Delhi District Court
Sh. Surender Malik vs Sh. Sunil Sharma on 23 March, 2018
MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5496/16 (Old MACP No. 81/14)
Sh. Surender Malik,
S/o Sh. Munshi Ram Malik,
R/o B1/88, Sector - 11,
Rohini, Delhi.
..........Petitioner
VERSUS
1. Sh. Sunil Sharma,
S/o Sh. R.K. Sharma,
R/o. BK2/37,
Shalimar Bagh, Delhi.(Driver)
2. Sh. Pritpal Singh,
S/o Sh. Harbhajan Singh,
R/o AA234,
Shalimar Bagh, Delhi. (Registered Owner)
3. IFFCO Tokio General Insurance Company Ltd.
F.A.I Buidling, 10,
Shaheed Jeet Singh Marg,
Qutub Institutional Area,
Delhi (Insurance Co.)
............Respondents
Date of Institution : 17.02.2014 Date of Arguments : 13.03.2018 Date of Award : 23.03.2018 APPEARANCES: Sh. R.K. Jain, Adv for petitioner.
Respondent no. 1 in person.
None for respondent no. 2.
Sh. Shailendra Rai, Adv for respondent no. 3.
Surender Malik Vs. Sunil Sharma & Ors. Page 1 of 19MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner is seeking compensation in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out in case FIR no. 416/13 U/s 279/338/304A IPC registered at PS. K.N.K. Marg with regard to Motor Vehicular Accident which occurred on 13.10.2013 at 3:00 am in front of Sachdeva School, Sector - 13, Rohini, K.N. Katju Marg, Delhi involving Car bearing registration no. DL4CS9209 (alleged offending vehicle) being driven by respondent no. 1 in rash and negligent manner. Detailed Accident Report(hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
2. According to DAR, on 13.10.2013, the petitioner alongwith his wife, daughter and son, was coming back to his home from the house of his sister situated at Karnal by his car no. DL5CC8604. At about 3 am, when he reached at T Point, Sachdeva Public School, Sector - 13, Rohini, Delhi, one Verna Car bearing registration no. DL4CS9209 which was being driven by its driver at very high speed and in rash and negligent manner, came and hit against their car. As a result thereof, he alongwith his family members sitting in the car sustained injuries. They were removed to BSA Hopsital, Rohini, Delhi by PCR Van, where they were medically examined. The said vehicle i.e. Verna Car was found to be owned by respondent no. 2 and it was insured with IFFCO Tokio General Insurance Company Ltd /respondent no. 3 during the period in question.
3. Respondents no. 1 & 2 although personally appeared on 17.02.14 when DAR was filed before Claims Tribunal and copies of DAR were supplied to them on said date but they failed to appear and to contest the DAR petition despite grant of sufficient opportunities and consequently, they were proceeded exparte on 26.05.2014.
Surender Malik Vs. Sunil Sharma & Ors. Page 2 of 19MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018
4. Respondent no. 3/insurance company has filed its legal offer, wherein it has offered to pay a sum of Rs. 1,88,991/ to the petitioner/injured on account of compensation towards full and final settlement of the claim raised by him. Same was not acceptable to the injured.
5. It is pertinent to mention here that an application for setting aside the exparte order dated 26.05.14 had been moved on behalf of respondents no. 1 & 2, which was allowed vide order dated 18.11.2014. In their joint WS, the respondents no. 1 & 2 i.e. driver and registered owner have claimed that respondent no. 1/driver had valid DL and insurance policy in respect of alleged offending vehicle at the time of accident. On merits, the contents of DAR petition have not been disputed by them.
6. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 26.05.2014:
1. Whether the injured has suffered injuries in road traffic accident on 13.10.13 at about 3 am in front of Sachdeva School, Sector - 13, Rohini, K.N.Katju Marg, Delhi due to rashness and negligence on the part of Sunil Sharma/driver who was driving the vehicle DL4CS 9209, owned by Sh.
Preet Pal Singh and insured with IFFCO Tokio General Insurance Company Ltd./R3?OPP.
2. Whether the injured is entitled to any compensation if so to what amount and from whom?
OPP.
3. Whether the injured is entitled to any interest if so at what rate and for what period? OPP.
4. Relief.
7. In support of his claim, the petitioner has examined five witnesses i.e. PW1 Sh. Naresh Chander, MRO, BSA Hospital, PW2 Sh. Surender Kumar, Clerk, Parnami Hospital, himself as PW3, PW4 Dr. Jitender Singh, BSA Hospital and PW5Dr. M.L. Parnami, Orthopedic Surgeon, Parnami Surender Malik Vs. Sunil Sharma & Ors. Page 3 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 Hospital. He closed PE through his counsel on 16.05.2017. On the other hand, the respondent no. 1/driver closed his RE on 19.09.17 and respondent no.3 /insurance company also closed its RE on the said date i.e. 19.09.2017 through its counsel. No evidence was adduced by respondent no. 2 despite grant of sufficient opportunities and consequently, his RE was closed vide order dated 19.09.2017.
8. I have already heard the arguments addressed by ld counsels for the parties. I have also gone through the record. Both the sides were directed to submit their respective submissions in Form IV B vide order dated 09.02.2018 but they have not submitted the same on record till date. My findings on the issues are as under: ISSUE NO. 1.
9. For the purpose of this issue, the testimony of PW3 namely Sh. Surinder Kumar (injured himself) is relevant. In his evidence by way of affidavit(Ex. PW3/A), he has deposed on the lines of averments made in the DAR petition. He deposed that on 13.10.13, he was driving his Boleno Maruti Car No. DL5CC8604 and his wife Smt. Meenakshi was sitting on front left seat and his daughter and son were sitting on the back seat. He further deposed that he was driving his car at very normal speed, on correct side of the road while observing all the traffic rules, regulations and conventions of the road and they were proceeding towards their residence at Rohini from Karnal via K.N.Katju Marg, Sachdeva Public School, Sector - 13, Rohini, Delhi. At about 3:00 am, when they reached in front of Sachdeva Public School, Sector
- 13, Rohini, Delhi and was in the process of taking right turn, one Verna Car No. DL4CS9209 which was being driven by its driver namely Sunil Sharma at very high speed, in rash and negligent manner and without following the traffic norms, came and hit against their car with great force. The front windscreen of the offending Verna Car was broken into pieces. As a result thereof, he Surender Malik Vs. Sunil Sharma & Ors. Page 4 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 alongwith his wife, daughter and son sustained grievous injuries. He deposed that his son had died due to the grievous injuries sustained by him in the accident. Thereafter, the PCR Van came at the spot and removed him and his family members to BSA Hospital, where his son Himanshu was declared brought dead. Police had also recorded his statement. He has relied upon the following documents: Serial No. Description of Remarks documents
1. His original medical bills Ex. PW3/1(colly)
2. Copies of his matriculation Ex. PW3/2(colly) certificate and marksheet.
3. Future Estimate in respect Ex. PW3/3 of surgery 4. Copy of his DL Ex. PW3/4
5. His original Disability Ex. PW3/5 Certificate
6. Copy of Emergency Card Mark A
7. List of medical bills Mark B
10. During his cross examination on behalf of respondent 3/insurance co., he deposed that on the day of accident, he was proceeding towards his residence at Rohini from Karnal. He was crossing the road on green signal. He further deposed that he was not aware of the fact that from 11 pm to 5 am, the red light signal remains blinking in whole Delhi. He further deposed that the offending vehicle had hit his car from centre right side. He also deposed that he had seen the offending vehicle before the accident. He volunteered that the speed of the offending vehicle was very high. He had already crossed the road and the offending vehicle came at very high speed. He denied the suggestion that he had not taken precaution to avoid the accident or that the accident took place due to his negligence. He further denied the suggestion that since the speed of his car was very high, he could not apply brakes. He volunteered that speed of his car was about 10kmph. He denied the suggestion that speed of Surender Malik Vs. Sunil Sharma & Ors. Page 5 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 his car was not 10 kmph. He had seen number of the offending vehicle after the accident. He had narrated the incident to the police . Respondents no. 1 and 2 did not crossexamine the said witness despite grant of opportunity.
11. It is evident from the testimony of PW1 that respondents more particularly insurance company, could not impeach his testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of crossexamination. Even otherwise, PW1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondents no.1 & 2. This is more so when the respondents have not led any evidence to controvert the case of petitioner as proved by him during the course of inquiry.
12. Moreover, it is an undisputed fact that FIR no. 416/13 u/s 279/337/304A IPC was registered at PS. K.N. Katju Marg with regard to accident in question. Copy of said FIR (which is part of DAR), would show that same was registered on the basis of DD Entry No. 8A dt. 13.10.13 with regard to accident call received in PS. K.N.K. Marg at 3.12 am on 13.10.13 i.e. on the day of accident itself. The contents of said FIR would show that Verna Car bearing registration no. DL4CS9209 was found lying in accidental condition at the spot when ASI Ramesh Kumar had visited the spot on receipt of saia DD No. 8A. Thus, FIR in question was promptly lodged with regard to the accident in question and there is no possibility of any false implication of driver of offending vehicle or false involvement of the offending vehicle in this case.
13. On the other hand, the respondent no. 1 /driver of the alleged offending vehicle preferred not to contest the present claim petition. He did not enter into witness box during the course of enquiry. He was the other material witness who could have thrown sufficient light as to how and under what circumstances, the accident in question took place. Thus, an adverse inference is liable to be drawn against him for not entering into the witness Surender Malik Vs. Sunil Sharma & Ors. Page 6 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 box, to the effect that the accident occurred due to rash and negligent driving of offending vehicle i.e. Verna Car bearing registration no. DL4CS9209 by him.
14. Not only this, the respondent no. 1 namely Sunil Sharma (accused in State case) has been charge sheeted (which is part of DAR) for offences punishable U/s 279/338/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending Verna Car No. DL4CS9209 by him. Same would also point out towards the rash and negligent driving of offending vehicle by respondent no. 1.
15. Apart from above, the copy of MLC (which is part of DAR) of injured prepared at BSA Hospital, shows that he had been removed to said hospital on 13.10.13 at 3:20 am with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
16. Not only this, mechanical inspection report dated 13.10.13 (which is also part of DAR) of Verna Car No. DL4CS9209, would show fresh damages i.e. its front bumper was damaged, dislocated and missing; its front body and body frame were damaged; its both headlight and fender were damaged; its a/c condenser, radiator and engine system were damaged; its bonnet and grill were damaged; its dash board and electric wiring were damaged; its steering system was damaged; its front left side wheel system was damaged and its front windscreen glass was broken. Likewise, mechanical inspection report dated 13.10.13 (which is part of DAR) of Car No. DL5CC8604 of victim, would show that its right side body was damaged; its right side both door window and body fender were damaged; its right side headlight was damaged; its right front wheel suspension axle was damaged Surender Malik Vs. Sunil Sharma & Ors. Page 7 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 and broken and its wheel was dislocated; its front right side wheel brake hose was broken; its steering system was damaged; its front wheel axle was dislocated and wheel suspension system was damaged; its bonnet was damaged from right side; its left side body front fender was bended; its left side mirror glass was broken and its front windscreen glass was also found broken. Said documents have not been disputed by the respondents and corroborate the ocular testimony of PW1 to the extent that the aforesaid Verna Car had hit the right side of the car of the victim.
17. Apart from above, the notice u/s. 133 M.V. Act (which is part of DAR) was served upon respondent no. 2/registered owner of the aforesaid vehicle. In reply thereto, he mentioned that on 25.08.2013, he had sold the alleged offending vehicle to Sh. Sunil Sharma vide sale letter (which is part of DAR) and said Sh. Sunil Kumar had already applied for its transfer. Thereafter, similar notice u/s. 133 M.V. Act (which is also part of DAR) was served upon respondent no. 1 Sh. Sunil Sharma. In reply thereto, he mentioned that he himself was driving the aforesaid Verna Car on the date of accident i.e. 13.10.13. Said replies also corroborate the ocular testimony of PW1 to that extent that the said car was in control and possession of respondent no. 1 at the time of accident.
18. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained grievous injuries in road accident which took place on 13.10.13 at 3:00 am in front of Sachdeva School, Sector - 13, Rohini, Delhi, due to rash and negligent driving of Verna Car bearing no. DL4CS9209 by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
Surender Malik Vs. Sunil Sharma & Ors. Page 8 of 19MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 ISSUE NO. 2.
19. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
20. In his evidence by way of affidavit(Ex. PW3/A), the injured namely Sh. Surinder Kumar as PW3 has deposed that initially, he was taken to BSA Hospital. Thereafter, on the same day, he was shifted to Parnami Hospital. He remained admitted in Parnami Hospital from 13.10.2013 to 02.11.2013. He further deposed that during the course of treatment, plates were fixed in his right hip bone. Thereafter, he had visited Parnami Hospital as OPD patient. He also deposed that he had spent more than Rs. 1,60,000/ on his medical treatment. He also deposed that his treating doctor Dr. M.L. Parnami has given him the tentative cost of Rs. 2,50,000/ for his future surgery. He has relied upon estimate of Rs. 2,50,000/ given by concerned doctor as Ex. PW3/3. He was not crossexamined by respondents no. 1 & 2 despite grant of opportunity. It may be noted here that the petitioner/injured has filed medical bills (Ex. PW3/1 colly) totalling to Rs. 1,56,471/ in all and list of medical bills(Mark B).
21. PW5 Dr. M.L. Parnami, Orthopedic Surgeon, Parnami Orthopedic Hospital and Joint Replacement Centre, Shalimar Bagh, Delhi deposed that he had treated the patient Sh. Surender S/o Sh. Munshi Ram, who was admitted in his hospital on 13.10.13 and he was discharged on 02.11.13. He further deposed that he was diagnosed for fracture, acetabulam(hip joint) bilateral and fracture fibula. He also deposed that he had operated for fracture acetabulam (right) by putting plates and screws. He further deposed that he had issued Surender Malik Vs. Sunil Sharma & Ors. Page 9 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 document, which is Ex. PW3/3, to patient Surender regarding cost of future treatment for right hip replacement. He also deposed that the said estimate was given by him two years back and at present, the maximum cost of right hip replacement is about Rs. 3.5 lacs which includes the cost of implant and surgery charges, etc. He further deposed that the cost of implant for right hip replacement varies in the range from Rs. 80,000/ to Rs. 1,75,000/ or so. He also deposed that the aforesaid patient must require to undergo the aforesaid surgery as early as possible. Respondents no. 1 to 3 did not crossexamine the said witness. In other words, the entire testimony of PW5 has gone unchallenged and unrebutted from the side of respondents.
22. Counsel for petitioner argued that the rough estimate amount mentioned in Ex. PW3/3 has been further enhanced as deposed by PW5 and therefore, appropriate amount may be awarded to the petitioner under said head. On the other hand, counsel for insurance company vehemently argued that no amount should be awarded under this head and even PW5 has explained during crossexamination that cost of implant for hip replacement varies in the range from Rs. 80,000/ to Rs. 1,70,000/.
23. I have considered the rival submissions made on behalf of both the sides on this aspect in the light of material available on record. First of all, it may be noted that the petitioner/injured, in all probability, is required to undergo hip replacement surgery as opined by PW5 Dr. M.L. Parnami, who had also treated him after the accident in question and this fact has gone unchallenged and undisputed from the side of respondents. Moreover, the insurance company has not been able to bring on record anything which may put any question mark on the genuineness or authenticity of the document Ex. PW3/3, except putting a bald suggestion to PW3 that said document is false and fabricated one. Taking into consideration the overall facts and circumstances of the case in the light of nature of injuries sustained by petitioner/injured and the fact that he is required to undergo right hip Surender Malik Vs. Sunil Sharma & Ors. Page 10 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 replacement surgery in near future, I am of the considered opinion that reasonable and just compensation should also be awarded to him for this purpose. Accordingly, I award notional amount of Rs. 1,00,000/ to the petitioner for this purpose. Hence, a sum of Rs. 2,56,471/ (Rs. + 1,56,471 Rs. 1,00,000/) is awarded to him under this head.
LOSS OF INCOME
24. Injured namely Sh. Surinder (PW3) has categorically deposed in his evidence by way of affidavit(Ex PW3/A) that he was doing business of sale and purchase of vehicles and he was earning Rs. 15,000/ p.m. at the time of accident in question. He further deposed that he could not resume his work from the date of accident till 24.09.15 which is the date of preparation of his affidavit in evidence Ex. PW3/A. He also deposed that he is Matriculate. He has relied upon copy of said matriculation certificate as Ex. PW3/2 (colly). During his crossexamination on behalf of insurance company, he denied the suggestion that he was not working and earning Rs. 15,000/ per month at the time of accident. He deposed that he had not filed any document to show that he was earning Rs. 15,000/ per month. Respondents no. 1 & 2 did not cross examine this witness.
25. PW1 Sh. Naresh Chander, MRO, BSA Hospital has produced the MLC of patient/injured Surender Malik. He exhibited the said MLC as Ex. PW1/1. During his crossexamination on behalf of insurance company, he deposed that he had no personal knowledge about the case. However, respondents no. 1 & 2 preferred to stay away from the proceedings and thus, did not crossexamine him.
26. PW2 Sh. Surender Kumar, Clerk, Parnami Hospital Orthopedic produced treatment record of patient/injured Surender Malik and testified that said patient was admitted in their hospital on 13.10.13 till 01.11.13. He Surender Malik Vs. Sunil Sharma & Ors. Page 11 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 exhibited the aforesaid record of said patient as Ex. PW2/1(colly). He had also exhibited the medical bill running to 11 sheets, which were issued by their hospital as Ex. PW2/2. During his crossexamination on behalf of insurance company, he deposed that he had no personal knowledge about the case. However, respondents no. 1 & 2 did not crossexamine him at all.
27. Apart from aforesaid documents produced by PW2, the petitioner has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had sustained fracture, acetabulam(hip joint) bilateral and fracture fibula and was operated upon for fracture acetabulam (right) by putting plates and screws. Not only this, he is also shown to have sustained permanent disability to the extent of 41% in relation to both lower limbs in view of Disability Certificate(Ex. PW3/5) and in view of ocular testimony of PW4 Dr. Jitender Singh of BSA Hospital. Considering the nature of injuries sustained by petitioner and in view of ocular testimonies of the witnesses available on record, it is presumed that he would not have been able to work at all atleast for a period of twelve months or so.
28. Apart from the bald statement made by PW3 Surinder Kumar that he was earning Rs. 15,000/per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. However, the injured has filed copies of certificate and marksheet of 10th class which are Ex. PW3/2(colly).
29. In the absence of any definite evidence with regard to actual avocation and monthly income of petitioner, his monthly income is being assessed as that of Matriculate under Minimum Wages Act applicable during the relevant period. The Minimum Wages of Matriculate under Minimum Wages Act were Rs. 9,802/ per month as on the date of accident i.e. Surender Malik Vs. Sunil Sharma & Ors. Page 12 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 13.10.2013. Thus, a sum of Rs. 1,17,624/ (Rs. 9,802/ x 12) is awarded in favour of petitioner and against the respondents under this head.
PAIN AND SUFFERING
30. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
31. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW3/A) that he had sustained fracture acetabulum B/L, fracture fibula left, multiple puncture wounds over right upper eyelid , multiple lacerated wound over right forearm, multiple abrasions over right flank and right elbow and abrasions and blunt injuries all over his body. He has sustained permanent disability to the extent of 41% in relation to his both lower limb. Apart from the fact that the relevant portion of his testimony in this regard, has gone unchallanged and unrebutted from the side of respondents, his ocular testimony is duly corroborated by his medical treatment record (which is Ex. PW2/1 colly)filed by him. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs. 1,50,000/ towards pain and sufferings to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Surender Malik Vs. Sunil Sharma & Ors. Page 13 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.20158 by Hon'ble Delhi High Court).
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
32. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered fracture acetabulum B/L, fracture fibula left, multiple puncture wounds over right upper eyelid , multiple lacerated wound over right forearm, multiple abrasions over right flank and right elbow and abrasions and blunt injuries all over his body due to the accident in question. He has also sustained permanent disability of 41% in relation to his both lower limbs, which is duly established from the testimony of PW4 Dr. Jitender Singh and Disability Certificate (Ex. PW3/5) issued by BSA Hospital, Rohini, Delhi. It is mentioned in the Disability Certificate that the case of petitioner is that of stiffness and pain in right hip. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,50,000/ towards loss of amenities of life to the petitioner. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.20158 by Hon'ble Delhi High Court).
CONVEYANCE & SPECIAL DIET CHARGES
33. Although, the petitioner/injured as PW1 has deposed that he had spent Rs. 30,000/each towards special diet and conveyance and Rs. 36,000/ on attendant but he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that he had suffered fracture acetabulum B/L, fracture fibula left, multiple puncture wounds over right upper Surender Malik Vs. Sunil Sharma & Ors. Page 14 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 eyelid, multiple lacerated wound over right forearm, multiple abrasions over right flank and right elbow and abrasions and blunt injuries all over his body due to the accident in question. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 8,000/ for conveyance charges and a sum of Rs. 15,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
34. As already stated above, the petitioner is shown to have sustained 41% permanent disability in relation to his both lower limb. Same is quite evident from Disability Certificate dated 30.05.15 (Ex. PW3/5) of Medical Board of BSA Hospital. The petitioner has also testified in this regard while examining himself as PW1 during enquiry. He has not been crossexamined by the respondents on this aspect. As per the testimony of PW4 Dr. Jitender Singh who was one of the members of Disability Board constituted at BSA hospital, the petitioner was found to have suffered 41% permanent disability in relation to his both lower limb. He also proved Disability Certificate already Ex. PW3/5 in this regard. All the three respondents preferred not to crossexamine the said witness at all.
35. PW4 has categorically deposed that as per assessment of disability of the injured by members of Medical Board, he would be having difficultly in climbing stairs, standing on affected legs, squatting on floor, sitting cross legs and in kneeling. He also deposed that the said disability was Surender Malik Vs. Sunil Sharma & Ors. Page 15 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 permanent in nature and was not likely to be improved. Keeping in view the fact that the permanent disability sustained by petitioner is in relation to both lower limbs, he can not be expected to perform any work/job requiring him to remain standing continuously for long duration or involving field visits. He can perform only such kind of activities wherein he can remain sit or can travel by any mode of transport. Hence, his functional disability is taken as 40% with regard to whole body. The petitioner was aged about 35 years of age as on the date of accident, as averred in his affidavit(Ex. PW3/A). As per copy of his 10th class marksheet( Ex. PW3/2), his date of 16.06.1980. The date of accident is 13.10.2013. In view of said document, his age would come somewhere between 3334 years as on the date of accident. Hence, the appropriate multiplier would be 16 in view of recent pronouncement made by constitutional bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The notional monthly income of petitioner has been taken as Rs.9,802/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 3,920.80 paise (Rs. 9,802/ x 40/100 ). The total loss of future income would be Rs. 10,53,911.04 paise (Rs. 3,920.80 paise x 140/100 x 12 x 16). Thus, a sum of Rs. 10,54,000/ (rounded off) is awarded in favour of petitioner under this head. (Reliance placed on decisions of Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors.", MAC APP No. 464/2011 decided on 03.11.17 and "ICICI Lombard General Insurance Company Limited Vs. Mahesh Kumar & Ors.", MAC APP No. 843/2011, decided on 03.11.17).
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 2,56,471/
2. Loss of income Rs. 1,17,624/
3. Pain and suffering Rs. 1,50,000/
4. Loss of general amenities of life Rs. 1,50,000/ Surender Malik Vs. Sunil Sharma & Ors. Page 16 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018
5. Conveyance, special diet and attendant Rs. 38,000/ charges
6. Loss of future income Rs. 10,54,000/ Total Rs. 17,66,095/ Rounded off to Rs. 17,66,000/
36. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence since it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured/Respondent no. 2. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as it is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO. 3 RELIEF
37. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 17,66,000/ alongwith interest @ 9% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 17.02.2014 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT
38. Statement of petitioner in terms of Clause 26 MCTAP was recorded on 19.09.2017. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 2,00,000/ (Rupees Two Lacs Only) shall be immediately released to the petitioner through his saving bank account no.
Surender Malik Vs. Sunil Sharma & Ors. Page 17 of 19MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 34335829117 with SBI, Rohini District Court Branch, Delhi having IFSC Code No. SBIN0010323 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest. However, it shall be open for the claimant to get the appropriate amount, out of the awarded amount, relesed for the purpose of his future treatment in the form of his right hip replacement surgery as and when so required to be undergone by him.
39. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimant/petitioner. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant/petitioner.
(ii) The maturity amount(s) of the FDR(s) shall be credited to the savings bank account of the claimant(s) in a nationalized bank near the place of his residence.
(iii) No cheque book/Debit Card be issued to the claimant(s) in respect of the savings bank accounts in which the award amount is to be sent/credited, without permission of the Court. However, in case the debit card and/or cheque book have already been issued, the bank shall cancel the same before the disbursement of the award amount.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
40. During the course of hearing final arguments, claimant was examined in order to ascertain as to whether he was entitled to exemption from deduction of TDS or not. He made statement on oath that he was entitled Surender Malik Vs. Sunil Sharma & Ors. Page 18 of 19 MACP No. 5496/16 (Old MACP No. 81/14; FIR No. 416/13; PS. K.N.K. Marg DOD: 23.03.2018 to exemption from deduction of TDS and also furnished Form No. 15G on record.
41. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 2,00,000/ in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Order be given dasti alongwith Form 15G in original (on retaining photocopy thereof on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 23.03.2018 (VIDYA PRAKASH) Judge MACT2 (North) Rohini Courts, Delhi Surender Malik Vs. Sunil Sharma & Ors. Page 19 of 19