Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 10, Cited by 0]

Delhi District Court

Sh. Pawan Kumar vs Mohd. Lukman on 10 December, 2013

                                        1

              IN THE COURT OF SH. HARISH DUDANI
      JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL­ 1 NEW DELHI


SUIT NO.: 444/11/07
DATE OF INSTITUTION: 7.9.2007


1. Sh. Pawan Kumar
  S/o Sh. Ram Tirth
  R/o A­109/2, Jaitpur Extn.
  Part­II, Kalindi Kunj Road,
  New Delhi                                                    ...............Petitioner. 


SUIT NO.: 445/11/07
DATE OF INSTITUTION: 17.9.2007


1.Sh. Navneet Sharma
   S/o Sh. Ram Kishan
   R/o 429/11, Adharsh Nagar, Sonipat
   Also at:
   House No. 698, Sector 12
   R. K.Puram, New Delhi.                                     ............... Petitioner.


                                Versus


1. Mohd. Lukman
  S/o Sh. Jan Mohd. 
  R/o Village Chahla, PS Ahmad Garh,
  District Bulandshahr, UP
2. Sh. Rajender
  S/o Sh. Parshu Ram
  R/o Village Basala Colony
                                               2

  District Faridabad, Haryana
  Also at:
  VPO Baraula, Sector­49, Noida
  Gautam Budh Nagar, UP
3. Reliance General Insurance Company Ltd. 
  105­106, Express Arcade, H­10
  Netaji Subhash Place,
  Pitampura, Delhi­34
                                                                    ................Respondents
Final Arguments heard on         :       27.11.2013
Award reserved for               :       10.12.2013
Date of Award                    :       10.12.2013


AWARD

1. Vide this judgment cum award I proceed to decide the petitions bearing no. 444/11/07 and 445/11/07 filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date (hereinafter referred to as the Act) for grant of compensation in a road accident.

2. Briefly stated the facts giving rise to the petitions are that on 7.6.2007 Sh.Pawan Kumar(petitioner of suit no.444/11/07) and Sh.Navneet Sharma(petitioner in suit no.445/11/07) were going on motorcycle no.DL­3SAM­5966 which was being driven by Sh. Pawan Kumar and Sh.Navneet Sharma was sitting as pillion rider and at about 8.30 AM they reached near Amethi Chowk(Noida) and the vehicle no. HR­38N­3666 being driven by respondent no.1 in a rash and negligent manner hit their 3 motorcycle from behind as a result of which the petitioners fell down and sustained injuries. The petitioners were taken to Kailash Hospital. It is stated that the case vide FIR no. 122/07 under Section 279/337/338/427 IPC was registered at PS Sector­49, Noida, District Gautam Budh Nagar, UP.

3. It is stated that the Sh. Pawan Kumar/petitioner in the case no. 444/11/07 was 28 years of age at the time of accident and he was working with M/s T. W. Export Pvt. Ltd and was drawing salary of Rs. 25,000/­ per month.

4. It is stated in the case no. 445/11/07 that the petitioner Sh. Navneet Sharma was 24 years of age at the time of accident and he was also working with M/s T. W. Export Private Ltd and was drawing salary of Rs.13,000/­ per month. It is stated that the accident occurred due to rash and negligent driving of the offending vehicle by respondent no. 1, respondent no. 2 is the owner of vehicle and the said vehicle was insured with respondent no. 3 and as such all the respondents are jointly and severally liable to pay compensation to the petitioners. It was prayed that Rs. 15,00,000/­(Rs. 15 Lacs only) each be awarded in favour of petitioners with interest from the date of filing of petition till realization.

5. Respondents no.1 and 2, the driver and owner filed joint written statement and have contested the petition on various grounds. It is stated that the accident was not caused due to rash and negligent driving of the 4 driver of offending vehicle. It is stated that the amount claimed is excessive and exorbitant. It is stated that the vehicle was insured with respondent no. 3 at the time of accident vide policy no. 1306372327100014 for the period w.e.f 10.2.2007 to 9.2.2008. The averments made on merit are denied. It is denied that respondents no. 1 and 2 are liable to pay compensation.

6. Respondent no. 3 has filed written statement and has contested the petition on various grounds. It is stated that the petition is bad for non­ joinder of necessary parties as driver, owner and insurer of the vehicle no. DL­3SAM­5966 are also necessary party. The averments made on merit are denied. It is denied that respondent no. 3 is liable to pay compensation.

7. As both the petitions arise out of the same accident, they were consolidated for the purpose of trial and decision and from the pleadings of parties following consolidated issues were framed by my Ld. Predecessor on 6.5.2008:­

1. Whether both the petitioner Pawan Kumar and Navneet Sharma sustained injury in the road accident on 07.06.07 involving motor vehicle no. HR 38N 3666(Dumper) being driven by R1 in rash and negligent manner, owned by R2 and insured with R3?OPP.

2.Whether the petitioners are entitled for compensation? If so, 5 to what amount and from whom? OPP

3.Relief.

8. In support of his claim in petition no. 444/11/07 petitioner Sh. Pawan Kumar examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/1. PW1 proved the copy of FIR Ex.PW1/A, copy of charge sheet Ex. PW1/B, copy of superdiginama Ex. PW1/C, copy of mechanical inspection report Ex. PW1/D, copy of driving licence Ex. PW1/E, copy of permit Ex. PW1/F, copy of site plan Ex. PW1/G, copy of disability certificate Ex. PW1/H, pay slip Ex. PW1/I and medical papers Ex PW1/J1 to J­139.

9. Petitioner also examined Sh. G. S. Parihar, Sr. Executive(Personnel and Administration) PW Exports Pvt. Ltd. as PW2. PW2 stated that as per their record after the accident on 7.6.2007 the petitioner Sh. Pawan Kumar remained absent till 25.10.2007 and during the said period no salary was given to him because of his absence. PW2 stated that Sh. Pawan Kumar joined the company again on 26.10.2007. Cross­ examination of PW2 was deferred and thereafter he was not recalled for cross­examination and on 28.10.2013 counsel for petitioner made a statement before the court that PW2 is not traceable and the company i.e. T.W.Exports Pvt.Ltd. has closed its business.

10.Petitioner Sh. Pawan Kumar examined Dr. N. Laisram, Sr. Specialist, 6 Department of PMR, Safdarjung Hospital, New Delhi as PW2 in suit no. 445/11/07. PW2 proved the copy of disability certificate of Sh.Pawan Kumar already exhibited as PW1/H.

11. In the claim petition no. 445/11/07 the petitioner Sh. Navneet Sharma examined himself as PW1. He tendered in evidence his affidavit Ex.PW1/1. PW1 proved the copy of FIR Ex. PW1/A, copy of charge sheet Ex. PW1/B, copy of superdiginama Ex. PW1/C, copy of mechanical inspection report Ex. PW1/D, copy of driving licence Ex. PW1/E, copy of permit Ex. PW1/F, copy of site plan Ex. PW1/G and medical papers Ex PW1/H­1 to H­133.

12.Petitioner Sh.Navneet Sharma examined Dr. Milan Muhammad, Sr. Resident Orthopedics, AIIMS as PW3. PW3 stated that the patient was admitted to JPNA Trauma Centre, AIIMS on 11.6.2007 with the alleged history of road traffic accident. PW3 further stated that the patient underwent surgeries for his both lower limbs and was amputated above knee on the left side and external fixator application over the right lower limb and was discharged on 13.8.2007. PW3 further stated that the disability certificate issued by JPNATC no. JPNATC/D.C­17/2009 certifies that Sh. Navneet is a case of infected non­union both bone right leg with stiff right knee and above knee amputation of left lower limb. PW3 further stated that Sh. Navneet suffered 90.4% permanent physical impairment 7 in relation to bilateral lower limbs.

13.Petitioner Sh. Navneet Sharma also examined Smt. Santosh Devi his mother as PW4 who proved the bills Ex. PW4/1(colly).

14.Petitioner examined Sh. Rakesh Kumar as PW5 in order to prove that services of Sh.Rakesh Kumar were hired as attendant. PW5 tendered his evidence in examination in chief by affidavit which is Ex.PW5/A. Petitioners thereafter closed their evidence.

15. On the other hand respondents did not examine any witness despite opportunities and RE was closed.

16.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as under:

ISSUE NO. 1

17.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that they sustained injuries in an accident caused due to rash and negligent driving by respondent no.1, the driver of offending vehicle no. HR­38N­3666(Dumper).

18.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:

"The last contention of the appellant insurance company is that the respondents­claimants should have proved negligence on the part of the driver and in 8 this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304­A , Indian Penal Code against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."

19. The case of the petitioners is that on 7.6.2007 Sh. Pawan Kumar(petitioner of suit no.444/11/07) and Sh.Navneet Sharma(petitioner in suit no. 445/11/07) was going on motorcycle no. DL­3SAM­5966 which was being driven by Sh. Pawan Kumar and Sh. Navneet Sharma was sitting as pillion rider and at about 8.30 AM they reached near Amethi Chowk(Noida) the vehicle no. HR­38N­3666 being driven by respondent no.1 in a rash and negligent manner hit their motorcycle from behind as a result of which the petitioners fell down and sustained injuries. The 9 petitioners were taken to Kailash Hospital. It is stated that the case vide FIR no. 122/07 under Section 279/337/338/427 IPC was registered at PS Sector­49, Noida, District Gautam Budh Nagar, UP. Petitioner Sh. Pawan Kumar(petitioner of suit no.444/11/07) and Sh.Navneet Sharma(petitioner in suit no. 445/11/07) have appeared in witness box as PW1 and the petitioners have filed their affidavits Ex.PW1/1 in their respective claim petitions. In their affidavits Ex.PW1/1 the petitioners have reiterated the manner of accident as stated in the claim petitions. Petitioner Sh. Pawan Kumar stated in the cross­examination by respondents no.1 and 2 that he was driving the motorcycle at the speed of 35­40 Km/hour. In para 1 of PO of written statement respondents no.1 and 2 have stated that the accident has not been caused due to rash and negligent driving of respondent no.1. In the cross­examination of Sh. Pawan Kumar the respondents no.1 and 2 have given suggestion to the effect that the accident was caused by another vehicle and not by the dumper and the said vehicle after hitting them from behind fled away from the spot which was denied by Sh. Pawan Kumar. Although in the cross­examination of PW1 Sh. Pawan Kumar the respondents no.1 and 2 have given suggestion to the effect that the accident was caused by some other vehicle but no such plea has been raised by respondents no.1 and 2 in their written statement and the respondents no.1 and 2 have not adduced 10 evidence to prove their contention to the effect that the accident was caused by some other vehicle and not by dumper bearing no. HR­38N­3666. The petitioners have filed the copy of FIR no. 122/07 under Section 279/337/338/427 IPC, PS Sector­49, Noida, District Gautam Budh Nagar, UP Ex.PW1/A, copy of final report under Section 173 Cr. PC Ex.PW1/B, copy of site plan Ex.PW1/G, mechanical inspection report of vehicle no. HR­38N­3666. As per charge sheet Ex.PW1/B respondent no.1 has been charge sheeted for the offences under Section 279/337/338/427 IPC. Respondents have not proved any other version of accident. In view of testimony of petitioners and copies of criminal record the negligence of the driver of offending vehicle has been proved. As such issue no.1 is accordingly decided in favour of petitioners against the respondents.

ISSUE NO. 2

20. As issue no. 1 has been decided in favour of the petitioners, they are entitled to compensation.

COMPENSATION IN SUIT NO. 444/11/07 MEDICINES AND MEDICAL TREATMENT

21. The contention of petitioner is that after the accident on 7.6.2007 he was admitted in Kailash Hospital, Noida and he was discharged from the said hospital on 9.6.2007 and thereafter he has taken further treatment from 11 Kailash Hospital and Safdarjung Hospital, New Delhi. The contention of petitioner is that he suffered 74% permanent physical impairment in relation to left upper limb and the petitioner has relied on disability certificate Ex.PW1/H dated 16.5.2008 issued by Safdarjung Hospital, New Delhi. The petitioner has filed on record the MLC prepared at Kailash Hospital and Research Centre Ex.PW1/52 as per which he was taken to said hospital on 7.6.2007. The petitioner has filed on record the discharge summary prepared at Kailash Hospital Ex.PW1/5­127 as per which the petitioner was admitted in the said hospital on 7.6.2007 and was discharged on 9.6.2007. As per discharge summary Ex.PW1/5­127 the petitioner was admitted in said hospital with the alleged history of RTA and the petitioner has sustained crush injuries over left upper limb with extensive muscular injury over axillary region and upper arm and the diagnosis is mentioned as "Crush injury of left axialla with communited fracture proximal scapula with displaced fracture lateral left humeral condyle". As per the disability certificate Ex.PW1/H dated 16.5.2008 the petitioner has been recommended review after 3 years. The petitioner has not proved that after issuance of disability certificate he submitted himself before the disability board for review. Ex.PW1/5­33 is the bill from Bisht Orthopaedic Physiotherapy but the petitioner has not proved that the treatment/fixation vide said bill was taken by him on any medical 12 advise. Ex.PW1/5­34 to Ex.PW1/5­37 are the debit memos which have been adjusted in the final bill. Ex.PW1/5­38 to Ex.PW1/5­44 are the bills of Orthonova Hospital which are not supported by any prescription or treatment record, hence the same can not be granted. Ex.PW1/5­50 to Ex.PW1/5­62 and Ex.PW1/5­64 to Ex.PW1/5­66 are the debit memos of Kailash Hospital & Research Centre Ltd. which have been adjusted in the final bill. Bills Ex.PW1/5­84 to Ex.PW1/5­96 are the bills of Medical Consultant Services which are not supported by prescription to prove that any treatment was taken from the said medical consultant services.Ex.PW1/5­25 to Ex.PW1/5­27 are the bills which have been adjusted in the final bill. Final bill of Kailash Hospital & Medical Research Centre is Ex.PW1/58. Bills Ex.PW1/5­17 to Ex.PW1/5­21 are the deposit receipts and the same may have been adjusted in the final bill. Bill Ex.PW1/5­30 is in the name of Ms. Sarita, hence the same cannot be granted. The bill Ex.PW1/5­29 has been issued on the reference of AIIMS hospital but the petitioner has not proved any prescription slip or advise of doctor from AIIMS Hospital. The tests as per Ex.PW1/5­31 were conducted on the reference of Dr. Hans Nagar. However, the petitioner has not placed on record any record of treatment taken from the the doctor Hans Nagar. The bills Ex.PW1/5­67 to Ex.PW1/5­83 are not supported by any prescription or medical advise. The petitioner is thus 13 awarded a sum of Rs.1,75,048/­ towards admissible bills. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE

22.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:

13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically non­existent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."

23.After the accident on 7.6.2007 the petitioner was admitted in Kailash Hospital, Noida and he was discharged from the said hospital on 9.6.2007 and thereafter he has taken further treatment from Kailash Hospital and Safdarjung Hospital, New Delhi. The contention of petitioner is that he suffered 74% permanent physical impairment in relation to left upper limb and the petitioner has relied on disability certificate Ex.PW1/H dated 16.5.2008 issued by Safdarjung Hospital, New Delhi. The petitioner has filed on record the MLC prepared at Kailash Hospital and Research Centre Ex.PW1/52 as per which he was taken to said hospital on 14 7.6.2007. The petitioner has filed on record the discharge summary prepared at Kailash Hospital Ex.PW1/5­127 as per which the petitioner was admitted in the said hospital on 7.6.2007 and was discharged on 9.6.2007. As per discharge summary the petitioner was admitted in said hospital with the alleged history of RTA and the petitioner has sustained crush injuries over left upper limb with extensive muscular injury over axillary region and upper arm and the diagnosis is mentioned as "Crush injury of left axialla with communited fracture proximal scapula with displaced fracture lateral left humeral condyle". As per the disability certificate Ex.PW1/H dated 16.5.2008 the petitioner has been recommended review after 3 years. The petitioner has not proved that after issuance of disability certificate he submitted himself before the disability board for review. Looking at the nature of injuries, period of hospitalization, extent of treatment and disability and that the accident took place in the year 2007, the petitioner is awarded Rs.50,000/­ (Rs.Fifty Thousand only) for pain and suffering.

24.It is stated that petitioner was 28 years of age at the time of accident. Notice can be taken of the fact that on account of injuries sustained by him petitioner may not have been able to perform his day to day duties towards his family and on account of disability suffered by him petitioner may not have been able to enjoy the amenities of life. In the 15 circumstances the petitioner is awarded a sum of Rs.10,000/­(Rs. Ten Thousand only) for loss of amenities of life.

CONVEYANCE AND SPECIAL DIET

25.In the claim petition or in the affidavit Ex.PW1/1 the petitioner has not mentioned the amount spent by him on conveyance and special diet. The contention of respondent no.3 is that the petitioner has not proved that he has incurred any expenditure on conveyance. Although the petitioner has not proved that he has incurred any expenditure on conveyance, however, notice can be taken of the fact that the petitioner was admitted in Kailash Hospital from where he was discharged on 9.7.2007 and he has undergone subsequent treatment also and after the discharge from the hospital and for subsequent treatment petitioner might have hired the the services of private conveyance as he may not have been able to drive of his own or to use public conveyance and might have incurred expenditure on conveyance. In the circumstances petitioner is awarded sum of Rs.5,000/­ for conveyance charges.

26.In the claim petition or in the affidavit Ex.PW1/1 the petitioner has not mentioned the amount spent by him on special diet. The contention of counsel for respondent no.3 is that the petitioner has not proved that he was advised special diet and had incurred expenditure on the same. Although the petitioner has not proved that he was advised special diet 16 but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances petitioner is awarded a sum of Rs.5,000/­ for special diet. LOSS OF INCOME DUE TO DISABILITY

27.In the claim petition, the petitioner has stated that at the time of accident he was 28 years of age and he was in private service. The contention of petitioner is that he has suffered 74% permanent physical impairment in relation to left upper limb and the petitioner has relied on disability certificate Ex.PW1/H dated 16.5.2008 issued from Safdarjung Hospital.

28.In Raj Kumar VS Ajay Kumar & Anr.,(2011)1 SCC 343, Hon'ble Supreme Court has held that :

"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair,reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities 17 which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human­being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is till able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent 18 disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''. "8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency)."

29.The petitioner has examined Dr. N. Laisram, Sr. Specialist, Department of PMR, Safdarjung Hospital as PW2 in suit no.445/11 who stated that he was member of disability board which issued certificate dated 16.5.2008. Although the petitioner has examined Dr. N. Laisram who was member of disability board which had issued the disability certificate, however, PW2 has not stated regarding the effect of disability on the earning capacity of petitioner taking into consideration the avocation of petitioner. 19 In the claim petition the petitioner has stated that at the time of accident he was in the service of M/s T. W. Exports Pvt. Ltd. The petitioner has filed on record the certificate dated 01.6.2008 Ex.PW1/I issued by M/s T. W. Exports Pvt. Ltd. as per which the petitioner was working as Quality Head with the said organization. As per certificate Ex.PW1/I the petitioner remained absent from duties due to accident from 7.6.2007 to 25.10.2007 and thereafter he joined company on 26.10.2007 and due to accident he was not able to perform what he was performing earlier and because of injuries he had to take atleast one or two days off in a week for treatment due to which the company requested him to leave the job. The petitioner examined Sh.G. S. Parhiar, Senior Executive of M/s T. W. Exports Pvt. Ltd as PW2 who stated in his examination in chief that after the accident on 7.6.2007 the petitioner remained absent till 25.10.2007 due to treatment and during the said period no salary was given to petitioner and he joined company on 26.10.2007 and he stated that the letter dated 1.6.2008 Ex.PW2/A was signed by him. PW2 was cross­examined by respondents no. 1 and 2 and in the cross­examination by respondents no. 1 and 2, PW2 admitted that he is not a summoned witness and stated that he has come to the court at the instance of petitioner after taking oral permission from his boss Sh. Rajnish Vadera, Director on telephone 2 to 3 days prior to appearing before the court. PW2 denied suggestions of 20 respondents no.1 and 2 that the certificate Ex.PW2/A has been fabricated by him at the instance of petitioner. However, the cross­examination of PW2 was deferred on 20.9.2008 and thereafter he did not appear for further cross­examination and on 28.10.2013 the counsel for petitioner made a statement before the court that PW2 is not traceable and the company i.e. T. W. Exports Pvt. Ltd. has closed its business. The testimony of PW2 is of no consequences as his complete examination was not recorded as he was not cross­examined by respondent no. 3. However, as per testimony of PW2 he was not a summoned witness and the certificate Ex.PW2/A was prepared by him and he did not produce any authority letter from his employer by which he was authorized by his employer to depose in this case. In the circumstances the testimony of PW2 is of no consequences.

30. In order to prove his income the petitioner has filed on record one form 16 for the period from 1.4.2007 to 31.3.2008 purportedly issued by M/s T. W. Exports Pvt. Ltd, however for the reasons best known to petitioner, the petitioner did not prefer to put the same to PW2 in order to prove that the said form 16 has been issued by M/s T. W. Exports Pvt. Ltd. The petitioner has relied on certificate Ex.PW2/A as per which the petitioner was requested to leave the job. However, as per form 16 filed by petitioner on record which is purportedly issued by M/s T. W. Exports Pvt. 21 Ltd. which pertains to period from 1.4.2007 to 31.3.2008 the income of the petitioner was Rs. 1,84,859/­ per annum and the same is for the assessment year 2008­09. Hence, as per form 16 for the assessment year 2008­09 for the period w.e.f. 1.4.2007 to 31.3.2008 the income of the petitioner has increased over his income over the previous year. The petitioner has filed on record the copy of acknowledgment for the assessment year 2007­08 and the same bears the stamp of income tax department on which the date of 26 December is legible and the year for which the same pertains is not legible. The petitioner has not examined any witness from Income Tax Department in order to prove the acknowledgment on which the petitioner has placed reliance in order to prove that the same was filed by him in Income Tax Department and in which year. However, in the acknowledgment for the assessment year 2007­08 the petitioner has mentioned his income as Rs. 1,62,000/­. However, as per form 16 the income of petitioner for the assessment year 2008­09 is Rs. 1,84,859/­. The documents as filed by petitioner on record shows that the petitioner has not suffered any future loss of income on account of disability suffered by him. The petitioner has not proved that he suffered any loss of income due to disability or he will suffer any future loss of income. As per disability certificate Ex.PW1/H dated 16.5.2008 the petitioner was recommended review by the disability board after the 22 period of 3 years. The petitioner has not proved that he got examined himself from disability board after the period of 3 years from the issuance of disability certificate Ex.PW1/H. As per disability certificate Ex.PW1/H the petitioner is a case of "Post trauma left bractuial plexus injury with residual severe weakness of left upper limb". The petitioner has not proved that there has not been improvement in his body after issuance of disability certificate. The petitioner has also not proved that he has suffered any loss of income due to disability. Although, the petitioner has not proved that he has suffered any loss of income due to disability or he will suffer any future loss of income, however, looking at the nature of injuries and consequent disability acquired by petitioner notice can be taken of the fact that due to disability the efficiency of petitioner would have been considerably reduced and same will cause inconvenience in discharge of duties by petitioner and the petitioner will suffer inconvenience on account of disability. In the circumstances it would be appropriate that the petitioner is awarded a lump sum amount on account of inconvenience suffered by him due to disability suffered in terms of certificate Ex.PW1/H. Accordingly the petitioner is awarded a lump sum amount of Rs.1,00,000/­(Rs. One Lacs only) towards the inconvenience suffered by petitioner due to disability.

23

LOSS OF INCOME FOR THE PERIOD DURING TREATMENT

31. The contention of petitioner is that due to accident he was absent from duties w.e.f. 7.6.2007 to 25.10.2007 and he was not paid salary for the said period. It is to be noted that for proving his contention regarding loss of income the petitioner has examined PW2 and the complete testimony of PW2 was not recorded and PW2 also did not prove the wages of petitioner. In the circumstances the income of petitioner shall be taken as minimum wages as per his qualifications. The petitioner stated during his examination before the court on 23.11.2013 that he is a matriculate. The minimum wages of a matriculate as on 1.2.2007 were Rs. 3918/­ per month. Hence the petitioner is awarded a sum of Rs.18,022/­ for his absence from duties w.e.f 7.6.2007 to 25.10.2007 due to the accident. The total compensation is assessed as under: 

             Medicines and Medical treatment :                    Rs.1,75,048/­
             Pain and suffering and loss of 
             Amenities of life                            :       Rs.60,000/­
             Conveyance and Special Diet                  :       Rs.10,000/­
             Loss of Income for the period 
             during treatment                             :       Rs.18,022/­
             Loss of income on 
             account of disability                        :       Rs.1,00,000/­

             TOTAL                                        :       Rs.3,63,070/­
                                              24

  RELIEF

32.The petitioner is awarded a sum of Rs.3,63,070/­(Rs.Three Lacs Sixty Three Thousand Seventy only) with interest @ 7.5% per annum in view of decision in Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents and in favour of the petitioner.

33.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:

34. 20% of the award amount be released to petitioner by transferring it into his savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in the following manner:

1. Fixed deposit in respect of 20% for a period of one year.
2. Fixed deposit in respect of 20% for a period of two years.
3. Fixed deposit in respect of 20% for a period of three years.
4. Fixed deposit in respect of 20% for a period of four years.

35.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi 25 in the name of UCO Bank, Patiala House Court, New Delhi A/c Sh.Pawan Kumar.

36.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimant/beneficiary.

37.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.

38.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.

39.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.

40.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.

41.Bank shall transfer Savings Account to any other branch/bank according to his convenience.

42.The beneficiary shall furnish all the relevant documents for opening of 26 the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.

43.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.

44.The respondent no. 3 shall deposit the award amount directly in bank account of the claimant at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.

45.The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.

46.The respondent no. 3 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith 27 proof of deposit of award amount, the notice of deposit and the calculation of interest on 29.1.2014.

COMPENSATION IN SUIT NO. 445/11/07 MEDICINES AND MEDICAL TREATMENT

47. The contention of petitioner is that after the accident on 7.6.2007 he was admitted in Kailash Hospital, Noida and after discharge from hospital he got treatment from Trauma Centre, AIIMS. The petitioner has filed on record the copy of MLC prepared at Kailash Hospital, Noida. The petitioner has neither filed any discharge summary nor any other treatment record of Kailash Hospital wherein he states that he remained admitted. The petitioner has also not specified the period for which he was admitted in Kailash Hospital, Noida. The petitioner has filed one incomplete photocopy of discharge summary of JPN Appex Trauma Centre, AIIMS on which the date of admission and discharge is not legible and the same does not bear the name or stamp of any doctor. The petitioner has filed one prescription slip of Dua Nursing Home Sonepat dated 19.5.2008. The contention of petitioner is that he has suffered 90.4% permanent physical impairment and the petitioner has relied on disability certificate dated 25.11.2009 issued by Jai Prakash Narayan Apex Trauma Centre as per which the petitioner is physically handicapped and has 90.4% permanent physical impairment in relation to 28 bilateral lower limbs. The case of petitioner is that after the accident he was taken to Kailash Hospital where he remained admitted. Although the petitioner has pleaded that after the accident he was taken to Kailash Hospital, Noida however the petitioner has not specified the period during which he was admitted in Kailash Hospital, Noida and the petitioner has not proved the discharge summary or other treatment record except the MLC of Kailash Hospital, Noida. The petitioner has filed two receipts of Kailash Hospital dated 7.6.2007 and 8.6.2007 however, no final bill has been filed in order to prove that the amount of said receipts was adjusted in the final bill and any refund in respect of said receipts were taken. The final bill would have also indicated that the petitioner has paid for the treatment himself or the treatment of petitioner was sponsored by some other agency or insurance company. The petitioner has filed one estimate dated 8.6.2007 of the Kailash Hospital for the sum of Rs.82,037/­ but the said estimate will not prove that the petitioner has actually spent that amount on his treatment. In the absence of discharge summary, treatment record and final bill it can not be said that the petitioner was admitted in the Kailash hospital, duration of admission and he had taken treatment from there and had spent any specific amount on treatment and his treatment was not sponsored by any person or any other authority or insurance company. The petitioner has filed bills of Medical Disgnostic 29 Centre and Blood Bank Noida amounting to Rs.26,000/­. The petitioner has filed the medical bills regarding purchase of medicines, however the same are not supported by any prescription, hence the same can not be granted. The petitioner is thus awarded a sum of Rs.29,815/­ towards admissible bills.

PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE

48.It has been held in Divisional Controller, K. S. R. T. C Vs Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:

13."The damages for vehicular accidents are in the nature of compensation in money for less of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically non­existent. In Parry V. Cleaver(1969 1 All. E. R. 555) Lords Morris stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monitory assessment."

49.The case of the petitioner is that after the accident on 7.6.2007 he was admitted in Kailash Hospital, Noida and after discharge from hospital he got treatment from Trauma Centre, AIIMS. The petitioner has filed on record the copy of MLC prepared at Kailash Hospital, Noida. The petitioner has neither filed any discharge summary nor any other 30 treatment record of Kailash Hospital wherein he states that he remained admitted. The petitioner has also not specified the period for which he was admitted in Kailash Hospital, Noida. The petitioner has filed one incomplete photocopy of discharge summary of JPN Appex Trauma Centre, AIIMS on which the date of admission and discharge is not legible and the same does not bear the name or stamp of any doctor. The petitioner has filed one prescription slip of Dua Nursing Home Sonepat dated 19.5.2008. The contention of petitioner is that he has suffered 90.4% permanent physical impairment and the petitioner has relied on disability certificate dated 25.11.2009 issued by Jai Prakash Narayan Apex Trauma Centre as per which the petitioner is physically handicapped and has 90.4% permanent physical impairment in relation to bilateral lower limbs. The case of petitioner is that after the accident he was taken to Kailash Hospital where he remained admitted. Although the petitioner has pleaded that after the accident he was taken to Kailash Hospital, Noida however the petitioner has not specified the period during which he was admitted in Kailash Hospital, Noida and the petitioner has not proved the discharge summary or other treatment record except the MLC of Kailash Hospital, Noida. Looking at the nature of injuries, period of hospitalization, extent of treatment and disability and that the accident took place in the year 2007, the petitioner is awarded Rs.50,000/­ 31 (Rs.Fifty Thousand only) for pain and suffering.

50.It is stated that petitioner was 24 years of age at the time of accident. Notice can be taken of the fact that on account of injuries sustained by him petitioner may not have been able to perform his day to day duties towards his family and on account of disability suffered by him petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.20,000/­(Rs. Twenty Thousand only) for loss of amenities of life.

CONVEYANCE, SPECIAL DIET AND ATTENDANT CHARGES

51.In para 3 of affidavit Ex.PW1/1 the petitioner has stated that he has to incur expenses on medicine, special diet and travelling etc., however the amount has been left blank and in order to prove his contention the petitioner has relied on 10 bills from 27.4.2009 to 15.3.2010 issued by R. K. Tourist Taxi Services for Rs.1100/­ each and 39 bills of Ashoka Tourist Taxi Services from 18.8.2007 to 18.3.2009 for the sum of Rs.1,000/­ each. The contention of petitioner is that he has incurred expenditure on conveyance for his treatment for commuting from Sonepat to AIIMS, New Delhi. The contention of counsel for respondent no.3 is that the petitioner has not examined any witness from R. K. Tourist Taxi Service and Ashoka Tourist Taxi Services which have allegedly issued the bills in order to prove that the same were issued by them and the petitioner had 32 hired the services of taxi from them for commuting to AIIMS for treatment purposes. Although the petitioner has filed bills of R. K. Tourist Taxi Service and Ashoka Tourist Taxi Services, however the petitioner has not examined any witness from said taxi services in order to prove that the bills filed by petitioner on record were issued by them and the petitioner has paid the amount of bills as mentioned therein. The bills of R. K. Tourist Taxi Service and Ashoka Tourist Taxi Services have been filed by petitioner in order to claim expenditure on conveyance as he states that he has commuted to AIIMS by taxi for the treatment, however the petitioner has not filed corresponding treatment record of AIIMS hospital which could fortify the contention of petitioner that he had attended the AIIMS hospital on the dates for which the bills of conveyance have been filed by petitioner. Although the petitioner has filed bills of conveyance in order to prove that he was commuting from Sonepat to AIIMS Hospital for treatment, however, in the claim petition the petitioner has mentioned his address of R. K. Puram, New Delhi. The petitioner has not explained if he was staying in R.K. Puram, New Delhi then why he was commuting from Sonepat for treatment and why he has not stayed in R. K. Puram, New which was more convenient for him being in proximity to AIIMS hospital. The case of petitioner is that he was commuting from Sonepat to AIIMS hospital for treatment which shows 33 that address of R. K.Puram as mentioned by petitioner in the memo of parties has been mentioned in order to bring the case within the territorial jurisdiction of this court. Although the petitioner has failed to prove that he incurred expenditure on conveyance as per bills of R. K. Tourist Taxi Service and Ashoka Tourist Taxi Services but notice can be taken of the fact that the petitioner has suffered grievous injuries in the accident and after the accident he was taken to Kailash Hospital and thereafter he has taken treatment from Jai Prakash Narain Apex Trauma Centre and after the discharge from the hospital and for subsequent treatment petitioner might have hired the the services of private conveyance as he may not have been able to drive of his own or to use public conveyance and might have incurred expenditure on conveyance. In the circumstances a sum of Rs.10,000/­(Rs. Ten Thousand only) would be just and proper towards conveyance charges and is awarded accordingly.

52. In the claim petition or in the affidavit Ex.PW1/1 the petitioner has not stated that he was advised special diet and he has incurred any specific amount on the same. The contention of counsel for respondent no.3 is that the petitioner has not proved that he incurred expenditure on special diet. Although the petitioner has not proved that he was advised special diet, however, looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that petitioner might have taken diet rich in 34 protein, vitamins and minerals for speedier recovery. In the circumstances petitioner is awarded a sum of Rs.10,000/­ for special diet.

53.The contention of petitioner is that he incurred expenditure on hiring services of attendant and in order to prove his contention the petitioner has examined PW5 Sh. Rakesh Kumar who adduced evidence by way of affidavit Ex.PW5/A and in his affidavit Ex.PW5/A, the PW5 has stated that he was continuing attending the petitioner since the date of accident till date and was getting salary of Rs.7,000/­ per month from petitioner and continuing residing with the petitioner. The petitioner has relied on testimony of PW5 in order to prove that he spent amount on attendant. However, no document has been produced on record by which any wages were paid by the petitioner to Sh. Rakesh Kumar. PW5 has stated in his affidavit Ex.PW5/A that he was getting a sum of Rs.7,000/­ per month from the petitioner, however, the minimum wages of a skilled worker as on 1.2.2008 were Rs.3894/­ per month and in the circumstances it can not be said that the petitioner was making payment at the almost double rate of minimum wages of skilled worker. The testimony of PW5 does not inspire confidence. However, looking at the nature of injuries sustained by petitioner notice can be taken of the fact that due to injuries the petitioner may not have been able to move of his own and may have hired services of attendant for the period of 6 months. 35 In the circumstances a sum of Rs.20,000/­ would be just and proper towards the attendant charges and is awarded accordingly. LOSS OF INCOME

54. In the claim petition, petitioner has stated that he was 24 years of age and was in service of M/s T.W. Exports Pvt. Ltd. and was earning a sum of Rs.13,000/­ per month. In para 2 of affidavit Ex.PW1/1 the petitioner has stated that on the day of accident i.e 7.6.2007 he was going to join duty at T. W. Exports Pvt. Ltd. In para 4 of affidavit Ex.PW1/1 the petitioner has stated that he was giving tuitions at his home and was earning approximately sum of Rs.10,000/­ per month and he was about to join the services of M/s T. W. Exports Pvt. Ltd @ Rs.13,000/­ per month. The petitioner has not proved any appointment letter which was issued to him by M/s T. W. Exports Pvt. Ltd in pursuance of which he was going to join duties at M/s T. W. Exports Pvt. Ltd. The petitioner has not proved any documents on record in order to prove that he was offered employment by the said organization @ Rs.13,000/­ per month. The petitioner has stated in para 4 of affidavit Ex.PW1/1 that he was earning a sum of Rs.10,000/­ per month by giving tuitions. Although the petitioner has pleaded that he was earning a sum of Rs. 10,000/­ per month, however the petitioner has not proved any document of his income. The petitioner has also not proved by any cogent evidence that he was 36 conducting tuitions and was earning any amount from tuitions. In the absence of proof of income, the income of the petitioner shall be taken as minimum wages as per his qualifications. The contention of petitioner is that he is a graduate and the petitioner has filed copy of marksheet dated 18.12.2009 issued by Sampurnanand Sanskrit University, Varansi in order to prove that he has passed degree in Sastri in the year 2009. In para 5 of affidavit Ex.PW1/1 the petitioner has stated that he was about to appear in the final examination of graduation in 2007 but could not appear due to the accident and he appeared in the said examination in the year 2009 and the petitioner has filed copy of marksheet dated 18.12.2009 issued by Sampurnanand Sanskrit University, Varansi as per which the petitioner has passed degree in Sastri in the year 2009. On the date of accident the educational qualifications of petitioner was matriculate and was in the process of completing graduation and copies of marksheets of Sampurnanand Sanskrit University, Varansi dated 13.9.2005 and 5.9.2006 have been filed as per which the petitioner has st nd passed 1 and 2 year examinations of degree and the graduation of petitioner was delayed and subsequently he appeared in the graduation examination in the year 2009 and copy of marksheet dated 18.12.2009 issued by Sampurnanand Sanskrit University, Varansi has been filed as per which the petitioner completed the degree in Sastri in the year 2009 37 and the degree of graduation was delayed by the period of 2 years on account of this accident. Hence the petitioner shall be entitled to minimum wages of a graduate on 1.2.2007 which were Rs.4230/­ per month.

55.In Raj Kumar VS Ajay Kumar & Anr.,(2011)1 SCC 343, Hon'ble Supreme Court has held that :

"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair,reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human­being. 38 Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is till able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent 39 disabilities for the purpose of claiming compensation''. "8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency)."

56.The contention of petitioner is that he has suffered 90.4% permanent physical impairment in relation to bilateral lower limbs. The petitioner has relied on disability certificate dated 25.11.2009 issued by Jai Prakash Narayan Apex Trauma Centre. The petitioner has examined Dr. Milan Muhammad, Sr. Resident, Orthopedics, AIIMS as PW3 who stated that as per disability certificate the petitioner is a case of infected non­union both bone right leg with stiff right knee and above knee amputation of the left lower limb and he is physically handicap and has 90.4% permanent physical impairment in relation to bilateral lower limbs. Although the petitioner has examined PW3 in order to prove the disability suffered by him, however, PW3 was not the member of board which issued disability certificate to the petitioner and the PW3 has also not stated about the effect of disability on the earning capacity of petitioner taking into consideration his avocation. On the disability certificate dated 25.11.2009 40 there is a note to the effect that the condition of petitioner is likely to change and reassessment was recommended after one year. The petitioner has not proved that he submitted himself before the disability board for re­assessment. Although, the petitioner has not proved that he appeared before disability board subsequent to issuance of disability certificate for reassessment, however, as per disability certificate the petitioner is a case of left above knee amputation and the disability qua the amputation is not likely to improve. The petitioner has not proved through any medical expert as to what would be the effect of disability on the earning capacity of petitioner taking into consideration his avocation, however in per para 4 of affidavit Ex.PW1/1 the petitioner has pleaded that he was conducting tuitions classes and in the circumstances, it can not be said that the disability as acquired by petitioner has rendered him fully incapacitated in earning any amount by doing any desk job. As per disability certificate dated 25.11.2009 the petitioner has suffered 90.4% permanent physical impairment in relation to bilateral lower limbs. In the circumstances functional disability of petitioner shall be taken as 45% in relation to whole body. Accordingly loss of income of petitioner shall be 4230/100x45=1903.5/­per month which may be rounded as of Rs.1904/­ per month.

57. It is stated that the petitioner was 24 years of age at the time of 41 accident. In order to prove his age the petitioner has relied on matriculation certificate as per which his date of birth is 10.11.1983, hence he was around 23 years and 6 months at the time of accident and as per Sarla Verma Vs DTC (2009) 6 SCC 121 the multiplier applicable shall be of 18.

58.In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :

"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to self­employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of self­employed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years.

59. In this case age of petitioner is taken as around 23 years and 6 months hence after addition of 50% income of petitioner would be i.e. Rs.1904/­ +50% of Rs.1904/­=Rs.2,856/­per month. After applying the multiplier of 18, the petitioner shall be entitled to Rs.6,16,896/­(Rs. 2,856x12x18)towards loss of income on account of disability. 42 The total compensation is assessed as under: 

              Medicines and Medical treatment :                      Rs.29,815/­
              Pain and suffering loss of 
              Amenities of life                              :       Rs.70,000/­
              Conveyance and Special Diet                    :       Rs.20,000/­
              Attendant Charges                              :       Rs.20,000/­
                  Loss of income                             :       Rs.6,16,896/­


                              TOTAL                          :       Rs.7,56,711/­

  RELIEF

60.The petitioner is awarded a sum of Rs.7,56,711/­(Rs. Seven Lacs Fifty Six Thousand Seven Hundred Eleven only) alongwith interest @ 7.5% per annum in terms of decision in Rajesh and others V.Rajbir Singh and others,2013 ACJ 1403, from the date of filing of petition till its realisation including, interim award, if any already passed against the respondents and in favour of the petitioner. The liability of all the respondents being joint and several.

61.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:

43

62. 10% of the share of petitioner be released to him by transferring it into his savings account and remaining amount be kept in FDR in UCO Bank, Patiala House Court, New Delhi in following manner:

1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.

63.The cheque be deposited in UCO Bank, Patiala House Court, New Delhi in the name of UCO Bank, Patiala House Court, New Delhi A/c Sh.Navneet Sharma.

64.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.

65.Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving 44 account of beneficiary.

66.The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.

67.No cheque book shall be issued to the claimant without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.

68.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.

69.Bank shall transfer Savings Account to any other branch according to his convenience.

70.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.

71.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.

72.The Insurance company shall deposit the award amount directly in bank account of the claimant at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay 45 interest at the rate of 12% per annum for the period of delay.

73.The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.

74.The insurance company shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 29.1.2014.

APPORTIONMENT OF LIABILITY:

75. Respondents have not examined any witness despite opportunities. As such respondent no.1 being the driver, respondent no.2 being owner and respondent no.3 being the insurer are held jointly and severally liable. Respondent no.3 being the insurer is directed to deposit the award amount in both cases within 30 days with interest at the rate of 7.5% from 46 the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.

An attested copy of the award be given to the parties.

File be consigned to Record Room. 

Announced in the open court                                    (Harish Dudani) 
on 10.12.2013                                            Judge: MACT: New Delhi