Delhi District Court
Prabhat Kumar Beheru vs . Robin Tanwar & Ors. on 26 November, 2020
IN THE COURT OF DR. HARDEEP KAUR
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
MACT No. 455/18
FIR no.07/18
U/s 279/338 IPC
Prabhat Kumar Beheru Vs. Robin Tanwar & Ors.
PS Sarita Vihar
CNR No DLSE010027452018
Compensation case regarding injury to Prabhat Kumar Beheru, aged about 41
years, with 80% permanent physical impairment in relation to his right lower
limb
PRABHAT KUMAR BEHERU
S/O SH. NURSHING BEHRU
Address 226A,CHURRIYA MOHALLA MADANPUR KHADAR NEW DELHI
................Petitioner
1) ROBIN TANWAR
S/O LT SH. SURESH TANWAR
.........Respondent no.1/Driver
2) SACHIN TANWAR S/O LT. SH. SURESH TANWAR .......Respondent no.2/Owner BOTH R/O :
DAIRY FARM NO. 15 DAIRY FARM MADANPUR KHADAR, NEW DELHI
3) TATA AIG GIC DLF TOWER JASOLA SARITA VIHAR, NEW DELHI.
.................Respondent no.3/Insurance Company Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 1 of 16 ...................Respondents Date of accident : 14.01.2018 Date of filing of DAR : 02.04.2018 Date of Decision : 26.11.2020 AWARD
1. DAR where no serious question of law or fact are involved can be disposed off by short orders. Negligence on the part of respondent no.1 is to be proved on the basis of preponderance of probability, quantum of compensation is to be determined and in case the insurance company has raised any defence the liability to pay compensation is to be fixed.
2. Brief facts of case are that on 14.01.2018 at 03.00 PM, petitioner took battery rickshaw from L Pocket, Sarita Vihar, New Delhi for going towards Red Light, Mathura Road, New Delhi. As soon as, he reached at Gate no.1, Dairy Farm, Madanpur Khadar, New Delhi, one vehicle /car bearing no. DL 3CCM 7239 came from Red Light, Madanpur Khadar, and took right turn dangerously towards gate no.1, Madanpur Khadar in high speed in rash and negligent manner and hit the battery rickshaw. Due to such forceful impact, the battery rickshaw, overturned and petitioner's leg got fractured.
3. Thereafter, he was taken to Safdarjung Hospital by police officials through ambulance where his MLC bearing no. 86134/2018 got prepared by the doctors. As per MLC injured Prabhat Beheru sustained grievous injuries. Further, Medical Board of Pt. Madan Mohan Hospital, Malviya Nagar, New Delhi sent disability report dated noticing 80% permanent physical impairment in relation to his right lower limb.
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4. FIR No.07/18 was registered at PS Sarita Vihar, in respect of present accident. After completion of investigation, IO filed charge sheet against respondent no. 1 under Section 279/338 IPC.
5. In response to DAR Driver and Owner appeared and filed their joint Written Statement stating that petitioner has not come with his clean hands before this Tribunal and no such accident as alleged has taken place with the vehicle no. DL 3CCM 7239.
6. In response to DAR, respondent No. 3/Insurance Company filed its reply, stating that the accident caused on account of sole negligence of the driver of the rickshaw as he suddenly came in front of the offending vehicle while the injured was riding on the rickshaw. Therefore, neither the owner nor the insurance company of the vehicle can be asked to pay compensation to the petitioner. It is admitted that the offending vehicle was insured with the answering respondent vide policy no.N88942742 for the period of 18.09.2017 to 17.09.2018. Legal offer was also filed by the insurance company which is not accepted by the petitioner and thereafter, matter proceeded further.
7. From the pleadings of parties, the following issues were framed on 19.09.2018 by Predecessor of this Tribunal:
1. Whether injured Prabhat Kumar suffered injuries in a road traffic accident on 14.01.2018 due to rash and negligent driving of vehicle no. DL 3CCM 7239, being driven by R1, owned by R2 and insured with R3? OPP
2. Whether the injured is entitled to any compensation? If so, to what amount and against which of the respondents?
3. Relief.
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8. Petitioner Prabhat Beheru entered the witness box as PW1. He has tendered his evidence by way of affidavit as Ex.PW1/A. He relied upon copy of his Aadhar Card as Ex.PW1/1, copy of MLC filed with DAR as Ex.PW1/2, copy of FIR filed with DAR as Ex. PW1/3, DAR as Ex.PW1/4 and Original Medical Bills amounting to Rs. 16,808/ as Ex.PW1/5 (colly).
9. During evidence by way of affidavit, petitioner deposed that on 14.01.2018 at 03.00 PM, he took battery rickshaw from L Pocket, Sarita Vihar, New Delhi for going towards Red Light, Mathura Road, New Delhi. As soon as, he reached at Gate no.1, Dairy Farm, Madanpur Khadar, New Delhi, one vehicle /car bearing no. DL 3CCM 7239 came from Red Light, Madanpur Khadar, and took right turn dangerously towards gate no.1, Madanpur Khadar in high speed in rash and negligent manner and hit the battery rickshaw. Due to such forceful impact, the battery rickshaw, overturned and his leg got fractured.
10. During cross examination, PW1 denied the suggestion that accident had occurred due to the negligence of erickshaw driver in which he was sitting and not due to negligence of vehicle no. DL 3CCM 7239. He denied the suggestion that injury sustained by him was not from any accident while sitting in the erickshaw.
11. No other evidence has been led on behalf of petitioner.
12. No evidence was led on behalf of respondents.
13. Arguments were addressed by learned counsel for the petitioner and Ld. Counsel for Insurance Company. Written submissions in form VI B filed on Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 4 of 16 behalf of petitioner.
14. On the basis of material on record, evidence adduced and arguments addressed, issue wise findings are as under : Issue No. 1
15. Negligence in a compensation case before Claims Tribunal is to be proved by preponderance of probability and the test is not as strict as in a criminal case.
16. In this case, injured while appearing into the witness box made statement and narrated the mode and manner of the accident as well as regarding negligent driving of respondent No. 1. Respondent no.1/ Driver of the offending vehicle did not enter the witness box to rebut the evidence of PW1. In Cholamandlam Insurance Company Ltd. Vs. Kamlesh 2009(3) ADDelhi 310 it was held that if driver does not enter the witness box, an adverse inference can be drawn against him. As such claimant's testimony has gone unchallenged.
17. Police after investigation had filed chargesheet against respondent no.1 under section 279/338 IPC Act which is also suggestive of negligence of respondent in causing the accident. The IO has filed Detailed Accident Report before this Tribunal. In National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of charge sheet u/s 279/304A IPC are sufficient proof of negligence of the driver of the offending vehicle.
18. It is well settled that the proceedings before the Claims Tribunal are in the nature of inquiry and the finding of rash and negligent driving by driver of Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 5 of 16 the offending vehicle is to be returned only at the touch stone of preponderance of probabilities. The factors noted above are sufficient to conclude that preponderance of probability is made out showing negligence of respondent no.1 in causing the accident.
19. In view of the evidence adduced by petitioner, coupled with charge sheet against R1, issue no.1 is decided accordingly, in favour of the petitioner.
20. Now, the compensation would be assessed on the basis of evidence adduced on record by the petitioner.ISSUE NO. 2
Compensation Sl. Pecuniary loss : Quantum no.
1. (I) Expenditure on treatment : As per Rs.16,750/ Ex.PW1/5, there are medical bills worth Rs.16,750/.
(ii) Expenditure on Conveyance : The Rs.25,000/ claimant has not filed any bill for conveyance. The nature of injuries are grievous which led to 80% permanent physical impairment in relation to his right lower limb. By guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : There is no Rs.25,000/ prescription for special diet. The nature of injuries are grievous which led to 80% permanent physical impairment in relation to his right lower limb. By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even in the Rs.25,000/ absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
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(v) Loss of income : The petitioner has stated Rs.80,100/ that before the accident he was doing work of plumber and earning Rs. 25,000/ per month. However, neither any document supporting his income or employment filed by the petitioner nor any witness was examined to prove the same. Hence, his income is taken as per minimum wages of an unskilled person applicable in Delhi at the time of accident which was Rs.13,350/. Considering the nature of injury, disability report as well as medical documents, he is awarded Rs. 80,100/ for 6 months loss of wages.
(vi) Cost of artificial limb (if applicable) : Not Applicable
(vii) Any other loss / expenditure : Not applicable
2. NonPecuniary Loss :
(I) Compensation of mental and physical Rs.1,00,000/ shock : As the petitioner has suffered grievous injury which led to 80% permanent physical impairment in relation to his right lower limb, he would have undergone mental and physical shock.
(ii) Pain and suffering : Compensation for Rs. 50,000/ pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the claimant.
(iii) Loss of amenities of life : The claimant Rs.50,000/ has suffered 80% permanent physical impairment in relation to his right lower limb,
(iv) Disfiguration : The claimant has suffered Rs.1,00,000/ 80% permanent physical impairment in relation to his right lower limb,
(v) Loss of marriage prospects : NIL
(vi) Loss of earnings, inconvenience, Already covered above hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
3. Disability resulting in loss of earning Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 7 of 16 capacity (I) Percentage of disability assessed and The claimant has suffered nature of disability as permanent or 80%permanent physical temporary impairment in relation to his right lower limb,
(ii) Loss of amenities or loss of expectation Already covered. of life span on account of disability : The claimant has suffered 40% permanent disability in relation to his right foot crush injury.
(iii) Percentage of loss of earning capacity in 40% relation to disability: (iii) Percentage of loss of earning capacity in relation to disability: Injured has suffred 80% permanent physical impairment in relation to his right lower limb.
In Raj Kumar Vs. Ajay Kumar 2011 (1) SCC 343 the Hon'ble Supreme Court laid down a three step approach to decide compensation for the injured persons who have suffered permanent disability as under:
i) Tribunal should see as to what the injured can do inspite of permanent disability and what the injured cannot do.
ii) Tribunal should see the age of the injured and what the injured used to do before the accident.
iii) Tribunal should see if claimant is totally disabled from earning any kind of livelihood or whether he can carry out that activity which he was doing earlier or if he could do some other kind of activity to earn his livelihood.
In the present case, injured deposed that he was working as a plumber and was earning Rs.25,000/ per month. However, he has not examined any witness to prove his employment nor he has filed original documentary proof regarding his earning.
Since Petitioner suffered 80% permanent physical impairment in relation to his right lower limb, his functional disability is treated as 40% to affect his earning capacity.
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(iv) Loss of future Income: (the claimant has (40% of 13,350) X 12 X 14 suffered 80% permanent physical disability in = Rs. 8,97,120/ relation to his right lower limb. However, the functional disability is treated as 50% due to such disability. The income of claimant on the date of accident was Rs.13,350/ per month. Petitioner being aged around 41 years at the time of accident hence multiplier of 14 will be applicable.
Total Compensation Rs. 12,68,970/
Interest 9% p.a. from the date of
filing of DAR that is
02.04.2018 till realization.
Liability :
21. The next question is which respondent is liable to pay the compensation to the petitioner.
22. Since there is no statutory defence, therefore, the compensation will be payable by the insurance company of offending vehicle with interest @ 9% p.a. from the date of filing of DAR that is 02.04.2018 till realization which is Rs. 12,68,970/ + Rs. 3,01,632 = 15,70,602.
23. 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 FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any, to the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 9 of 16 TRIBUNAL AGREED PROCEDURE' (MCTAP).
24. 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 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.
25. 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, the respondent no.3 is directed to deposit the amount of Rs. Rs. 15,70,602/ as stated herein above with SBI, Saket Courts, Delhi out of which Rs.14,00,000/ shall be kept in 70 FDRs of Rs. 20,000/ on a monthly basis with cumulative interest. Remaining amount of Rs. 1,70,602/ be released to the petitioner in his bank account.
26. The following conditions are to be adhered to by SBI, Saket Courts, Delhi with respect to the fixed deposits:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 10 of 16 System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not be issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card (s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
27. 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, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 02222741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by email to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the email as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 11 of 16 1 Date of accident 14.01.2018 2 Name of injured Prabhat Beheru 3 Age of the injured 41 years at the time of accident.
4 Occupation of the injured Not proved 5 Income of the injured Rs. 13,350/ as per minimum wages applicable in Delhi for unskilled workman at the time of accident.
6 Nature injury Grievous injury
7 Medical treatment taken by the Open Traumatic IIIB Segmental BB Leg
injured: (R)
8 Period of Hospitalization 14.01.2018 to 15.01.2018 VMCC
Safdarjung Hospital
9 Whether any permanent Yes. 80% permanent disability in relation
disability? to his right lower limb
Computation of Compensation
S. No. Heads Awarded by the Tribunal
1 Pecuniary Loss:
(i) Expenditure on treatment Rs. 16,750/
(ii) Expenditure on conveyance Rs. 25,000/
(iii) Expenditure on special diet Rs. 25,000/
(iv) Cost of nursing / attendant Rs. 25,000/
(v) Loss of income Rs. 80,100/
(vi) Any other loss which may require NIL
any special treatment or aid to
the injured for the rest of his life.
Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 12 of 16
2 NonPecuniary Loss:
(i) Compensation for mental and Rs. 1,00,000/
physical shock
(ii) Pain and suffering Rs.50,000/
(iii) Loss of amenities of life Rs. 50,000/
(iv) Disfiguration Rs. 1,00,000/
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Already covered
hardships, disappointment, above
frustration, mental stress,
dejectment and unhappiness in
future life etc.
3 Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed 80%
and nature of disability as
permanent or temporary
(ii) Loss of amenities or loss of Already granted above
expectation of life span on
account of disability
(iii) Percentage of loss of earning 40%
capacity in relation to disability
(iv) Loss of future income (income x
percentage earning capacity x Rs.8,97,120/
multiplier)
4 TOTAL COMPENSATION Rs. 12,68,970/
5 INTEREST AWARDED
6 Interest amount up to the date of Rs. 3,01,632/
award
7 Total amount including interest Rs. 15,70,602/
8 Award amount released Rs. 1,70,602/
9 Award amount kept in FDRs Rs. 14,00,000/
10 Mode of disbursement of the Out of total Award amount Rs.
award amount to the petitioner
14,00,000/ shall be kept in 70
(s) (Clause 29)
FDRs of Rs. 20,000/ on a
monthly basis with cumulative
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interest. Remaining amount of
Rs. 1,70,602/ be released to the
petitioner in his bank account.
11 Next Date for compliance of the 04.01.2021
award. (Clause 31)
PARTICULARS OF FORMV ARE AS UNDER:
1 Date of the accident 14.01.2018
2 Date of intimation of the accident by the Not mentioned
Investigating Officer to the Claims
Tribunal. (Clause 2)
3 Date of intimation of the accident by the Not mentioned
Investigation Officer to the Insurance Company. (Clause 2) 4 Date of filing of Report under Section 173 Not mentioned Cr.P.C. before the Metropolitan Magistrate. (Clause 10) 5 Date of filing of Detailed Accident 02.04.2018 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10) 6 Date of service of DAR on the Insurance 02.04.2018 Company. (Clause 11) 7 Date of service of DAR on the 02.04.2018 claimant(s). (Clause 11) 8 Whether DAR was complete in all Yes.
respects? (Clause 16) 9 If not, state deficiencies in the DAR NA 10 Whether the police has verified the Yes documents filed with DAR? (Clause 4) 11 Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action / direction warranted.
12 Date of appointment of the Designated No mentioned Officer by the Insurance Company.
(Clause19) Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 14 of 16 13 Name, address and contact number of No mentioned the Designated Officer of the Insurance Company. (Clause 19) 14 Whether the Designated Officer of the Not mentioned Insurance Company submitted his report within 30 days of the DAR? (Clause 21) 15 Whether the Insurance Company Yes admitted the liability?, if so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law (Clause 92).
16 Whether, there was any delay or No deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action / direction warranted? 17 Date of response of the claimants to the 19.01.2018 offer of the Insurance Company. (Clause
23) 18 Date of award. 26.11.2020 19 Whether the award was passed with the No consent of the parties? (Clause 22) 20 Whether the claimant (s) were directed to Yes open savings bank account (s) near their place of residence? (Clause18) 21 Date of order by which claimant (s) were 02.04.2018 directed to open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not to issue any cheque book / debit card to the claimant
(s) and make an endorsement to this effect on the passbook (s) (Clause18 ).
22 Date on which the claimant (s) produced Not produced yet the passbook of their saving bank account near the place of their residence, along with then endorsement, PAN Card and Aadhar Card. (Clause 18) 23 Permanent residential address of the 226A,CHURRIYA claimant (s)? (Clause 27) MOHALLA MADANPUR Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 15 of 16 KHADAR NEW DELHI 24 Details of saving bank account (s) of the Bank details not filed claimant (s) and the address of the bank with IFS Code. (Clause 27) 25 Whether the claimant (s) saving bank Yes account (s) is near his place of residence? (Clause 27) 26 Whether the claimant (s) were examined Yes at the time of passing of the award to ascertain his / their financial condition? (Clause 27) 27 Account Number, MICR Number, IFS State Bank of India, Code, Name and Branch of the Bank of Saket Court the Claims Tribunal in which the award A/C No. 35195787436 amount is to be deposited/transferred. IFS CodeSBIN0014244 MICR No.110002342
28. Copy of this award be given to the parties free of cost. The copy of award be sent to the DLSA and Ld. Metropolitan Magistrate.
29. List on 04.01.2021 for appearance of petitioner to file bank details and for compliance. Digitally signed by DR DR HARDEEP HARDEEP KAUR Date:
Typed to the dictation directly, KAUR 2020.11.26 corrected and pronounced in open 16:33:25 +0530 Court on 26.11.2020 (DR. HARDEEP KAUR) POMACT (SouthEast) Saket Courts/ New Delhi Mact No.455/18 Prabhat Kumar Beheru Vs. Robin Tanwar & Ors. Page No. 16 of 16