Delhi District Court
Anuradha (Minor) vs . Ashok Pandey & Ors. on 14 January, 2021
MORETHAN FIVE YEARS OLD MATTER
IN THE COURT OF SH. M. K. NAGPAL
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
ANURADHA (MINOR) VS. ASHOK PANDEY & ORS.
MACP No. 88/2015
Ms. Anuradha Varma
Minor being represented through her father/
natural guardian Sh. Roshan @ Roshan Lal Varma
R/o Jite Ka Makan, Near Old Allahabad Bank,
Rajokari Village, New Delhi.
Also at:-
215, Kothilasaiyan, Behta Gokul,
Hardoi, Uttar Pradesh-241125.
......Claimant/Injured
Versus
1. Sh. Ashok
S/o Sh. Laxman
R/o H. No. 113-A, Block RZQ,
Nihal Vihar, Nangloi,
New Delhi-110041.
2. M/s. The Sunworld Travels
Through its Proprietor
Sh. Sunil Kumar
239/10, Shanti Nagar,
Gurugram, Haryana.
3. M/s Reliance General Insurance Co. Ltd.
Reliance Centre, 19 Walchand Hirachand Marg,
Ballard Estate, Mumbai.
.....Respondents
Date of filing of DAR : 14.07.2015
Date of filing of claim petition : 07.09.2015
Date of framing of issues : 07.09.2015
Date of concluding arguments : 11.01.2021
Date of decision : 14.01.2021
AWARD/JUDGMENT
1. The claim for compensation raised in this petition relates to MACP No. 88/2015 Page no. 1of 21 injuries suffered by the minor claimant Ms. Anuradha in a road accident that took place on 08.02.2015, at about 4.30 pm, Near Pradeep General Store, Rajokari Village, New Delhi, regarding which one FIR bearing no. 141/15, under Sections 279/337 IPC was registered at PS Vasant Kunj South. The offending vehicle involved in this case is a car/cab of make TATA Etios bearing registration no. HR-55S-6090, which at the relevant time of accident was being driven by R-1, owned by R-2 firm and insured with R-3.
2. The case of claimant, who is a minor girl aged around 9 years and has filed the present claim petition through her father/natural guardian, is that on the above said date, time and place of accident she was going on foot when the above offending car had suddenly gone to hit her and as a result thereof, she fell on road and suffered severe injuries. She was admitted in Tirath Ram Hospitals Pvt. Ltd. Gurugram for treatment and her MLC was prepared there. She was diagnosed to have suffered fractures of both bones of her right leg, i.e. tibia and fibula, and she was subjected to a surgery with implants. She was discharged from hospital on 11.02.2015. The nature of injuries suffered by her was subsequently declared as grievous, but admittedly, it did not result into any permanent disability to her as though her disability examination by a medical board of Dr. RML Hospital was directed by this tribunal vide order dated 14.03.2016, but it was reported vide letter dated 23.05.2016 that she did not suffer from any permanent disability.
3. One Detailed Accident Report (DAR) bearing no. D-203/2015 with regard to above accident was filed before this tribunal on 14.07.2015 and this claim petition also came to be filed on behalf of claimant on 07.09.2015 and on the same day, the DAR was clubbed with this petition for further proceedings.
4. R-1 & R-2 in their joint reply filed to the DAR had denied the above accident or the alleged rash and negligent driving on the part of R-1 and they also claimed that even if they are held liable to pay any compensation to the claimant, R-3 is liable to pay it as their vehicle was MACP No. 88/2015 Page no. 2of 21 insured with R-3 at the time of accident.
5. R-3/Insurance Co. in its reply had though admitted issuance of a policy of insurance in the name of R-2 and its existence at the relevant time of accident, but it was submitted by it that its liability to pay compensation in the present case was subject to terms and conditions of said policy and the same stood violated as R-1 was not holding a valid and effective driving licence (DL) at the time of accident.
6. No separate WS/reply to the present claim petition has been filed on behalf of any of the respondents and they have adopted the above said replies filed to the DAR as their replies to the claim petition as well.
7. On 07.09.2015, this tribunal had framed the following issues for disposal of claim of the claimant raised in this petition :-
1. Whether the injured sustained injuries in the accident which occurred on 08.02.2015 at about 04.30 pm, Near Pardeep General Store, Rajokri Village, New Delhi caused by rash and negligent driving of vehicle No. HR 55-S 6090 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
8. I have heard the arguments advanced by Sh. Manoj Goel, Ld. Counsel for claimant/petitioner, Sh. Devan Sharma, Ld. Counsel for R-1, Sh. Rahul Prashar, Ld. Counsel for R-2 and Sh. Nar Singh, Ld. Counsel for R-3. The case record including the written submissions filed on behalf of parties have also been perused. My findings on the above issues are as under :-
ISSUE No. 19. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this MACP No. 88/2015 Page no. 3of 21 burden is infact even lesser than that in a civil case.
10. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
11. The petitioner in support of her claim has examined on record total two witnesses. PW1 Sh. Roshan @ Roshan Lal Varma is her father and PW2 Sh. Satyapal is the alleged eyewitness of accident. They both have tendered on record their examinations-in-chief by way of their respective affidavits Ex.PW1/A and Ex.PW2/A. However, since admittedly PW1 is not an eyewitness of the above accident, it is only the testimony of PW2 which matters for determination of the present issue.
12. In his above affidavit Ex.PW2/A, PW2 has made specific depositions regarding the factum as well as manner of the above accident. He claims that he happened to see the accident when he was going to a nearby saloon and the claimant was just walking ahead of him when she was hit by the offending TATA Etios car. He further claimed specifically in his affidavit that the car came being driven at a very high speed and in a rash and negligent manner, besides without blowing any horn etc., and it had hit the claimant from behind. He also claimed in his affidavit regarding making a call to father of the claimant, who was already known to him, taking of the injured to hospital in the offending car itself with the help of its driver and the subsequent arrival of father of claimant as well as of police in the hospital etc. He also tendered on record a copy of his aadhar card Ex.PW2/1 to his establish identity.
13. Though PW2 was duly cross examined by Ld. Counsel for respondents, but it has been observed that nothing material could be extracted out from him to make this tribunal disbelieve or discard his MACP No. 88/2015 Page no. 4of 21 testimony with regard to manner in which the above accident took place. Even during his cross-examination, he reiterated that he had witnessed the above accident just from a very short distance of around 1½ - 2 meters and the offending car had hit the claimant from behind from its left side. He further reiterated his claim of having removed the injured to hospital with the help of R-1. He has also specifically denied the contrary suggestions given to him by Ld. Counsel for respondents to the effect that he did not witness the above accident or that it did not take place due to rash and negligent driving of R-1 or that the above car as well as R-1 were falsely implicated in this case simply because R-1 had stopped his car to help out the injured.
14. Though the testimony of this witness has been countered by R-1 by tendering on record his own examination-in-chief through affidavit Ex.R1W1/A, after stepping into the witness box as R1W1 in his defence, but the same is not sufficient to counter/neutralize the effect of clear and specific depositions made by PW2. Though R-1 may be bound to depose in his own defence to escape his liability, but this tribunal fails to see any reason or ground on the part of PW2 for deposing falsely in favour of the claimant. Hence, simply because this witness was residing in the same locality or he knew the father of claimant prior to the accident is not a ground to disbelieve or discard his testimony and rather, he is found to be a natural witness of the above accident and there is no reason or ground available to this tribunal to disbelieve him or to discard his testimony.
15. Moreover, the oral testimony of PW2 is also found to be duly substantiated from documents filed as a part of the DAR, which not only include a copy of FIR and chargesheet of the above criminal case, but also the copies of site plan of place of accident, seizure memo of offending car and its documents, MLC of claimant and her treatment record and also the arrest memo of R-1 etc. R-1 during his cross- examination has also specifically admitted that he is already facing trial in the above criminal case for charges punishable under Sections 279/338 IPC for causing grievous injuries on the person of claimant and this very MACP No. 88/2015 Page no. 5of 21 fact is, in itself a circumstance, to corroborate the case of petitioner on this aspect. Further, he has also admitted in his cross-examination that despite having been chargesheeted in the above case, he has never made any complaint or representation to any authority regarding his false implication in the said case.
16. Therefore, on the basis of above factual and legal discussion, it is held that the oral evidence led on record by petitioner is duly substantiated by the documentary evidence and it stands proved that the above accident resulting into grievous injuries on her person was caused due to the rash and negligent act of R-1 in driving the above offending car/cab bearing registration no. HR-55S-6090, which was owned by R-2 and insured with R-3 at the relevant time of accident. This issue is accordingly decided in favour of the petitioner/claimant and against the respondents.
17. ISSUE NO.2 As the issue no.1 has been proved in affirmative and in favour of the petitioner, the claimant has become entitled to be compensated for injuries suffered in the above accident, but the computation of compensation and liability to pay the same are still required to be decided.
In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the MACP No. 88/2015 Page no. 6of 21 expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made some of the important judgments on the subject like the judgment in the case of R.D.Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr.,(2011)1 SCC
343.
18. In light of the above legal propositions, amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses As stated above, the petitioner has suffered grievous injuries in the form of fractures of both bones of her right leg, i.e. tibia and fibula, but it did not result into any permanent disability to her. PW1 is also found to have tendered on record the documents Ex.PW1/1 to PW1/10 and Mark A to Mark C in support of claim of his minor daughter and these MACP No. 88/2015 Page no. 7of 21 documents mainly consist of the treatment record of his daughter and their identity documents. However, except the documents Ex.PW1/9 (colly-13 pages), no other document tendered in evidence on behalf of the petitioner shows any expenses borne out by PW1 in connection with treatment of his minor daughter/claimant. Even the documents Ex.PW1/9 (colly) tendered in evidence are found to be the bills/invoices alleged to have been issued in respect of traveling of petitioner and hence, the same will be discussed and appreciated under the relevant head pertaining to conveyance charges in later part of this judgment. However, since under this head the claimant is to be compensated only for her actual medical expenses and her entire treatment is found to be of government hospital
(s), she is not held entitled to any amount of compensation under this head.
(ii) Loss of earnings As already discussed, the petitioner is claimed to be just aged around 9 years and a student of second class at the time of accident. PW1 is also found to have tendered on record, inter-alia, copy of school identity card of petitioner as Ex.PW1/1, a certificate issued by her school as Ex.PW1/2 and a copy of her aadhar card as Ex.PW1/10. In documents Ex.PW1/1 and PW1/10, the date of birth of petitioner is found recorded as 21.03.2006 and the document Ex.PW1/2 shows that she was a student of second class in Delhi Nigam Pratibha Vidyalaya Rajokari Kanya, New Delhi-110038. However, it is observed that the certificate Ex.PW1/2 is dated 04.04.2015 and since an academic session starts w.e.f. 1st April of an year and the accident in this case took place on 08.02.2015, it appears to this tribunal that the petitioner was only a student of first class at the time of accident and not of second class as has been claimed. Going by the documents Ex.PW1/1 and Ex.PW1/10, age of petitioner at the time of accident comes to around 9 years.
Since the petitioner/claimant was a minor and a student at the time of accident and she was not having any actual earnings, her notional earnings for the purposes of these proceedings are required to be MACP No. 88/2015 Page no. 8of 21 ascertained. In the Second Schedule appended to the Motor Vehicles Act (the M.V. Act), as it stood prior to the amendment in year 2018, notional earnings of a person who was not having any actual earnings, except a spouse, were given as Rs.15,000/- per annum with reference to a claim raised under Section 163A of the said Act on the basis of structured formula, but these earnings had also been resorted to and adopted in some other cases of fault liability under Section 166 of the Act as well. However, it was held by the Hon'ble Supreme Court and the Hon'ble Delhi High Court in some cases that the above amount of notional earnings given in the said Schedule had lost its relevance in the given context and it required immediate revision or amendment.
However, instead of revising the above rate of notional earnings provided in the above said Schedule, the legislature in its wisdom has substituted the said Schedule with a new Schedule vide S.O. 2022 (E), dated 22.05.2018 w.e.f. 22.05.2018 and as per this new Schedule, a fixed amount of Rs.5,00,000/- is payable as compensation in case of death, a fixed amount of compensation of Rs.25,000/- is payable in case of minor injury and in cases of accidents resulting into permanent disability, the compensation which is payable is Rs.5,00,000/- X percentage of disability as per Schedule I of the Employee's Compensation Act, 1923. Thus, no notional income of a non earning person is now given or prescribed in the new Schedule nor any structured formula based on the age or multiplier etc. of a victim has been laid down in the said Schedule.
However, since the accident in this case took place prior to amendment/ substitution of above said Schedule, the legal position which was in force still remains relevant. In case of Chetan Malhotra Vs. Lala Ram & Ors., MAC App. No. 554/10, decided by the Hon'ble High court on 13.05.2016, not only the entire existing law on the subject was discussed, but it was also laid down that such notional earnings to be presumed or taken in respect of children should take into calculations the effect of Cost Inflation Index (CII) as well as the composite non pecuniary MACP No. 88/2015 Page no. 9of 21 damages taking care of not only of the conventional heads but also the future prospects as awarded in the celebrated case of R.K. Malik Vs. Kiran Pal (2009) 14 SCC 1, which should be added to the pecuniary loss of estate calculated on the basis of said notional income in respect of death of a child in a road accident. In this case also his lordship observed that notional income of Rs.15,000/- pa given in Second Schedule of the Act was insufficient. Though the observations have been made by his lordship in a death case but the same stand equally good even in an injury or disability case of a child where his notional income has to be ascertained. The relevant observations made by his lordship and the formula given for calculation of compensation in case of death of a child in the above said case is as under :-
"71. Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows :
1. Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163-A (3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings (in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of non-earning persons (`15000/- p.a.) as specified in the Second Schedule (brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation- corrected with the help of Cost Inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax Act, 1961, by applying the formula indicated hereinafter.
(ii) For inflation-correction, the financial year of 1997- 1998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner:-
[15,000/- x A ÷331 [wherein the figure of „`15,000/-‟ represents the notional income specified in the second schedule requiring inflation-correction; „A‟ represents the CII for the financial year in which the cause of action arose (i.e. the accident / death occurred); and the figure of „331‟ represents the CII for the "base year‟]
1. After arriving at an appropriate figure of the present equivalent value of the notional income (i.e. inflation- corrected amount), it shall be rounded off to a figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall be reduced to two-third, the deduction to the extent of one-third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate (hereinafter also referred to as "the MACP No. 88/2015 Page no. 10of 21 multiplicand").
(v). For assessment of the pecuniary damages on account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non-pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately rounded off, if so required to the nearest (if not next) thousands of rupees, shall be awarded as compensation for the death of the child."
Thus, as per Chetan Malhotra's case, the present equivalent value of the notional income (i.e. inflation- corrected amount) of claimant herein shall be Rs.49,000/- per annum (rounded off to next thousand rupees) (Rs.15,000 X 1081/331) and her monthly notional income comes to around Rs.4,083/- pm (rounded off). Since it is a case of injury and not of death, only the earnings of petitioner are being determined as per the method laid down in above case and neither any pecuniary loss to estate is required to be determined nor any further amount is required to be calculated for addition to the same towards composite non-pecuniary damages. Further, no amount is also required to be reduced or deducted from annual earnings of petitioner towards her personal and living expenses. Hence, under this head, the petitioner is held entitled to be compensated while taking her annual earnings to be Rs.49,000/- per annum.
Now coming to the tentative period of treatment of petitioner, it is observed that PW1 has tendered on record, inter-alia, a copy of one referral form of petitioner from ESIC Hospital, Sector 9, Gurugram, Haryana to Tirath Ram Hospitals, Gurugram as Mark A, a copy of her MACP No. 88/2015 Page no. 11of 21 discharge summary dated 11.02.2015 issued by Tirath Ram Hospitals as Mark B, her original discharge summary dated 18.04.2015 of ESIC Hopsital as Ex.PW1/7, her original consultation slips/treatment record as Ex.PW1/8 (colly) and also copies of some of the above OPD cards/ treatment record again as Mark C. Though originals of documents Mark A to Mark C have not been tendered in evidence, but these documents/ record are found to be duly verified by IO of the criminal case and copies thereof have also been filed by him before this tribunal as a part of the DAR documents and hence, the entire treatment record of petitioner can be considered and appreciated by this tribunal.
The treatment record of petitioner reflects that though initially she was taken to ESIC Hospital at Sector 9, Gurugram from the spot of accident, but on the same day, she was got admitted in Tirath Ram Hospitals, Gurugram and was discharged from there on 11.02.2015. It further shows that during her above hospitalization, she was subjected to a surgery under general anethesia with insertion of implants for fixation of fracture injuries of both bones of her right leg. Again, she was got admitted in ESIC Hospital on 16.04.2015 and had undergone another surgery under general anethesia for removal of TENS (Transcutaneous Electric Never Stimulation) as she was having pain in her right knee. The OPD cards/prescription slips of petitioner tendered as Ex.PW1/8 (colly) show that her treatment from ESIC had continued in OPD till around April, 2015 and it further appears to this tribunal that even thereafter, she might have not been able to do any work or studies for a period of one month or so. Hence, on the basis of evidence tendered on record, this tribunal deems it just and tribunal to compensate the petitioner for loss of earnings for a period of around of three months and therefore, an amount of Rs.12,249/- (Rs.4,083 X 3) is being granted to her under this head.
(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
As discussed under the preceding heads, the claimant had suffered fractures of both bones of her right leg and was subjected to two MACP No. 88/2015 Page no. 12of 21 major surgeries for insertion and removal of implants and her treatment continued for a period of around three months. Though, it is not possible to exactly compensate her for the shock, pain and sufferings etc. which she had actually suffered because of the above injuries, but as stated above, an effort has to be made to compensate her for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the treatment taken by her etc., an amount of R.10,000/- each is being awarded to her towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.5,000/- is also awarded to her towards the loss of amenities suffered during the said period of her treatment and immobility. Thus, she is awarded a total amount of Rs. 25,000/- under this head.
(iv) Conveyance, Special Diet and Attendant Charges As already discussed, certain bills/invoices showing some traveling expenses borne out in connection with treatment of petitioner have also been tendered on record as Ex.PW1/9 (colly-13 pages) during the testimony of PW1. On perusal thereof, it is observed that these are total 13 bills/invoices of different dates i.e. 11.02.2015, 13.02.2015, 16.02.2015, 24.02.2015, 26.02.2015, 09.03.2015, 10.03.2015, 13.03.2015, 27.03.2015, 10.04.2015, 16.04.2015, 24.04.2015 and 27.04.2015 of Rs.700/- each showing the hiring of a cab for up and down journey of petitioner from Rajokari to Gurugram at the rate of Rs.350/- one side, i.e. Rs.700/- for a visit. However, these bills/invoices on the face of its appear to be procured one as these are not bearing or having any serial numbers, stamp or seal of the concerned travel agency/taxi stand from where it was hired. Again, it cannot be believed that on all these 13 days, the same car/cab was hired for performing these journeys. Further, all these invoices are found to be issued by the same person, in same ink and at the same time. Hence, though this tribunal is not inclined to consider and act upon these documents, but still taking note of the nature of injuries suffered by petitioner and extent and duration of her treatment etc., a lump-sum amount of Rs.5,000/- is being granted to her towards MACP No. 88/2015 Page no. 13of 21 conveyance charges. Further, while taking note of the requirement of special diet for early recovery from the injuries suffered in the accident, an amount of Rs. 10,000/- towards the special diet is also being granted to her. Besides the above, the petitioner is also awarded an amount of Rs.15,000/- towards the attendant charges or the gratuitous services which might have been rendered by her family members during the period of her treatment and immobility.
Thus, she is awarded a total amount of Rs.30,000/- under this head.
ISSUE No. 3/Relief
19. The claimant is thus held entitled to a sum of Rs.67,249/- (Rupees Sixty Seven Thousand Two Hundred and Forty Nine only) (Rs. 12,249 + 25,000 + 30,000) along with interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
20. RELEASE Since the claimant is a minor and no amount towards her medical treatment has been granted, the entire amount of compensation is directed to be kept in an FDR for the period till she attains 18 years of age. However, the monthly interest accrued thereon shall be released in her bank account bearing no. 50439909708 opened under guardianship of his father with Allahabad Bank, Rajokri Branch, New Delhi having IFSC Code No. ALLA0210622 in order to meet out her educational and other expenses and amount of the FDR on maturity would also be released in her above said account. The amounts released in her above said account can be withdrawn and utilized by the claimant through his father, either through withdrawal form or biometric authentication etc. as per the banking rules and practice till she attains majority.
To facilitate deposits in the above scheme and disbursement of the awarded amount, the claimant shall also open a saving bank MACP No. 88/2015 Page no. 14of 21 account in the UCO Bank, Patiala House Courts, New Delhi, if not opened earlier.
The above disbursement to the claimant is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount of award or of interim award, if any.
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 of the claimant (s) shall be individual account (s) and not a joint account (s).
The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDRs numbers, FDRs amounts, dates of maturity and maturity amounts shall be furnished by bank to the claimant.
The monthly interest on FDR and the maturity amount thereof shall be credited through Electronic Clearing System (ECS) in the above savings bank account of the claimant.
No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Claimant has already produced before this tribunal her original passbook along with necessary endorsements that no cheque book and/or debit card shall be issued to his above said account and she has also filed copy thereof on record along with copies of her aadhar card and PAN card.
21. LIABILITY As discussed above, R-3/Insurance Co. has admitted the existence of a valid policy of insurance in the name of R-2 in respect of above offending vehicle. However, the terms and conditions of said policy are alleged to have been violated on the ground that R-1 was not holding a valid DL on the date of accident as though he was driving a transport/ commercial vehicle, but his DL did not authorize him to do so as it was issued for a Non-Transport (NT) category of Light Motor Vehicle (LMV).
MACP No. 88/2015 Page no. 15of 21 The verified extracts of DL of R-1 have been filed as a part of DAR documents by the IO and the same are per-se admissible in evidence in view of provisions laid down in Rule 7 of the Delhi Motor Accidents Claims Tribunal Rules, 2008. Even otherwise, the same have not been disputed on behalf of either of the parties. Though as per the same, DL of R-1 was valid for motorcycle with gear and LMV (NT) category of vehicles and admittedly he was driving a commercial/transport vehicle of LMV category at the time of accident, but the same cannot be considered to be a violation of the terms and conditions of policy of insurance of said car in view of judgment given by the Hon'ble Supreme Court in case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd., 2017 ACJ 2011 as it was held in this case that a person holding a NT category of LMV licence is even competent to drive a transport vehicle of that category as according to Section 2 (21) of the M.V. Act a Light Motor Vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.
Hence, in view of the above, it is held that there was no violation of the terms and conditions of insurance policy of offending vehicle on the part of R-1 or R-2 in the present case. Therefore, though R- 1 being driver and principle tort-feasor, R-2 being owner and insured and R-3 being insurer of the offending vehicle are all jointly and severally liable to pay the above amount of compensation to the claimant, but since R-3 has failed to prove any violation of terms and conditions of insurance policy on the part of R-2, R-3/Insurance Co. is directed to pay the awarded amount to claimant and to deposit the same with the UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum from the date of filing of DAR either by way of crossed cheques/DDs in name of the claimant or by way of deposit in any e-form in bank account being maintained in the above said bank in name of this tribunal within 30 days from today. In case even after passage of 90 days from today R-3 fails to deposit this compensation with interest, in that event R-3 shall be liable to MACP No. 88/2015 Page no. 16of 21 pay interest at the rate of 12% per annum for the period of delay beyond 90 days from today and in light of judgment of the Hon'ble High Court in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of R-3 with a cost of Rs.5,000/-.
R-3 shall inform the claimant and her counsel through registered post that the awarded amount is being deposited.
22. A copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
23. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
24. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 08.02.2015
2. Date of intimation of the accident by the Not given Investigation Officer to the Claims Tribunal.
3. Date of intimation of the accident by the Not given Investigating Officer to the Insurance company.
4. Date of filing of Report under Section 173 Not given Cr.PC before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer before Claims .14.07.2015 Tribunal
6. Date of service of DAR on the Insurance
-do-
Company.
7. Date of service of DAR on the claimant(s). -do-
8. Whether DAR was complete in all respects? Yes
9. If not, state deficiencies in the DAR ----
10. Whether the police has verified the documents Yes file with DAR?
11. Whether there was any delay or deficiency on Delay in filing reply the part of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer Not given MACP No. 88/2015 Page no. 17of 21 by the Insurance Company.
13. Name, address and contact number of the Not given Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the Insurance Company submitted his report within No 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of Legal offer not given the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Delay in filing reply Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of the offer Legal offer not given of the Insurance Company.
18. Date of the award 14.01.2021
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near their place of Yes residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the 21.02.2018 claimant (s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced the passbook of their savings bank account near 30.05.2018 the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o. Jite Ka Makan, Near Old Claimant(s) Allahabad Bank, Rajokari Village, New Delhi.
Also at:-
215, Kothilasaiyan, Behta Gokul, Hardoi, Uttar Pradesh-
241125.
24. Details of savings bank account (s) of the A/C No. 50439909708 being claimant(s) and the address of the bank with maintained with with Allahabad IFSC Code. Bank, Rajokri Branch, New Delhi having IFSC Code No. ALLA0210622
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the time of passing of the award to ascertain Yes his/their financial condition?
MACP No. 88/2015 Page no. 18of 21
25. Main file be consigned to Records after necessary formalities and a separate file be prepared for compliance report and be put up on 20.04.2021 for reporting compliance of the award.
MANOJ Digitally by MANOJ signed KUMAR KUMAR NAGPAL Date: 2021.01.14 Announced in the open court. NAGPAL (M.K.Nagpal) 16:21:26 +0530 on 14.01.2021 PO/MACT, New Delhi Enclosed :- The summary of computation in the prescribed format.
MACP No. 88/2015 Page no. 19of 21 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB.
1. Date of accident : 08.02.2015
2. Name of the injured : Anuradha Varma
3. Age of the injured : around 9 years at the time of accident.
4. Occupation of the injured : Student
5. Income of the injured : Notional income
6. Nature of injury : Grievous
7. Medical treatment taken by the injured : Tirath Ram Hospitals & ESIC Hospital
8. Period of hospitalization : 08.02.2015 to 11.02.2015 and 16.04.15 to 18.04.15
9. Whether any permanent disability? If yes, give details : assessed as Nil
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Nil
(ii) Expenditure on conveyance Rs. 5,000/-
(iii) Expenditure on special diet Rs. 10,000/-
(iv) Cost of nursing/attendant Rs. 15,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 12,249/-
(vii) Any other loss which may require any Nil special treatment or aid to the injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and physical Rs. 10,000/-
shock
(ii) Pain and suffering Rs. 10,000/-
(iii) Loss of amenities of life Rs. 5,000/-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, incovenience, Nil
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13 Disability resulting in loss of earning
capacity
(i) Percentage of disability assessed and Assessed as Nil
nature of disability as permanent or
temporary
MACP No. 88/2015 Page no. 20of 21
(ii) Loss of amenities or loss of expectation N/A
of life span on account of disability.
(iii) Percentage of loss of earning relation to NA disability
(iv) Loss of future income - (Income X % NA Earning X Multiplier)
14. Total Compensation Rs. 67,249/- 15 Interest Awarded 9% p.a. from the date of filing of DAR and 12% pm after 90 days from today 16 Interest amount up to the date of award Rs.33,346/-
(rounded off) 17 Total amount including interest Rs.1,00,595/- 18 Award amount released Nil 19 Award amount kept in FDRs Entire amount 20 Mode of disbursement of the award Through Bank amount to the claimant (s) 21 Next date for compliance of the award 20.04.2021 (M.K.Nagpal) PO/MACT, New Delhi 14.01.2021 MACP No. 88/2015 Page no. 21of 21