Delhi District Court
Sh. Sanjay Bari vs Sh. Hari Shankar Gupta on 2 June, 2023
MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023
IN THE COURT OF SHRI VINOD YADAV: DISTRICT JUDGE,
(COMMERCIAL COURT)02, NORTHWEST: ROHINI COURTS, DELHI
MAC Petition No. 125/19
CNR/UID No. DLNT010018452019
Sh. Sanjay Bari,
S/o Sh. Moti Lal Bari,
R/o 4053, Ram Vilas Mehto Ka Makan,
Gali No. 80B, Swatantar Nagar,
Narela, Delhi.
(Injured)
........Petitioner
VERSUS
1. Sh. Hari Shankar Gupta,
S/o Sh. Ram Asrey,
R/o H.No. 96/7,
Gali No. 30, Swatantar Nagar,
Narela, Delhi.
(Drivercumowner)
2. The New India Assurance Company Ltd.
7255, Prem Nagar,
Shakti Nagar Chowk,
Delhi.
(Insurance company)
........Respondents
Date of Institution : 05.03.2019
Date of Arguments : 09.05.2023
Date of Decision : 02.06.2023
Sanjay Bari Vs. Hari Shankar & Anr. Page 1 of 25
MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023
APPEARANCES:
Sh. Pradeep Kumar Sharma, Ld. Counsel for petitioner/injured. None for driver and owner (defence already struck off vide order dated 06.09.2019) Sh. S.C. Sharma, Ld. Counsel for Insurance co.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner aged about 42 years had sustained grievous injuries in a motor vehicular accident which took place on 03.11.2018 at about 8:45 am near Bharat Mata Mandir, Sinagar, Narela, Delhi, within the jurisdiction of PS. Narela, involving ERickshaw bearing registration no. DL11ER7036 (offending vehicle) being driven by respondent no. 1 in a rash and negligent manner.
2. According to DAR, on 03.11.2018, the petitioner/injured left his home for going to his work place and at about 8:30 am, he hired offending vehicle and was proceeding towards his work place in the offending vehicle which was being driven by its driver at a very high speed, rashly and negligently. When he reached near Bharat Mata Mandir, Sinagar, Narela, Delhi, offending vehicle fell into a 3 feet deep pit due to which petitioner fell down on the road. Thereafter, he was immediately taken to Mukesh Hospital, Mandi Extension, Narela, Delhi where he was medically examined vide MLC No. 349/18 and thereafter, he was referred to Safdarjang Sanjay Bari Vs. Hari Shankar & Anr. Page 2 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 Hospital, Delhi. It is claimed that the accident had taken place due to rash and negligent driving of offending vehicle by its drivercum owner/Respondent no. 1 and insured with The New India Assurance Co. Ltd/Respondent no. 2 during the period in question. FIR No. 741/18, u/s. 279/338 IPC was registered at PS. Narela with regard to accident in question.
3. The respondent no. 1 i.e. drivercumowner has failed to file his WS despite grant of sufficient time and opportunities and consequently, his defence was struck off vide order dated 06.09.2019 passed by my Ld. Predecessor.
4. In its WS, the respondent no.2 i.e. insurance company has raised statutory defence as provided in section 149(2) of M.V. Act by claiming that respondent no. 1 was driving the offending vehicle without any valid and effective driving licence and thus, he was also chargesheeted for offence u/s. 3/181 M.V. Act. It has been admitted that offending vehicle was insured with it at the time of accident.
5. From the pleadings of the parties, the following issues were framed vide order dated 06.09.2019 passed by my Ld. Predecessor:
1. Whether the injured Sh. Sanjay Bari suffered injuries in road traffic accident on 03.11.2018 at about 8:45 am near Bharat Mata Mandir, Narela, Sanjay Bari Vs. Hari Shankar & Anr. Page 3 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 Delhi, within the jurisdiction of PS. Narela due to rashness and negligence on the part of the driver cumowner who was driving the vehcle bearing registration no. DL11ER7036 and insured with The New India Assurance Co Ltd? OPP
2. Whether the injured is entitled to any compensation if so to what amount and from whom?OPP.
3. Relief.
6. In support of his claim, the petitioner has examined three witnesses i.e. himself as PW1, PW2 Dr. Ashutosh Gupta and PW3 Sh. Ram Bilas Mehto and his evidence was closed vide order dated 05.12.2022. On the other hand, no evidence was adduced by any of the respondents and their respective evidence was closed vide order dated 05.12.2022.
7. I have heard arguments advanced at bar by Ld counsels for the petitioner and insurance company. I have also gone through the material available on record.
ISSUE NO. 18. For the purpose of this issue, the testimony of PW1 Sh. Sanjay Bari (injured himself) is relevant. In his evidence by way of affidavit (Ex. PW1/A), he has deposed on the lines of averments made in the DAR. He has relied upon the following documents: Sanjay Bari Vs. Hari Shankar & Anr. Page 4 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 S.No. Description of documents Remarks
1. Copy of his Aadhaar Card Ex. PW1/1
2. Original medical bills/treatment Ex. PW1/2(colly) record
3. Original discharge summary Ex. PW1/3
4. DAR Ex. PW1/X(colly)
9. During his cross examination on behalf of insurance company, he deposed that eight person were sitting in offending vehicle apart from him but no other person sustained injury. He further deposed that police made inquiry from him regarding the accident. He denied the suggestion that the accident was caused due to his negligence.
10. It is evident from the testimony of petitioner that the respondents more particularly insurance company could not impeach his testimony through litmus test of crossexamination and he is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. Moreover, FIR No. 741/18(which is part of criminal case record) is shown to have been registered on the statement of petitioner himself. The contents of said FIR would show that petitioner has disclosed therein the same sequence of facts leading to the accident as deposed by him as PW1 in her evidence. Thus, there is no reason to disbelieve the Sanjay Bari Vs. Hari Shankar & Anr. Page 5 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 testimony of this witness made on oath. The very fact that respondent no. 1 was chargesheeted(which is part of DAR) by the police for offences punishable u/s. 279/338 IPC & 3/181 M.V. Act would further show that Investigating Agency also concluded after completion of the investigation that said accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. Same also points out towards the fact that the accident in question had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. Furthermore, said FIR is shown to have been registered on 03.11.2018 i.e. on the date of accident itself. Thus, there is no possibility of false implication of respondent no. 1 and / or false involvement of offending vehicle at the instance of the petitioner.
11. Not only this, the respondent no.1 was a material witness, who could have thrown light by testifying as to how and under what circumstances, the accident had taken place. However, he preferred not to enter into witness box, during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question had taken place due to rash and negligent driving of offending vehicle by him.
12. Not only this, the respondent no. 1 namely Sh. Hari Shankar (accused in State case) has been charge sheeted for offences punishable Sanjay Bari Vs. Hari Shankar & Anr. Page 6 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 U/s 279/338 IPC & 3/181 M.V. Act by the investigating agency after arriving at the conclusion, on the basis of investigation carried out by it that the accident in question had taken place due to rash and negligent driving of offending vehicle by him. Same would also point out towards rash and negligent driving of offending vehicle by respondent no. 1.
13. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of preponderance of probabilities that he had sustained grievous injuries in road accident which took place on 03.11.2018 at about 8:45 am near Bharat Mata Mandir, Sinagar, Narela, Delhi, due to rash and negligent driving of offending vehicle by respondent no.1.
ISSUE NO. 214. 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 it 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 niggardly.
MEDICAL EXPENSES
15. PW1 Sh. Sanjay Bari i.e. the injured himself, has deposed in his evidence by way of affidavit Ex. PW1/A that after the accident, he was Sanjay Bari Vs. Hari Shankar & Anr. Page 7 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 removed to Mukesh Hospital, Mandi Extension, Narela, Delhi, where he was medically examined vide MLC No. 349/18 and thereafter, he was referred to Safdarjang Hospital, where he remained admitted from 05.11.2018 to 07.11.2018 and spinal surgery was also performed by the doctors. He further deposed that he had incurred about Rs. 1,00,000/ on his medical treatment. He has relied upon medical bills Ex. PW1/2(colly). During his crossexamination on behalf of insurance company, he deposed that he had filed the medical bills on record which were in his possession. He further deposed that his spinal cord was broken in the accident. He denied the suggestion that medical bills were without any prescription. He further denied the suggestion that he had taken the treatment regarding his old injuries prior to the accident.
16. It is relevant to note that petitioner has filed medical bills to the tune of Rs. 20,794.65/. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 21,000/(rounded off) is awarded to the petitioner under this head.
PAIN AND SUFFERING
17. Hon'ble High Court of Delhi in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP Sanjay Bari Vs. Hari Shankar & Anr. Page 8 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
18. PW1 has deposed in his evidence by way of affidavit (Ex PW1/A) that he has suffered grievous injuries in the accident. Moreover, as per Disability Certificate Ex. PW2/1, the petitioner is also found to have sustained 74% permanent disability in relation to his both lower limbs. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him and the permanent disability suffered by him, I hereby award a sum of Rs. 2,50,000/ towards pain and sufferings to the petitioner.
CONVEYANCE AND SPECIAL DIET
19. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on conveyance and special diet.
Sanjay Bari Vs. Hari Shankar & Anr. Page 9 of 25MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 Looking at the medical treatment and disability of the petitioner, notice can be taken of the fact that the petitioner would have incurred considerable amount towards conveyance charges while commuting to the concerned hospital at Delhi as OPD patient for his regular check up & follow up during the period of his medical treatment. The petitioner would have also taken special rich protein diet for his speedy recovery. In these facts and circumstances, I hereby award a sum of Rs. 50,000/ each for conveyance and special diet. Thus, a total sum of Rs. 1,00,000/ is awarded under this head.
LOSS OF EARNING CAPACITY
20. As already stated above, the petitioner is shown to have sustained 74% permanent disability in relation to his both lower limb. Same is quite evident from Disability Certificate of Medical Board of SRHC Hospital, Narela, Delhi. The petitioner has also testified in this regard while examining himself as PW1 during inquiry.
21. As per the testimony of PW2 Dr. Ashutosh Gupta, who was one of the members of Medical Board constituted at SRHC Hospital, Narela, Delhi, the petitioner was found to have suffered 74% permanent disability in relation to his both lower limbs. He deposed that the aforesaid Medical Board assessed the disability of the petitioner to be permanent in nature which was not likely to improve in future. He proved the Disability Certificate as Ex. PW2/1. He also produced the calculation chart prepared Sanjay Bari Vs. Hari Shankar & Anr. Page 10 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 at the time of assessment of disability of petitioner and proved the same as Ex. PW2/2. He deposed that due to aforesaid disability, petitioner would have moderate difficulty in walking on plain surface, slope, climbing stairs, kneeling on both legs. He further deposed that petitioner would have mild difficulty in crossleg sitting. He deposed that the petitioner would have difficulty in performing his day to day activities which involves movement from one place to another place. He further deposed that the petitioner would have difficulty in performing his job. During his crossexamination on behalf of insurance company, he deposed that the members of disability board had considered the medical treatment record including MLC of the patient at the time of assessing his disability. He further deposed that he could not tell the functional disability of petitioner in relation to whole body. He denied the suggestion that the disability suffered by the petitioner had no corelation with the injuries sustained by him in the accident in question.
22. It is argued on behalf of petitioner that petitioner was a labour at the time of accident. It is further argued that since the petitioner has suffered disability to the extent of 74% in relation to his both lower limbs, he is unable to do any work from the date of accident as his avocation involves proper movement of his all limbs and due to aforesaid disability, he can not the labour work and thus, the loss of earning capacity be taken as 100%. For this, he has relied upon judgment passed by Hon'ble Apex Court in case titled "Mohan Soni Vs. Ram Avtar Tomar & Ors., Civil Appeal No. Sanjay Bari Vs. Hari Shankar & Anr. Page 11 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 237 of 2012, decided on 10.01.2012, wherein the Hon'ble Court has been pleased to hold in para no. 10 as under: xxxx "10. In light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellant's earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such Sanjay Bari Vs. Hari Shankar & Anr. Page 12 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. We, accordingly, find and hold that the compensation for the loss of appellant's future earnings must be computed on that basis"
xxxxx
23. Per contra, it is argued on behalf of insurance company that the disability of the petitioner is not that much which could amount to 100% loss of earning capacity.
24. With regard to assessment of functional disability in the accident cases, I am guided by the decision of Hon'ble Apex Court in case titled as Raj Kumar Vs. Ajay Kumar & Anr., CIVIL APPEAL NO.8981 OF 2010 (Arising out of SLP (C) No. 10383 of 2007) wherein Hon'ble Apex Court has been pleased to 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 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 Sanjay Bari Vs. Hari Shankar & Anr. Page 13 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 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".
25. Now coming back to the facts of present case it is noted that the petitioner was a labour and he has suffered 74% permanent disability in relation to his both lower limbs. PW2 Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital has deposed that the disability of the petitioner Sanjay Bari Vs. Hari Shankar & Anr. Page 14 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 is permanent in nature and same is not likely to improve. It is pertinent to mention here that any type of work requires physical dexterity in limbs and digits to operate hand and power driven tools and equipment commonly used in the profession of fabrication, physical ability to lift, carry and ability to continually walk, stand, climb, stoop, bend, kneel, reach in all directions, etc. It may be noted here that petitioner was a labour at the time of accident and it is quite obvious that for any labour work, proper movement of both lower limbs are very necessary which is not possible in the case of petitioner due to the aforesaid disability suffered by him in the accident. The petitioner has suffered 74% permanent physical impairment in relation to his both lower limbs, which is going to adversely affect his avocation. In view of case (supra), I am of the considered opinion that due to disability suffered(permanent physical impairment in relation to his right lower limb) in the present accident, the petitioner will suffer 100% loss of earning capacity. Hence, the functional disability of the petitioner is considered as 100% towards loss of earning capacity.
26. Petitioner has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was labour and was earning Rs. 16,000/ per month at the time of accident. He further deposed that due to the injuries suffered by him in the accident, he would not be able to work. For this, he has relied upon his medical treatment record of various hospitals. During his cross examination on behalf of insurance company, he admitted that he had not filed on record any proof of employment or working.
Sanjay Bari Vs. Hari Shankar & Anr. Page 15 of 25MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023
27. Apart from the bald statement made by petitioner in his affidavit Ex. PW1/A that he was working as a labour and earning Rs. 16,000/ per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. Petitioner has also failed to file his educational qualification documents. In the absence of any such document, I am of the view that loss of income of the petitioner has to be assessed while taking the income of an unskilled person under Minimum Wages Act applicable during the period in question.
28. Ld. Counsel for insurance company vehemently argued that since the address of petitioner as mentioned in his Aadhaar Card (Ex. PW1/1) is of Bihar, minimum wages of an unskilled person in Bihar shall be applicable in this case. Per contra, Ld. counsel for petitioner vehemently argued that the aforesaid objection raised on behalf of insurance company, is without any merit as the petitioner was living in a rented accommodation Sh. Ram Bilas Mehto. For this, he has relied upon testimony of PW3 Sh. Ram Bilas Mehto. He deposed in his evidence by way of affidavit Ex. PW3/A that Sh. Sanjay Bari(petitioner) met with an accident on 03.11.2018 and at that time, he was residing at his house as a tenant since 4 years prior to the date of accident. During his crossexamination on behalf of insurance company, he admitted that he had not filed any rent receipt or rent agreement in the court not he had any other document to prove that petitioner Sh. Sanjay Bari was his tenant on the date of accident. He Sanjay Bari Vs. Hari Shankar & Anr. Page 16 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 admitted that he was permanent resident of Bihar and petitioner was also permanent resident of Bihar. He denied the suggestion that he had deposed falsely to support the claim petition of petitioner.
29. At this juncture, it may be noted here that Section 166 (2) M.V. Act clearly stipulates that claim petition can be filed at the option of the claimant, either before Claims Tribunal having jurisdiction over the area in which accident took place or before Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or before Claims Tribunal within whose jurisdiction the defendant resides.
30. Now coming back to the facts of the present case. No doubt, the residential address as mentioned in Aadhar Card of the petitioner is that of Bihar. However, this fact alone would not be sufficient to upheld the aforesaid plea raised on behalf of insurance company that petitioner was not working and earning in Delhi at the time of accident, in the backdrop of the fact that insurance company on which initial burden to prove this issue was placed, failed to lead any evidence at all during the course of inquiry. On the other hand, the petitioner has examined Sh. Ram Bilas Mehto as PW3 in order to substantiate his plea to the effect that he was residing in Delhi at the time of accident as a tenant in the house of Sh. Ram Bilas Mehto at the time of accident in question. It is relevant to note here that in the DAR, address of petitioner is mentioned as H.No. 4453, Gali No. 80C, Sanjay Bari Vs. Hari Shankar & Anr. Page 17 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 Swatantar Nagar, Narela, Delhi which corroborates the ocular testimony of PW3. Hence, I do not find any reason to discard the testimony of PW3 made on oath.
31. It is also pertinent to note that entire treatment of petitioner had taken place in the hospital of Delhi only. In view of the aforesaid discussion, I am of the considered opinion that minimum wages of an unskilled person applicable in the State of Delhi shall be applicable in the present case. The minimum wages of an unskilled person were Rs. 14,000/ per month as on the date of accident. The accident in question had taken place on 03.11.2018.
32. In the copy of Aadhaar Card of the petitioner, his date of birth is mentioned as 01.01.1976. The date of accident is 03.11.2018. In view of said document, his age was 42 years as on the date of accident. Hence, the appropriate multiplier would be 14 in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The monthly notional income of petitioner has been taken as Rs. 14,000/ per month as discussed above. Thus, the loss of monthly income from the date of accident would be Rs. 14,000/(100%). The total loss of earning would be Rs. 29,40,000/ (Rs. 14,000/x125/100x12x14). Thus, a sum of Rs. 29,40,000/ is awarded in favour of petitioner under this head.
Sanjay Bari Vs. Hari Shankar & Anr. Page 18 of 25MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 ATTENDANT CHARGES
33. The petitioner has deposed in his evidence by affidavit (Ex. PW1/A) that due to the injuries and permanent disability suffered by him, he would have to depend upon the services of the attendant throughout his remaining life.
34. It is apparent from record that petitioner has suffered grievous injuries in the accident. Apart from the injuries, he has also suffered permanent disability to the extent of 74% in relation to his both lower limbs. It may be noted here that PW2 Dr. Ashutosh Gupta specifically deposed in his evidence that petitioner would have difficulty in performing his day to day activities which involves movement from one place to another. Looking at the medical treatment and disability of the petitioner as well as testimony of PW2 in this regard, notice can be taken of the fact that since the petitioner has suffered permanent disability to the extent of 74% in relation to his both lower limbs, there is requirement of attendant during his whole life as he might not be able to lead normal life as he was leading before the accident and he would require escort of a person during his whole life till he is alive. Notice can also be taken of the fact that he would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. Since the petitioner has suffered 74% permanent disability in relation to his both lower limbs, which has been Sanjay Bari Vs. Hari Shankar & Anr. Page 19 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 considered as 100% with respect to loss of earning capacity(as discussed above), he will require assistance of an attendant throughout his life.
35. Hon'ble High Court of Delhi in the case titled as " Pritam Singh Vs. Oriental Insurance Co. Ltd. & Ors." (supra) has been pleased to held that in a case where the claimant has been rendered permanently disabled to the extent of 100%, he would definitely require consistent presence of attendant throughout his life. It was further held that in such circumstances, the proper course would be to take care of attendant charges incurred during the treatment as well as for future on the assumption that injured would need to engage an attendant on regular basis. It was also held that the expenditure towards this end, could be computed on the basis of minimum wages of an unskilled worker prevalent as on the date of accident and to adopt the multiplier as per the age of injured at that time.
36. Hon'ble Supreme Court in the case titled as " Abhimanyu Pratap Singh Vs. Namita Sekhon & Anr.", Civil Appeal No. 4648 of 2022, decided on 06.07.2022 has been pleased to hold in para no. 14 that in a case where the claimant has been rendered permanently disabled to the extent of 100%, it would not be justified to grant compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years. In fact, the said amount should be determined applying the multiplier method.
Sanjay Bari Vs. Hari Shankar & Anr. Page 20 of 25MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023
37. Turning back to the facts of the present case, the minimum wages of an unskilled worker as on the date of accident which is 03.11.2018, were Rs. 14,000/ per month. The age of injured was around 42 years as on the date of accident and multiplier of 14 is applicable. Accordingly, a sum of Rs. 23,52,000/ (Rs. 14,000/ X 12 X 14) is awarded to the petitioner under this head.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 21,000/
2. Pain and suffering Rs. 2,50,000/
3. Conveyance & Special diet Rs. 1,00,000/
4. Loss of earning capacity Rs. 29,40,000/
5. Attendant Charges Rs. 23,52,000/ Total Rs. 56,63,000/
38. This brings me down to the next question as to whether insurance company has been able to prove the statutory defence raised by it in its written statement, wherein it has claimed that respondent no. 1 was not having any valid and effective driving licence(DL) at the time of accident in question. Respondent no. 3/insurance company did not adduce any evidence in respect of its aforesaid plea raised in its WS. Moreover, a copy of driving licence of respondent no. 1 is there on record and the same was valid and effective at the time of accident. Thus, keeping in view the existence of valid insurance policy, respondent no. 2/insurance company Sanjay Bari Vs. Hari Shankar & Anr. Page 21 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO.3/RELIEF
39. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 56,63,000/ (including interim award amount, if any) alongwith interest @ 7% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 05.03.2019 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). Issue no. 3 is decided accordingly.
APPORTIONMENT
40. Statement of petitioner in terms of Clause 29 MCTAP was recorded on 27.03.2023. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the awarded amount, a sum of Rs.10,00,000/ (Rupees Ten Lakhs Only) shall be immediately released to the petitioner through his saving bank account no. 30320100017470 with Bank of Baroda, Narela, Delhi, having IFSC Code BARB0NARELA and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 1,00,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
Sanjay Bari Vs. Hari Shankar & Anr. Page 22 of 25MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023
41. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank 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 monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) 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 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.
Sanjay Bari Vs. Hari Shankar & Anr. Page 23 of 25MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
42. Respondent no. 2/The New India Assurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer a sum of Rs. 10,00,000/ in the aforesaid saving bank account of petitioner, on completing necessary formalities as per rules. He be 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 award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioner and also to counsel for the insurance company for compliance. Copy of this award alongwith one Sanjay Bari Vs. Hari Shankar & Anr. Page 24 of 25 MACP No. 125/19; FIR No.741/18.; PS. Narela DOD: 02.06.2023 photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & Form XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 02.06.2023 (VINOD YADAV) District Judge (Commercial Court)02, NorthWest: Rohini Courts, Delhi Certified that above award contains 25 pages and each page is signed by me.
(VINOD YADAV) District Judge (Commercial Court)02, NorthWest: Rohini Courts, Delhi Sanjay Bari Vs. Hari Shankar & Anr. Page 25 of 25