Delhi District Court
Shyam Bahadur vs . Ashok Kumar & Ors, on 28 March, 2023
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IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL,
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
SHYAM BAHADUR VS. ASHOK KUMAR & ORS,
DAR NO. 84/16
Sh. Shyam Bahadur Gharti Magar
S/o Sh. Daya Bahadur Gharti Magar
Permanent R/o Village Sano Shree Shree Nagar
Dit.Bardiya, Post Office Sano
Shree Shree Jone, Vheri, Nepal
Posta Address: C/O HQ Special Frontier Force Camp,
Maude Lines, Delhi Cantt.-110010
........claimant
Versus
1. Sh. Ashok Kumar
S/o Sh.Shyam Singh
R/o WZ-1571, Bhoop Singh Gali,
Nangal Raya Village,
New Delhi-110046.
2. Sh. Prakash Veer Singh
S/o Sh.Ishwar Singh
R/o WZ-1390/2, Nangal Raya,
New Delhi.
3. The Oriental Insurance Company Ltd.
Oriental House, A-25/27,
Asaf Ali Road, New Delhi-110002. .....Respondents
Date of filing of DAR : 10.07.2015
Date of framing of issues : 01.09.2015
Date of concluding arguments : 10.03.2023
DAR No. 84/16 Page 1 of 26
Date of decision : 28.03.2023
AWARD/JUDGMENT
1. The claim for compensation in the present Detailed Accident Report (DAR) relates to injuries suffered by claimant in a road accident that took place on 07.01.2015, at about 5 pm, at Kranti Chowk, Sadar Bazar, New Delhi, regarding which an FIR bearing no.25/15, under Sections 279/338 IPC was registered at PS Delhi Cantt. The offending vehicle involved in this case is a bus bearing registration No. DL-1PB- 4609, which at the relevant time of accident was being driven by respondent no. 1, owned by respondent no.2 and insured with respondent no. 3.
2. The case briefly stated, is that on the aforesaid date and time, the claimant was walking on footpath at Kranti Chowk, Sadar Bazar, Delhi Cantt. and in the meantime, the bus no. DL-1PB-4609, which was being driven by respondent no. 1 in rash and negligence manner came and hit the claimant due to which the claimant fell down on the road and sustained grievous injuries. It is stated that the claimant was removed to Base Hospital where his MLC was prepared.
3. R-1 & R-2 have not preferred to file their reply despite opportunities being given. R-3/Insurance company has filed reply wherein it is stated that the alleged accident had taken place on 07.01.2015, but as per MLC, the same was prepared one day prior to the date of accident and there is over writing on the date I order to make it 07.01.2015. However, it is admitted that the offending vehicle was duly insured with them in the name of respondent no. 2 w.e.f. 28.04.2014 to 27.04.2015.
DAR No. 84/16 Page 2 of 264. On 01.09.2015, the following issues were framed by the Ld. Predecessor of this tribunal as :-
1. Whether the injured/claimant sustained injuries in the accident which occurred on 07.01.2015 at about 5.00 PM at Kranti Chowk, Sadar Bazar, Delhi Cantt., New Delhi caused by rash and negligent driving of vehicle no.DL-1PB-
4609 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the injured/claimant is entitled for compensation ? If so, to what amount and from whom ?
3. Relief.
5. It is pertinent to mention here that the present DAR was disposed of by Ld. Predecessor while passing an award vide order dated 20.12.2016. However, the respondent insurance company had preferred an appeal bearing MACP No. 280/17 before the Hon'ble Delhi High Court seeking reduction of the award amount whereas the claimants had also filed an appeal bearing MACP No. 24/2018 seeking enhancement of the award amount and the Hon'ble Delhi High Court vide its order dated 22.02.2018 passed in both the aforesaid appeals has remanded back the matter to the Tribunal for fresh adjudication after adducing additional evidence by the parties as it was submitted by the claimant that though he was reported to have not suffered any permanent disability by the doctors, but being employed as a Sepoy under Special Frontier Force, he was permanently placed in Category '2' for physical fitness/functional capacity from the higher Category '1' of the fitness and it has adversely affected DAR No. 84/16 Page 3 of 26 not only his length of service, but also his promotional prospects which resulted into financial losses to him.
6. The additional evidence was led by the claimant accordingly, however, no additional evidence has been led on behalf of the respondents for fresh adjudication of the present matter and vide order dated 09.05.2019, RE on behalf of all the respondents was closed.
7. The Tribunal heard final arguments tendered by the Ld. Counsel(s) for the claimant and insurance company/Respondent no.3, as respondent no. 1& 2 have already beeen proceeded ex-parte. and perused the entire material available on record including the written submissions.
8. The issue-wise findings are as under:-
ISSUE NO.1 "Whether the injured/claimant sustained injuries in the accident which occurred on 07.01.2015 at about 5.00 PM at Kranti Chowk, Sadar Bazar, Delhi Cantt., New Delhi caused by rash and negligent driving of vehicle no.DL-1PB-4609 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP"
9. The onus to prove this issue was on claimant and in order to prove the same, the claimant has filed his examination in chief by way of affidavit Ex.PW1/A, in which he has narrated the entire incident and specifically deposed as to the rash and negligent driving of respondent no.1. Despite his cross-examination nothing came on record to doubt his veracity and he denied the suggestion that the accident took place due to his own negligence.
10. As regards the contention of insurance company regarding wrong date mentioned in the MLC, which is one day prior to the accident, DAR No. 84/16 Page 4 of 26 The claimant has examined on record PW2 Dr. Sajith, Major, Base Hospital, Delhi Cantt. who has examined the claimant and has prepared the MLC as Ex.PW2/A. He has brought the MLC register and deposed that the date was inadvertently mentioned as 06.01.2015 which was corrected to 07.01.2015 upon realizing the mistake. He further deposed that the claimant was brought to their hospital on 07.01.2015 and the MLC was also prepared on the same date.
11. Further as per final report under Section 173 of Cr.PC, which is proved as Ex PW1/1(colly) by the claimant, the driver of offending vehicle/ respondent no.1 herein has been charge sheeted for offences under Section 279/338 IPC. As per site plan the offending vehicle had hit the claimant on the footpath on the opposite direction. In order to disprove the negligence, nothing has come to the record from respondent's side as they have not led any defence to rebut the testimony of PW1 regarding rash and negligent driving of offending vehicle by R-1. Further in response to notice under Section 133 of Motor Vehicle Act given by IO, the owner of offending vehicle had admitted that the accident had taken place with his vehicle and Respondent no.1 was driving the said vehicle at the time of accident.
12. Here, it should also be remembered that the standard of proof in a claim petition is not as rigid and as high as in a criminal case. In a criminal case proof beyond reasonable doubt is required, however, in a claim petition it is not so. In Bimla Devi and others Vs. Himachal Road Transport Corporation and others (2009) 13 SC 530, it has been observed by the Hon'ble Supreme Court that in a road accident, the strict principles of proof as in a criminal case are not attracted. Relevant portion DAR No. 84/16 Page 5 of 26 of the judgment is reproduced as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
13. These observations were quoted with approval in the judgment of the Hon'ble Supreme Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil Appeal No.1082 of 2011).
14. Further, in National Insurance Company Limited Vs. Pushpa Rana, 2009 ACJ 287, decided by the Coordinate Bench of the Hon'ble Delhi High Court, it was held that where the claimants filed either the certified copies of the criminal record or the criminal record showing the completion of investigation by the police or issuance of charge sheet under Section 279/304A IPC or the certified copy of FIR or the recovery of the mechanical inspection report of the offending vehicle, then these documents are sufficient proof to reach to a conclusion that the driver was negligent.
15. In the present case also the claimant has been able to prove the rashness and negligence on the part of the driver of offending vehicle in the present accident by way of ocular as well as documentary evidence in view of his testimony and copies of criminal record filed along with the DAR by the police. Accordingly, the issue no.1 is decided in favour of DAR No. 84/16 Page 6 of 26 the claimant and against the respondents holding that the accident has been caused due to rash and negligent driving of Respondent no.1. Issue no.1 is disposed of accordingly.
16. ISSUE NO.2 "Whether the claimant is entitled for compensation? If so, to what amount and from whom"
As the issue no.1 has been proved in favour of the claimant, he has become entitled to be compensated for the injuries suffered by him in the accident, but the computation of compensation and liability to pay the same are required to be decided.
17. 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 injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non-pecuniary damages. The Hon'ble Apex Court in case titled as Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343) has laid down heads under which compensation is awarded in personal injury cases:-
1. Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, 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;DAR No. 84/16 Page 7 of 26
(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 marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
18. Having considered the ratio of aforesaid judgment, the compensation payable to claimant is assessed hereinafter under the following heads:-
(i) Medical or Treatment Expenses
19. The claimant in his affidavit Ex.PW1/A has averred that in the accident he has suffered multiple grievous injuries resulting in compound comminuted fracture tibia and fibula(right) with soft tissue defect(OPTD). Along with the DAR, IO has filed the copy of MLC of claimant prepared at Base Hospital, New Delhi which shows the nature of injuries as grievous. The claimant has filed on record the copy of discharge slip prepared at Base Hospital which shows that he was admitted in the said hospital on 23.02.2015 and was discharged on 09.03.2015 and the diagnosis is mentioned as compound comminuted fracture tibia and fibula right with soft tissue defect. The claimant has also filed his other treatment record consisted of OPD cards, investigation reports etc. The claimant has not filed any medical bills on record. In the absence of medical bills the DAR No. 84/16 Page 8 of 26 possibility of treatment being taken free of cost or reimbursement of medical bills by any other authority/insurance company can not be denied. Thus, no amount is awarded for medicines and medical treatment.
ii (a) Loss of earning during the period of treatment
20. The claimant is stated to be working as Sepoy in Indian Army and drawing salary of Rs.32,183/- per month. In order to prove his employment and income the claimant has examined PW3 Ct. Ravi Raj Sharma who has proved the quarter ending payslip for February 2015 Ex.PW3/A original certificate issued by Base Hospital as Ex. PW3/B and leave certificate as Ex. PW3/C, copy of army order as Ex. PW3/D, copy of medical record proceedings as Ex. PW3/E and allowance details as Ex. PW3/F. He also stated that the claimant has not undergone parajump training and on that account he has suffered loss of Rs.1200/- per month. He further stated that the injured will continue to suffer the said loss till he is not in a position to jump. He has also deposed that the claimant remained on 56 days leave and proved the leave certificate Ex.PW3/C.
21. As per pay slip for the month for the quarter ending February 2015, the monthly income of the claimant comes to Rs.20557/- per month. The contention of Ld. Counsel for Respondent no.3 is that the claimant has not suffered any financial loss due to leave taken by him as no salary was deducted. Per Contra, it is contended on behalf of claimant that though no salary of the claimant has been deducted but the claimant has suffered loss of leave which could have been encashed or enjoyed by him later on.
22. Here it be seen that as per deposition of PW3 the claimant has DAR No. 84/16 Page 9 of 26 taken 56 days sick leave. In these circumstances it is held that the claimant suffered loss of 56 days leaves to his credit, which could have enjoyed later on. The claimant shall be entitled to encashment of aforesaid leave. Reliance is placed upon Sandeep Mishra Vs. Vijay Kumar Yadav & Ors., 2013(1)T.A.C.68(Del.). The claimant is thus awarded a sum of Rs.38,375/- towards loss of leave.
ii (b) Loss of future earnings on account of permanent disability
23. The claimant in his additional affidavit Ex. PW1/B has claimed that he was working as a Sepoy under '1 Archer' Unit (Commando) Special Frontier Force (SFF) to Infantry Corps of Indian Army and was placed in the highest category of physical fitness/functional capacity for Junior Commissioner Officers (JCOs/OR), i.e. Category '1', but due to permanent disability suffered by him in the accident, he has been permanently placed in Category '2' of physical fitness/functional capacity, accordingly to the physical standards for categorizations of serving JCOs/OR. He further claimed that he was placed under A2(P) category vide doctor's certificate dated 08.11.2015 for two years wherein the doctors opined that due to low medical category, he was not permitted to perform duties involving extreme physical exertion and para jumping. It was also mentioned in the certificate that category/restrictions of duty with respect to his physical condition was to be decided after a period of two years, pursuant to which the claimant was re-examined by the medical board of Base Hospital, Delhi Cantt. on 14.11.2014 and he was categorized in low medical category 'A2(P)' vide certificate dated 28.11.2017 Ex. PW1/5. He further claimed that he is not fit for duties at DAR No. 84/16 Page 10 of 26 hilly terrain, altitude above 2500 metres and extreme cold areas due to low medical category and in support of the same, he has placed on record copy of extract of rules as Ex. PW1/6.
24. The claimant in his additional affidavit has further claimed that he will suffer financial loss till retirement which is as under :-
(i) Siachen Allowance :- The claimant will suffer financial loss towards siachen allowance @ Rs. 14,001/- per month w.e.f. 01.03.2017 to 30.06.2017, @ Rs. 30,000/- per month w.e.f. 01.07.2017 to 31.08.2017 and Rs. 30,000/- for next three tenures, which are totalling to a sum of Rs.
6,56,004/-.
(ii) Compensatory High Altitude Field Area Allowance :- The claimant will also suffer financial loss towards compensatory high altitude field area allowance @ Rs. 11,202/- per month w.e.f. 01.03.2017 to 30.06.2017, @ Rs. 17,300/- per month w.e.f. 01.07.2017 to 31.08.2017 and Rs. 17,300/- per month for next three tenures which are totalling to a sum of Rs.3,90,808/-.
(iii) Para Allowance :- The claimant will also suffer financial loss towards Para allowance @ Rs. 1200/- per month w.e.f. 01.01.2015 to 30.06.2017 and Rs. 6,000/- per month w.e.f. 01.07.2017 to 30.09.2037 which are totalling to a sum of Rs. 14,94,000/-.
(iv) Compensatory Field Allowance :- The claimant will also suffer financial loss towards Compensatory Field Area Allowance @ Rs. 3000/- per month w.e.f. 01.01.2015 to 30.06.2017 and Rs. 6,000/- per month w.e.f. 01.07.2017 to 30.09.2037 which are totalling to a sum of Rs. 14,16,000/-.
25. Besides the above, the claimant will also suffer financial loss of DAR No. 84/16 Page 11 of 26 Rs. 59,84,088/- due to lack of promotional prospects as due to low medical category, he will not be able to attend the ranks of Deputy Leader, Company Leader and Political Leader. He further claimed that he will suffer financial loss to the tune to Rs. 99,40,900/- in total due to his low medical category.
26. During cross examination, he deposed that he has placed on record the service rules wherein it has been stated as to which categories like para jumping and Siachen posting etc. can be undertaken by a Corp while placed under Category A to P. He admitted that he has not placed on record to show that he has been debarred or not permitted to undertake the duties involving physical exertion and para jumping. He further admitted that he was never given any offer even prior to the said accident for posting at Siachen. He has not placed on record any document to show that he used to do para jumping prior to the accident.
27. However, to rebut the aforesaid depositions during cross examination, the claimant has examined on record Sh. Azad Singh, Rank HAV/NA, on behalf of C.R. Kiran Naik, Col. President Medical Board for Commandant, Base Hospital, Delhi Cantt., New Delhi as PW4 who has placed on record copy of medical board proceedings for re-categorization dated 28.11.2017 of the injured as Ex. PW4/2, copy of medical case sheet/opinion dated 14.11.2017 as Ex. PW4/3, copy of admission slip dated 07.01.2015 and discharge slip dated 20.02.2015 as Ex. PW4/4 and Ex. PW4/5 respectively, admission slip dated 23.02.2015 and discharge slip dated 09.03.2015 as Ex. PW4/6 and Ex. PW4/7 respectively, admission slip dated 04.05.2015 and discharge slip dated 13.05.2015 as Ex. PW4/8 and Ex. PW4/9 respectively.
DAR No. 84/16 Page 12 of 2628. The claimant has also examined Captain Pushib Rajput, Team Cdr., 1 Archer (Commando), PIN 933001, C/o 56 APO, presently at Delhi as PW5 who tendered his evidence by way of affidavit Ex. PW5/A and relied upon the copy of his authority letter as Ex. PW5/1, copy of record of service as Ex. PW5/2, Log Book of Para Jumps as Ex. PW5/3 and copy of extract of rules already exhibited as Ex. PW1/6.
29. The averments made by the claimant/injured that he was working as a Sepoy under '1 Archer' Unit (Commando) Special Frontier Force (SFF) to Infantry Corps of Indian Army is not disputed anywhere by the respondents. Further, it has been proved on record by the claimant that he was in the category 1 before the accident, but after the present accident, he has been permanently placed under the category 2, i.e. A2(P) due to physical/functional disability. In the present case, though the claimant has not suffered permanent disability in normal parlance as per medical record, however, considering his designation and job profile, his functional disability has to be assessed.
30. The law with regard 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 :-
"10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. 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 ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out DAR No. 84/16 Page 13 of 26 whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) 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 (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may............."DAR No. 84/16 Page 14 of 26
31. In the present matter, the claimant has been categorized under low medical category, i.e. A2(P) which is proved on record vide certificate proved as Ex. PW1/5. It has also been proved on record that he is no longer fit for duties at high terrain having altitude above 2500 metres and in extreme cold areas in view of the extract of rules furnished on record as Ex. PW1/6.
32. Though, he has stated during cross examination that he has not placed on record any document to show that he has been debarred or not permitted to undertake the duties involving physical exertion and para jumping. However, thereafter, he has examined witness on record PW4 and PW5 who have proved the record of medical board proceedings for re- catoregization as Ex. PW4/2, medical opinion as Ex. PW4/3, log book of para jumping as Ex. PW5/3 and extract of rules already exhibited as Ex. PW1/6.
33. Even the written submissions in prescribed format filed on behalf of petitioner is annexed with the calculations of future loss of income which is duly checked and verified from the Officer Commanding HQ SFF Camp. Hence, considering the peculiar nature of job profile of claimant, it is clear that there is loss of future prospects and income to the claimant due to the present accident resulting to functional disability.
34. As already stated that the claimant is not fit enough to serve on high terrain having altitude above 2500 metres and in extreme cold area. Hence, in the considered opinion of this Tribunal, it is just and reasonable to the claimant for the allowances he would have got, had he not suffered the present functional disability due to present accident. Therefore, the DAR No. 84/16 Page 15 of 26 allowances relating to Siachen posting, compensatory high altitude field area allowance, para allowance and compensatory field allowance is taken into consideration, which are totalling to Rs. 43,70,812/- (Rs. 6,56,004/- + Rs. 3,90,808/- + Rs. 18,00,000/- + Rs. 15,24,000/-), as proved on record by way of affidavit as well as calculation sheet duly checked and verified by the claimant's department.
35. However, the other claim of loss of Rs. 59,84,088/- due to lack of promotional prospects cannot be considered as the promotion is basically based on individual performance and it cannot be said with certainty that had the claimant not suffered the functional disability due to present accident, he would have been promoted to higher levels without any other performance criteria, as the promotion is not solely based on physical fitness. Further, remote damages cannot be granted in the present matter and the promotion in future is a remote damage.
(iii) Damages for pain, suffering and trauma as a consequence of the injuries.
36. Pain and suffering is covered under non pecuniary damages. To calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account. He was advised bed rest for a considerable period and injuries sustained by him were grievous in nature. The mental agony which the claimant might have undergone at the time of accident, cannot be equated or quantified in terms of money. Physical pain which the claimant must have undergone during the course of treatment would have been immense. To compensate the claimant under this head, The Tribunal awards a sum of Rs.1,00,000/-(Rs.
DAR No. 84/16 Page 16 of 26One Lakh) to the claimant for pain and sufferings, as also awarded earlier as no additional evidence regarding the same has been brought on record.
(iv) Conveyance, special diet and attendant charges
37. The claimant during the course of his deposition has failed to substantiate the amount spent by him on conveyance, special diet and attendant charges with documentary evidence. However, considering the nature of grievous injuries notice can be taken of the fact that he would have paid repeated visits to the hospital/doctor for his follow up treatment, incurring expenses on conveyance. He must have required to take special diet to recover from the injuries sustained by him. Since the claimant has suffered fracture, he must have required assistance of attendant for day to day activities. Considering the nature of injuries sustained by him, the Tribunal awards a sum of Rs.30,000/- to the claimant towards conveyance, special diet and attendant charges, as also awarded earlier as no additional evidence regarding the same has been brought on record.
(v) Amenities of Life
38. PW3 Capt. Ravi Raj Sharma stated in his affidavit that the claimant will be placed in the medical category "2" and the employability restrictions shall be applicable to the claimant and the claimant is not fit for the posting/serving at Hilly Terrain as he is unable to climb up and down the heights. He further stated that the claimant is not fit for actual/close combat and for sever exertion/adventure activity. It is argued on behalf of R-3 that as per report received from the Dr.RML Hospital the claimant is having NIL disability. In view of deposition of PW3 and looking at the medical treatment record of the claimant, notice can be DAR No. 84/16 Page 17 of 26 taken of the fact that the claimant will face difficulty in discharge of duties. Consequently a sum of Rs.1,00,000/-(Rs. One Lakh) is awarded to the claimant towards loss of amenities of life on account of injuries sustained in the present accident.
Issue No.3/Relief
39. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.46,39,187/- (Rs. 38,375/- + Rs. 43,70,812/- + Rs. 1,00,000/- + Rs. 30,000/- + Rs. 1,00,000/-) along with 7.5% interest from the date of filing of DAR, excluding the period of appeal pending before the Hon'ble Delhi High Court. 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 award amount.
RELEASE
40. Out of amount awarded to petitioner, 70% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 175 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 175 months in succession, as per 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 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account opened/to be opened near the place of his residence, as directed vide order dated 14.03.2018 and the remaining DAR No. 84/16 Page 18 of 26 30% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
41. The disbursement to the petitioners is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from their shares.
42. The bank shall not permit any joint names to be added in the savings bank account or MACAD scheme account of petitioners i.e. the bank account of petitioners shall be individual account and not a joint account.
43. The original fixed deposits shall 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 petitioners and the above amount shall be released in account of petitioners by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
44. The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
45. The maturity amount of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above accounts of petitioners.
46. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
47. The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque DAR No. 84/16 Page 19 of 26 book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
48. 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.
49. It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
LIABILITY
50. In view of foregoing discussions, all the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioner, but respondent no. 3. being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of DAR, excluding the period of appeal pending before the Hon'ble Delhi High Court, by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New DAR No. 84/16 Page 20 of 26 India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of respondent no. 3 with a cost of Rs.5,000/-.
51. The respondent no. 3 shall inform the petitioner and his counsel through registered post that the awarded amount has been deposited so as to facilitate him to collect the same.
52. The copy of this award be given to the parties free of cost or be sent by email. 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.
53. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
54. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 07.01.2015
2. Date of filing of Form I- First Accident N.A. Report (FAR)
3. Date of delivery of Form-II to the N.A. victim(s)
4. Date of receipt of Form-III from the N.A. Driver
5. Date of receipt of Form-IV from the N.A. owner DAR No. 84/16 Page 21 of 26
6. Date of filing of the Form-V-Interim N.A. Accident Report (IAR)
7. Date of receipt of Form-VIA and Form N.A. VIB from the Victim (s)
8. Date of filing of Form-VII-Detailed 10.07.2015 Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Designated Not given Officer by the Insurance Company.
11. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) of Legal offer not filed. the offer of the Insurance Company.
14. Date of the Award 28.03.2023
15. Whether the claimant(s) were directed to Yes open savings bank account(s) near their place of residence?
16. Date of order by which claimant(s) were 14.03.2018 directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar 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).DAR No. 84/16 Page 22 of 26
17. Date on which the claimant(s) produced Yet to furnish the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of the As mentioned above Claimant(s)
19. Whether the claimant(s) savings bank Yet to furnish account(s) is near his place of residence?
20. Whether the claimant(s) were examined at Yes the time of passing of the award to ascertain his/their financial condition?
55. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 10.05.2023.
Announced in the open Court (Shefali Barnala Tandon) on 28.03.2023 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format DAR No. 84/16 Page 23 of 26 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 07.01.2015
2. Name of injured : Shyam Bahadur
3. Age of injured : 24 years
4. Occupation of the injured : Govt. Job
5. Income of the injured : Rs.20,557/- p.m.
6. Nature of injury : Grievous
7. Medical treatment taken by : Base Hospital, Delhi Cantt., New the injured Delhi
8. Period of hospitalization : As mentioned above
9. Whether any permanent : A2(P) disability?
10. Computation of Compensation Sr. No. Heads Amount Awarded
11.
(i) Expenditure on treatment : Nil (ii) Expenditure on conveyance : Lumpsum amount
(iii) Expenditure on special diet : of Rs. 30,000/-
(iv) Cost of nursing/attendant :
(v) Loss of earning capacity : Nil
(vi) Loss of Income : Rs. 38,375/-
(vii) Any other loss which may : Nil
require any special
treatment or aid to the
injured for the rest of his
life
12. Non-pecuniary Loss:
(i) Compensation for mental : Lumsump amount
and physical shock
DAR No. 84/16 Page 24 of 26
(ii) Pain and suffering : Rs. 1,00,000/-
(iii) Loss of amenities of life : Rs. 1,00,000/-
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
(vi) Loss of earning, : Nil
inconvenience,
hardships,disappointment,fr
ustration, mental stress,
dejectment and unhappiness
in future life etc.
13. Disability resulting in loss
of earning capacity
(i) Percentage of disability : A2(P) category as per medical
assessed and nature of board proceeding
disability as permanent or
temporary
(ii) Loss of amenities or loss of : Nil
expectation of life span
on account of disability.
(iii) Percentage of loss of : A2(P) category as per medical
earning relation to board proceeding
disability
(iv) Loss of future income : Rs. 43,70,812/-
14. Total Compensation : Rs. 46,39,187/-
15. Interest Awarded : 7.5% pa from the date of filing of
DAR, excluding the period of
appeal pending before the Hon'ble
Delhi High Court, till the date of
award to be deposited in 30 days
and 9% thereafter.
16. Interest amount up to the : Rs. 22,58,267.26/-
date of award
DAR No. 84/16 Page 25 of 26
17. Total amount including : Rs. 68,97,454.26/- minus the
interest amount already received by the
claimant from the Insurance
Company.
18. Award amount released : 30% share
19. Award amount kept in the : 70% share
FDRs/ Motor Accident
Claims Annuity Deposit
(MACAD)
20. Mode of disbursement of : Through Bank
the award amount to the
claimant (s)
21. Next date for compliance : 10.05.2023
of the award
(Shefali Barnala Tandon)
PO/MACT, New Delhi
28.03.2023
DAR No. 84/16 Page 26 of 26