Delhi District Court
Divya Singh vs Thomas Vv on 28 September, 2024
:1:
IN THE COURT OF MS. CHARU GUPTA
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-01 (SE), SAKET COURTS : NEW DELHI
MACT No: 3884/2016
Divya Singh vs.Thomas V.V. & ors.
CNR No: DLSE01-001380-2014
1. Divya Singh
D/o Sh. Makeshwar Singh
R/o Flat no. 601, Vinayaka Apartment
Ranchi, Jhakhand-834002.
.....Petitioner/claimant
Versus
1. Thomas V.V.
S/o Sh. V. O. Varied Kutty
R/o Flat no.2B,PKT A-3,
Mayur Vihar,Phase-III
New Delhi
............Driver/Regd. Owner, Innova car/Respondent no.1
2. IFFCO Tokio Gen. Insurance Co. ltd.(through its Manager) Office at: IFFCO Township, Plot No.3 Sector 29, Gurgoan, Haryana-122001 ............Insurance company, Innova car/Respondent no.2 CHARU Digitally signed by CHARU GUPTA GUPTA Date: 2024.09.28 04:20:20 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 1 of 41 ss :2:
3. Jogi Chopal S/o Sh. Chetu Chopal R/o 3214, Gali no. 72E2, Molar Band Extn. Badarpur, New Delhi ............Driver/owner, TATA Indigo/Respondent no.3
4. The Oriental Insurance Co.Ltd.(through its Manager) Office at: 8, Krishna Market, 1st Floor, Kalkaji, New Delhi-110019 ............ Insurance company TATA Indigo/Respondent no.4
5. Rajiv Anand S/o Sh. Om Prakash Anand R/o 72, 1st Floor, Kiran Vihar, New Delhi 110092.
............Driver/Regd. Owner, Pajero car/Respondent no.5
6. ICICI Lombard Gen. Ins. Com. Ltd.(through its Manager) office at: Birla Tower, 5th Floor, 25, Barakhamba Road, New Delhi ............Insurance com., Pajero car/Respondent no.6
7. Sh. Manik Chand S/o Sh. Ram Swaroop R/o A-43, Ground Floor, Deepak Vihar, Near TATA Tower, New Delhi ............Regd. Owner, TATA Magic/TATA Ace/Respondent no.7(exparte) Digitally signed CHARU by CHARU GUPTA GUPTA 04:20:30 Date: 2024.09.28 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 2 of 41 +0530 ss :3:
8. Savio Publications (through its Director) Office at:100, II Floor, Old Rajender Nagar Market, New Delhi-110060.
............Regd.owner Ertiga/Respondent no.8
9. National Insurance Company ltd.
Office at : Jeevan Bharti Building Tower II 124, Level 4, 124, Connaught Circus, New Delhi-110001.
............insurance company Ertiga car/Respondent no.9
10. (a) Benzy Alexander w/o late Sh. K V Alexander (deceased driver of Ertiga car)
(b) Christina Alex d/o late Sh. K V Alexander (deceased driver of Ertiga car)
(c) Dan Verghese s/o late Sh. K V Alexander (deceased driver of Ertiga car) All R/o A-2/B-3, 1st Floor, Kiran Garden, Nawada, Uttam Nagar, New Delhi-110059.
(d) Smt. Annamma W/o Late Sh. K C Verghese, (mother of deceased driver of Ertiga car) R/o 587, Kakkattu Veedu, Konni, Distt. Pathanamthilta, Kerala .........Respondent no.10 Date of accident : 16.12.2013 Result of accident : Grievous injury Date of filing of petition : 29.03.2014 Date of Decision : 28.09.2024 Digitally signed CHARU by CHARU GUPTA GUPTA 04:20:38 Date: 2024.09.28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 3 of 41 ss :4: AWARD
1. The present claim petition arises out of a tragic road accident dated 16.12.2013 in which multiple vehicles collided on Yamuna Expressway, claiming several lives and causing uncountable injuries to the occupants. Dr. Divya Singh is one such unfortunate occupant of one of the colliding vehicles, who suffered grievous injury in the accident. It is equally unfortunate that the adjudication of the present petition has already consumed 11 years of her life and deprived her indeterminable opportunities. The adjudication of the present claim may never be able to verily compensate the irreparable loss that such petitioner has suffered but is a sincere endeavor 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.
2. The brief facts enumerated in the petition are that on 16.12.2013, Dr. Divya Singh (petitioner) and her co passenger, Dr. Pritish Prasad (who died in the accident and whose legal heir is a claimant in connected claim petition MACT No. 3885/2016) were travelling as passengers, from Delhi to Agra, in an Indigo Car bearing no. DL-13C-1485 (hereinafter referred to as vehicle E). At about 08:30 -08:45 a.m., around 10 kms before Mathura Toll, at Yamuna Expressway, while going from Delhi towards Mathura (precisely within jurisdiction of PS Sureir, District Mathura, UP) vehicle E was hit by a speeding Innova Car bearing no. DL-1ZZ-0592 (hereinafter referred toCHARU as vehicle D). Digitally signed by CHARU GUPTA GUPTA Date: 2024.09.28 04:20:46 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 4 of 41 ss :5: Vehicle D firstly collided with another vehicle i.e. an Ertiga Car bearing no. DL-9CAC-5086 (hereinafter referred to as vehicle C) and due to its high speed and collision with vehicle C, turned to its right and dashed into vehicle E, in which Dr. Divya Singh was travelling. Collision between vehicle D with vehicle E and vehicle D with vehicle C, claimed life of Dr. Pritish Prasad as also the driver of vehicle C, Sh. K V Alexander (whose LRs are pursuing connected claim petition MACT No. 255/2017). The accident further caused grievous injuries to co-passengers of vehicle E and vehicle C, namely Dr. Divya Singh (petitioner) and Sh. Paul Mathew (a claimant in connected claim petition no.256/2017), respectively.
3. It is alleged that the primary cause of the accident was the crashing and piling up of various vehicles ahead of vehicle D. This crashing occurred as one vehicle i.e. a TATA Magic /TATA Ace bearing no. DL-1LS-4348 (hereinafter referred to as vehicle A) was left stranded in stationary condition on the expressway road. In an attempt to overtake vehicle C, another vehicle, a Pajero Car bearing no. DL-7CN-1042 (hereinafter referred to as vehicle D) crashed against vehicle A. Unable to anticipate such sudden collision between vehicle A and vehicle B, vehicle C crashed into vehicle B. Unable to foresee a collision of vehicle A , B and C, vehicle D also crashed into vehicle C (causing death of the driver of vehicle C and causing grievous injury to one co-passenger in vehicle C). As a forceful impact of the collision with vehicle C, vehicle D went astray to its right, Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:20:54 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 5 of 41 ss :6: causing it to crash with vehicle E, causing death of one of its passengers i.e. Dr. Pritish Prasad and grievous injury to another co passenger Dr. Divya Singh i.e. the petitioner/claimant in this case. The accident can be comprehensibly depicted in the form of following flow chart:
(after overtaking vehicle C) Vehicle D (Innova car) → Vehicle C (Ertiga car) →→→→ Vehicle B (Pajero car) → Vehicle A (stationary TATA Magic/TATA Ace) ↓ Vehicle E (Indigo car) Yamuna Expressway Delhi → Agra
4. An FIR of the incident was registered with FIR No.34/14 dated 11.02.2014 u/s 279/338/304A of IPC at PS Sureir Distt. Mathura, U.P. After investigation the U.P. police filed a cancellation report giving a finding that the accidents were "ittefaqia" meaning "coincidentally/bychance/perchance". This report stood accepted by concerned criminal court vide order dated 28.06.2015.
5. As per record, respondent no.1 (Sh. Thomas V.V.) is the registered owner as well as driver of vehicle D, respondent no.3 (Sh. Jogi Chopal) is driver cum owner of vehicle E, respondent no. 5 (Sh. Rajiv Anand) is driver cum owner of vehicle B, respondent no. 7 (Sh. Manik Chand) is owner of vehicle A, respondent no.8 (Savio Publications) is registered owner of vehicle C and respondent no. 10 (a) to (d) are legal heirs of deceased driver of vehicle C namely Sh. K V Alexander. Respondent no.2 (IFFCO Tokio General Insurance company) is Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:21:00 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 6 of 41 ss :7: insurer of vehicle D, respondent no.4 (Oriental Insurance company) is insurer of vehicle E, respondent no. 6 (ICICI Lombard General Insurance company) is insurer of vehicle B and respondent no. 9 (National Insurance company) is insurer of vehicle C.
6. Vide order dated 25.10.2018, respondent no.7 (owner of vehicle A) was proceeded ex-parte. In response to the claim petition, written statement was filed by respondent no.1, respondent no.3, respondent no. 4, respondent no. 5, respondent no. 6, respondent no. 8, respondent no. 9 and respondent no.10.
7. As per reply of respondent no.1, the accident occurred due to piling up of vehicles crashing into each other due to dense fog and poor visibility. It is denied that vehicle D had hit vehicle E or that respondent no.1 or his vehicle D contributed to the accident or death of /injury to any person. It has been pleaded that infact it is the driver of vehicle E who failed to maintain a proper distance and thus was solely responsible for the accident.
Respondent no.3 is the owner of vehicle E and respondent no.4 is its insurer. It is denied that driver of vehicle E was rash or negligent in driving the vehicle or caused the accident. It is pleaded that the accident has been caused due to rashness on the part of driver of vehicle B and negligence of respondent no.7, in stranding his vehicle without any sign or indication on the road.
Respondent no. 2 has admitted to be insurer of vehicle D however, denied rash or negligent driving by its driver cum Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:21:07 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 7 of 41 ss :8: owner i.e. respondent no. 1. It is pleaded that respondent no.7 has been grossly negligent in having parked his vehicle A in the middle of the main road in violation of traffic rules while the driver of vehicle B, vehicle C and vehicle E were equally rash in driving their vehicle in violation to the traffic rules. It is pleaded that there is a delay of 1 month 26 days in registration of the FIR while the informant of the accident was not an eye witness to the accident. It is pleaded that even the police could not find the guilt of any vehicle and itself presented a cancellation report terming the accidents to be ittefaqia. It is further pleaded that the accident appears to be a result of composite /contributory negligence of the owner of vehicle A and the drivers of vehicle B, vehicle C and vehicle E. As per reply of respondent no.5, it is denied that he was driving his vehicle B in a rash or negligent manner. It is pleaded that the vehicles rammed into each other owing to their high speed as being on an expressway. It is further pleaded that vehicle E was not hit by him and thus he cannot be made liable to compensate the casualty. On the same grounds respondent no.6, insurer of vehicle B has refuted its liability to compensate. It has however not denied that vehicle B was duly insured with respondent no.6.
Respondent no. 8 has also denied its liability on the ground that the driver of vehicle C was neither rash nor negligent in driving the vehicle nor did the collision between vehicle D and vehicle E was caused due to involvement of vehicle C. It is pleaded that infact driver and passenger of vehicle C are Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:21:13 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 8 of 41 ss :9: themselves victims of the accident. It is pleaded that it was due to exorbitantly high speed of vehicle D that it hit vehicle C as well as vehicle E causing casualty. It is further pleaded that the accident involves composite negligence of the driver of vehicle B and vehicle D. Respondent no.9, though not denied to be insurer of vehicle C, has denied its liability on the ground that vehicle C was being driven by one Sh. K V Alexander (since deceased in the accident) without permission or authority of the insured. It is further pleaded that vehicle C was not being driven in rash or negligent manner and that the accident occurred due to negligence and rashness of vehicle A, B, D and E. Respondent no.10 was are legal heirs of deceased driver of vehicle C have also denied the claim of negligence on the part of deceased driver of vehicle C. It is pleaded that driver of vehicle C has himself fallen victim to the accident which occurred due to gross negligence of vehicle A, B and D.
8. From the pleadings, following issues were framed on 23.02.2016.
1) Whether petitioner sustained grievous injury in an accident on 16.12.2013 caused by vehicle bearing no. DL- 13C-1485, due to rash and negligent driving of owner /driver, respondent no.2 and Innova car No.DL-1ZZ-0592, being driven and owned by respondent no.1 and insured with respondent no. 3 and 4? OPP.
2) Whether the petitioner is entitled for compensation? If, so, to what amount and against which of the respondents?
3) Relief.
Digitally signedCHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:21:19 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 9 of 41 ss :10:
9. Thereafter, evidence was led by the petitioner by examining herself as PW-1.
PW-1/petitioner Ms. Divya Singh tendered her evidence by way of affidavit Ex.PW1/1 wherein she reiterated the contents /averments made in her claim petition qua the accident. Additionally, she testified that she is a professionally qualified specialist doctor having completed MBBS from NRS Medical College, Kolkata, MD (Paediatrics) from Rajendra Institute of Medical Science (RIMS), Ranchi and fellowship in Paediatric Critical and Emergency Care from Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Puduchery. She relied on her educational certificates as Ex.PW1/A (colly).
She testified that after doing specialization in Paediatrics she was working as Senior Resident in Rajendra Institute of Medical Science (RIMS), Ranchi at a pay scale of Rs.15600- 39100+GP-Rs.6600/- from November 2012 and was planning to pursue Super Specialty Course. She relied on appointment letter to the post of senior resident in the Department of Paediatrics, (RIMS) Ranchi as Ex.PW1/B. She deposed that in the month of December 2013 she had come to Delhi for appearing an examination at AIIMS, New Delhi for admission to a Super Specialty Course i.e. DM in Neonatology. After the examination, on 16.12.2013, she along with her fellow, Dr. Pritish Prasad and Dr. Shakti, were travelling in Indigo car bearing no. DL-13C-1485 to visit Taj Mahal at Agra, UP. At about 8:30-8:45 a.m. when they reached about 10 Digitally signed CHARU by CHARU GUPTA GUPTA 04:21:25 Date: 2024.09.28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 10 of 41 ss :11: kms before Mathura Toll, PS Sureir, Distt Mathura, UP on Yamuna Expressway, Indigo car was hit by a speeding Innova car which after collusion with other vehicles going in front of it, due to high speed, turned its right and dashed the Indigo car in which they were travelling.
She testified that the driver of Innova Car bearing No. DL-1ZZ-0592 which after collusion with other in front of it, due to high speed, turned its right and dashed the Indigo car in which we were travelling.
She deposed that the driver of Innova car was driving the vehicle at very high speed and the driver of Indigo car was also negligent as he failed to maintain proper distance between the two vehicles. This accident occurred due to composite rash and negligent driving of drivers of Innova Car and Indigo Car. Negligence was there also on the part of other vehicles which collided in front of Innova. The primary there cause of injuries sustained by her was the impact of the direct hit between Innova car No. DL-1ZZ-0592 and Indigo car No. DL-13C-1485, but the reason leading to this collision was the crashes and piling up of other vehicles in front Innova i.e. Pajero car No. DL-7CN-1042, TATA Magic No. DL-1LS-4348 and Ertiga car No. DL-9C-AC- 5086 due to the negligence of their respective drivers.
She further deposed that in the accident she suffered grievous injuries on forehead, left orbital region, laceration at bridge of nose, bruise of right forearm, multiple fractures of spine (D), burst, fracture with grade 1 antrolisthesis, B/L lamina fracture, traumatic cord compression in cervical region, C6-C7 Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:21:30 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 11 of 41 ss :12: posterior elements fused on the left side: D5-D6, transverse process fracture coupled with left scapular fracture etc. due to this road accident. Initially she was taken to Maheshwari Hospital, Mathura and then to Metro Heart Institute, Faridabad as her condition was very serious requiring specialized medical attention. Subsequently PW-1 was admitted at Jai Prakash Narayan Apex Trauma Centre (AIIMS), New Delhi on 17.12.2013. PW-1 remained admitted at JPN Apex Trauma Centre (AIIMS) from 17.12.2013 to 06.01.2014. Despite best treatment, she had lost sensation in various part of body and is paralyzed because of accidental injuries. The injuries on spine and other parts of the body have resulted into acute traumatic quadriparesis with neurogenic bladder and bowel and my condition was very pathetic at that time. Thereafter she was shifted to private ward of AIIMS as her condition required continuous extensive medical care and her treatment in AIIMS New Delhi lasted till 08.05.2014 and after that she was shifted to hometown Ranchi where further treatment/ physiotherapy etc. were continued and still continuing. All the papers related to her diagnosis and treatments are exhibited as Ex-PW1/C (colly).
She testified that a case vide FIR No.34/14, dated 11.02.2014, was 279/338/304-A IPC registered at PS Sureir, District Mathura. UP. Copy of FIR is Ex.PWI/D. PW-1.
She stated that she had done all her education from reputed institutions and Medical Colleges of India. PW-1 joined Senior Residency in the year 2012 and after completion of 3 years Senior Residency, she would have joined as Assistant Professor CHARU Digitally signed by CHARU GUPTA Date: 2024.09.28 GUPTA 04:21:36 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 12 of 41 ss :13: having higher pay scale with ample scope for promotions up to the topmost level of the hierarchy. PW-1 suffered grievous injuries in this accident resulted in 70% permanent disability which spoiled her chances. After prolonged treatment she had to join only as a Medical Officer in Rajendra Institute of Medical Science (RIMS) in December 2016 which is far inferior post with a considerably lower pay scale. Copy of Appointment Order dated 29.11.2016 from RIMS is exhibited as Ex.PWI/E. Due to her physical disability, she is not being considered for any promotion. Copy of Disability Certificate issued by Civil Surgeon Cum Chief Medical Officer. Sadar Hospital, Ranchi dated 23.04.2015 bearing No. 896 is Ex.PWI/F. She deposed that prior to this accident she was gainfully employed as a Senior Resident (Paediatrics) with RIMS, Ranchi and had bright future prospects. Her earning and status would have multiplied manifold with the passage of time and experience. This accident had not only marred her career but her marriage prospects as well. Besides suffering loss of earning. PW-1 undergoing immense pain and suffering both physically and mentally, loss of amenities, confinement to bed, boredom and paralysis of limbs adversely affected bladder and bowl control.
She stated that due to permanent disability arising out of accidental injuries, she is suffering loss of movement, sensation etc. which has made the life no better than hell. Her east of living and maintenance had increased. Extra expenses are required to be for special diet clothing, attendant, medical equipments, customized chairs/bed/vehicle, conveyance, pharmacy, doctors' Digitally signed by CHARU CHARU GUPTA GUPTA Date:
2024.09.28 04:21:41 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 13 of 41 ss :14: fee, hospital charges, physiotherapy etc. PW-1 had already spent a large amount for treatment/ medical bill out of which an amount of approximately Rs.6,71,215/- have been reimbursed by JRIMS, Ranchi on 28/07/2020. She still require an average amount of Rs.25000/- per month for special diet, special clothing, medical equipments, pharmacy, physiotherapy etc. Apart from these, PW-1 also paying Rs.15,000/- per month as salary to Ms. Jatri Kumari d/o Basudeo Oraon, r/o -Burhipat, Post-Rharno, Ciumla Jharkhand as a fulltime personal caregiver as she is unable to move and do many of her personal needs without a help all the time. She is also required to use a vehicle converted with ramp facility etc. with an average monthly maintenance and driver's expense is Rs.25,000/-. In view of inflation, and fast changing expenditure rate, she have to spend more money one day to day expenses.
She stated that respondent No. 1 was the driver and registered owner of Innova Car No. DL- IZZ-0592 at the time of accident and respondent No. 2 is the insurer of this Innova car, respondent No. 3 was the driver and registered owner of Indigo Car No. DL-13C-1485 at the time of accident and respondent No. 4 is the Insurer of this Indigo car. Respondent No. 5 was the driver and registered owner of Pajero Car No. DL-7CN-1042 at the time of accident and respondent No. 6 is the Insurer of this Pajero car. Respondent No. 7 was the registered owner of TATA Magic No. DL-1LS-4348. Respondent No. 8 was the registered owner of Ertiga Car No. DL-9C-AC-5086 at the time of accident and Respondent No. 9 is the Insurer of the Ertiga car. Respondent CHARU Digitally signed by CHARU GUPTA Date: 2024.09.28 GUPTA 04:21:45 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 14 of 41 ss :15: No. 10 are the legal heirs of the deceased driver of Ertiga car DL 9C AC 5086. The accident took place due to the composite negligence of all the vehicles and thereby all the Respondents are jointly and proportionately liable to pay compensation to me as per the provisions of law of torts.
She further stated that PW-1 may be granted compensation of Rs. 50 lakhs for pain and sufferings, Rs. 50 lakhs for loss of amenities of life, Rs.200 lakhs for loss of future earnings, Rs.100 lakhs as compensation for disfiguration and loss of power and sensation of limbs and other damages. Compensation may be granted considering conventional heads such as physiotherapy, conveyance and future conveyance, cost of attendant and maid, future cost of attendant and maid, compensation for special diet, cost of wheel chain special bed, specially modified vehicle, special commode chair for bathing etc. cost of special undergarments, cost of diapers, cost of catheters and other surgical items and jackets to be worn on wheelchair etc. compensation for loss of expectation of longevity of life etc. Copy of Adhar Card,PAN Card are Ex.PW1/G (colly).
PW-1 was duly cross examined by Ld. Counsel for respondent no.2, respondent no.4 and respondent no.6. Respondent no. 8 and 10 did not cross examined PW-1 despite opportunity.
10. Respondent/Thomas VV examined himself as respondent witness. He deposed that on 16.12.2013, in early morning he was going to Agra on J.P. Expressway Highway before second Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:21:50 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 15 of 41 ss :16: Toll Plaza. There was fog. Because of such fog, his vehicle was plying slowly on the left side of the road alongwith blinking light. Due to fog, he parked his vehicle on the left side of the road. His vehicle did not collide with any vehicle. There is no complaint against his vehicle and only after two months, he came to know about the present complaint. He was cross-examined by the Ld. counsel for IFFCO Tokio insurance company and learned counsel for claimants.
10. Final arguments in detail were addressed by learned counsel for the claimant/petitioner and counsel for all the contesting respondents.
11. On the basis of pleadings of the parties, evidence adduced and arguments addressed, issue wise findings are as under:Issue No. 1
Whether petitioner sustained grievous injury in an accident on 16.12.2013 caused by vehicle bearing no. DL-13C-1485, due to rash and negligent driving of owner /driver, respondent no.2 and Innova car No.DL-1ZZ-0592, being driven and owned by respondent no.1 and insured with respondent no. 3 and 4? OPP.
12. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors [(2009) 13 SC 530,[ in Kaushnumma Begum and others v/s New India Assurance Company Limited, [2001 ACJ 421 SC[, in National Insurance Co. Ltd. vs. Pushpa Rana cited as [2009 ACJ 287], it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities CHARU Digitally signed by CHARU GUPTA Date: 2024.09.28 GUPTA 04:21:56 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 16 of 41 ss :17: and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
Role of vehicle A
13. In the present case, it is not denied by any of the respondents that the accident occurred primarily on account of vehicle A, stranded unattended, in a stationary condition on a road. The owner of such vehicle A remains ex-parte and has thus not even raised any defence or justified leaving his vehicle on the road. There is no averment from either side that such vehicle A was left on the road due to any mechanical error or disfunctioning or that any sign or indicator were put to caution the other vehicles plying on the road. The manner in which vehicle A was left on an expressway road is res ipsa loquitor to the negligence of the owner of such vehicle.
Role of vehicle B and vehicle C
14. It is the version of the petitioner that it is due to composite negligence of all the vehicle, including vehicle B and C that the accident was caused. Petitioner has described the role of vehicle B and C as already discussed in the brief facts of the case. During her cross-examination, she has admitted that she was neither present at the spot nor an eye witness to the accident. She has testified that her knowledge about the accident is hearsay and as told to her by her niece who was informed by Mr. K.V. Thomas.Digitally signed
CHARU by CHARU GUPTA GUPTA 04:22:01 Date: 2024.09.28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 17 of 41 ss :18: It is a matter of record that one Paul Mathew was a co passenger with the deceased in vehicle C. Paul Mathew deposed in his case that he had not seen the accident as he was sitting on the rear seat and there was fog on the spot of the accident. Paul Mathew admitted that he was not in line of sight and could not see any other car involved in the accident. A defence has thus been raised on behalf of respondents that petitioner, though even presence of Paul Mathew i.e. one of the injured on the spot, the same falls short of being an eye witness to the alleged accident. It is further pleaded that since another co passenger, namely one K.V. Thomas, who is also alleged to have been travelling in vehicle E, has not been examined, there is virtually no eye witness to the accident and thus negligence of vehicle B and C cannot be said to have been proved.
Reliance is placed on observation of Hon'ble Apex Court in Sunita vs. Rajasthan State Transport corporation, AIR 2019 SC 994 wherein the court held that the approach in examining the evidence in accident claim is not to find fault with non examination of some "best" eye witness in the case but to analyze the evidence already on record to ascertain whether that it sufficient to answer the matters in issue on the touchstone of preponderance of probability. As such, unlike in a criminal trial, for the purpose of adjudicating an accident claim, this Tribunal is not guided by the number of witnesses examined by the petitioner or if such witness exactly and accurately witnessed the entire accident.
In the considered opinion of the court, the final Digitally signed by CHARU CHARU GUPTA GUPTA Date:
2024.09.28 04:22:06 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 18 of 41 ss :19: report/closure report filed by the police and heavily relied upon by the respondents to seek exoneration from their liability, itself shows the sequence in which the vehicles collided with each other. In fact, in his reply, driver of vehicle B has not denied that he had not attempted to overtake or overtaken vehicle C. He has stated that he was driving his vehicle at a slow speed, following traffic rules and that the collision occurred due to rashness and negligence of other vehicles which were being driven at very high speed. There is no averment in his written statement, denying collision of his car i.e. vehicle B with vehicle A or vehicle C. Though, vehicle B did not directly hit vehicle E, it is due to prima facie negligence of vehicle B in overtaking vehicle C, that vehicle D collided with vehicle C and went astray to the wrong side, causing it to collide with vehicle E which was moving in a separate lane.
The circumstances (weather conditions) and manner in which the accident took place and the level of destruction and casualty that it caused renders the negligence of vehicle B self evident in as much as no care or caution was resorted to by such vehicle despite the adverse weather condition. The doctrine of res ipsa loquitor would thus be applicable in the present case.
Further, it is evident from the date and time of the occurrence of the accident that the expressway road may have been hazy due to presence of fog. Thus, impaired visibility due to presence of fog cannot be ruled out. In such circumstances, even driving of a vehicle at such a speed (if not slow) that it left no scope for its driver to halt it or rendered it beyond his control to Digitally signed CHARU by CHARU GUPTA GUPTA 04:22:11 Date: 2024.09.28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 19 of 41 ss :20: apply brakes or foresee a stranded vehicle or a stationary object from a safer distance, is certainly an act of recklessness.
It has been alleged by the petitioner as well as by respondent no. 10 (LRs of deceased victim Sh. K V Alexander) and not denied by respondent no.5 (driver of vehicle B) that such driver of vehicle B was overtaking vehicle C at the time when collision with vehicle A occurred. It is while overtaking vehicle C by vehicle B that vehicle B crashed into vehicle A and further led it to collide with vehicle C. Section 14 of The Motor Vehicle (Driving) Regulations 2017 prohibit overtaking of vehicle when the visibility on the road is unclear due to weather condition. Even the speed limit on highways and expressways is reduced during that time of the year due to visibility issues. It thus becomes evident from the circumstances and manner of accident that if vehicle C was plying at an expected speed and had maintained a safe distance from any vehicle or unforeseen object ahead of it, the accident inevitable due to sudden overtaking by vehicle B. Overtaking or deviating from lane driving by vehicle B on a foggy day of early winters was an absolutely reckless conduct by the driver of vehicle B. Thus, this Tribunal does not find any fault or negligence in driving of vehicle C but finds it to be gross rashness on the part of driver of vehicle B to have attempted to overtake vehicle C and breaching the safe distance between vehicle C and stranded vehicle A. Role of vehicle D
15. It is not denied that vehicle C was also hit from behind by Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:22:16 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 20 of 41 ss :21: vehicle D. The level of damage that occurred on account of such collision itself speaks about the speed at which vehicle D was being driven. Such accident could have been avoided had vehicle D maintained a reasonable speed and control over the brake or driven the vehicle with required precaution especially considering the weather and visibility. The circumstances make it abundantly evident that the speed of vehicle D must have been so high that it was neither able to apply brakes timely nor foresee the crashes ahead. It is this overspeeding and recklessness of the driver of vehicle D that not only cause its accident with vehicle C but also caused it to collide it with vehicle E, plying on its right side. Thus, driver of vehicle D is held to be grossly reckless in driving his vehicle.
Role of vehicle E
16. Though, it has been pleaded by respondent no. 4 that driver of vehicle E was driving in violation to the traffic rules, there is nothing on record to show or prove any apparent defiance of traffic rules or overspeeding by driver of vehicle E. There is no averment that vehicle E was not plying in its lane or had done any act which led to the accident. As such, no fault, rashness or negligence can be imputed on the part of vehicle E. Delay in FIR and filing of closure report
17. A defence has been raised by the respondents that since the FIR in the present case was registered only after a delay of 1 month and 36 days and that after investigation, a closure report Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:22:26 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 21 of 41 ss :22: was filed by the investigating officer giving a finding that the accidents were ittefaqia. It has been pleaded that despite thorough investigation, the investigating officer or the concerned criminal court accepting such a closure report, could not find any fault or guilt on the part of drivers of any of vehicles involved in the accident.
18. This Tribunal has gone through the closure report filed in the case. Though, the standard to determine rash or negligent driving under the Penal Law is way high than in an inquiry proceeding under The Motor Vehicle Act, this Tribunal holds no hesitation in observing serious lapse on the part of U.P Police in firstly not having registered an FIR promptly despite such a huge road mishap and secondly by filing a closure report after recording statements of purported eye witnesses, none of whom were related to the accident or occupants of any of the vehicles which crashed. In fact, the police recorded statements of around 10 purported independent persons, statements of all of whom are verbatim. Such closure report lacks a descriptive site plan or a proper mechanical inspection report. Even the particulars of the owner of vehicle A are found to be incomplete and no efforts are seen on the part of the investigating officer to have traced or tracked him. No attempt has been made by the investigating officer to even find out if vehicle A (which was the epicenter of crashes) was insured or not. No attempt was made by the investigating officer to even approach the injured victims for recording their statements. The closure so filed is an exemplar of Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:22:31 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 22 of 41 ss :23: trumpery and shoddy investigation.
19. It is a settled law that the finding of the police or even a criminal court is not binding on the MACT more so as the standard of proof in determining rash or negligent driving is much higher in all cases than in enquiry proceedings such as the present one. Thus, neither the delay in registration in FIR nor filing of closure report by the police nor even acceptance of any such report as a report against 'agyaat vahan/untrace vehicle', is binding on this Tribunal.
20. In this regard, reliance is placed on the observation of Hob'ble Apex Court in Ravi vs. Badrinarayan & ors., 2011 ACJ 911, wherein even a delay of 3 months in lodging a complaint after the accident was not considered to be fatal to the case of claimants. The court observed:
"...21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodging of FIR. Unless kith and kin if the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons..."
21. Further in a recent decision in Mathew Alexander vs. Digitally signed by CHARU CHARU GUPTA GUPTA Date:
2024.09.28 04:22:36 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 23 of 41 ss :24: Mohd. Shafi & anr. 2023 LiveLaw (SC) 5321, it has been held by Hon'ble Supreme Court that the final report filed in a criminal investigation connected to the accident would not have a bearing on the claim petition and that the claim petition must be considered on its own merits.
Composite negligence
22. In the instant case, the accident and casualty arising therefrom involves a number of vehicles. It has been held in T O Anthony vs. Karvarnan & ors. 2008 AIR SCW 2045, wherein Supreme court held that composite negligence refers to negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of composite negligence of those wrong doers.
From the above discussion, it is observed that the accident and death of /injury to occupants of vehicle C and E has been caused due to composite negligence of vehicle A, B and D. Hence, based on the circumstances in which accidents occurred, the proportion of composite negligence of vehicle A, rashness of driver of vehicle B and vehicle D is assessed to the extent of 20%, 40% and 40% respectively. Owners /drivers and insurance companies of vehicle A, B and D are vicariously liable to compensate the petitioner(s).
23. In totality of circumstances, this Tribunal is of the opinion that the claimant(s)/petitioner(s) has/have been able to prove on Digitally signed CHARU by CHARU GUPTA GUPTA 04:22:41 Date: 2024.09.28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 24 of 41 ss :25: the scales of preponderance of probabilities that the accident in question, took place due to negligent of owner of vehicle A and gross rashness in driving by drivers of vehicle B and D. Accordingly, issue no.1 is decided in favour of petitioner(s)/ claimant(s) and against respondent no. 1, 2, 5, 6 and 7.
Issue no. 2 Whether the petitioner is entitled for compensation? If, so, to what amount and against which of the respondents?
24. In the instant case, insurance companies of vehicle B and D i.e. respondent no. 2 and 6, have not raised any statutory defence against respondent no.1 and 5. Under the contractual liability arising out of the insurance policy/contract of insurance, both the insurance companies i.e. IFFCO Tokio Gen. Ins. co. and ICICI Lombard Gen. Ins. Co. are liable to indemnify the insurers i.e. respondent no.1 and 5 by compensating the petitioner(s). Respondent no. 7 is proportionately liable to compensate the petitioner(s) as discussed in issue no.1.
25. Further it is noted that the heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 25 of 41 ss :26: would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
(1) In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). (2) It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii),
(v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
(3). Assessment of pecuniary damages under Item (i) and under Item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence.
(4). Award under the head of future medical expenses--Item
(iii)--depends upon specific medical evidence regarding need for Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:22:52 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 26 of 41 ss :27: further treatment and cost thereof.
(5). Assessment of non-pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of Hon'ble SC and Hon'ble High Courts contain necessary guidelines for award under these heads, if necessary. (6). Observation of Hon'ble Supreme Court in Rajkumar v. Ajay Kumar & Anr. is quoted hereunder:
"10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a CHARU Digitally signed by CHARU GUPTA GUPTA 04:23:05 +0530 Date: 2024.09.28 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 27 of 41 ss :28: carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation.
PECUNIARY /SPECIAL DAMAGES Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:23:14 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 28 of 41 ss :29:
(i) Loss of earnings Actual loss of earning:
26. As regards, loss of income, petitioner has relied upon Ex.PW1/B i.e. her appointment letter in RIMS as a Senior Resident doctor showing her salary to be on a pay scale of 15600-39100+Grade pay-6600 from November 2012. Respondents have disputed the proof of salary on the ground of non examination of the employer. Since, the document relied upon has been issued by a Government Authority, it was open for the respondents to have easily got it verified, which they chose not to, perhaps as there is no doubt in their minds regarding its authenticity. For the same reason, this Tribunal holds no hesitation in relying upon the same. As per this document, her salary would have been Rs.60,000/- per month as on date of accident.
It is further pleaded on behalf of the respondents that since there is no MLC of the victim prepared at any stage, her claim to have suffered injury in the accident or consequent disability must be dismissed as incredible.
In the considered opinion of the Tribunal preparation of MLC or registration of FIR etc., is not sine qua non to a claim for compensation under Motor Vehicle Act. In the instant case, though technically there is no MLC of the victim, the petitioner has relied upon her medical documents including her discharge summary showing her admission in JPN Apex Trauma Center AIIMS as 17.12.2013 and her discharge on 06.12.2014. This discharge summary clearly mentions the facts that the patient was Digitally signed CHARU by CHARU GUPTA GUPTA 04:23:20 Date: 2024.09.28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 29 of 41 ss :30: brought with a history of RTA (Road Traffic Accident). Without disputing the authenticity of such discharge summary, respondents cannot be allowed to challenge the injuries to have been suffered in the accident. As such, contention raised by the respondents is dismissed.
As per the medical record relied upon by the petitioner, petitioner remained hospitalized from 16.12.2013 at Maheshwari Hospital, Mathura, then to Metro Heart Institute Faridabad and subsequently at JPN Apex Trauma Center, AIIMS from 17.12.2013 to 06.01.2014. She was thereafter shifted to a private ward of AIIMS for further treatment till 08.05.2014. Period of her hospitalization is thus nearly 6 months. As per her medical records, she suffered grievous head injury, fracture in spine, D6 superior end plate fracture with grade 1, lamina fracture, D2-D6 spinous process fracture, C2-C4 blocked vertebrae, D5-D6 transverse process fracture and left scapular fracture. Operative procedures were also performed.
Considering the nature of injury and period of hospitalization, it is assumed that the petitioner may have remained bedridden for atleast one year. Hence, actual loss of income would have been for atleast one year i.e. Rs.50,000X12=Rs.6,00,000/-.
Loss of future income/earnings:
27. Petitioner has relied upon disability certificate issued by Office of Civil Surgeon cum Chief Medical Officer, Sadar Hospital, Ranchi, noticing permanent disability of 70% in Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:23:28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 30 of 41 ss :31: relation to locomotor of non progressive nature as Ex.PW1/8.
Petitioner has further testified that she is currently earning Rs.1,00,000/-(one lakh) per month as a Medical Officer at RIMS. She has contended that she is working at a lower pay scale due to disability suffered by her.
She has however not placed any document, salary slip etc. to prove her current salary. Proof of her current salary is required to ascertain if she has suffered a loss of income on account of injuries sustained in the accident. It is only as per her oral testimony by way of examination in chief and cross examination that she is serving as a Medical Officer at a much lesser pay scale than what she would have, had she not suffered any disability on account of the accident. The certificate has been doubted by the respondent/Insurance company on the ground that such assessment of alleged disability has been got done by the petitioner without applying to the court and thus the same cannot be related to the accident.
There is no requirement under the law that an assessment of disability has to be necessarily initiated through the Tribunal. As such, contention raised by the respondents is dismissed.
Considering the disability assessed by the Medical Officer to be of locomotive nature as also the nature of work that is desired from a Medical Practitioner, which is likely to get affected due to impairment of limbs, functional disability of the petitioner is taken to be 50%.
As per Ex.PW1/9, Adhar card, date of birth of the petitioner is 21.01.1983. Petitioner would have been around 30 Digitally signed CHARU by CHARU GUPTA GUPTA 04:23:34 Date: 2024.09.28 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 31 of 41 ss :32: years of age at the time of accident (i.e. on 16.12.2013). As such, for purpose of calculating loss of future income, a multiplier of 17, as per Sarla Verma judgment, would be applicable in the case and 50% would be added as future prospect as Pranay Sethi judgment (since petitioner was less than 40 years of age and was working in a Government Hospital as a permanent employee). Hence, compensation towards loss of future income is assessed to Rs.50,000/- (monthly income) X 12 (annual computation) X 17 (multiplier) + 50% of total income (as future prospect) =Rs.1,02,00,000/-. 50% (on account of functional disability) of this amount would be Rs.51,00,000/-. Hence so awarded.
(ii) Future Medical Expenses:
28. Since there is no amputation of any limb of the petitioner caused due to injury in the accident and no evidence has been led qua continuous future treatment, no compensation is being granted under this head.
(iii) Expenses relating to treatment:
29. In this case, claimant has admitted that out of her medical bills a sum of Rs.6,71,215/- has been reimbursed from her Department. As such, the only bills not reimbursed and filed on record are annexed on page 160-161 of the judicial file. The first one pertains to the date of accident i.e. 16.12.2013, Metro Heart Institute. This is to the tune of Rs.43,940/-. The other bill also pertains to date of accident and is to the tune of Rs.37,440/-.
Accordingly, the amount of both these bills (i.e. Rs.81,380/-) is Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:23:40 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 32 of 41 ss :33: awarded as expenses towards medical treatment.
Apart from expenditure on treatment, a sum of Rs.1 lac under each head i.e. conveyance, special diet and nursing/ attendant is granted to the petitioner.
30. In this background, considering the material and evidence on record and the law on compensation in such like cases, as already discussed above, compensation in the present case is calculated as under:
Sl. Pecuniary loss : - Quantum
no.
1. (I) Expenditure on treatment : Rs. 81,380/-
(ii) Expenditure on Conveyance : Rs.1,00,000/-
(iii) Expenditure on special diet Rs.1,00,000/-
(iv) Cost of nursing / attendant : Rs.1,00,000/-
(v) Loss of income : Rs.6,00,000/-
Compensation towards loss of income,
as noted above (Rs.50,000X12)
(vi) Cost of artificial limbs (if NA
applicable) :
(vii) Any other loss / expenditure : NA
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.1,00,000/-
physical shock :
(ii) Pain and suffering : Rs.1,00,000/-
(iii) Loss of amenities of life : Rs.1,00,000/-
(iv) Disfiguration : NA
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning CHARU Digitally signed by CHARU GUPTA GUPTA 04:23:46 +0530 Date: 2024.09.28 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 33 of 41 ss :34: capacity (I) Percentage of disability assessed The petitioner has and nature of disability as permanent or suffered 70% temporary permanent physical impairment in relation to locomotor.
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability :
(iii) Percentage of loss of earning Already granted capacity in relation to disability:
(iv) Loss of future Income: The Rs.51,00,000/-
functional disability is taken as 50%.
Total Compensation Rs.63,81,380/-
Deduction, if any, Nil.
Total Compensation after deduction Nil.
Interest : All above amount
shall be along
with interest @
7.5 % per annum
on total principal
award amount
from date of filing
of petition till
actual realization.
31. The total compensation payable to the claimant would be Rs.63,81,380/- with simple interest at the rate of 7.5% p.a. from the date of filing of petition till its actual realization.
Digitally signedCHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:23:55 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 34 of 41 ss :35: Liability
32. As already discussed, principal award amount/ compensation will be payable by respondent no.2, 6 and 7 in proportion of 40:40:20 with simple interest @ 7.5% p.a. from the date of filing of petition till actual realization.
Directions Regarding Deposit Of Award Amount In Bank:
33. In compliance of directions issued vide order dated 16.11.2021 by Hon'ble Supreme Court of India in Writ Petition Civil No.534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India the award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT SAVING ACCOUNT No. 00000042706875094, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir in the prescribed format i.e. MCOP Number on the file of (Claims Tribunal Name) Date of award, Compensation Amount, Income Tax Deduction at Source, Bank Transaction Reference No./Unique Transaction Reference (UTR) Number. In turn, the State Bank of India, Saket Courts Branch shall receive the deposited sum and capture the above information and furnish a statement of account on a daily basis to the Nazir of this Tribunal to reconcile the deposits of compensation and the respective MCOPs towards which such deposits are made. On such deposits being made, the insurance company shall submit a letter to the Nazir of this Tribunal enclosing a copy of the said bank advice, in prescribed format as above, as per which the deposit made to Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:24:01 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 35 of 41 ss :36: the bank account of this Tribunal, to enable this Tribunal to keep tab on the deposits made and the MCOPs for which they were made. The Payment advice for remittance of compensation is as under:
PAYMENT ADVICE FOR REMITTANCE OF
COMPENSATION :
............ Bank ................... To:
............... Court ........................ We confirm remittance of compensation as follows on instructions of ................................... (insurance company):-
MCOP Number On the file of (Claims Tribunal Name), Place Date of award Amount Deposited, Income Tax Deduction at Source, if any Unique Transaction Reference (UTR) Number. Insurance company of offending vehicle, on deposit, shall also send a copy of the payment advice in above format to this Tribunal and serve a copy of the same on the claimants or their counsel as the case may be.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
34. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Digitally signed CHARU by CHARU GUPTA GUPTA 2024.09.28 Date:
04:24:06 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 36 of 41 ss :37: Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
35. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
36. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the CHARU Digitally signed by CHARU GUPTA GUPTA Date: 2024.09.28 04:24:13 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 37 of 41 ss :38: Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos.
(i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows CHARU Digitally signed by CHARU GUPTA GUPTA 04:24:20 +0530 Date: 2024.09.28 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 38 of 41 ss :39: and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long CHARU Digitally signed by CHARU GUPTA Date: 2024.09.28 GUPTA 04:24:24 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 39 of 41 ss :40: term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice..."
37. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, Rs.63,81,380/-, Rs.10,81,380/- be released in her bank account near her place of residence as per rule/ directions and remaining amount of Rs.53,00,000/- be kept in the form of monthly FDRs of Rs.30,000/- per month along with interest @ 7.5% per annum on total principal award amount from the date of filing of petition till actual realization.
38. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 16.12.2013 Digitally signed CHARU by CHARU GUPTA GUPTA Date: 2024.09.28 04:24:32 +0530 MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 40 of 41 ss :41: 2 Name of injured Divya Singh 3 Age of the injured 30 years 4 Occupation of the Doctor injured 5 Income of the injured Rs.50,000/-per month.
6 Nature injury Greivous Injury/Disability 7 Medical treatment Maheshwari Hospital, Metro Heart taken by the injured: Institute, Jai Prakash Narayan, Apex Trauma Centre (AIIMS) 8 Period of 6 months Hospitalization 9 Whether any 70% in relation to locomotor of permanent disability? non progressive nature.
39. List for compliance on 28.10.2024.
Digitally signedAnnounced in open Court CHARU by CHARU
GUPTA
On 28th September, 2024 GUPTA 2024.09.28
Date:
04:24:37 +0530
(Charu Gupta)
PO-MACT-01(South-East)
Saket Court/ New Delhi
MACT No.: 3884/2016 Divya Singh vs. Thomas VV & ors. P .No. 41 of 41 ss