Delhi District Court
Sushev Kumar vs . Satvir Singh & Ors. on 19 October, 2020
MORE THAN FIVE YEARS OLD MATTER
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
Sushev Kumar VS. Satvir Singh & Ors.
SUIT/MACP No. 46/15
Sh. Sushev Kumar
S/o Sh. Ravendra Kumar
R/o. H. No. 32, Bujakasawan,
Pilibhit, U.P.
......Petitioner/Injured
Versus
1. Sh. Satvir Singh
S/o Sh. Bed Ram
R/o NE-1992, Nagala Enclave Part-II,
Faridabad, Haryana.
2. Sh. Bijender
S/o. Sh. Dharampal
R/o. C-99, Shankar Vihar,
Loni, Ghaziabad, U.P.
3. M/s Shri Ram General Insurance Co. Ltd.
E-8, EPIP RIICO Indl. Area,
Sitapura, Jaitpur-302022.
.....Respondents
Date of filing of DAR : 16.02.2015
Date of filing of suit/petition : 31.03.2015
Date of framing of issues : 14.07.2015
Date of concluding arguments : 10.09.2020
Date of decision : 19.10.2020
AWARD/JUDGMENT
Suit/MACP No. 46/15 Page no.1 of 28
1. The claim for compensation raised in the present suit/petition relates to injuries and permanent physical disability suffered by petitioner in a road accident that took place on 09.12.2014, at about 1.40 am, at Tolstoy Marg Red Light, Barakhambha Road, New Delhi, regarding which one FIR bearing no.187/2014, under Sections 279/337/304A IPC was registered at PS Barakhambha Road. The offending vehicle involved in this case is a truck bearing registration no. HR-38K-0190, which at the relevant time of accident was being driven by R-1 (respondent no.1), owned by R-2 (respondent no.2) and insured with R-3 (respondent no.3).
2. The case of petitioner, briefly stated, is that on the above said date, time and place of accident, he as well as his office colleagues Ms. Suman Sindhu and Intazar Hussasin were on their way back to their homes in a car bearing registration no. UP-16X-2222 being driven by Intazar Hussain, when their above said car was suddenly hit by the above offending truck, which came being driven by R-1 from Tolstoy Marg road side at very fast speed and in a rash and negligent manner. It has been alleged by petitioner that R-1 jumped the above red light before hitting their car with such a great force that their car had gone down under the truck between its front and rear wheels on its conductor side and car was also dragged by the truck upto a distance of around 15 meters towards Ranjeet Singh Flyover. The petitioner as well as the two other occupants of car got injured and were removed to RML Hospital by the PCR officials and though the petitioner as well as her above female colleague were lucky survive with grievous injuries, but Intazar Hussain was declared brought dead. The said truck at the relevant time of accident was admittedly owned by R-2 and insured by R-3.
3. One Detailed Accident Report (DAR) No. 49/15 regarding the above accident was filed before this tribunal on 16.02.2015 and two separate claim petitions bearing Suit/MACP Nos. 37/15 and 38/15 in Suit/MACP No. 46/15 Page no.2 of 28 respect of injuries suffered by Ms. Suman Sindhu and fatal injuries suffered by above Intazar Hussain respectively were also filed before this tribunal on 09.03.2015. This petition no. 46/15 also subsequently came to be filed on behalf of petitioner on 31.03.2015 and on the same day, the DAR file was directed to be clubbed with the said petition.
4. Though appearance on behalf of all the respondents was filed in the DAR, but on perusal of record it has been observed that R-1 & R-2 had subsequently stopped appearance in these matters and they had not even filed any formal reply to the DAR or to the claim petition. They both were also subsequently proceeded exparte in this case formally vide order dated 04.12.2019, when the matter was already at the final stage of disposal.
5. R-3/Insurance Company had, however, filed its reply to the claim petition and in the said reply though they had admitted the issuance and existence of a valid policy of insurance by them in respect of the above offending truck in name of R-2, but they had taken a plea that the said accident took place due to rash and negligent driving of driver of the above car. They also submitted that their liability to pay compensation to petitioners was only as per the terms and conditions of said policy.
6. Since all these petitions/suits no. 37/15, 38/15 & 46/15 arose out of the same accident, these were consolidated for the purposes of trial and disposal vide order dated 14.07.2015 and on the same date, the following consolidated issues were also framed by this tribunal for disposal of the petitions:-
1. Whether Sh. Sushev Kumar (petitioner in suit no.46/15) and Ms. Suman Sindhu (petitioner in suit no.37/15) sustained injuries and Sh. Intazar Hussain (deceased in suit no.38/15) sustained fatal injuries, in the accident which occurred on 09.12.2014 at about 1.40 AM at Tolstoy Marg, B.K. Road Red Light, New Delhi caused by rash and negligent driving of vehicle No. HR-38K-0190 being driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3?
Suit/MACP No. 46/15 Page no.3 of 28
OPP
2. Whether the petitioners are entitled for compensation?
If so, to what amount and from whom?
3. Relief.
7. On getting the records of above three cases scrutinized from the court staff, it has been found that the Suit/Petition No. 38/15 qua death of injured Intazar Hussain was settled in the National Lok Adalat held on 12.12.2015 and the other Suit/Petition No. 37/15 (having a new no. 609/16 art that time) qua injuries suffered by Ms. Suman Sindhu was also settled subsequently on 24.11.2016 and proceedings are found to have been written/conducted thereafter only in the file of present petition no. 46/15.http://10.199.48.2/swecourtis/index.php
8. It is also necessary to mention here that vide order dated 20.01.2016, the Medical Superintendent of AIIMS Hospital was directed to constitute a medical board to examine the petitioner and to determine his permanent disability arising out of injuries suffered by him and vide report dated 18.02.2016 given by Dr. Rajendra Prasad Centre for Opthalmic Sciences, AIIMS Hospital , it was reported that the petitioner has suffered 30% permanent visual disability as a result of the above injuries.
9. I have heard the arguments advanced by Sh. M.R. Sisodia, Ld. Counsel for petitioner and Sh. N.K. Chauhan, Ld. Counsel for R-3. Arguments on behalf of the parties have been heard through CISCO Webex. However, none has turned up on behalf of R-1 & R-2 even for addressing final arguments as they subsequently stopped appearing in the matter and ultimately were proceeded exparte. The case record has also been perused. My findings on the above issues are as under :-
ISSUE No. 110. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court Suit/MACP No. 46/15 Page no.4 of 28 and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
11. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc.
12. The petitioner in support of his case is found to have examined on record total three witnesses including himself. Since none of the other two witnesses is an eye-witness of the above accident, it is only the testimony of petitioner/PW1 himself which is relevant for determination of the alleged rashness and negligence on part of R-1 as driver of the above offending truck. The petitioner is though found to have tendered on record his examination-in-chief by way of two affidavits Ex.PW1/X and Ex.PW1/X1 on 17.08.2017 and 11.12.2018, but it has also been observed that his second affidavit Ex.PW1/X1, which was tendered on record by way of his additional evidence, is confined only to tendering of some medical bills/payment receipts and his disability report only and has nothing to do with the manner of accident. Besides these, some discharge summaries and treatment records of petitioner were also subsequently taken on record by this tribunal and exhibited as Ex.PX (colly-19 pages) without his formal examination and on no objection given by Ld. Counsel Suit/MACP No. 46/15 Page no.5 of 28 for R-3 on 10.09.2020 as the same was found to be relevant for disposal of his claim. Hence, it is only his first affidavit Ex.PW1/X, which is to be seen for determining the manner in which the above accident took place.
13. It is found that in his affidavit Ex.PW1/X, the petitioner has almost deposed on the above lines of his case regarding the factum as well as manner of the said accident. He has specifically stated in the said affidavit that the accident took place at the above red light when he and his female friend Suman Sindhu were returning to their residence in the above car bearing registration no. UP-16X-2222 (Audi) driven by their colleague Intazar Hussain. He also stated therein that the offending truck came being driven suddenly from Tolstoy Marg side and it jumped the red light at a very high speed and had then gone to hit their car, due to which their car came under the truck on its conductor side and was dragged towards Ranjeet Singh Flyover. He also stated in the above affidavit that offending truck did not stop even thereafter and it had gone to hit against an electricity pole and then stopped. He further deposed in the said affidavit in clear and specific terms that the said truck was being driven by R-1 in a rash and negligent manner and the same was owned by R-2 and insured with R-3.
14. It has been observed that the above depositions made by petitioner regarding the manner of accident have almost gone unchallenged, uncontroverted and unrebutted because he was not at all cross examined by or on behalf of R-1 on these aspects and though he was cross examined by Ld. Counsel for R-3, but even during his such cross-examination nothing material could be extracted out from him which could have the effect of discarding or disbelieving his testimony as a whole. It is found that most of his cross-examination conducted by Ld. Counsel for R-3 is related to his entitlement to the claimed amounts of compensation under different heads and though some suggestions are Suit/MACP No. 46/15 Page no.6 of 28 also found to have been given by Ld. Counsel for R-3 to petitioner to the effect that the above accident did not take place due to rash and negligent driving of above truck by R-1 or that it took place due to rash and negligent driving of driver of above car, but these suggestions were duly denied by petitioner as wrong. The petitioner has also denied another suggestion given to him by Ld. Counsel for R-3 that the driver of their car could not applied brakes in time, due to which the said accident took place. Though the petitioner is also found to have admitted it to be correct that their car had gone to hit the truck on its middle on the left side, but when his statement is appreciated as a whole, it suggests that it happened as the truck suddenly came in front of their car, after the driver of truck came driving it at a very high speed and after jumping the above red light. The petitioner has even volunteered on record that their car skidded on road and their were also impressions/marks of tyres on the road, which can be taken to mean that the driver of car made all his efforts to stop it before it had gone to dash against the truck.
15. Moreover, the oral testimony of petitioner is also found substantiated from records of the criminal case, which have been filed with the DAR and have not been challenged or disputed on behalf of the respondents. These documents not only consist of copies of the FIR (Ex.PW1/A) and charge-sheet of the said case, but also copies of the site plan, seizure memos and mechanical inspection reports of the two vehicles involved in accident, as well as copy of MLC of petitioner (Ex.PW1/B) and of the two other injured and arrest memo of R-1 etc. These documents clearly show that the nature of injuries suffered by petitioner in above accident was declared as grievous and R-1 has already been charge-sheeted in the above criminal case for offences punishable under Sections 279/338/304A IPC for causing grievous hurt on the persons of injured Suman Sindhu and the petitioner and fatal Suit/MACP No. 46/15 Page no.7 of 28 injuries on the person of above Intazar Hussain by his rash and negligent driving of the said truck and the same in itself is a strong circumstance to corroborate the testimony of petitioner on above aspects.
16. Apart from above, R-1 was the best witness who could have challenged or controverted the testimony of this witness by deposing on record about manner of the said accident, but as already discussed, he has neither filed any reply to the DAR or to this claim petition and he had even not cross examined the petitioner. In the absence of a reply, he also could not have stepped into the witness box to depose that the above accident did not take place due to his sole rash or negligent driving or that it took place due to exclusive or contributory negligence of driver of car or not in the manner as stated by petitioner and he was ultimately proceeded ex-parte at the stage of final arguments. Hence, an adverse inference can also be drawn against the respondents on this aspect, in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
17. Therefore, in view of the above, it is held that oral evidence led on record by the petitioner on this issue is duly substantiated by the documentary evidence and it stands proved by the principle of preponderance of probabilities that the above accident resulting into injuries on the person of petitioner took place due to rash and negligent driving of the above offending truck bearing no. HR-38K-0190, which was being driven by R-1, owned by R-2 and insured with R-3 at the relevant time of accident. Hence, this issue is accordingly decided in favour of the petitioner and against the respondents.
18. ISSUE NO.2 As the issue no.1 has been proved in affirmative and in favour of petitioner, the petitioner has become entitled to be compensated for the injuries and disability suffered in above accident, but the computation of Suit/MACP No. 46/15 Page no.8 of 28 compensation and liability to pay the same are required to be decided.
In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating Suit/MACP No. 46/15 Page no.9 of 28 the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R. D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011)1 SCC 343.
In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses In his above affidavit Ex.PW1/X, the petitioner has claimed his medical expenses to be around Rs.8,20,000/- and by way of his additional affidavit Ex.PW1/X1, he also claims to have tendered on record certain other bills amounting to Rs.60,000/- approximately in respect to his subsequent treatment. As stated above, the petitioner has suffered 30% permanent visual disability as a result of the above injuries. The nature, extent and duration of treatment taken by him and effect of above permanent disability on his earning capacity will be discussed in the succeeding head and in the present head only his claim for compensation towards treatment expenses is to be discussed.
It is observed that he has tendered on record his entire treatment record and medical bills/payment receipts as Ex.PW1/1 (colly- 128 pages) initially through his first affidavit Ex.PW1/X and thereafter also, he had tendered on record some further medical bills/payment receipts amounting to around Rs.60,000/- and his some subsequent treatment record as Ex.PW1/Y (colly). As already discussed, some other treatment record and all the discharge summaries of petitioner were also taken by this tribunal on record vide its order dated 10.09.2020, with Suit/MACP No. 46/15 Page no.10 of 28 consent of Ld. Counsel for R-3, as it was found that the same were relevant for disposal of claim of petitioner and it was so because when earlier the matter was fixed for consideration/orders by this tribunal, after hearing arguments on behalf of parties, it was observed that most of medical bills and payment receipts produced in evidence by petitioner were not backed by his treatment record/prescriptions.
Though all these medical bills and payment receipts of petitioner are found to be totaling to a sum of Rs.8,22,490/-, but certain discrepancies have been observed in the said bills and receipts by this tribunal as some receipts filed by him are found to be in respect of his traveling tickets/metro card recharge slips totaling to an amount of Rs.4,350/- having been spent on public conveyance, which he claims are related to the traveling required in connection with his treatment. However, his this claim of traveling expenses shall be deal with under a separate head and hence, these traveling receipts are not being considered in the present head. Again, it has also been observed that along with an invoice/bill dated 16.12.2014 of Rs.40,115/- (including VAT) issued by Jupiter Healthcare Co. in respect of purchase of some medical equipments required in his surgery conducted in RML Hospital, he has also filed on record one advance receipt of Rs.25,000/- of the same date and this payment appears to have been made against that very bill. Hence, amount of above receipt of Rs.25,000/- is not being considered separately by this tribunal and only the amount of above bill of Rs.40,115/- is being considered.
Thus, after excluding the above traveling expenses of Rs.4,350/- and also Rs.25,000/- paid vide above receipt, the petitioner is held entitled to the remaining amount of Rs.7,93,140/- towards his actual medical/treatment expenses as it has been observed that all these bills and receipts produced by him on record are in consonance with his Suit/MACP No. 46/15 Page no.11 of 28 treatment record and nature of injuries suffered by him in the above said accident and during his cross examination, the petitioner has also deposed that he was not having any medi-claim policy at the relevant time of accident.
(ii) Loss of actual earnings As stated above, the petitioner has suffered grievous injuries resulting into 30% permanent visual disability in the above accident. His treatment record tendered as a part of the documents Ex.PX (colly) includes various discharge summaries of different hospitals and details of these discharge summaries and durations of hospitalization of petitioner are being given herein below:-
1. RML Hospital 09.12.2014 to 03.01.2015
2. RML Hospital 29.01.2015 to 03.02.2015
3. AIIMS Hospital 14.08.2015 to 28.08.2015
4. Ganga Ram Hospital 20.10.2015 to 22.10.2015
5. BLK Super Speciality Hospital 04.03.2016 to 08.03.2016
6. AIIMS Hospital 19.07.2016 to 20.07.2016
7. AIIMS Hospital 08.11.2016 to 11.11.2016
8. BLK Super Speciality Hospital 01.12.2016 to 03.12.2016
9. RML Hospital 14.06.2017 to 19.06.2017
10. Dr. Monisha 27.11.2017 It can be gathered from his above discharge summaries that the petitioner had suffered multiple communited fractures in frontal bone, nasal bone, bilateral orbital maxilla, sphenoid bone, bilateral temporal bone and zygomatic bones and he was subjected to two corrective surgeries on his face during his first hospitalization in RML Hospital from 09.12.2014 to 03.01.2015 and even thereafter, he had undergone various corrective surgeries for fixation of above fracture injuries on his face in different hospitals. His treatment record further reflects that besides these Suit/MACP No. 46/15 Page no.12 of 28 multiple surgeries, he had also been under treatment for his eyes and dental injuries claimed to have been suffered in the above accident as an OPD patient in various hospitals namely RML Hospital, Indraprastha Apollo Hospital, ICARE Eye Hospital, Medanta Hospital, Dental and Eye Departments of AIIMS Hospital, Centre for Sight, Shroff Eye Centre, Vision Eye Centre, Sir Ganga Hospital, Green Park Dental, BLK Super Speciality Hospital, Kailash Hospital, Face Max Dental and Facial Surgery Centre, besides some other private clinics/doctors, and his treatment record spreads over a period of around two years. Hence, keeping in view the nature of injuries suffered by petitioner and the extent and duration of his treatment etc., under this head he is held entitled to be compensated for loss of his actual earning for a period of atleast 2 years as in the considered opinion of this tribunal, the petitioner would not have been able to do any job or work or to earn his livelihood for such time as a result of the above injuries.
In his above affidavit Ex.PW1/X, the petitioner has claimed that at the relevant time of accident he was working as a Sales Manager in Zephyr Infratech Pvt. Ltd. Sector-3, Noida, U.P. and was getting a salary of Rs.50,000/- pm. He also claims that due to above injuries, he had lost his income. He also tendered on record, inter-alia, one employment certificate of his above said company as Ex.PW1/G and his three salary slips of the said company as Ex.PW1/H (colly). He has further found to have examined on record one Director of his above company namely Sh. Ankit Kumar as PW2 and this witness has duly proved on record the above employment certificate as well as factum of employment of the petitioner with them. As per depositions made by this witness, he was director in the said company since the year 2013 and 40- 50 employees had been working with their company from the very beginning, out of which 20-25 were marketing employees. On being Suit/MACP No. 46/15 Page no.13 of 28 asked, this witness has also produced on record one certificate of incorporation of their company as Ex.PW2/A, but except the above employment certificate and pay slips, he has not been able to produce any other document in respect of employment or salary of petitioner. However, during cross examination of petitioner, it has also come on record that he is a post graduate having done Masters in Computer Applications (MCA) and he had been working with above company for a period of around 3 months prior to the accident. They both have also stated on record that salary of petitioner was being paid in cash. The name of PW2 as a Director of the said company is also found reflected in the documents which have been brought on record by PW2 along with the incorporation certificate Ex.PW2/A. Hence, in view of these depositions made by the petitioner and PW2, though Ld. Counsel for R-3 has doubted veracity of claims being made by petitioner regarding his employment and earnings, but after going through the testimonies of petitioner as well as of PW2 and the documents brought on record, this tribunal has no doubts regarding authenticity or genuineness of these documents or the above claims of petitioner.
However, it has also been observed that salary of petitioner was not a fixed salary of Rs.50,000/- pm or Rs.6,00,000/- pa, as stated in these documents, as some variations have been found in his pay slips depending upon the number of his actual working days. Hence, to be just and reasonable, the average of salary amounts stated in these three pay slips of petitioner Ex.PW1/H (colly) is being taken to be the monthly salary of petitioner and same comes to Rs.46,685/- pm (rounded off) (Rs.48387 + 45000 + 46667 divided by 3) and going by this salary, his annual earnings come to Rs.5,60,220/- (Rs.46,685/- X 12). In view of the settled law on subject, only tax liability of the petitioner, if any, is to be reduced from his above annual earnings as his 'income' means the actual Suit/MACP No. 46/15 Page no.14 of 28 income less than the tax paid, as was also approved in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017. Hence, as per income tax rates prevailing at the relevant time of accident, an amount of Rs.38,155/- is required to be reduced from the above annual earning amount towards income tax and thus, the net annual earnings of petitioner come to Rs.5,22,065/- (Rs.5,60,220 - 38,155).
Therefore, the petitioner is being awarded an amount of Rs.10,44,130/- (Rs.5,22,065 X 2) under this head pertaining to loss of his actual earnings.
(iii) Loss of future earnings due to disability The nature of injuries suffered by petitioner as well as the extent and duration thereof have already been discussed in detail. It has also been stated above that the petitioner has suffered 30% permanent visual disability and treatment record of petitioner brought in evidence shows that his visual disability has been suffered by him for the whole vision of his left eye, though injuries were suffered by him in both of his eyes. The evidence led on record further shows that this loss of one eye vision was actually as a result of multiple fractures and other extensive injuries suffered by him on his face.
Now it is to be seen if the above visual disability of 30% suffered by him is only with respect to his vision of one eye or above disability percentage is in respect to his whole body or this visual disability is related to his earning capacity or not. For this, the functional disability of petitioner resulting into his earning capacity is required to be ascertained because it is well settled that the percentage of permanent disability, physical or mental, as given in disability certificate of a person may be different from his actual functional disability resulting into loss of his earnings capacity because of the said disability. The law with regard Suit/MACP No. 46/15 Page no.15 of 28 to grant of compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it was held as under :-
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal 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 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 enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured;
Suit/MACP No. 46/15 Page no.16 of 28 and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency)."
Coming back to the present case, it has already been discussed above that the petitioner has claimed himself to be a post graduate in Computer Applications and he was working as a Sales Manager/Head with a private limited company at the time of accident and on an average was earning around Rs.46,685/- pm. Being a technical person and employed in the field of sales, it can be inferred that his job involved use of his vision as being a sales manager, he was expected to hold meetings with his seniors and subordinates for increasing the sales of their company and for achieving targets set by his seniors, besides doing some field work also which may be necessary to achieve such targets. Further, the job also apparently required use of computers.
Items 25, 26 and 26A of Part II of the Employees Compensation Act, 1923 prescribe percentages of loss of earning capacity of a person in case of such injuries resulting into loss of one eye or vision of one eye of a person or loss of partial vision of one eye under the head 'other injuries'. The same are stated as under:-
Other injuries Percentage of loss of earning capacity [25] Loss of one eye, without 40 complications, the other being normal [26] Loss of vision of one eye, without complications or disfigure-
ment of eye-ball, the other being normal 30
[26A] Loss of partial vision of one eye 10
The disability report of petitioner has been proved on record by PW3 Dr. Viney Gupta, Addl. Professor of Opthalmology, Dr. R.P. Centre of Opthalmic Sciences, AIIMS, New Delhi as Ex.PW3/A. As per above Suit/MACP No. 46/15 Page no.17 of 28 disability certificate as well as according to the depositions made by PW3, petitioner was having 30% permanent visual disability. In reply to certain queries put by this tribunal to this witness with reference to the above items no. 25 and 26, the witness has stated on record that the above percentage of permanent visual disability of patient should be taken in relation to his whole body. The relevant extracts of the depositions made by this witness on this aspect are being reproduced herein below:-
"In reply to a court query, the witness has stated that due to the above injury, the vision of one eye of the patient stands completely lost meaning thereby he has no vision in one eye and hence, 30% permanent visual disability has been given keeping in view the effect and impact of the above injury in relation to his whole body. At this stage, attention of the witness has also been drawn towards contents of items no. 25 & 26 of Part II of Schedule 1 of the Employees Compensation Act, 1923, and he has been asked to in which of the above two items, the injury of patient will fall. The witness has stated that it will not fall in any of the above two items as both these items talk of injury of disability without complications, one in case of loss of one eye and the other in case of loss of vision of one eye, whereas in the present case besides the loss of vision of one eye, the patient has also complications because movement of his eyeball has been restricted and he had also an fracture on the lower orbit of the eye and also that the said fracture has caused disfigurement of face of the patient."
During his cross-examination conducted by Ld. Counsel for R-3, though PW3 has stated it to be correct that the above percentage of disability is only in respect to vision of petitioner, but he again reiterated that this disability percentage should be taken in respect to his whole body and the same has been given as per guidelines issued by the government on this aspect. He also denied the suggestions given to him by Ld. Counsel for R-3 to the effect that the above visual disability of petitioner has nothing to do with other parts of his body or permanent visual disability of petitioner was not assessed by them properly or it had been given on a higher side. Thus, the depositions made by this Expert Suit/MACP No. 46/15 Page no.18 of 28 Witness on record clearly establish that the above 30% permanently visual disability suffered by petitioner should not be taken in respect to his one eye only, but it has to be taken in respect to his whole body as besides the complete loss of vision of one eye, the petitioner is also having complications as movement of his eyeball has been restricted and further he is also having a fracture on the lower orbit of eye, which further caused disfigurement of his face also. Hence, considering the legal position already discussed above and the facts and circumstances of this case, the functional disability of the petitioner is being taken as equivalent to the percentage of disability mentioned in his disability certificate Ex.PW3/A as well as as that has been stated by PW3 i.e. 30%.
In above affidavit Ex.PW1/X tendered in evidence on 11.12.2018, though the age of petitioner is found recorded as 27 years, but during his cross-examination he has stated his date of birth as 28.04.1991. His this date of birth is found recorded in his above pay slips. Hence, going by this oral testimony and contents of above pay slips, the age of petitioner on the date of accident comes to 23 years and around 7-8 months and therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Supreme Court in a recent judgment dated 31.10.2017 given in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, the multiplier of 18 is held applicable for calculating the loss of future earnings of the petitioner arising out of his above disability.
As already discussed in the preceding head, net annual earnings of petitioner at the relevant time of accident after deducting income tax was Rs.5,22,065/-. Further, the petitioner is also held entitled to 40% future prospects in view of the law laid down by the Hon'ble Delhi Suit/MACP No. 46/15 Page no.19 of 28 High Court in the cases of Bajaj Alliance Gen. Insurance Co. Ltd. Vs. Rajeshwar Prasad & Ors., MACA 858/15 decided on 19.07.2017 and Faiyaz Ahmad Khan Vs. Chandra Pal Singh & Ors., MACA No.351/17 decided on 08.08.2017 as well as in the Constitution Bench Decision of the Hon'ble Supreme Court in case of Pranay Sethi (Supra) as he was below 40 years at the time of accident and his job was permanent in nature.
Thus, the loss of future earnings and prospects caused to the petitioner due to his above injuries and permanent disability comes to Rs.39,46,811/- (rounded off) (Rs.5,22,065 X 140/100 X 30/100 X 18) and the said amount is being awarded to him under this head.
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
As discussed above, the petitioner had suffered grievous injuries in the above accident and 30% permanent visual disability and his functional disability has also been taken by this tribunal to be the same. He even remained under treatment for a long time of around 2 years. Though, it is not possible to exactly compensate him for the shock, pain and sufferings etc. which he had actually suffered because of the above injuries and disability, but as stated above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the treatment taken by him etc., an amount of Rs.2,00,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.50,000/- is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs.4,50,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges As stated above, the documents Ex.PW1/Y (colly) of Suit/MACP No. 46/15 Page no.20 of 28 petitioner also include some traveling tickets/metro card recharge slips amounting to Rs.4,350/-. However, his treatment record clearly shows that he had remained hospitalized in different hospitals on various occasions and had undergone multiple corrective surgeries for the above said injuries. Besides these hospitalizations, he had also been visiting different hospitals in OPDs in routine and his treatment continued for almost 2 years. Hence, an amount of Rs.20,000/- towards the requirement of conveyance and another amount of Rs. 30,000/- towards special diet for his early recovery from the injuries suffered because of above accident is being granted to the petitioner. Besides above, a consolidated amount of Rs.50,000/- is also being granted to him towards attendant charges or for the gratuitous services rendered by his family members during the period of hospitalization and immobility. Therefore, a total amount of Rs.1,00,000/- is being awarded to him under this head.
(vi) Loss of prospects of marriage Though Ld. Counsel for petitioner has also argued for grant of compensation to petitioner under this head towards marriage prospects on the ground that he was a young unmarried boy aged around 23-24 years at the time of accident, but during the course of examination of petitioner recorded by this tribunal on 04.12.2019, in terms of directions given by the Hon'ble High Court on 11.01.2013 in MACA No.792/2006 titled as Oriental Insurance Co.Ltd. Vs Ranjit Pandey and Ors., it has also come on record that the petitioner since stands married. There is nothing on record to suggest that his marriage was prolonged or delayed due to the said injuries. Hence, the petitioner is not held entitled to any compensation under this head.
(vii) Disfiguration As discussed in the preceding head, the injuries suffered by petitioner in the accident had resulted into complete loss of vision of his Suit/MACP No. 46/15 Page no.21 of 28 one eye and the same is coupled with complications in the form of restrictions in movement of his eyeball and the fracture on lower orbit of his eye and it had also resulted into disfigurement of his face. This disfigurement of face of petitioner can also be apparently noticed in the photographs filed on record by him in compliance of directions given by the Hon'ble High Court in case of Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. for assessing the actual impact of injuries on a person. Hence, besides the other amounts, the petitioner is also granted a lump- sum amount of Rs.2,00,000/- under this head.
Issue No.3/Relief
19. The petitioner is thus awarded a sum of Rs.65,34,081/- (Rs.7,93,140 + 10,44,130 + 39,46,811 + 4,50,000 + 1,00,000 + 2,00,000) (Rupees Sixty Five Lacs Thirty Four Thousand and Eighty One only) along with interest. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
20. RELEASE Out of the awarded amount, 85% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of 250 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 250 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account bearing no. 0385001500000587 being maintained at Punjab National Bank, Pilibhit Branch, U.P. having IFSC Code No. PUNB0038500. The Suit/MACP No. 46/15 Page no.22 of 28 remaining 15% amount is directed to be released into his above said account, which can be withdrawn and utilized by the petitioner.
To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier.
The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any.
The bank shall not permit any joint name (s) to be added in the savings bank account or MACAD scheme account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amounts shall be released in account of the petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner.
No loan, advance or withdrawal or pre-mature discharge be allowed on MACAD without permission of the Court.
Petitioner has already produced before this tribunal his original passbook with a separate letter of the Bank Manager concerned to the effect that no cheque book shall be issued to his above said account and he has also filed copy thereof on record alongwith his aadhar Suit/MACP No. 46/15 Page no.23 of 28 card and PAN card. It is directed that the concerned bank (s) shall not to issue any cheque book and/or debit card to the claimant in future also.
21. LIABILITY Though all the respondents are jointly and severally held liable to pay the amount of compensation to the petitioner, but since R-3 has failed to prove any violation of terms and conditions of the insurance policy on the part of R-2, R-3 is directed to deposit the above award amount with the UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheque/DD in name of the petitioner within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the petitioner and his counsel through registered posts that the cheque/DD of the awarded amount is being deposited so as to facilitate him to collect his cheque/DD.
22. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
23. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
24. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:-
Suit/MACP No. 46/15 Page no.24 of 28
1. Date of the accident 09.12.2014
2. Date of intimation of the accident by the
Not given
Investigation Officer to the Claims Tribunal.
3. Date of intimation of the accident by the Investigating Officer to the Insurance Not given company.
4. Date of filing of Report under Section 173 Not given Cr.PC before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer before 16.02.2015 Claims Tribunal.
6. Date of service of DAR on the Insurance
-do-
Company.
7. Date of service of DAR on the claimant(s). -do-
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR ......
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency on the part of the Investigating Officer? If DAR has been filed after so, whether any action/direction around 2½ months of accident warranted?
12. Date of appointment of the Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of the Insurance Not given Company.
14. Whether the Designated Officer of the Insurance Company submitted his report No within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly No. Legal offer not given computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance Company? If so, Delay in filing reply whether any action/direction warranted?
17. Date of response of the claimant(s) of the Legal offer not given offer of the Insurance Company.
18. Date of the award 19.10.2020 Suit/MACP No. 46/15 Page no.25 of 28
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near their Yes place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the 31.03.2018 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 passbook of their savings bank account near the place of their residence along 03.06.2019 with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o. H. No. 32, Bujakasawan, Claimant(s) Pilibhit, U.P.
24. Details of savings bank account (s) of the A/c No. 0385001500000587 claimant(s) and the address of the bank being maintained at Punjab with IFSC Code. National Bank, Pilibhit Branch, U.P. having IFSC Code No. PUNB0038500.
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
25. File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on 22.01.2021.
Announced in the open court. (M.K. Nagpal) on 19.10.2020 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format Suit/MACP No. 46/15 Page no.26 of 28 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB Date of accident : 09.12.2014 Name of the injured : Sushev Kumar Age of the injured : 23 years and around 7-8 months at the time of accident.
Occupation of the injured : Sales Manager
Income of the injured : Rs.46,685/-
Nature of injury : Grievous
Medical treatment taken by the injured : As stated in head 'loss of actual
earnings'
Period of hospitalization : -do-
Whether any permanent disability? : 35% permanent visual disability
10. Computation of Compensation
Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.7,93,140/-
(ii) Expenditure on conveyance Rs. 20,000/-
(iii) Expenditure on special diet Rs. 30,000/-
(iv) Cost of nursing/attendant Rs. 50,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.10,44,130/-
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs.2,00,000/-
physical shock
(ii) Pain and suffering Rs.2,00,000/-
(iii) Loss of amenities of life Rs.50,000/-
(iv) Disfiguration Rs.2,00,000/-
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships,disappointment,frustration,
mental stress, dejectment and
unhappiness in future life etc.
Suit/MACP No. 46/15 Page no.27 of 28
13. Disability resulting in loss of
earning capacity
(i) Percentage of disability assessed 30% permanent visual
and nature of disability as permanent disability
or temporary
(ii) Loss of amenities or loss of Nil
expectation of life span on account
of disability.
(iii) Percentage of loss of earning 30% functional disability
relation to disability
(iv) Loss of future income Rs.39,46,811/-
14. Total Compensation Rs.65,34,081/-
15. Interest Awarded 9% p.a. from date of filing of
DAR.
16. Interest amount up to the date of Rs.33,38,288.84
award
17. Total amount including interest Rs.98,72,370/- (rounded off)
18. Award amount released 15% of the amount
19. Award amount kept in the FDRs/ 85% of the amount
Motor Accident Claims Annuity
Deposit (MACAD)
20. Mode of disbursement of the award Through bank
amount to the claimant (s)
21. Next date for compliance of the 22.01.2021
award
(M.K. Nagpal)
PO/MACT, New Delhi
19.10.2020
Suit/MACP No. 46/15 Page no.28 of 28