Delhi District Court
Kamlesh W/O Late Sh. Manoj Kumar vs Ravi @ Rohit S/O Sh. Samay Pal Yadav ... on 31 August, 2021
IN THE COURT OF SH. VIVEK KUMAR GULIA
P.O : MOTOR ACCIDENT CLAIMS TRIBUNAL
EAST DISTRICT : KARKARDOOMA COURTS: DELHI
In the matters of :
MACP No. 553/16
Unique Case I.D. No. DLET010052902016
1. Kamlesh W/o late Sh. Manoj Kumar
2. Gaurav S/o late Sh. Manoj Kumar
3. Sourav S/o late Sh. Manoj Kumar
4. Kashish D/o late Sh. Manoj Kumar
5. Savitri W/o Sh. Satya Narayan
6. Satya Narayan S/o late Sh. Chandra Bhan
[Petitioner No.2 to 4, being minors, represented through
petitioner No.1 (mother/ natural guardian)]
All R/o C262, Near Mother Dairy, Pandav Nagar,
Delhi92. ............Petitioners
Versus
1. Ravi @ Rohit S/o Sh. Samay Pal Yadav (driver)
R/o A165, BlockA, New Ashok Nagar, Delhi96.
2. Dayawati Yadav W/o Sh. Samay Pal Yadav (owner)
R/o A165, BlockA, New Ashok Nagar, Delhi96.
3. Royal Sundaram Insurance Co. Ltd. (insurer)
15th Floor, Amba Deep Building, K.G. Marg,
New Delhi. .........Respondents
Date of Institution : 26.04.2016
Date of Reserving : 25.08.2021
Date of Judgment : 31.08.2021
AND
_________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 1 of 23 Pages MACP No. 554/16 Unique Case I.D. No. DLET010052912016 Shivani S/o Sh. Harpal Singh (injured) R/o VPO Mahmoodpur, Detha, Murad Nagar, Ghaziabad, U.P. Also at : PS Mayur Vihar, Delhi. .......................Petitioner Versus
1. Ravi @ Rohit S/o Sh. Samay Pal Yadav (driver)
2. Dayawati Yadav W/o Sh. Samay Pal Yadav (owner)
3. Royal Sundaram Insurance Co. Ltd. (insurer) (Details as above) ..................Respondents Date of Institution : 26.04.2016 Date of Reserving : 25.08.2021 Date of Judgment : 31.08.2021 AWARD
1. By this common award, both the claim petitions arising out of same accident, filed under section 166/140 of the Motor Vehicles Act, 1988, would be decided.
2. Important facts of the case are as under. Constable Manoj Kumar died and Constable Shivani suffered grievous injuries on account of a motor vehicular accident happened on 19.10.2015 at about 11:50 p.m, near A to Z showroom, 26 Block, Trilokpuri, East Delhi. In connection with this accident, case FIR No. 690/15, u/s 307/354D/506/34 IPC was registered at PS Mayur Vihar PhaseI, _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 2 of 23 Pages Delhi. As per FIR, which was got registered on the complaint of Constable Shivani (petitioner in injury case), when deceased Constable Manoj Kumar and injured Constable Shivani were going on motorcycle towards police station after finishing their duty and reached at the aforesaid place, then a Swift Car bearing registration No. DL2CAT5702 (in short "offending vehicle"), being driven by respondent No.1 at a fast speed and in rash and negligent manner, hit the motorcycle from back side. As a result of the forceful impact, Constable Shivani fell on the bonnet of the offending car, whereas Constable Manoj Kumar alongwith motorcycle was dragged by the offending car to some distance. Further, it is mentioned that after covering some distance, respondent No.1 reversed the offending car a little bit and then complainant was again dragged by wheel of car with intention to crush her. On conclusion of investigation, offence under Section 302 IPC was also added. In view of above, petitioners in fatal accident case claimed compensation of Rs.90 lakhs, whereas petitioner in injury case claimed compensation of Rs.25 lakhs.
3. On service of notice, all the respondents marked appearance and filed their respective written statement. In the written statement filed by respondent no.1, he mentioned that he was not driving the offending vehicle at the time of accident and moreover, offending vehicle was not involved in the accident. Respondent No.2 in her written statement mentioned that offending vehicle has been planted by the police in this case. Respondent No.3 (insurance company) _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 3 of 23 Pages mentioned that it is a case of murder and as such, present petition is not maintainable.
4. On the basis of pleadings, following issues were framed in both cases on 03.06.2017 : In MACP No. 553/16 (In re : Kamlesh & Ors.):
i). Whether on 20.10.2015 at 01:50 a.m., near A to Z Showrom, 26 Block, Trilokpuri, Delhi, Ct. Manoj Kumar suffered injuries in a motor vehicular accident due to rash and negligent driving of offending vehicle bearing registration No. DL2CAT5702 (Swift Car) by respondent No.1 and consequently died on 03.11.2015? OPP
ii). Whether the respondent No.1 was holding a valid and effective driving license to drive the offending vehicle on the date of accident, if not, its effect? OPR1 & 2
iii). Whether the petitioners are entitled to the compensation as prayed, if so, to what amount and from whom? OPP
iv). Whether the petitioners are entitled to interest on the award amount, if so, at what rate of interest and for which period?
OPP
v). Relief.
In MACP No. 554/16 (In re: Shivani ) :
i). Whether on 20.10.2015 at 01:50 a.m., near A to Z Showrom, 26
Block, Trilokpuri, Delhi, Ct. Shivani suffered grievous injuries in a motor vehicular accident due to rash and negligent driving of offending vehicle bearing registration No. DL2CAT5702 (Swift Car) by respondent No.1? OPP
(ii) to (v) (issues are common as above).
_________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 4 of 23 Pages
5. Vide order dated 03.06.2017, for the purpose of inquiry, both the claim cases were consolidated and it was ordered that the case MACP No. 513/16 would be the lead case and evidence recorded therein would also be read in MACP No.554/16. Accordingly, common evidence was recorded in both the cases.
6. Petitioners examined 9 witnesses to establish their claim. 6.1 PW1, Kamlesh (petitioner no.1 in fatal case) deposed about the manner of accident of her husband, his age, employment and income at the time of accident and the legal heirs left behind by him and relied upon academic and identification documents of deceased and all petitioners Ex.PW1/1 to Ex.PW1/15.
6.2 PW2, Shivani (petitioner in injury case) was examined as eyewitness of the accident. She deposed about the manner of accident and relied upon her medical treatment record/ bills and identification documents Ex.PW2/1 to Ex.PW2/4.
6.3 PW3, Laxmi Kant Sharma, Branch Development Executive of AXIS Bank Ltd., Khan Market, New Delhi, produced the bank statements of injured Shivani and deceased Manoj Kumar for the period from 01.04.2013 to 31.03.2014 and 01.04.2014 to 31.03.2015 Ex.PW3/1 and Ex.PW3/2 respectively.
6.4 PW4, Ct. Amit Kumar, HAE Branch, East District, Delhi, produced the service record Ex.PW4/1 of deceased Manoj Kumar. 6.5 PW5, ASI Ramesh Chander from DCP Office, Rohini District, Delhi, produced the appointment letter and personal service _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 5 of 23 Pages file Ex.PW5/1 of injured Ct. Shivani.
6.6 PW6, HC Ram Singh from Accounts Branch, DCP Office, East District, Delhi, produced the attested copies of salary slips and Form16 Ex.PW6/1 and Ex.PW6/2 respectively of deceased Ct. Manoj Kumar, notification qua payment of compensatory pay to non gazetted personnel of Delhi Police Ex.PW6/3, salary slips of injured Ct. Shivani Ex.PW6/4 and her Form16 Ex.PW6/5.
6.7 PW7, ASI Devraj, HACR Branch, Rohini District, New Delhi, produced offer of appointment letter Ex.PW7/A; service record Ex.PW7/B; certificate of appointment Ex.PW7/C and leave record from 19.10.2015 to 08.09.2016 of injured Ct. Shivani Ex.PW7/D. 6.8 PW8, HC Bijender Singh, Accounts Branch, DCP Office (East), produced the salary slips/ certificate of injured Ct. Shivani for the period from 01.10.2015 to 30.09.2016 Ex.PW8/1. 6.9 PW9, Ct. Praveen, Accounts Branch, DCP Office (East), produced salary slip of injured Ct. Shivani for the month of October 2016, November2016, December2017, January2018 and February 2018 and order containing leaves availed by her Ex.PW9/A.
7. The respondents' side examined only one witness i.e. R3W1 ACP Manoj Pant, Crime Branch, Delhi, the Investigating Officer of the criminal case to prove copy of charge sheet Ex.R3W1/1, copy of FSL report for DNA finger printing Ex.R3W1/2, scaled site plan Ex.R3W1/3, mechanical inspection report Ex.R3W1/4, the copy of PMR Ex.R3W1/5, copy of statement of Sachin u/s 161 Cr.PC _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 6 of 23 Pages Ex.R3W1/6, copy of statement of Shivani Ex.R3W1/7.
8. I have heard Sh. Upender Singh, learned counsel for petitioners, Ms. Archana Sharma, learned counsel for respondent No.1 and 2 and Ms. Deepa Chacko, learned counsel for respondent No.3/ insurance company, in both cases. Record of the case has also been perused.
ISSUE No.1 (in both cases):
9. Since issue no.1 in both the cases are interlinked, these would be decided together. In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is tested on the touchstone of principle of preponderance of probabilities.
10. To prove the case of petitioners, PW2 Ct. Shivani appeared in the witness box, being injured as well as eyewitness of the accident. She deposed on the lines of FIR. During crossexamination conducted by respondent No.3/ insurance company, she replied that she had seen the registration number of the offending vehicle, which had caused the accident. Further, she mentioned that she had got her statement recorded u/s 164 Cr.PC. She further replied that respondent No.1 caused the accident intentionally. During cross examination conducted by respondent No.1 & 2, she replied that both of them were wearing helmet at the time of accident.
_________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 7 of 23 Pages
11. Considering the aforesaid crossexamination of the eye witness/ injured, it has become clear that nothing could be extracted for the purpose of rebutting her testimony. It is also evident that FIR was registered without any delay and the registration number of the offending vehicle was mentioned therein. Further, there is no dispute that respondent No.1 was arrested in the aforesaid criminal case and he is facing trial in that case. Further, the mechanical inspection report of the offending vehicle Ex.R3W1/4 clearly shows that the offending vehicle suffered damages on the front bumper, front number plate, front grills, bonnet, left and right front fenders, front wind glass, right front door glass and outside mirror. Thus, there is sufficient material to show that accident was caused by respondent No.1 by driving the offending vehicle at fast speed and rashly and negligently.
12. However, learned counsel for insurance company has argued that since the chargesheet was filed for the offence of murder and sufficient material has come on record to show that respondent No.1 wanted to kill Ct. Manoj and Ct. Shivani, the present claim petition filed under Motor Vehicle Act, is not maintainable. On this aspect, reliance has been placed on the decision of Supreme Court in the case of Reeta Devi & Ors. vs. New India Assurance Co. Ltd.
& Anr., (2000) 5 SCC 113. On going through the said judgment, this Tribunal is of the view that same is of no help to the case of insurance company. In that case, Supreme Court has held that "if the dominant _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 8 of 23 Pages intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."
13. On going through the testimony of sole eyewitness (PW2 injured Ct. Shivani), it becomes clear that nowhere it was said that respondent No.1 wanted to kill her and her colleague Ct. Manoj Kumar since beginning. It has also come on record that Ct. Manoj was not known to respondent No.1 prior to the date of accident and Ct. Manoj met respondent No.1 on that day when respondent No.1 came to meet the injured Ct. Shivani about an hour prior to the accident. It is no one's case that respondent No.1 was having any enmity or grudge against the deceased Ct. Manoj Kumar. Even in his disclosure statement given to police after his arrest, respondent No.1 mentioned that he was annoyed with Shivani as she refused to marry him and that is why he wanted to take revenge from her. In the given facts and circumstances of the case, it is clear that had Ct. Manoj Kumar not accompanied Shivani at the time of accident, there was no reason before respondent No.1 to cause any bodily injury or to kill him. At the same time, no material has come on record to show that respondent No.1 had gone to meet injured Ct. Shivani prior to accident with an intention to cause injury to her. In these facts and circumstances, it becomes clear that the murder of Ct. Manoj Kumar _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 9 of 23 Pages and causing of injuries to Ct. Shivani was not originally intended by respondent No.1. Unfortunately, Ct. Manoj Kumar lost his life as he was accompanying Ct. Shivani on the motorcycle at the time of accident and that being the case, such killing is accidental murder and not a murder simpliciter or in other words, the act of murder of Ct. Manoj Kumar was not originally intended as discussed in the aforesaid case law. Moreover, learned counsel for insurance company has given suggestions to their own witness R3W1 (IO) to the effect that accident had happened on account of rash and negligent driving of respondent No.1 and not with an intention of respondent No.1 to cause death or injury to the victims. It was further suggested that the chargesheet should have been filed under Sections 279/304A IPC instead of Section 302 IPC. In view of this, it is held that the present claim petition is maintainable under the Motor Vehicles Act, 1988 and the claimants are entitled for the compensation.
14. Further, postmortem report Ex.R3W1/5 of deceased Ct. Manoj Kumar shows that cause of death was shock due to antemortem craniocerebral damage associated with multiple organs failure consequent upon blunt force impact. Furthermore, the MLC of injured Ct. Shivani shows that she suffered grievous injuries with multiple fractures.
15. In view of this Court, aforesaid material is found sufficient to establish that the accident had occurred due to rash and negligent driving of the offending vehicle by respondent no.1, resulting into _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 10 of 23 Pages death of Ct. Manoj Kumar and grievous injuries to Ct. Shivani. Therefore, issue no.1 in both the cases is decided in favour of the petitioner(s).
ISSUE NO. 2 (in both cases):
16. The respondent No.1 and 2 led no evidence on this issue but copy of driving license of respondent No.1 is on file and insurance company has not taken any plea to challenge the validity of driving license of respondent No.1. Thus, this issue is decided against the insurance company.
ISSUE NO. 317. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be pittance.
In MACP No. 553/16 (In re : Kamlesh & Ors.):
ASSESSMENT OF INCOME OF THE DECEASED:
18. PW6 HC Ram Singh was examined to prove the income of deceased. Admittedly, deceased was serving as a Constable with Delhi Police. PW6 proved that salary of deceased at the time of accident was Rs.38,310/ per month as per salary slips Ex.PW6/1 for the month of August, September & October 2015. As per Form16 for the period from 01.04.2014 to 31.03.2015, the gross salary of deceased was Rs.4,78,682/ and income tax liability for the said period was _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 11 of 23 Pages Rs.4,676/. That would mean that net annual income of deceased at the relevant time was Rs.4,74,006/. Accordingly, monthly income of deceased would come to be Rs.39,500/ per month.
APPLICATION OF MULTIPLIER:
19. As per aadhaar card Ex.PW1/2 and service record Ex.PW4/1, deceased was born on 08.12.1976 and accordingly, on the date of accident (19.10.2015), deceased was about 38 years of age. Therefore, multiplier of 15, as applicable to age group 3640 years, would be applicable.
DEDUCTION TOWARDS PERSONAL LIVING EXPENSES:
20. Total 6 claimants have filed this case which includes wife, three children and parents of deceased. PW1 (wife of deceased) has mentioned in her crossexamination that her fatherinlaw was retired from the post of Head Constable in Delhi Police and is getting pension. As per decision in case of Sarla Verma & Ors. vs. DTC & Anr., (2009) 6 SCC 121, an earning father cannot be considered dependant on his deceased son. In view of this, it is held that petitioner No.6 Satya Narayan (father of deceased) shall not be entitled to any compensation and only petitioner no.1 to 5 would be considered dependants on deceased. Therefore, 1/4th of the income of deceased has to deducted towards his personal living expenses. FUTURE PROSPECTS:
21. The deceased was doing a permanent job. Following the _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 12 of 23 Pages decision of a Constitution Bench of the Supreme Court in the case, National Insurance Company Ltd. Vs. Pranay Sethi and Ors.
(AIR 2017 SC 5157), an addition of income of deceased to the extent of 50% has to be considered.
LOSS OF DEPENDENCY:
22. Applying the multiplier of 15, after making deduction of 1/4th from the income of the deceased and addition of 50% of future prospects, the loss of dependency is computed as Rs.79,98,750/ (39,500x150/100x3/4x12x15).
NONPECUNIARY DAMAGES:
23. In view of the decision of Supreme Court, dated 31.10.2017, in case of Pranay Sethi (supra), a compensation of Rs.40,000/, 15,000/ and Rs.15,000/ respectively has been fixed on account of loss of consortium, loss of estate and funeral expenses and further, it is required to be enhanced @ 10% in every three years. Therefore, a compensation of Rs.44,000/, 16,500/ and Rs.16,500/ respectively on account of loss of consortium, loss of estate and funeral expenses is required to be granted. Further, in view of recent decision of Supreme Court in the case titled as United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., Civil Appeal No. 2705 of 2020, decided on 30.06.2020, loss of consortium has to be fixed for each of the LRs. Thus, claimants are entitled to a sum of Rs.2,53,000/ (44,000x5+16,500+16,500) under this head.
_________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 13 of 23 Pages
24. Further, learned counsel for insurance company submitted that wife of deceased (PW1) has admitted that she has received Rs.20 lakhs as exgratia payment from the department of deceased and same is required to be adjusted against the total compensation payable. On this aspect, insurance company placed reliance on the decision of Supreme Court in the case titled "Reliance Insurance Co. Ltd. vs. Shashi Sharma & Ors., (2016) 9 SCC 627". It is evident that PW4 clarified that a sum of Rs.10 lakh was given from the martyr fund and further payment of Rs.10 lakhs was given as ex gratia and further, cremation charges of Rs.10,000/ were also paid by the department of deceased.
25. In para 18 of the aforesaid judgment, Supreme Court has made it clear that principle discernible from the exposition Helen C. Rebello case, (1991) 1 SCC 90, is that if the amount would be due to the dependants of the deceased even otherwise, the same shall not be deductible from the compensation amount payable under the 1988 Act. Further, it was mentioned that it must be borne in mind that loss of income is a significant head under which compensation is claimed in terms of 1988 Act and the component of quantum of "loss of income", interalia, can be "pay and wages" which otherwise would have been earned by the deceased employee if he had survived of injuries caused in the accident. Thus, the Supreme Court ordered for excluding the amount received or receivable by the dependants of _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 14 of 23 Pages deceased government employee under 2006 Rules towards the head financial assistance equivalent to "pay and other allowances" that was last drawn by the deceased employee in the normal course. Admittedly, the above mentioned financial assistance granted to deceased police official in this case was not towards pay and other allowances.
26. Further, in Helen's case (supra), it was laid down that an amount earned out of one's labour or contribution towards one's wealth, savings, etc., either for himself or for his family, could not be said to be "pecuniary gain" only on account of one's accidental death. It was also clarified that the "pecuniary advantage" from whatever source must correlate to the injury or death caused on account of motor accident. Now coming to the facts of the case, PW4 has clarified that department has made a provision for deducting Rs.150/ per month from each employee's salary under Delhi Police Welfare Scheme and one day salary for martyr fund. In view of this, it is clear that the deceased had made contribution as per requirements of his department in order to make him entitled for the said financial assistance and that would have been provided to him due to death for other reasons also. Thus, it is held that apart from the cremation charges of Rs.10,000/, the exgratia payment of Rs.20 lakhs would not be deducted against the compensation payable in this case. Accordingly, petitioner No.1 to 5 shall be entitled for total compensation of Rs.82,41,750/ (79,98,750+2,53,00010,000). _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 15 of 23 Pages In MACP No. 553/16 (In re : Shivani):
MEDICAL EXPENSES:
27. PW2 Shivani (injured) testified that she had incurred Rs.2.50 lakhs on her treatment but all her medical bills were paid by her department (Delhi Police). In view of this, no amount is payable to the injured under this head.
LOSS OF INCOME (DURING TREATMENT):
28. It is mentioned by the injured/ petitioner that she could not attend her duties for a period of 11 months due to injuries suffered in the accident and she was getting salary of Rs.30,741/ at that time. PW7 deposed that petitioner remained on medical leaves from 20.10.2015 to 25.12.2015 (67 days), on earned leave from 26.12.2015 to 04.04.2016 (101 days) and on extra ordinary medical leave from 05.04.2016 to 08.09.2016 (157 days) and he proved the certificate of sanction of aforesaid total 325 days of leaves, issued by Addl. DCP, Rohini District, Delhi Ex.PW7/D. Though the petitioner has not lead any evidence to show that she was not paid salary for the aforesaid period of leaves but even if it is accepted that she got paid leaves, law is well settled that petitioner should be compensated for the leaves deducted by his office on account of the accident. (Refer: Ramveer Singh vs. Rajesh Kumar & Ors., MAC.APP. 12/2011, decided on 30.11.2012 by High Court of Delhi.) Further, as per salary slip of October2015 Ex.PW8/1, petitioner got salary of Rs.31,522/ which _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 16 of 23 Pages included basic pay, grade pay, DA, HRA, Transport Allowance and other allowances. Allowances are deducted by department while encashing the leaves. Thus, monthly loss of Rs.21,528/ which includes her basic pay, grade pay and DA only are required to be considered for computing loss of income. Accordingly, a sum of Rs.2,33,220/ (21,528/30x325) is granted to the petitioner for loss of income during treatment period.
PAIN AND SUFFERING:
29. As per the discharge summary of injured Ex.PW2/1, issued by Max Hospital, she remained hospitalized from 20.10.2015 to 05.11.2015 and following diagnosis were made during her treatment :
"fracture left humerus with radial nerve palsy with dislocation of left hip with fracture superior and inferior pubic ramii left side with bimalleolar fracture left side and multiple abrasions over face and over bilateral lower limb and lacerated wound on the right upper limb (polytrauma)". Further, the discharge summary makes it clear that during her hospitalization, surgery was performed to treat her left hip fracture, right upper limb fracture and plates were fixed. Further, the medical OPD record of petitioner shows that she got continuous treatment till March2016 when she was advised "shoulder exercises and no surgery at the moment as AC joint not painful". Thus, it is clear that petitioner must have remained in immense pain and sufferings during long period of her treatment and therefore, this _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 17 of 23 Pages court finds appropriate to grant petitioner a sum of Rs.1,00,000/ as compensation under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES:
30. The leave sanction order Ex.PW7/D shows that petitioner remained under treatment for about 1011 months. Though no specific evidence has been led regarding conveyance charges, however, considering the nature of injury and duration of treatment, it can be safely assumed that petitioner must have spent a reasonable amount in transportation while visiting hospital during her treatment. In view of this, the Tribunal deems it fit to grant Rs.10,000/ to petitioner as conveyance charges.
31. As discussed above, petitioner was operated upon and surgery was performed to treat her left hip fracture, right upper limb fracture and plates were fixed during hospitalization on account of accident. Thus, there remains no doubt that she must have spent reasonable amount on her special diet required for recovery post surgery. Though no specific evidence has been led on this aspect, still a sum of Rs.10,000/ is awarded to the petitioner as special diet charges.
32. Further, though no evidence has been led regarding hiring professional attendant but it cannot be ignored that family members of petitioner would have to render their services for providing assistance to the petitioner for her routine activities and that would have definitely suffered their work/job. For claiming compensation, _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 18 of 23 Pages necessity of employing a professional attendant/ care taker is not required and the petitioner should be compensated for the value of services of the family members, which has been or would be necessitated by the wrong doing of the driver. (Refer : DTC & Ors Vs. Lalita, 1983 ACJ 253). Therefore, the petitioner is awarded a sum of Rs.20,000/ as attendant charges.
33. Thus, petitioner is awarded a total compensation of Rs.40,000/ (10,000+10,000+20,000) under this head.
34. Thus, the compensation awarded to the petitioner is summarized as under: Sl. No. Head of compensation Amount Loss of income (during Rs.2,33,220/ 1. treatment)
2. Pain & Suffering Rs.1,00,000/ Conveyance, Special Diet & Rs.40,000/ 3. Attendant Charges TOTAL Rs.3,73,220/
35. In view of above, petitioner Shivani shall be entitled for a total compensation of Rs.3,73,220/.
ISSUE NO. 4 (in both cases):
36. The petitioner(s) have conducted the proceedings in these cases diligently. Therefore, they are entitled for interest @ 8% per annum on the aforesaid respective award amount from the date of filing of the petitions till realization.
_________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 19 of 23 Pages LIABILITY :
37. Now, the question arises as to which of the respondents is liable to pay the compensation amount. As insurance company has contractual and statutory liability to indemnify the insured and in this case, insurance company has not been able to prove that any term or condition of insurance policy was breached/ violated by insured, therefore, respondent no.3/ insurance company becomes liable to pay the aforesaid compensation amount in both the cases.
RELIEF:
In MACP No. 553/16 (In re : Shivani):
38. In view of the findings on above issues, this Tribunal awards a total compensation of Rs.3,73,000/ (Rs. Three Lakhs Seventy Three Thousand only) (rounded off from Rs.3,73,220/) alongwith interest @ 8% per annum w.e.f. date of filing of the petition till the date of its realization, in favour of petitioner and against the respondent no.3/ insurer.
RELIEF:
In MACP No. 553/16 (In re : Kamlesh & Ors.):
39. The petitioner No.1 to 5 are awarded a total compensation of Rs.82,42,000/ (Rs. Eighty Two Lakhs Forty Two Thousand Only) (rounded off from Rs.82,41,750/) alongwith interest @ 8% per annum from the date of filing of the petition till the date of realization.
40. The insurance company/respondent no.3 shall deposit the _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 20 of 23 Pages award amount in both the cases, with this Tribunal, within 30 days.
APPORTIONMENT AND MODE OF DISBURSAL In MACP No. 553/16 (In re : Shivani):
41. The mode of disbursal shall be decided after deposit of the award amount by the insurance company.
In MACP No. 553/16 (In re : Kamlesh & Ors.):
42. The petitioner no.1 to 5 shall be entitled to the award amount in the ratio of 40:15:15:15:15.
43. Accordingly, an amount of Rs.3,12,800/ out of Rs.33,12,800/ (40% of the award amount) will be released to petitioner No.1/ Kamlesh and balance amount of Rs.30 lakhs and interest will be secured in the form of fixed deposits in her name. Total 20 FDRs of Rs.1.50 lakhs each be prepared for 6 months, 12 months, 18 months and so on till 120 months and a separate FDR of interest amount be prepared for 10 years.
44. Further, Rs.2,42,300/ each, out of Rs.12,42,300/ each (15% of the award amount) will be released to petitioner No.2 Gaurav and petitioner No.3 Sourav and balance amount of Rs.10 lakhs each and interest will be secured in the form of fixed deposits in their respective names, as per following schedule :
Sl No. Amount Period of FDR
1 Rs.1,00,000/ 01 year
2. Rs.1,00,000/ 02 years
3 Rs.1,00,000/ 03 years
_________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 21 of 23 Pages
4. Rs.1,00,000/ 04 years
5. Rs.1,00,000/ 05 years
6. Rs.1,00,000/ 06 years
7. Rs.1,00,000/ 07 years
8. Rs.1,00,000/ 08 years
9. Rs.1,00,000/ 09 years
10. Rs.1,00,000/ 10 years
11. Interest component 10 years
45. Further, half of Rs.12,42,300/ (15% of the award amount) alongwith interest will be converted into an FDR in the name minor petitioner i.e. petitioner No.4/ Kashish for the period till she attains the age of majority and half be converted into FDR for a period of 5 years.
46. Further, an amount of Rs.2,42,300/ out of Rs.12,42,300/ (15% of the award amount) will be released to petitioner No.5/ Savitri and balance amount of Rs.10 lakhs and interest will be secured in the form of fixed deposits in her name, as per following schedule :
Sl No. Amount Period of FDR
1. Rs.2,00,000/ 01 year
2. Rs.2,00,000/ 02 years
3 Rs.2,00,000/ 03 years
4. Rs.2,00,000/ 04 years
5. Rs.2,00,000/ 05 years
6. Interest component 06 years
47. Form IVA and IVB in terms of MCTAP are annexed _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 22 of 23 Pages herewith as Annexure A and B respectively. Copy of award be also sent to concerned MM and DLSA in view of clause 35 and 36 of MCTAP. Digitally signed by VIVEK VIVEK KUMAR KUMAR GULIA Date: 2021.09.04 GULIA 17:19:19 +0530 Announced in the open (Vivek Kumar Gulia) Court on 31.08.2021 Presiding OfficerMACT (East) (Total 23 pages) Karkardooma Courts, Delhi _________________________________________________________________________________________________ MACP No. 553/16; Kamlesh & Ors. vs. Ravi @ Rohit & Ors; MACP No. 554/16; Shivani vs. Ravi @ Rohit & Ors.; 23 of 23 Pages