Delhi District Court
Santosh Kumar vs Amit Nehra on 6 May, 2024
:1:
IN THE COURT OF MS. CHARU GUPTA
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-01 (SE), SAKET COURTS : NEW DELHI
MACT No.: 1009/17
Santosh Kumar v. Amit Nehra
CNR No.: DLSE01-009548-2017
1. Santosh Kumar
S/o Sh. Ramakant
R/o 2486/S, Ghasiyar Mandi
Vivek Nagar, Sultanpur
U.P.-228001.
.....Petitioner
Versus
1. Amit Nehra
S/o Maha Singh Nehra
R/o 1135,G.F. Sector-29,
Faridabad, Haryana.
............Driver/Respondent no.1
2. Mahasingh Nehra R/o 895, Sector-29, Faridabad, Haryana.
............Owner/Respondent no.2
3. SBI General Insurance Co. Ltd.
2nd Floor, DDA Building Vardhman Trade Center Nehru Place, New Delhi-110019.
......Insurance Company/Respondent no.3 Date of accident : 09.04.2017 Date of filing of Petition : 20.12.2017 Date of Decision : 06.05.2024 MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 1 Of 23 BK :2: AWARD
1. The present claim petition arises out of road accident that occurred on 09.04.2017, in which the petitioner allegedly suffered grievous injury.
2. The brief facts of the case are that on 09.04.2017, at about 11 PM, petitioner alongwith two other passengers was going from Batkal Mor to Old Faridabad, Haryana in an auto-rickshaw bearing registration no. HR-38T-7858. The auto-rickshaw was being driven by the driver at a normal speed with due care and obeying traffic rules. As the auto-rickshaw in which petitioner was travelling proceeded to its destination, all of a sudden, offending vehicle i.e. an SUV (TATA Safari) bearing registration no. HR-51A-H-7086 came in a rash and negligent manner at a very high speed and collided with auto-rickshaw leading to death of the auto driver and grievous injuries to the passengers including the petitioner. Thereafter, petitioner was removed to Sarvodya hospital at Old Faridabad where his MLC was prepared. Further, application for assessing disability from Medical Board of Pt. Madan Mohan Malviya hospital was moved by petitioner, but no disability certificate was received.
3. An FIR no.182/2017 dated 10.04.2017 was registered u/s 279/337/304A of IPC at PS Sector-31, Old Faridabad, Haryana and the matter was investigated. After investigation a charge sheet was filed before concerned Ld. MM in which Section 338 IPC was also inserted.
4. Respondent no.1 is driver, Respondent no.2 is owner of the offending vehicle and Respondent no.3 is the insurance company MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 2 Of 23 BK :3: with which such offending vehicle was insured.
5. In response to the claim petition, Respondent no.1 and 2 filed their reply denying allegations made in the claim petition. Though the accident has not been denied, it has been refuted that the accident occurred due to rash and negligent driving by the Respondent no.1. It is pleaded that it is the auto-rickshaw HR- 38T-7858 which was being driven in a rash and negligent manner due to which its passengers including the petitioner suffered injury and its driver died. It is pleaded that the claim of the petitioner is also exaggerated.
6. In its reply filed by Respondent no.3, occurrence of the accident as well as rash or negligent driving by Respondent no.1 has been denied. It is pleaded that the auto-rickshaw in which petitioner was travelling was in fact being driven in rash and negligent manner at a high speed and it is owing to the sole negligence of driver of such auto-rickshaw that the accident occurred. It is pleaded that such auto-rickshaw was being driven without its driver holding a valid driving licence. It is also pleaded that the petition is bad for non-joinder of the owner of the auto-rickshaw and its insurer. Territorial jurisdiction of this Tribunal has also been challenged. However, there is no denial that the offending vehicle was insured with Respondent no.3 vide policy no. 0000000004335376 issued for the period from 13.04.2016 to 12.04.2017.
7. After completion of pleadings, following issues were framed on 16.04.2018.
1. Whether the injured Sh. Santosh Kumar suffered injuries in a road traffic accident dated 09.04.2017 involving vehicle bering MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 3 Of 23 BK :4: no.HR-51AH-7086 driven by R1and owned by R2 and insured with R3 due to rash and negligent driving of R-1? OPP.
2. Whether this court has territorial jurisdiction to try and entertain the present case? OPP.
3. Whether claimant is entitled to any compensation, if so, to what extent and from whom? OPP.
4. Relief.
8. Thereafter, evidence was led by the petitioner by examining himself as PW-1.
PW-1/petitioner Sh. Santosh Kumar led his evidence by way of affidavit Ex.PW1/A wherein he reiterated the factum of accident and stated that due to the impact of the accident, he sustained multiple grievous injuries such as abrasion on face present ad bleeding present, CLW right chick, CLW chin, CLW Forehead , deformity right knee and right leg, abrasio on right knee and bleeding etc. as detailed in MLC and treatment record of Sarvodya hospital, Faridabad. He stated that he took treatment from Sarvodaya hospital, Faridbad, Kailash Hospital,Noida and G.S.V.M. Medical college, Kanpur. The driver of the auto was declared brought dead. He deposed that FIR no.182/17 was got registered by a close relative of the deceased auto driver. He deposed that Respondent no.1 was driving the offending vehicle at a high speed, in a rash and negligent manner. He testified that he had spent more than Rs.4,50,000/- on his treatment, special diet and transportation. Further, he hired an attendant for 20 months for Rs.13,000/- p.m. He deposed that he was running his own Coaching center at his residence and earning Rs.45,000/- to 50,000/- p.m.at the time of accident. But due to accident, he is MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 4 Of 23 BK :5: unable to work properly. He stated to have received 40% disability in relation to his right lower limb.
He has further relied upon his Aadhar card and PAN Card as Ex.PW-1/1(colly), photocopy of academic document as Ex.PW-1/2(colly)(OSR), photocopy of MLR, Discharge summary and treatment records as Ex.PW-1/3(colly)(OSR), original medical bills as Ex.PW-1/4, certified copy of FIR as Ex.PW-1/5, certified copy of DL of driver of offending vehicleas Ex.PW-1/6, certified copy of RC of offending vehicle as Ex.PW- 1/7, certified copy of insurance policy of offending vehicle as Ex.PW-1/8, certified copy of site plan as Ex.PW-1/9, certified copy of chargesheet/final report as Ex.PW-1/10, original disability certificate as Ex.PW-1/11 and certified copy of statement of petitioner as Ex.PW-1/12.(Ex.Pw-1/5 to Ex.PW- 1/10 are filed and already exhibited as Ex.PW-1/16 to Ex.PW- 1/12 in connected matter MACT No.1011/17 Kuldeepak Srivastava v. Amit Nehra) PW-1 was duly cross examined by Ld. Counsel for Respondent no.3 only.
9. No evidence was led on behalf of Respondents.
10. Final arguments in details were addressed by all the parties. On the basis of pleadings of the parties, evidence adduced and arguments addressed, issue wise findings are as under:
Issue No. 1Whether the injured Sh. Santosh Kumar suffered injuries in a road traffic accident dated 09.04.2017 involving vehicle bearing no.HR-51AH-7086 driven by R1and owned by R2 and insured with R3 due to rash and negligent driving of R-1? OPP.
MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 5 Of 23 BK :6:
11. Before proceeding to decide the above issue, it is apposite to note that as a settled principle of law, proceedings under The Motor Vehicle Act are not considered akin to the proceedings in a civil suit and hence strict rules of evidence are not applicable. Reliance is placed upon decision in Bimla Devi & ors. vs. Himachal Road Transport Corporation & ors. (2009) 13 SC 535, in Parmeshwari vs. Amir Chand & ors., 2011 (1) SCR 1096 and National Insurance Company Ltd. vs. Pushpa Rana, 2009 ACJ 287, wherein it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view has to be taken.
12. In the present case, petitioner/injured has been examined as PW-1 wherein he has testified the date and manner of accident on the lines of DAR.
During his cross-examination, PW-1 denied negligence on the part of the driver of the auto rickshaw in which he was travelling. He admitted that he has not placed on record any documentary proof to show the expenditure of Rs.4.5 lacs in his treatment, special diet and transportation, Rs.13,000/- on attendant for 20 months. Further, he admitted that he has not filed documentary proof regarding coaching center and earning of Rs.45,000/- to Rs.50,000/-. He denied the suggestion that he suffered 40% disability. He denied the suggestion that medical bills Ex.PW-1/4(colly) are forged and procured documents.
13. In the instant case, the accident has occurred due to heard on collision between the offending vehicle and the auto-rickshaw. Site plan clearly shows that the auto-rickshaw was plying MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 6 Of 23 BK :7: towards Badkal in the permissible traffic direction while the offending vehicle collided from the front side, suggesting to be driven in the wrong side, opposite to the traffic flow. Facts and the evidence led, makes it abundantly evident that the accident was caused due to rash and negligent driving of the offending vehicle. In the present case, police after investigation had filed charge sheet against Respondent no.1 under Section 279,337,338,304A of IPC which is also suggestive of negligence of respondent in causing the accident. The IO has filed Detailed Accident Report before this Tribunal. In National Insurance Co. vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of charge sheet are sufficient proof of negligence of the driver of the offending vehicle.
14. Neither the driver nor the owner of the offending vehicle have entered into the witness box or raised any defence.
15. It may further be noted that in Cholamandlam insurance company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310, it was held that if driver of offending vehicle does not enter the witness box, an adverse inference can be drawn against him. In the present case also, driver did not enter into the witness box to controvert the claim of petitioner or even to explain circumstances of accident. There is nothing on record to suggest contributory negligence on the part of the auto-rickshaw in which petitioner was travelling hence the driver or owner of such auto-rickshaw is not necessary party nor failure to implead them is fatal to the case.
16. On perusal of examination-in-chief by way of affidavit of MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 7 Of 23 BK :8: PW-1, it is noted that PW-1/Petitioner deposed on the lines of petitioner's original stand as already noted above. It was further deposed that due to rash and negligent driving of the R-1, the accident in question took place. Further, even the medical documents support the claimant that injuries caused in road accident.
17. In totality of circumstances, this Tribunal is of the opinion that the claimant have been able to prove at the scales of preponement of probabilities that the accident in question, took place due to rash and negligent driving of the offending vehicle bearing no. HR-51AH-7086 by its driver/respondent no.1 on the date and time of accident. Accordingly, issue no.1 is decided in favour of petitioner/ claimant/applicant and against the respondents.
Issue no. 2 Whether this court has the territorial jurisdiction to try and entertain the present case? OPP.
18. Learned counsel for R-3/Insurance company has argued that the present claim petition is not maintainable for territorial jurisdiction. However, in the memo of parties office address of insurance company is mentioned as 2nd floor, DDA building, Vardhman Trade Center, Nehru Place, New Delhi. Further, Hon'ble Supreme Court of India in its latest Two Bench Judgment in 'Malati Sardar v. National Insurance Co. Ltd.'2016(1) SCALE 133 has held that there is no bar to a claim petition being filed at a place where the insurance company which is the main contesting parties in such cases, has its MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 8 Of 23 BK :9: business. The Hon'ble Apex Court has also cautioned against MACT No.5011/16 Tanveer Hussain & Anr. v.Anzar & Ors. Page No.6/18 adopting hyper technical approach in interpreting a benevolent provision for the victims of accidents of negligent driving and said that the provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated, the Bench said. In view of guidelines passed by the Hon'ble Apex Court in Malati Sardar's Case (supra), this Tribunal has territorial jurisdiction to try and entertain the present claim petition.
Issue No.3.
Whether claimant is entitled to any compensation, if so, to what extent and from whom? OPP.
19. Since, no contributory negligence is found on the part of petitioner and the offending vehicle was duly covered by insurance company, the compensation shall be payable to the petitioner/injured by the insurance company of offending vehicle bearing registration number HR-51AH-7086.
20. As regards the quantum of compensation, this court is governed by the law laid down by Hon'le Supreme Court in Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 Supreme Court cases 343, Sarla Verma & Ors. v. Delhi Transport Corporation & Ors. (2003) 6SCC 121 and National Insurance Company Limited v. Pranay Sethi & Ors.(2017) 16 SCC 680. The gist of the law is that the object of awarding damages is to make good the loss suffered as a result of wrong done as far as MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 9 Of 23 BK : 10 : money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
21. Further it can be noted that the heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 10 Of 23 BK : 11 : marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
21.1. In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). 21.2. It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii),
(v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
21.3. Assessment of pecuniary damages under Item (i) and under Item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence.
21.4. Award under the head of future medical expenses--Item
(iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof.
21.5. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of Hon'ble SC and Hon'ble High Courts contain necessary guidelines for award under these heads, if necessary. 21.6. It was observed by Hon'ble Sc in such case of Raj Kumar (supra) that what usually poses some difficulty is the MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 11 Of 23 BK : 12 : assessment of the loss of future earnings on account of permanent disability--Item (ii) (a).
22. In the present case, petitioner has claimed permanent disability on account of the injuries suffered in the accident. As per the disability certificate Ex.PW-1/4 issued by Department of Chief Medical Officer, Lucknow, petitioner has been assessed to be suffering from 40% permanent disability in relation to his right lower limb. In order to appreciate this argument, this court has gone through the medical treatment of the petitioner where he was shifted. The OPD card specifically mentions the injury suffered as wound in knee and leg. Such victim/PW-1 further deposed that such injury caused him permanent disablement, loss of income and loss of future. He remained admitted from 11.04.2017 to 26.04.2017 in G.S.V.M. Medical College, Kanpur and again on 26.08.2019 to10.09.2019. Further, no employment proof filed as petitioner claims to be self-employed/tutor. However, educational proof pertaining to degree of MA, B.Ed. Filed. His Aahdar card is of U.P. Considering the nature of qualification and the profession as claimed by the petitioner, physical disability in the lower limb would have possibly effected, the petitioner only to about 10% of functional disability. As such, having regard to material on record and admission of the injured in govt. hospital, period of loss of income is taken from the date of accident for three years. Further, he deposed that at the time of accident, he was working as tutor and earning Rs.45,000/- to 50,000/-per month but no proof was filed. Hence, his minimum wages as skilled worker of U.P. is taken as Rs.8889.05(round off Rs.8889/- P.M.).
MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 12 Of 23 BK : 13 :
23. In the instant case, the nature of engagement/work of petitioner did not, pre-dominantly require physical labour or active physical strength and activities including walking etc. Thus, as permanent disability of 40% in his lower limb as per disability certificate of Lucknow and as per Ex.PW-1/11 dated 21.02.2019, would not have substantially affected his job but may have affected discharge of his day to day work/lifestyle effectively as he was doing before the accident.
Thus, having regard to nature of medical permanent disability and his social and professional background, his functional disability is taken as 10%.
24. Further, as per record he was above 33 years of age at the time of accident.
25. In this case, the claimant has proved on record his medical treatment expenses bills. On bare perusal of cross-examination of PW-1/injured, it can be noted that nothing material could be extracted from such witness to discredit his evidence in this regard except that he has not filed any proof of expenditure. No evidence to contrary has been brought by respondent side. Thus, this Tribunal has no reason to disbelieve the same. Accordingly, it is held that expenses on medical treatment in the present case is Rs.2,53,677/-.
26. Further, interest of petitioner was closed vide order dated 19.11.2022 by the learned Predecessor of this court for the period 19.11.2022 to 02.05.2023.
27. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 13 Of 23 BK : 14 :
28. In this background of material and evidence on record, in the present case having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
Sl. Pecuniary loss : - Quantum no.
1. (I) Expenditure on treatment : having Rs.2,53,677/-
regard to material on record including documents as discussed above.
(ii) Expenditure on Conveyance : The Rs.10,000/- petitioner has not filed any bill for conveyance. The nature of injuries are grievous and petitioner suffered 40% permanent disability in his lower limb.
Thus, having regard to his place of residence and place of hospitals from where medical treatment was given and period of such treatment, by guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : Rs.10,000/- There is no prescription for special diet. The nature of injuries are grievous and petitioner suffered 40% permanent disability in his lower limb.
By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even Rs.20,000/- in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : Rs.62,223/-
Compensation towards loss of income,
as noted above, date of treatment till
date of implant i.e. approximately 6
months as well during second surgery on
MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 14 Of 23 BK
: 15 :
account of removal of implant i.e.
approximately one month is
Rs.8889x7(6+1) months.
(vi) Cost of artificial limbs (if NA
applicable) :
(vii) Any other loss / expenditure : Not applicable
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.10,000/-
physical shock : As the petitioner has
suffered grievous injuries and suffered 40% permanent disability in his lower limb, he would have undergone great mental and physical shock.
(ii) Pain and suffering : Compensation Rs.10,000/- for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
(iii) Loss of amenities of life : The Rs.20,000/- petitioner has suffered grievous injuries and suffered 40% permanent disability in his lower limb.
(iv) Disfiguration : NA
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed The petitioner has and nature of disability as permanent suffered 40% or temporary permanent disability in his lower limb.
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability : The petitioner has suffered 40% permanent disability in his lower limb.
(iii) Percentage of loss of earning 10% capacity in relation to disability: As MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 15 Of 23 BK : 16 : already discuss above.
(iv) Loss of future Income: The 10% of ( (8889/- functional disability is taken as 10%. X 12) X.16)) = Rs.1,70,668.8/-
Injured was above 33 years old at the (round off time of accident, hence multiplier of 16 Rs.1,70,669/-) is applicable.
Total Compensation Rs.5,66,569/-
Deduction, if any, Nil
Total Compensation after deduction Rs.5,66,569/-
Interest : Simple interest
@9% p.a. from
the date of filing
of till actual
realization of
Award amount/
compensation.
Interest of
petitioner was
closed for the
period 19.11.2022
to 02.05.2023.
29. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
30. The total compensation payable to the claimant MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 16 Of 23 BK : 17 : would be Rs.5,66,569/- with simple interest at the rate of 9% p.a. from the date of filing of petition till its actual realization.
LIABILITY
31. As already discussed, principal award amount/ compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of petition till actual realization.
Directions Regarding Deposit of Award Amount in Bank:
32. In compliance of directions issued vide order dated 16.11.2021 by Hon'ble Supreme Court of India in Writ Petition Civil No.534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India the award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT SAVING ACCOUNT No. 00000042706875094, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir in the prescribed format i.e. MCOP Number on the file of (Claims Tribunal Name) Date of award, Compensation Amount, Income Tax Deduction at Source, Bank Transaction Reference No./Unique Transaction Reference (UTR) Number. In turn, the State Bank of India, Saket Courts Branch shall receive the deposited sum and capture the above information and furnish a statement of account on a daily basis to the Nazir of this Tribunal to reconcile the deposits of compensation and the respective MCOPs towards which such deposits are made. On such deposits being made, the insurance company shall submit a letter to the Nazir of this Tribunal enclosing a copy of the said MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 17 Of 23 BK : 18 : bank advice, in prescribed format as above, as per which the deposit made to the bank account of this Tribunal, to enable this Tribunal to keep tab on the deposits made and the MCOPs for which they were made. The Payment advice for remittance of compensation is as under:
PAYMENT ADVICE FOR REMITTANCE OF
COMPENSATION :
............ Bank ................... To:
............... Court ........................ We confirm remittance of compensation as follows on instructions of ................................... (insurance company):-
MCOP Number On the file of (Claims Tribunal Name), Place Date of award Amount Deposited, Income Tax Deduction at Source, if any Unique Transaction Reference (UTR) Number. Insurance company of offending vehicle, on deposit, shall also send a copy of the payment advice in above format to this Tribunal and serve a copy of the same on the claimants or their counsel as the case may be.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
33. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 18 Of 23 BK : 19 : MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
34. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
35. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 19 Of 23 BK : 20 : amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos.
(i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 20 Of 23 BK : 21 : guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice..."
MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 21 Of 23 BK : 22 :
36. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, whole of Award amount is released to the petitioner/injured, alongwith simple interest @ 9% p.a. from the date of filing of DAR till its actual realization, in his bank account near his place of residence as per rule/ directions.
37. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022-22741336/9414048606 and e-mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 09.04.2017 MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 22 Of 23 BK : 23 : 2 Name of injured Santosh Kumar 3 Age of the injured 33 years 4 Occupation of the Tutor injured 5 Income of the injured Rs.8889/- P.M.(skilled labour U.P. in April 2017) 6 Nature injury Grievous/Disability 7 Medical treatment G.S.V. M, Medical college, taken by the injured: Kanpur, 8 Period of 11.04.2017 to 26.04.2017 and Hospitalization 26.08.2019 to 10.09.2019 9 Whether any 40% in relation to right lower permanent disability? limb.
38. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate concerned.
39. List for compliance on 06.06.2024.
Announced in open Court On 06th May, 2024 (Charu Gupta) PO-MACT-01(South-East) Saket Court/ New Delhi MACT NO:1009/17 Santosh Kumar v. Amit Nehra & Ors P.No. 23 Of 23 BK