of 86% in relation to right upper limb with diagnosis of post traumatic stiffness of right shoulder, right elbow and right wrist joints with radial nerve palsy of right upper limb. 13.3 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 Digitally signed by effectively carry on the activities and functions, which he was earlier AMIT AMIT BANSAL BANSAL Date:
2020.08.28 16:59:03 carrying on, or +0530 Shiv Giri vs Prahlad Singh Page 10 of23 Shiv Giri vs Prahlad Singh Page 11 of 23
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."
13.4 Petitioner in his affidavit Ex. PW1/A has deposed that at the time of accident he was working with Britania Guest House, Lok Vihar, Pitampura, Delhi owned by J.S. & Company and was getting a salary of Rs. 8200/ per month.
13.5 During cross examination as conducted on behalf of insurance co/R3, PW1/petitioner denied the suggestion that his income proof was forged and fabricated.
13.6 Petitioner has not examined any independent witness including any witness from the said J.S. & Company to prove that petitioner was employed with the said company or to prove the monthly income of the petitioner at the time of accident. It would show that in the absence of any independent witness or proving any document in that regard, the petitioner has failed to properly prove his income and work. He has also not proved any document regarding his educational qualification. 13.7 In view of above said discussion and as he has not proved his income, profession and educational status, it would be appropriate to assess the income of the petitioner on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. It is pertinent to mention that during final arguments also the Ld. Counsel for the petitioner and the Ld. Counsel for the insurance co./R3 stated that the income of the petitioner may be assessed 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 were Rs. 6084/ per month as on the date of accident.
13.8 Petitioner has placed on record copy of his PAN card and aadhar Digitally card which mention his date of birth as 20.01.1954. The date of accident is signed by AMIT 17.03.2011. It would show that he was aged about 57 years & 02 months at AMIT BANSAL BANSAL Date:
2020.08.28 16:59:09 +0530 Shiv Giri vs Prahlad Singh Page 11 of23 Shiv Giri vs Prahlad Singh Page 12 of 23 the time of accident.
13.9 In the case in hand, as discussed above, the petitioner has failed to properly prove his nature of work at the time of accident. The DAR however mentions the occupation of the victim i.e petitioner as a cook. In the present case, the petitioner suffered permanent disability to the tune of 86% in relation to right upper limb with diagnosis of post traumatic stiffness of right shoulder, right elbow and right wrist joints with radial nerve palsy of right upper limb.
PW2 Dr. Jitender Singh also deposed that the petitioner would not be able to work as a cook with the said permanent disability as he could not use his right hand for the said purpose. PW2 however deposed that the petitioner could work with his left hand and could sit on a shop but would require an assistant. It is evident that with the above said permanent disability, the ability and efficiency of the petitioner to do any work would be reduced, however, he can work with his left hand and can also sit on a shop with an assistant. 13.10 In view of above discussion and the injuries suffered by the petitioner with permanent disability, 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%. It is further pertinent to mention that the Ld. Counsel for the petitioner and the Ld. Counsel for insurance co./R3 also stated during final arguments that the functional disability of the petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity be taken as 50%.
14. Addition of Future Prospects.
14.1 In this regard, reference should be made to the 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:.
Digitally signed by
61. In view of the aforesaid analysis, we proceed to record our AMIT AMIT conclusions: BANSAL BANSAL Date:
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(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.
(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, Digitally signed loss of estate, loss of consortium and future expenses by AMIT AMIT BANSAL BANSAL Date:
2020.08.28 16:59:21 +0530 should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ Shiv Giri vs Prahlad Singh Page 13 of23 Shiv Giri vs Prahlad Singh Page 14 of 23 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) 14.2 Reference is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court.
14.3 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%. 14.4 In the case in hand, the petitioner was self employed and thus while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
14.5 The age of the petitioner, as discussed above, in the present case was about 57 years & 2 months 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 10% of the established income as he was between the age group of 50 to 60 years at the time of his accident. 14.6 The monthly income of petitioner is thus calculated as Rs. 6084/ +10% of 6084/ which comes to Rs. 6084/+ Rs.609/ (after rounding of) = Rs.6,693/.
14.7 The age of petitioner at the time of accident was about 57 years & 2 months. In the said circumstances, the relevant multiplier of "9" is to be Digitally adopted as per judgment in case of Sarla Verma vs Delhi Transport signed by AMIT Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) AMIT BANSAL BANSAL Date:
2020.08.28 16:59:28 +0530 Shiv Giri vs Prahlad Singh Page 14 of23 Shiv Giri vs Prahlad Singh Page 15 of 23 in case of Pranay Sethi (Supra).
14.8 The compensation is accordingly assessed towards loss of earning capacity at Rs. 3,61,422/ [(Rs.6693/per month x12 months x 9 (age multiplier) x 50/100(functional disability)].
15. Loss of Amenities of Life.
15.1 The MLC which is the part of DAR Ex. PW1/1 (colly) would show that the petitioner suffered grievous injuries. As per the discharge summary of Safdarjang Hospital, New Delhi and Mittal Hospital & Research Center, Ajmer, Rajasthan, the petitioner suffered compound fracture of shaft of humers right with radial nerve palsy.
15.2 PW2 Dr. Jitender Singh, HOD, Orthopedic, SGM Hospital, Mangol Puri, Delhi has proved the disability certificate of the petitioner as Ex.PW1/4. He deposed that as per the disability certificate, the petitioner suffered permanent physical disability to the tune of 86% in relation to right upper limb with diagnosis of post traumatic stiffness of right shoulder, right elbow and right wrist joints with radial nerve palsy of right upper limb. 15.3 In view of the said discussion, above mentioned grievous injuries suffered by him, his permanent disability and taking the probable period of treatment for about 8 months, a lump sum amount of Rs. 60,000/ is granted under the said head.
16. Pain and Suffering 16.1 The MLC which is the part of DAR Ex. PW1/1 (colly) would show that the petitioner suffered grievous injuries. As per the discharge summary of Safdarjang Hospital, New Delhi and Mittal Hospital & Research Center, Ajmer, Rajasthan, the petitioner suffered compound fracture of shaft of humers right with radial nerve palsy.
16.2 PW2 Dr. Jitender Singh, HOD, Orthopedic, SGM Hospital, Mangol Puri, Delhi has proved the disability certificate of the petitioner as Ex.PW1/4. He deposed that as per the disability certificate, the petitioner suffered permanent physical disability to the tune of 86% in relation to right upper limb with diagnosis of post traumatic stiffness of right shoulder, right elbow and right Digitally signed by AMIT AMIT BANSAL BANSAL Date:
2020.08.28 16:59:35 +0530 Shiv Giri vs Prahlad Singh Page 15 of23 Shiv Giri vs Prahlad Singh Page 16 of 23 wrist joints with radial nerve palsy of right upper limb. 16.3 In view of the said discussion, above mentioned grievous injuries suffered by him, his permanent disability and taking the probable period of treatment for about 8 months, a lump sum amount of Rs. 60,000/ is granted under the said head.
17 Loss of Income 17.1 As discussed above, the monthly income of petitioner has been taken as Rs. 6084/ p.m at the time of accident. As per record, the probable period of treatment of petitioner was about 8 months. Therefore, loss of income of Rs. 48,672/ (Rs. 6084/x8 months) is granted for 8 months.
18. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 4,67,632/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 60,000/ 2 Special diet & Conveyance Rs. 60,000/
3. Attendant Charges Rs 50,000/
4. Medical Expenses Rs. 2,48,352/
5. Loss of income Rs. 48,672/
6. Loss of Earning/disability Rs. 3,61,422/
7. Loss of amenities of life Rs. 60,000/ Total Rs. 8,88,446/ Rounded of to Rs. 8,88,500/ ( Rupees Eight Lakhs Eighty Eight Thousand Five Hundred only) 19.1 The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 05.05.2011 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) .
19.2 The amount of interim award, if any, shall however be Digitally signed deducted from the above amount, if the same has already been paid to by AMIT AMIT BANSAL BANSAL Date:
2020.08.28 16:59:41 +0530 the petitioner.
Shiv Giri vs Prahlad Singh Page 16 of23
Shiv Giri vs Prahlad Singh Page 17 of 23
20. Liability
20.1 In the case in hand, the Reliance General Insurance co./R3 has
not been able to show anything on record that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid. As per the 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.
20.2. 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., Reliance General Insurance co/R3 is directed to deposit the awarded amount of Rs. 8,88,500/ 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 advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 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 approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
21. Statement of petitioner in terms of clause 29 MCTAP was recorded on 10.12.2019 regarding his savings bank a/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. 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 AMIT Digitally signed by AMIT BANSAL Date:
Manager, Kerala State Road Transport Corporation Vs. Susamma BANSAL 2020.08.28 16:59:48 +0530 Shiv Giri vs Prahlad Singh Page 17 of23 Shiv Giri vs Prahlad Singh Page 18 of 23 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: 21.1 Keeping in view the facts and circumstances of the case, said statement of the petitioner/injured and clause 32 of MCTAP regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs. 2,00,000/ be released to him in his MACT Claims SB A/c no.82302010002362 with Syndicate Bank, Tilpat Branch, Haryana as per rules i.e. the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in Motor Accident Claims Annuity Account (MACAD) so that the maximum benefits can be availed by the petitioner. In case, the MACAD scheme has not become fully operational in the concerned bank, till the time the same becomes fully operational, the remaining amount be kept in 48 FDRs of equal amount for a period of one month to 48 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
21.2 The aforesaid award amount shall be disbursed to the claimant (s) through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to following conditions:
(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 Digitally custody. However, the statement containing FDR number, FDR amount, signed by AMIT AMIT BANSAL BANSAL Date:
2020.08.28 16:59:54 +0530 Shiv Giri vs Prahlad Singh Page 18 of23 Shiv Giri vs Prahlad Singh Page 19 of 23 date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their 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. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(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.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
22. Relief 22.1 As discussed above, Reliance General Insurance co/R3 is directed to deposit the award amount of Rs. 8,88,500/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 05.05.2011 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi Digitally signed by AMIT AMIT BANSAL within 30 days from today under intimation of deposition of the awarded BANSAL Date:
2020.08.28 17:00:09 +0530 Shiv Giri vs Prahlad Singh Page 19 of23 Shiv Giri vs Prahlad Singh Page 20 of 23 amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
22.2 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 claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 22.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
22.4 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other details Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
22.5 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.
Digitally signed by In view of the directions contained in order dated 18.01.2018 AMIT AMIT BANSAL BANSAL Date:
2020.08.28 17:00:28 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh +0530 Shiv Giri vs Prahlad Singh Page 20 of23 Shiv Giri vs Prahlad Singh Page 21 of 23 Tyagi vs Jaibir Singh, the statement of petitioner was also recorded on 10.12.2019 wherein he stated that he was entitled to exemption from deduction of TDS and that he would submit form 15G to insurance co. so that no TDS is deducted.
23. Form IVB which has been duly filled in 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.Digitally signed
AMIT by AMIT BANSAL BANSAL Date: 2020.08.28 17:00:35 +0530 Announced in open court (AMIT BANSAL) on 28th August 2020 PO MACT N/W Rohini Courts, Delhi. Shiv Giri vs Prahlad Singh Page 21 of23 Shiv Giri vs Prahlad Singh Page 22 of 23 FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident : 17.03.2011
2. Name of injured: Shiv Giri Goswami
3. Age of the injured: About 57 years 2 months at the time of accident.
4. Occupation of the injured: Minimum Wages/self employed
5. Income of the injured: Rs. 6693/
6. Nature of injury: Grievous
7. Medical treatment taken by the injured: For about 8 months
8. Period of hospitalization: About 29 days.
9. Whether any permanent disability ? If yes, give details.
86% permanent disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 2,48,352/
(ii) Expenditure on conveyance Rs. 30,000/
(iii) Expenditure on special diet Rs. 30,000/
(iv) Cost of nursing/attendant Rs. 50,000/
(v) Loss of earning capacity Rs. 3,61,422/
(vi) Loss of income Rs. 48,672/
(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. 60,000/ Digitally AMIT signed by AMIT BANSAL
(iii) Loss of amenities of life Rs. 60,000/ BANSAL Date:
2020.08.28 17:00:43 +0530
(iv) Disfiguration Shiv Giri vs Prahlad Singh Page 22 of23 Shiv Giri vs Prahlad Singh Page 23 of 23
(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 86% 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 Rs. 3,61,422/ %Earning capacity X Multiplier) {(Rs. 6084/+10%)x12x9x50%}
14. TOTAL COMPENSATION Rs. 8,88,500/ (after rounding of)
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 7,44,780/
17. Total amount including interest Rs. 16,33,280/
18. Award amount released Rs. 2,00,000/
19. Award amount kept in FDRs Rs. 14,33,280/
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. 01.10.2020 (Clause 31) Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2020.08.28 17:00:49 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
28.08.2020
Shiv Giri vs Prahlad Singh Page 23 of23