Delhi District Court
30711 Sushil Kr Jha vs Honey Jain Page 1 Of 21 on 8 October, 2018
30711 Sushil Kr Jha vs Honey Jain Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 4975716
MACT PETITION No. : 30711
UNIQUE ID No. : 0404C0233562011
Sh. Sushil Kumar Jha S/o Late Sh. Jagdish
R/o S393, Gali No. 15, Prem Nagar 2nd ,
Mubarakpur Road, Near Lal Mandir, Delhi81
........ Petitioner
Vs.
1. Sh. Honey Jain S/o Sh. Ishwar Chand
R/o 14, Aziz Ganj Hathi Khana, Sadar Bazar, Delhi.
....... Driver/R1
2. Sh. Vijay Gupta S/o Sh. P.L. Gupta
R/o 90, Block A, PocketP, Shalimar Bagh, Delhi.
...... Owner/R2
Other details
DATE OF INSTITUTION : 10.08.2011
DATE OF RESERVING JUDGMENT : 06.10.2018
DATE OF PRONOUNCEMENT : 08.10.2018
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
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1. Date of the accident 21.06.2011
2. Date of intimation of the accident by the 02.07.2011
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the Without insurance
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
(Clause 10)
5. Date of filing of Detailed Accident Information 10.08.2011
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Without insurance
Company (Clause 11)
7. Date of service of DAR on the claimant (s). 10.08.2011
(Clause 11)
8. Whether DAR was complete in all respects? Yes
(Clause 16)
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents Yes.
filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No.
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer Without insurance
by the insurance Company. (Clause20)
13. Name, address and contact number of the Without insurance
Designated Officer of the Insurance Company.
(Clause 20)
14. Whether the designated Officer of the Insurance Without insurance
Company submitted his report within 30 days of
the DAR? (Clause 20)Without insurance
15. Whether the insurance company admitted the Without insurance
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on Without insurance
the part of the Designated Officer of the
30711 Sushil Kr Jha vs Honey Jain Page 2 of 21
30711 Sushil Kr Jha vs Honey Jain Page 3 of 21
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer Without insurance
of the Insurance Company .(Clause 24)
18. Date of the Award 08.10.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 24.05.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 27.08.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner Sushil
claimant(s) and the address of the bank with Kumar Jhasavings
IFSC Code (Clause 27) bank a/c no.
520101254297835
with Corporation
Bank, Bhera Enclave
Branch, Delhi,
IFSC : CORP0003166
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
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JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 10.08.2011 with reference to FIR No. 282/11 U/s 279/337 IPC PS Kingsway Camp/Model Town in respect of grievous hurt sustained by the petitioner Sh. Sushil Kumar Jha in a road accident on 21.06.11 at about 9:15 am at bus stand of Nanak Piau Gurudwara, Delhi. The ld. Predecessor of this court vide order dated 10.08.2011 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act').
2. Brief facts of the case as mentioned in the DAR/file are that on 21.06.2011, at about 9:15 am, petitioner was alighting from the bus at bus stand of Nanak Piau Gurudwara, Delhi and when he was crossing the road, a scooter Honda Activa bearing registration no. DL8SAE 8984 (hereinafter referred to as "offending vehicle" ) which was being driven by its driver at a very high speed, rashly and negligently came from wrong side and hit the petitioner on his right leg. Due to said impact, the petitioner fell down on road and sustained injuries. It has been stated that petitioner was admitted in BJRM Hospital, Delhi. The FIR no.282/11 PS Kingsway camp/Model Town was registered u/s 279/337 IPC.
3. Sh.Honey Jain/R1/driver and Sh. Vijay Gupta/R2/owner of the offending vehicle have filed their written joint statement wherein they stated that R1 did not cause the alleged accident with the said vehicle bearing no. DL8SAE8984. They stated that R1 has been falsely implicated in the present case. It was stated that R1 was holding a valid driving licence at the time of accident and was driving the vehicle at a normal speed without any negligence. It was stated that R2 Vijay Gupta is the registered owner of the offending vehicle.
It is pertinent to note that offending vehicle is without insurance.
30711 Sushil Kr Jha vs Honey Jain Page 4 of 21 30711 Sushil Kr Jha vs Honey Jain Page 5 of 214. From the pleadings of the parties, the issues were framed by learned Predecessor of this court vide order dated 09.05.2013 as under :
1. Whether on 21.06.2011 at about 9:15 am, in front of Gurdwara Nanak Piayo, Azadpur, Delhi, one scooter make Honda Activa bearing registration no. DL8SAE8984, which was being driven rashly and negligently by Honey Jain/R1 hit the petitioner and caused injuries to him?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
The petitioner/injured in support of his case has examined himself as PW1 and Dr. Meenakshi Sidhar, HOD Blood Bank and Chairperson Disability Board, Dr. BSA hospital as PW2. The record would show that respondents have not examined any witness in support of their case.
5. I have heard arguments addressed on behalf of ld counsel for petitioner and respondent no.1. I have also carefully perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
6. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
The petitioner/injured has examined himself as PW1. He has filed his evidence by way of affidavit as Ex. PW1/A. He has proved his voting Election ID card as Ex. PW1/A, medical expert opinion as Ex. PW1/B, copy of his employer qua ESIC as mark A, copies of medical treatment and bills as Ex. PW1/D and the entire DAR is Ex. PW1/E (colly). He deposed in his evidence by way of affidavit Ex. PW1/A that on 21.06.2011, at about 9:15 am, he was alighting from the bus at bus stand of Nanak Piau Gurudwara, Delhi and when he was crossing the 30711 Sushil Kr Jha vs Honey Jain Page 5 of 21 30711 Sushil Kr Jha vs Honey Jain Page 6 of 21 road, a scooter Honda Activa bearing registration no. DL8SAE8984 (hereinafter referred to as "offending vehicle" ) which was being driven by its driver at a very high speed, rashly and negligently came from wrong side and hit him on his right leg. He deposed that due to said impact, he fell down on road and sustained injuries. He deposed that after the accident, the driver/R1 of offending vehicle also fell down on road and was caught by the people gathered there. He deposed that as a result of the accident, he sustained fracture of femur of his right leg which was fixed using a metallic rod.
PW1 was cross examined on behalf of ld counsel for R1 and R2 wherein he inter alia deposed that he had met with an accident on 21.06.2011 at about 9:009:15 am. He deposed that on the day of accident, he had boarded a bus from Shakti Nagar and alighted from the bus at Nank Piyao Gurudwara, bus stand. He deposed that the offending vehicle came from the side of Pratap Bagh to Azadpur side and hit him when he was in the process of crossing the road leading towards Azadpur to Shakti Nagar. He deposed that on the day of accident, he had seen the face of the driver of the offending vehicle and the offending vehicle was a Activa Honda two wheeler scooter. He deposed that he was conscious at the time of accident and was shifted to the BJRM hospital, Jahangirpuri, Delhi by the police officials within 2030 minutes of the accident and from there he was shifted to AIIMS Trauma Centre by his relatives. He deposed that he had almost crossed the road leading towards Azadpur to Pratap Bagh when suddenly the offending vehicle hit him coming from the side of Pratap Bagh to Azadpur. He deposed that he did not remember whether there was any zebra crossing at the spot or not. He denied the suggestions that there was no zebra crossing at the spot or that the offending vehicle was falsely implicated by him in the present matter or that he had not seen the face of the driver of the offending vehicle at the time of accident because he was unconscious at that time.
30711 Sushil Kr Jha vs Honey Jain Page 6 of 21 30711 Sushil Kr Jha vs Honey Jain Page 7 of 21Nothing material has come on record in cross examination of PW1 to shake his version regarding the manner in which the said accident was caused by R1 while driving the above said offending vehicle in a rash and negligent manner.
The copy of FIR u/s 279/337 IPC is also on record. The inspection report of the offending vehicle is also on record which would show that it suffer fresh damages and that its front wheel mudguard was dented.
There is thus nothing on record to suggest even remotely that R1 did not cause the said accident in the manner as deposed on behalf of the petitioner. Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material as placed on record and in view of above discussion, there is no reason to disbelieve the version of the petitioner and hence, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent no.1.
It was argued on behalf of R1 that the petitioner was crossing the road at a place without any Zebra crossing and thus contributed to the accident and therefore, some contributory negligence should be attributed to the petitioner.
Ld counsel for petitioner , however, argued that there was no contributory negligence on behalf of the petitioner.
The record would show that the petitioner/PW1 during his cross examination firstly deposed that he did not remember whether there was any zebra crossing at the spot or not but subsequently denied the suggestion that there was no zebra crossing at the spot. The site plan as prepared by the police would show there was no zebra crossing at the spot which would show that the petitioner was crossing a busy 30711 Sushil Kr Jha vs Honey Jain Page 7 of 21 30711 Sushil Kr Jha vs Honey Jain Page 8 of 21 road at a busy time but without any zebra crossing. It would thus prove that he also contributed to the accident and on the facts of the case his contributory negligence is assessed @10%.
Issue no.1 is decided in favour of petitioner and against the respondents to the effect that the case accident was caused at the above said date, time and place due to the rash and negligent driving of R1 and further that the injured/petitioner was also guilty of contributory negligence to the extent of 10% in causing the accident.
7. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
Petitioner has filed his evidence by way of affidavit as Ex. PW1/1. He deposed that due to the accident, he sustained fracture on his right leg (femur) which was fixed using a metallic rod and also suffered various other injuries on all over his body. He deposed that PCR officials admitted him in BJRM hospital and subsequently his relatives took him to Trauma Centre and from there he was shifted to Safdarjung Hospital where he remained admitted from 21.06.2011 to 28.06.2011.
Petitioner has examined Dr. Meenakshi Sidhar, HOD Blood Bank and Chairperson Disability Board, Dr. BSA hospital as PW2 who has proved the disability certificate of petitioner as Ex. PW2/A. She deposed that as per the disability certificate, the patient suffered 10% permanent disability in relation to his right hip (right lower limb) and was diagnosed with pain and stiffness in right hip. She deposed that the patient would be facing considerable difficulty while doing a work which involves standing for a long time.
She was not cross examined by the respondents despite opportunity and her cross examination by them was treated as nil, opportunity given.
The document Ex. PW1/B is the medical expert opinion in respect of the petitioner by medical board of doctors of Safdarjung hospital wherein after evaluating the patient, it was mentioned that he was advised non weight 30711 Sushil Kr Jha vs Honey Jain Page 8 of 21 30711 Sushil Kr Jha vs Honey Jain Page 9 of 21 bearing on 28.06.2011, medical rest was advised on 02.08.2011, partial weight bearing was advised on 04.10.2011 , adjustment of distal screw was done in December 2011, in May/June 2012 the proximal screw of the patient was removed and hence medical rest from 21.06.2011 to 22.06.2012 can be given.
Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner has placed on record medical bills which have been proved as Ex. PW1/D(colly) and same comes to Rs. 29,312/. Therefore, Rs. 29,312/ are granted to the petitioner under this head. B. Special Diet and conveyance Record would show that the petitioner has filed some ambulance bill and some conveyance bills on record but has not proved any person to prove the said bill, hence, the said bills shall be deemed as not proved on record.
PW1/petitioner deposed in his evidence by way of affidavit that he had spent Rs. 66,000/ on special diet. During cross examination he denied the suggestion that he had given a wrong account of expenses incurred by him on his medical treatment etc as mentioned by him in his affidavit. Petitioner has neither examined any witness to prove the expenditure on special diet and conveyance nor proved any bill/prescription in that regard. Petitioner suffered grievous injuries and 10% permanent disability in relation to his right hip (right lower limb) and was diagnosed with pain and stiffness in right hip. In view of above said discussion and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 40,000/ is granted under the said head.
C. Attendant Charges Petitioner has neither examined any witness to prove the expenditure on attendant charges nor proved any bill in that regard. Petitioner suffered grievous injuries with 10% permanent disability in relation to his right hip (right lower limb) and was diagnosed with pain and stiffness in right hip. It 30711 Sushil Kr Jha vs Honey Jain Page 9 of 21 30711 Sushil Kr Jha vs Honey Jain Page 10 of 21 seems that the petitioner with the above said injuries must have required an attendant. In view of above said discussion and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 40,000/ is granted under the said head.
D. Loss of future earning capacity due to disability Petitioner suffered grievous injuries 10% permanent disability in relation to his right hip (right lower limb) and was diagnosed with pain and stiffness in right hip. PW2 has proved the disability certificate of petitioner as Ex. PW2/A. The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or 30711 Sushil Kr Jha vs Honey Jain Page 10 of 21 30711 Sushil Kr Jha vs Honey Jain Page 11 of 21 can continue to earn his livelihood."
PW2 has deposed that the patient would be facing considerable difficulty while doing a work which involves standing for a long time. It further seems that due to the said permanent disability, he could continue his work but would not be able to work with same efficiency after the said accident and permanent disability. In view of above discussion and the injuries suffered by the petitioner, 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 5%.
Petitioner in his affidavit Ex. PW1/A has deposed that he was working at Vishnu Hosiery Pvt Ltd, Sardar Nagar, Pratap Bagh and was earning Rs. 7600/ per month. The copy of matriculate certificate of petitioner is placed on record which mentions his date of birth as 05.11.1956 which shows that petitioner was aged about 54 years 7 months at the time of accident.
Petitioner has not examined any witness to prove his employment and monthly income, however, if it is assessed on the basis of minimum wages of a matriculate worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act then it would be Rs. 7826/ per month. The petitioner has however, admitted in his affidavit Ex. PW1/1 and also during his cross examination that at the relevant time he was getting a salary of Rs. 7600/ per month. In view of above said facts and admission of salary by the petitioner, his monthly salary is taken as Rs. 7600/ per month.
E. Addition of Future Prospects.
In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, 30711 Sushil Kr Jha vs Honey Jain Page 11 of 21 30711 Sushil Kr Jha vs Honey Jain Page 12 of 21 wherein, the Hon'ble Apex Court interalia held as under:.
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(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.
30711 Sushil Kr Jha vs Honey Jain Page 12 of 21 30711 Sushil Kr Jha vs Honey Jain Page 13 of 21(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 by Hon'ble Delhi High Court.
The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra) after referring to the judgment of the constitution bench of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
In the case in hand, the petitioner was self employed and thus while determining 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.
The age of the petitioner, as discussed above, in the present case was about 54 years and 7 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.
The monthly income of petitioner is thus calculated as 7600/ +10% of 7600/ which comes to Rs. 7600/+ Rs.760 / (after rounding of)= Rs.
30711 Sushil Kr Jha vs Honey Jain Page 13 of 21 30711 Sushil Kr Jha vs Honey Jain Page 14 of 218360/.
The age of petitioner at the time of accident was about 54 years and 7 months the relevant multiplier of "11" is to be adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra). Accordingly, the relevant multiplier would be "11" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
The compensation is accordingly assessed towards loss of earning capacity at Rs. 55,176/ [(Rs. 8360/per month x12 months x 11 (age multiplier) x 5/100(functional disability)].
F. Loss of Amenities of Life.
As discussed above, the petitioner suffered grievous injuries with 10% permanent disability in relation to his right hip (right lower limb) and was diagnosed with pain and stiffness in right hip. In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 50,000/ is granted under the said head. G. Pain and Suffering As discussed above, the petitioner suffered grievous injuries and 10% permanent disability in relation to his right hip (right lower limb) and was diagnosed with pain and stiffness in right hip. In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 50,000/ is granted under the said head. H. Loss of Income The document Ex. PW1/B is the medical expert opinion in respect of the petitioner by medical board of doctors of Safdarjung hospital wherein after evaluating the patient, it was mentioned that he was 30711 Sushil Kr Jha vs Honey Jain Page 14 of 21 30711 Sushil Kr Jha vs Honey Jain Page 15 of 21 advised non weight bearing on 28.06.2011, medical rest was advised on 02.08.2011, partial weight bearing was advised on 04.10.2011, adjustment of distal screw was done in December 2011, in May/June 2012 the proximal screw of the patient was removed and hence medical rest from 21.06.2011 to 22.06.2012 can be given. As discussed above, his monthly income has been taken as Rs. 7600/ p.m at the time of accident.
As per record and Ex. PW1/B, the probable period of treatment of petitioner was about 12 months. Therefore, loss of income of Rs. 91,200/ (Rs. 7600/x12 months) is granted for 12 months.
8. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 3,55,688/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/ 2 Special diet & Conveyance Rs. 40,000/
3. Attendant Charges Rs 40,000/
4. Medical Expenses Rs. 29,312/
5. Loss of income Rs. 91,200/
6. Loss of Earning/disability Rs. 55,176/
7. Loss of amenities of life Rs. 50,000/ Total Rs. 3,55,688/ After deducting the contributory negligence @ 10%, the claimant would thus be entitled to Rs. 3,20,120/ ( 10% of Rs. 3,55,688/ i.e. Rs. 3,55,688/minus Rs. 35,568/) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 10.08.2011 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 30711 Sushil Kr Jha vs Honey Jain Page 15 of 21 30711 Sushil Kr Jha vs Honey Jain Page 16 of 21 Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
9. Liability In the case in hand, admittedly the offending vehicle was without insurance. Accordingly, R1/Sh. Honey Jain/driver and R2/Sh. Vijay Gupta owner are jointly & severally liable to pay the entire compensation amount to the petitioner as per law.
Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., R1 and R2 directed to deposit the awarded amount of Rs. 3,20,120/ 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 R1 and R2 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R1 and R2 are further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
10. Statement of wife of petitioner in terms of clause 27 MCTAP was recorded. I have heard the petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate 30711 Sushil Kr Jha vs Honey Jain Page 16 of 21 30711 Sushil Kr Jha vs Honey Jain Page 17 of 21 investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: Further, an amount of Rs. 50,000/ be released to petitioner in cash in his saving bank a/c no. 520101254297835 with Corporation Bank, Behra Enclave branch, Delhi i.e. the branch near his place of residence as mentioned in his statement recorded under clause 27 MCTAP with necessary endorsement regarding no cheque book and debit card in terms of orders of Hon'ble Mr. Justice J.R. Midha in FAO No. 842/2013 dated 15.12.2017 and 18.01.2018 and remaining amount be kept in 36 FDRs of equal amount for a period of one month to 36 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further conditions and directions in terms of order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in case of Sobat Singh vs Ramesh Chandra Gupta and case of Rajesh Tyagi vs Jaibir Singh, MAC.APP . 422/2009 and FAO 842/2003 :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
30711 Sushil Kr Jha vs Honey Jain Page 17 of 21 30711 Sushil Kr Jha vs Honey Jain Page 18 of 21(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
11. Relief R1/Sh. Honey Jain and R2/Sh. Vijay Gupta is directed to deposit the award amount of 3,20,120/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 10.08.2011 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R1 and R2 to the petitioner and his advocate failing which the R1 and R2 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
R1 and R2 are also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimant and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to R1 and R2 for compliance within the granted time. Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
12. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of 30711 Sushil Kr Jha vs Honey Jain Page 18 of 21 30711 Sushil Kr Jha vs Honey Jain Page 19 of 21 Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded wherein he had stated that petitioner was entitled to exemption from deduction of TDS and that he would submit form 15G to the insurance co. so that no TDS is deducted.
13. Form IVB has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. The insurance co./R3 is also directed to obtain the copy of PAN card of the petitioner from the record. Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.10.08 15:32:54 +0530 Announced in open court (AMIT BANSAL) on 8th October 2018 PO MACT N/W Rohini Courts, Delhi.
30711 Sushil Kr Jha vs Honey Jain Page 19 of 21 30711 Sushil Kr Jha vs Honey Jain Page 20 of 21FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 21.06.2011
2. Name of injured Sh. Sushil Kumar Jha
3. Age of the injured 62 years
4. Occupation of the injured: Self Employed/labouri
5. Income of the injured. 8360/ per month
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 12 months
8. Period of hospitalization: 7 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 10% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 29,312/
(ii) Expenditure on conveyance Rs. 20,000/
(iii) Expenditure on special diet Rs. 20,000/
(iv) Cost of nursing/attendant Rs. 40,000/
(v) Loss of earning capacity Rs. 55,176/
(vi) Loss of income Rs. 91,200/
(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. 50,000/
(iii) Loss of amenities of life Rs. 50,000/
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(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, inconvenience,
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 10% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 5% relation of disability
(iv) Loss of future income - (Income X 55,176/ %Earning capacity X Multiplier) (7600+10% of 7600x12x11x5%)
14. TOTAL COMPENSATION Rs. 3,20,120/ (after deducting 10% contributory negligence of Rs. 3,55,688/)
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 2,04,070/
17. Total amount including interest Rs. 5,24,190/
18. Award amount released Rs. 50,000/
19. Award amount kept in FDRs Rs. 4,74,190/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 26.11.2018 (Clause 31) Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.10.08 15:33:11 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
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