Delhi District Court
Smt. Kamla Dagar vs Ms. Archana Mittal on 15 January, 2019
MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5147/16 (Old MACP No. 27B/13)
Smt. Kamla Dagar,
W/o Sh. Ram Chander,
R/o G4/66,
Near Jain Bharti Public School,
Sector - 16, Pocket 4,
Rohini, Delhi.
..........Petitioner
VERSUS
1. Ms. Archana Mittal,
W/o Sh. Rajesh Mittal,
R/o. H.No. I5/93,
1st Floor, Sector - 16,
Rohini, Delhi (Drivercumowner)
2. TATA AIG General Insurance Company Ltd.
(Insurance Co.) ............Respondents
Date of Institution : 24.10.2013
Date of Arguments : 04.01.2019
Date of Award : 15.01.2019
APPEARANCES:
Ms. Babita Tyagi, Adv for petitioner.
None for respondent no. 1.
Sh. Pradeep Sehrawat, Adv for respondent no. 2.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner is seeking compensation in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 1 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 carried out in case FIR No. 376/13 U/s 279/337 IPC registered at PS. K.N.K. Marg with regard to Motor Vehicular Accident which occurred on 03.09.2013 at 8:00 pm at H Block, near Guru Nanak Dental Clinic, Sector - 16, Rohini, Delhi, involving Car bearing registration no. DL4CAQ3834 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner. Detailed Accident Report (hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
2. According to DAR, on 03.09.2013, the petitioner was returning to her home from Guru Nanak Dental Clinic, Sector - 16, Rohini, Delhi. At about 8:00 pm, when she reached at H Block, near Guru Nanak Dental Clinic, Sector - 16, Rohini, Delhi, one car bearing registration no. DL4C AQ3834, which was being driven by its driver at high speed & in rash and negligent manner, came and hit against her. As a result thereof, she fell down on the road and sustained grievous injuries. She was removed to Dr. Dogra Fracture Clinic, Sector - 17, where she was medically examined. On the next day, she was removed to Saroj Hospital by her husband for further treatment. The aforesaid vehicle i.e. Car No. DL4CAQ3834 was found to be owned by respondent no. 1 herself and it was insured with TATA AIG General Insurance Company Ltd./respondent no. 2 during the period in question.
Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 2 of 24MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019
3. The respondent no. 1 i.e. drivercumowner although put her appearance before the Claims Tribunal at the time of filing of DAR, however, she failed to file her WS despite grant of sufficient time and opportunities. Consequently, her defence was struck off vide order dated 16.04.14 passed by my Ld. Predecessor.
4. In its WS/reply, the respondent no. 2/insurance company has raised statutory defence as provided in Section 149(2) M.V. Act. It has claimed that there was delay in reporting the matter to the police and the FIR was lodged after 13 days of the accident. It has further claimed that as per DAR, injured was firstly taken to Dr. Dogra Fracture Clinic for treatment and thereafter, MLC was prepared on 10.09.13 at BSA Hospital but her complete medical treatment record showing that accident actually took place on 03.09.13 with the aforesaid car, has not been placed on record. However, it has admitted that the aforesaid car was insured with it in the name of respondent no. 1, vide policy no. 0152439238 from 29.04.13 to 28.04.14. However, the contents of DAR have not been disputed by it in its reply.
5. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 16.04.2014:
1. Whether the injured Kamla Dagar had suffered grievous injuries in motor accident on 03.09.13 at 8:00 pm at H Block, Near Guru Nanak Dental Clinic, Sector - 16, Rohini, Delhi involving Car bearing registration no. DL4CAQ3834 which Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 3 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 was being driven and owned by Archana Mittal in rash and negligent manner and insured with TATA AIG Insurance Company Ltd.? OPP.
2. Whether the injured is entitled for any compensation? If so, to what amount and from whom?OPP.
3. Relief.
6. In support of her claim, the petitioner has examined three witnesses i.e. herself as PW1, PW2 Mr. Navrattan Kumar, from the office of MCD i.e. her employer and PW3 Dr. Navneet Goel, Specialist Orthopedic, BSA Hospital, Rohini, Delhi. On the other hand, no evidence was adduced by the respondent no. 1, whereas insurance company has examined two witnesses i.e. R2W1 namely Dr. Sunil Kumar Gupta, Orthopedist of Saroj Hospital and R2W2 namely Dr. Anil Dogra of Disha Fracture and Ortho Clinic, Sector - 17, Rohini, Delhi. RE of respondents was closed on 18.01.2017.
7. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form VI B vide order dated 04.01.19 but they have not submitted the same on record. My findings on the issues are as under: Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 4 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 ISSUE NO. 1.
8. For the purpose of this issue, the testimony of PW1 Smt. Kamla Dagar (injured herself) is relevant. In her evidence by way of affidavit(Ex. PW1/A), she has deposed that on 03.09.2013, she was returning to her home after taking treatment of her teeth from Guru Nanak Dental Clinic, Sector - 16, Rohini, Delhi. At about 8:00 pm, when she reached at H Block, near Guru Nanak Dental Clinic, Sector - 16, Rohini, Delhi, one car bearing registration no. DL4CAQ3834, which was being driven by its driver at high speed & in rash and negligent manner, came and hit against her. As a result thereof, she fell down on the road and sustained grievous injuries. She was removed to Dr. Dogra Fracture Clinic, Sector - 17, where she was medically examined. On the next day, she was removed to Saroj Hospital by her husband for further treatment. She further deposed that she was shifted therefrom to BSA Hospital on 10.09.13, where her MLC No. 9820/13 was prepared. She categorically deposed that the accident took place due to negligent driving of aforesaid car by respondent no. 1 and FIR No. 376/13 u/s. 279/337 IPC was registered against respondent no. 1 at PS. K.N.K. Marg with regard to accident in question. She has relied upon the following documents: S.No. Description of documents Remarks
1. Her medical treatment record Ex. PW1/1 & PW1/2 (colly)
2. Copy of her Voter I Card Ex. PW1/3 Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 5 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019
3. DAR Ex. PW1/4(colly)
4. Medical Bills Ex. PW1/5(colly)
9. During her crossexamination on behalf of respondent no. 2, she admitted that on 03.09.13, she had visited Dr. Anil Dogra for her treatment after the alleged accident. She had told Dr. Dogra about RTA but when she was confronted with Ex. PW1/1(colly), it was not found so mentioned. She admitted not to have told concerned doctor of Saroj Hospital about RTA and had told that she had fallen down on 03.09.13. She admitted that in none of her medical treatment record of Saroj Hospital, injuries were stated to be due to RTA. However, she denied the suggestion that no accident took place on 03.09.13 due to hitting of aforesaid car or that is why, she did not give history of RTA either before Dr. Dogra or the concerned doctor of Saroj Hospital. She admitted not to have made any PCR call on 03.09.13 or even thereafter. She volunteered that police call was made by her for the first time on 08.09.13 with regard to the accident. She was not crossexamined by respondent no. 1 at all.
10. It is evident from the testimony of PW1 that the respondents, more particularly insurance company, could not impeach her testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 herself is the injured having sustained injuries due to the accident in question. There is no reason as to why she would depose falsely against Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 6 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 respondent no.1. Moreover, FIR No. 376/13(which is part of DAR Ex. PW1/4 colly) is shown to have been registered on the statement of this witness. The contents of said FIR would show that the complainant has disclosed therein the same sequence of facts leading to the accident, as deposed by her during the course of inquiry. Thus, there is no reason to disbelieve the testimony of this witness made on oath.
11. It is pertinent to note that the respondent no.1/driver of aforesaid Car, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, she has preferred not to enter into the witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against her to the effect that the accident in question occurred due to rash and negligent driving of Car bearing no. DL4CAQ3834 by her.
12. No doubt, there is slight delay in registration of FIR inasmuchas accident occurred on 03.09.13 and FIR has been registered on 16.09.13 but said delay has been sufficiently explained by claimant as PW1, whereby she deposed that the respondent no.1 had assured to bear the entire expenses of her medical treatment but when respondent no. 1 came to know that treatment may be costly then her husband refused to compensate her(PW1) or to provide any financial help. Said portion of her testimony has virtually gone unchallenged and unrebutted from the side of both the respondents.
Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 7 of 24MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019
13. Counsel for insurance company heavily relied upon the testimonies of R2W1 and that of R2W2, in order to bring home his point that petitioner could not prove that the accident was actually caused with aforesaid car as she did not disclose the history of RTA either before R2W2 namely Dr. Anil Dogra, in whose clinic she had firstly gone after sustaining the injuries and also before R2W1 i.e. Dr. Sunil Gupta of Saroj Hospital, who had treated the injured w.e.f. 04.09.13 onwards. At this juncture, it may be noted that both the aforesaid witnesses deposed in their respective testimonies that injured Kamla Dagar did not give history of RTA and they would have so mentioned in her treatment record, had she told about RTA and would have also prepared MLC in this regard. No doubt, both the said witnesses have not been crossexamined on behalf of claimant but at the same time, it is important to note that the claimant is shown to have given the history of fall on 03.09.13, as recorded in her medical treatment record (which is part of Ex. PW1/1 colly) of Saroj Hospital. It can not be overlooked that the injured being layman, is not expected to be familiar with the legal terms so as to give the history of RTA before concerned doctor and her testimony can not be brushed aside merely on this ground. This is more so when the respondents have failed to lead any evidence to show as to how the claimant sustained those injuries if not by motor vehicular accident. It is pertinent to mention here that not even a suggestion was put to PW1 from the side of respondents that injuries sustained by her, had no relation with motor vehicular accident or that those injuries could not have been caused in road accident. It is also relevant to mention here that both the witnesses Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 8 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 examined on behalf of insurance company, did not dare to depose that those injuries could not have been caused in road accident. Rather, the perusal of injuries sustained by claimant as reflected from her medical treatment record, would clearly show that those injuries are possible to be sustained in road accident. One thing which is established from both the aforesaid witnesses of insurance company is that the claimant had immediately visited initially to the clinic of Dr. Anil Dogra (R2W2) for treatment of injuries sustained by her in the accident and thereafter, she had shifted to Saroj Hospital on next day i.e. 04.09.13. Her entire medical treatment record has also gone unchallenged from the side of respondents.
14. Moreover, the respondent no. 1 namely Ms. Archana Mittal W/o Sh. Rajesh Mittal (accused in State case) has been charge sheeted (which is part of DAR Ex. PW1/4 colly) for offences punishable U/s 279/338 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of Car No. DL4CAQ3834 by her. Same would also point out towards the rash and negligent driving of aforesaid vehicle by respondent no. 1.
15. Apart from above, copy of MLC (which is part of DAR Ex. PW1/4 colly) of injured prepared at BSA Hospital, Delhi shows that she had been removed to said hospital on 10.09.2013 with alleged history of RTA on 03.09.13 at about 8 pm. On her local examination, she was found to have Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 9 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
16. Moreover, in response to notice U/s 133 M.V Act (which is part of DAR Ex. PW1/4 colly) served upon respondent no. 1 i.e. drivercum owner of Car bearing no. DL4CAQ3834, she gave written reply that the aforesaid car was being driven by her on 03.09.13. Same would also corroborate the testimony of PW1 to the extent that the aforesaid vehicle was being driven by respondent no. 1 at the time of accident.
17. 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 pre ponderence of probabilities that she had sustained grievous injuries in road accident which took place on 03.09.2013 at 8:00 pm at H Block, near Guru Nanak Dental Clinic, Sector - 16, Rohini, Delhi, due to rash and negligent driving of Car bearing no. DL4CAQ3834 by the respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 2.
18. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 10 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 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
19. PW1 Smt. Kamla Dagar i.e. injured herself, has deposed in her evidence by way of affidavit(Ex. PW1/A) that after the accident, she was removed to the clinic of Dr. Dogra situated at Sector - 17, Rohini but her condition could not improve and therefore, she was shifted to Saroj Hospital on 04.09.13, wherefrom, she was further removed to BSA Hospital on 10.09.13, where she was medically examined. She further deposed that she had sustained grievous injuries i.e. three fractures of backbone, abrasions and other blunt injuries. She deposed to have spent about Rs. 1,00,.000/ on her medical treatment. During her crossexamination on behalf of respondent no. 2, she deposed that she denied the suggestion that she had not incurred Rs. 1,00,000/ on her medical treatment or that her treatment record was forged or fabricated or that she did not suffer any financial loss due to the accident. Respondent no. 1 did not crossexamine this witness at all.
20. The petitioner has relied upon medical bills to the tune of Rs. 34,545/ in all, which are exhibited as Ex. PW1/5 (colly). It is quite evident that the respondents have not disputed the authenticity and Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 11 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 genuineness of the said medical bills during the course of inquiry. Moreover, the respondents more particularly insurance company, have failed to lead any evidence in rebuttal in order to create any doubt on the authenticity of the medical bills of the injured as available on record. Accordingly, a sum of Rs. 34,545/ is awarded to the petitioner under this head.
LOSS OF INCOME
21. Injured namely Smt. Kamla Dagar (PW1) has categorically deposed in her evidence by way of affidavit (Ex PW1/A) that she was aged about 49 years; she was working in MCD and was earning Rs. 44,000/ per month without pay leave from the said job, at the time of accident. She further deposed that she could not work for considerable period due to the injuries sustained by her in the accident. During her crossexamination on behalf of respondent no.2, she admitted that she had not placed salary slips for the relevant period when accident took place. She volunteered that she had filed the salary slips for the months of July and August 2014. She admitted that they did not bear any stamp or seal of the employer. She denied the suggestion that the salary slips for the months of July & August 2014 were false and fabricated. She admitted that Form 16 submitted by her, was not completely stamped and signed on all the pages. She denied the suggestion that same was false and fabricated. She admitted that she had not placed any document suggesting any leave availed by her in respect of alleged accident. She also admitted that she had not placed on Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 12 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 record any prescription of the Specialist Clinic, Keshav Puram, Delhi. She denied the suggestion that the consultation fee of the Specialist Clinic was false and fabricated or for that reason only, no prescription has been filed by her of the aforesaid hospital. She further denied the suggestion that she was not getting salary of Rs. 44,000/ per month from MCD or for that reason only, she had not placed any original salary slip. Respondent no. 1 did not crossexamine this witness at all.
22. PW2 is the Official from the office of employer of injured. He produced the leave record of injured Kamla Dagar and exhibited the said record as Ex. PW2/1(colly). During his crossexamination on behalf of respondent no. 2, he deposed that the salary of employees was paid by ECS. The document Ex. PW2/1 was prepared by him as per record. He had brought the joining letter vide which Ms. Kamla Dagar had joined her duty after availing medical leave w.e.f. 04.09.13 to 07.11.13. He exhibited copy thereof alongwith medical documents as Ex. PW2/2(colly). He admitted that no such leave application had been filed by Ms. Kamla Dagar except Ex. PW2/2. He denied the suggestion that Ex. PW2/1(colly) were false and fabricated documents. He admitted that during the period of leave, Ms. Kamla Dagar had been paid salary as per rules. He had not brought certificate under Section 65B of Evidence Act. He denied the suggestion that he was deposing falsely just to favour Ms. Kamla Dagar as she was known to her being his colleague for getting the maximum compensation. He has not been crossexamined at all by respondent no. 1.
Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 13 of 24MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019
23. As per the documentary evidence brought on record, the petitioner/injured was working as LHV in M & CW Centre, MCD, Pitampura at the time of accident. PW1 has categorically testified that she was getting monthly salary of Rs. 44,000/. Nothing material could be elicited during her crossexamination on the said aspect, so as to disprove said part of her testimony. Moreover, no evidence in rebuttal has been led by either of the respondents to disprove the said fact. What is more interested to note that is no question on the aspect of monthly salary of claimant at the time of accident, was asked from PW2 on behalf of respondents. No doubt, salary slip for the month of September 2013 has not been placed on record but salary slips for the months of July and August 2014, have been filed. Both the said salary slips have remained unchallenged from the side of respondents and there is nothing on record to show that salary of claimant was increased at any point of time after the date of accident. Hence, monthly salary of the petitioner/injured for the month of September 2013, is taken as Rs. 44,000/. Petitioner has proved that she availed medical commuted leaves of 64 days from 04.09.2013 till 07.11.13 and also availed earned leaves of 114 days from 08.11.13 to 02.03.14. In other words, she had availed leaves for a total period of 178 days. Hence, a sum of Rs. 2,61,067/(rounded off) (Rs. 44,000/ x 178/30) is awarded in favour of petitioner for loss of leaves. (Reliance placed on "Nathu Lal Vs. Sandeep Gulati & Ors, MAC APP No. 770/11, decided on 21.05.12, Sandeep Mishra Vs. Vijay Kumar Yadav & Ors., MAC APP No. 215/10, decided on 04.09.12, Satyawati Wadhwa Vs. Jitender Singh & Ors, MAC APP Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 14 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 No. 73/13, decided on 10.05.16 and The New India Assurance Company Ltd. Vs. Constable Mohar Singh & Ors., MAC APP No. 657/2015 decided on 16.10.17, by Hon'ble Delhi High Court) PAIN AND SUFFERING
24. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 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".
25. Injured herself as PW1 has deposed in her evidence by way of affidavit(Ex PW1/A) that she had suffered grievous injuries i.e. three fractures of backbone, abrasions and other blunt injuries. As already noted above, her treatment record as available on file, would show that she had suffered wedge compression fractures of D9 and L1 vertebral bodies showing reduced vertebral height with altered marrow signal intensity. Not only this, she is also shown to have sustained permanent physical Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 15 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 impairment of 14% in relation to her back/spine due to the impact of the accident. Apart from the fact that the relevant portion of her testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, her ocular testimony is duly corroborated by her medical treatment record [Ex. PW1/1 colly and Ex. PW1/2 colly] and disability certificate (Ex. PW3/1) filed by her. Thus, she 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, I hereby award a sum of Rs. 1,00,000/ towards pain and sufferings to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
26. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered wedge compression fractures of D9 and L1 vertebral bodies showing reduced vertebral height with altered marrow signal intensity due to the accident in question. Not only this, she is also shown to have sustained permanent disability to the extent of 14% in relation to her back/spine, which is duly established from the testimony of PW3 Dr. Navneet Goel, Specialist Orthopedic, BSA Hospital and Disability Certificate (Ex. PW3/1) issued by Disability Board of Dr. BSA Hospital. Thus, she would not be able to enjoy general amenities Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 16 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 of life after the accident in question for a considerable period and her quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by her and her continued treatment for considerable period, I award a notional sum of Rs. 1,00,000/ towards loss of amenities of life to the petitioner. (Reliance placed on "Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors", bearing MAC.APP. No. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
27. Although, during the course of final arguments, counsel for petitioner/injured argued that the petitioner/injured had spent considerable amount on special diet, conveyance and attendant but she has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that the petitioner had sustained wedge compression fractures of D9 and L1 vertebral bodies showing reduced vertebral height with altered marrow signal intensity due to the accident. Not only this, she is also shown to have sustained permanent physical impairment of 14% in relation to her back/spine due to the impact of the accident. Thus, she would have taken special rich protein diet for her speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for her regular check up & follow up during the period of her medical treatment. She would have been definitely helped by some person either outsider or Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 17 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 from her family, to perform her daily activities as also while visiting the hospital during the course of her medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 5,000/ for conveyance charges and a sum of Rs. 10,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
28. As already stated above, the petitioner is shown to have sustained 14% permanent disability in relation to her back/spine. Same is quite evident from Disability Certificate dated 19.09.2017 (Ex. PW3/1) of Medical Board of Dr. BSA Hospital, Delhi. The petitioner has also testified in this regard while examining herself as PW1 during inquiry. She has not been crossexamined by the respondents on this aspect.
29. As per the testimony of PW3 Dr. Navneet Goel, who was one of the members of Disability Board constituted at BSA Hospital, the petitioner was found to have suffered 14% permanent disability in relation to her back/spine. He deposed that the said disability was permanent in nature and there was no likelihood of any improvement in her condition in future and thus, reassessment was not recommendable. He exhibited the disability certificate as Ex. PW3/1. He also produced calculation chart prepared at the time of assessment of her disability and exhibited copy thereof as Ex. PW3/2. He further deposed that with such kind of disability Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 18 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 suffered by injured, she would have mild difficulty in squatting on floor. Respondent no. 1 did not crossexamine this witness at all.
30. The disability certificate (Ex. PW3/1) of injured would reveal that she had suffered 14% permanent disability in relation to her back/spine. It is pertinent to note that the petitioner is still working as Teacher in MCD. It is argued on behalf of insurance company that the petitioner has not suffered any loss of income after the accident and there is nothing on record to show that she would not be entitled for promotion due to the injuries suffered on account of the accident. Counsel for insurance company also argued that the petitioner shall be getting pension from her employer even after his retirement. Hence, no compensation should be awarded to the injured under this head.
31. Per contra, it is argued on behalf of petitioner that she is entitled to compensation under this head as she would not be able to effectively do any avocation after her retirement from the service. However, it is fairly conceded during the course of arguments that the petitioner shall be getting the pension from her employer after retirement. In support of his submission, counsel for petitioner has placed reliance upon decision of Hon'ble Delhi High Court in the case of "Deshraj Singh Gautam Vs. Sunil Kumar & Ors.", bearing MAC APP No. 632/2007 decided on 20.05.16.
Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 19 of 24MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019
32. Similar question directly arose for consideration before Hon'ble Delhi High Court in recent case titled as "Raj Kumar Malik Vs. United India Insurance Company Limited & Ors., bearing MAC APP No. 161/2011 decided on 10.10.17. In the said matter, the injured/appellant was a government servant and had suffered permanent disability to the extent of 74% in relation to right upper limb. While dealing with the contention raised on behalf of claimant that no compensation for loss of earning capacity in future has been awarded, Hon'ble Delhi High Court held in para 5 of the order that loss of earning capacity post retirement, had to be considered by the award of compensation and for such purposes, the Tribunal could adopt the multiplier of 9. It further held that in such calculation, however, it would also need to be kept in mind that the claimant would have earned 50% of the last emoluments drawn as pension and thus, the consequent functional disability will have to make up for the loss against the balance. Similar view has been taken by Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors., bearing MAC APP No. 464/2011 decided on 03.11.17.
33. Now, turning back to the facts of the present case. As already noted above, the petitioner is still working as Teacher with MCD and she would in normal circumstances, retire from the services after attaining the age of 60 years and she shall be getting pension from her employer. He is shown to have sustained permanent physical impairment to the extent of 14% in relation to her back/spine. She had sustained wedge compression Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 20 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 fractures of D9 and L1 vertebral bodies showing reduced vertebral height with altered marrow signal intensity due to the accident. Having regard to the percentage of loss of earning capacity in the light of injuries sustained by petitioner, as noted above, her functional disability is taken as 10% in relation to whole body. Applying the ratio of law discussed by Hon'ble Delhi High Court in the above cited decisions, the loss of future income of petitioner comes out to Rs. 4,75,200/ (Rs. 44,000/ X 10/100 X12 X9). The pension to the extent of 50% would come out to Rs. 2,37,600/. Thus, a sum of Rs. 2,37,600/ is awarded in favour of petitioner under this head. (Reliance placed on Jagdish Vs. Mohan & Ors. (2018) 4 SCC 571 and unreported decision of Hon'ble Delhi High Court in " The New India Assurance Co. Ltd. Vs. Deepak Arora & Ors.", MAC APP No. 320/2013 decided on 28.09.18).
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 34,545/
2. Loss of income Rs. 2,61,067/
3. Pain and suffering Rs. 1,00,000/
4. Loss of general amenities and Rs. 1,00,000/ enjoyment of life
5. Conveyance, special diet, future Rs. 25,000/ cost of medicines and attendant charges for rest of life
6. Loss of future income Rs. 2,37,600/ Total Rs. 7,58,212/ Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 21 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 Rounded off to Rs. 7,59,000/
34. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 2/insurance company did not adduce any evidence since it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 2/insurance company 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
35. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 7,59,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 24.10.13 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).
APPORTIONMENT
36. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 23.08.2017. Having regard to the facts and circumstances of Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 22 of 24 MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019 the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 1,00,000/(Rupees One Lakh Only) (since a sum of Rs. 34,545/ has already been spent by injured on her medical treatment) shall be immediately released to the petitioner through her saving bank account no. 90892010018696 with Syndicate Bank, Plot No. 2, LSC, Rohini, Delhi having IFSC Code SYNB0009089 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
37. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimant/petitioner.
(ii) No cheque book/Debit Card be issued to the claimants/petitioners without permission of the Court.
(iii) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(iv) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victim.
(v) Half yearly statement of account be filed by the Bank before the Tribunal.
38. During the course of hearing final arguments, claimant was asked as to whether she was entitled to exemption from deduction of TDS or not. She stated on oath that she was not entitled to exemption from deduction of TDS.
Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 23 of 24MACP No. 5147/16; FIR No. 376/13; PS. K.N.K. Marg DOD: 15.01.2019
39. Respondent no. 2, being insurer of offending vehicle, is directed to deposit the compensation amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 1,00,000/ in the aforesaid saving bank account mentioned supra, 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 this award be given dasti to claimant. Copy of this award be given dasti to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook 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 IVB and Form V 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. Digitally signed by VIDYA PRAKASH VIDYA Date:
PRAKASH 2019.01.15 17:04:31 Announced in the open +0530 Court on 15.01.2019 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Smt. Kamla Dagar Vs. Archana Mittal & Anr. Page 24 of 24