Delhi District Court
Abdul Rahim vs . Ganga Ram & Ors. on 1 September, 2022
IN THE COURT SH. NAVEEN KUMAR KASHYAP
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT, SOUTH EAST DISTRICT, SAKET COURTS: NEW DELHI
MACT No.772/17
Abdul Rahim Vs. Ganga Ram & Ors.
CNR No DLSE01-007246-2017
Compensation case regarding injury to Mohd. Azad
aged about 17 years, with 73 % permanent disability in relation to
his left leg Fracture dislocation with Degloving
Mohd. Azad
Through his natural guardian/ father:
Abdul Rahim
S/o Mohd. Sahamim
R/o 152, Majboor Nagar
JJ Camp I. P. Extension.
Old Patparganj, Delhi-110092
...Claimant
Versus
1. Ganga Ram
R/o A-2-1862, Jalebi Chowk
Madanpur Khadar, New Delhi.
............Driver/Respondent no. 1
2. Mohan Bros having office at 6, 1st Floor Niazmuddin, West Market Near SBI, New Delhi.
............Owner/Respondent no. 2
3. National Insurance company Ltd.
Bikaji Cama Place Branch MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 1 of 24 617-620/A, Somdutt Chamber Bhikaji Cama Place, New Delhi.
............Insurance Company/Respondent no. 3 Date of accident : 10.07.2017 Date of filing of Petition : 25.09.2017 Date of Decision : 01.09.2022.
AWARD
1. Present case is based on claim petition filed u/s 166 MV Act filed by the petitioner. Such petition was filed by Mohd. Raheem/ petitioner regarding the alleged injury suffered by his son / injured/ victim Mohd. Azad. It further appears that at that time such injured was not in a position to file the present petition as such same was filed by his father/ petitioner.
2. Brief facts of the case as per the claim of petitioner, are that on 10.07.2017, victim (who was employed as a conductor under the employment of respondent no.2) was deputed by the respondent no.2 on his bus bearing registration no. UP 16ET 2655 entered in the parking, behind Apollo Hospital in Jasola namely Apollo Parking. Since the respondent no.1 was to reverse the bus in order to park it properly, therefore, he got down from the said bus for helping the driver to reverse the said vehicle. The respondent no.1 reversed the bus in rash and negligent manner, in the said process, the bus ran over his ankle and foot of left leg resulting in crash injury.
3. The victim, thereafter, taken to Sanjeevani Hospital by the people gathered there as his condition was very serious. After the first aid on the same MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 2 of 24 day, he was removed to JPNA Trauma Center, AIIMS further transferred to Safdarjung Hospital where his MLC prepared and he remained admitted to w.e.f. 11.07.2017 to 21.07.2017.
4. Further as per the case of the injured a criminal complaint was sought to be made regarding accident in question but no action was taken by the police official and no FIR was registered.
5. Further, Medical Board of Pt. Madan Mohan Hospital, Malviya Nagar, New Delhi sent disability report dated 06.07.2018 noticing 73% permanent physical impairment in relation to his left leg with regard to Fracture Dislocation with Degloving.
6. In response to DAR, respondent No.1 and respondent no.2 filed their reply in which they stated that the son of petitioner i.e. victim Mohd. Azad was not the employee of the respondent no.2. The son of the petitioner had approached to the respondent no.2 for employment as conductor but he was not having the license of the conductor and no police verification was provided by him hence respondent no.2 refused to employ him with his firm. It is further stated that the accident has neither been caused by the vehicle no. UP 16ET 2655 nor by the respondent no.1. Even otherwise, it is stated that claim, if any is payable by insurance company / R-3 as all conditions of such insurance policy is complied by the R-2.
7. In response to claim petition, respondent no.3/ Insurance Company filed its reply stating that petitioner was not employed by the respondent no.1 and 2. it is further claimed that no accident is caused by the offending vehicle in MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 3 of 24 question. It is further claimed that that is why no FIR was got registered. It is further claimed that injured Mohd. Azad suffered injuries due to some other reason. As such it is stated that present petition is filed malafidely to claim compensation.
8. From the pleadings of parties, the following issues were framed on by Predecessor of this Tribunal:
1. Whether the petitioner's son Md. Azad, a 17 years old boy suffered injuries in a road traffic accident on 10.07.2017 due to negligent driving of bus bearing no. UP 16ET 2655 being driven by R-1, owned by R-2 and insured with R-3/ National Insurance Company Ltd. OPP
2. Whether the injured is entitled to any compensation, if so, to what extent and from whom?OPP
3. Relief.
9. Victim Md. Azad entered the witness box as PW1. He has filed his evidence by way of affidavit as Ex.PW1/A. He relied upon emergency prescription issued by Sanjeevani Hospital dated 10.07.2017, MLC issued by JPNA Trauma Center as Ex.PW1/2, discharge summary of Safdarjung Hospital as Ex.PW1/3, bills as Ex.PW1/4, disability certificate as ExPW1/5, rent agreement as Ex.PW1/6, copy of complaint as Ex.PW1/7, postal receipt as Ex.PW1/8 and photographs as X-1 & X2.
10. PW-1 was cross examined by Ld. Counsel for insurance company and same was adopted by R-1 & R-2.
11. No other evidence has been led on behalf of petitioner.
MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 4 of 24
12. No evidence was led on behalf of respondents.
13. Arguments were addressed by Ld. counsels for petitioner as well as for insurance company.
14. On the basis of material on record, evidence adduced and arguments addressed, issue wise findings are discussed hereinafter.
15. At this stage, before proceeding further, by rely upon the judgments of C.K. Subramania Iyer v. T. Kunhikuttan Nair, R.D. Hattangadi v. Pest Control (India) (P) Ltd. and Baker v. Willoughby which are referred and relied in Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 Supreme Court cases 343 decided by Hon'ble SC, it can be noted that the provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 5 of 24 ISSUE NO. 1
16. In this background of discussion on law, in the MACT cases, Petitioner is required to prove the rash and negligent driving by the driver of the offending vehicle.
17. 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 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.
18. In present case, injured/ eye witness to the accident, PW-1 has deposed about the manner of accident and further deposed that accident occurred due to negligence of driver/ R-1 of offending vehicle.
19. In this case, PW-1/ injured Mohd. Azad on the line of the original petition deposed in his evidence by way of affidavit that on 10.07.2017, he was employed as conductor, under employment of the respondent no.2 on his bus bearing registration no. UP 16ET 2655. At about 04.00-04.40 PM, said bus entered in the parking, behind Apollo Hospital in Jasola namely Apollo Parking. Since the respondent no.1 was to reverse the bus in order to park it properly, therefore, PW-1 he got down from the said bus for helping the driver to reverse the said vehicle. The respondent no.1 reversed the bus in rash and negligent manner, in the said process, the bus ran over PW ankle and foot resulting to crush injury. The photograph of the same are marked as X-1 & X-2. He further deposed that on that day, he was initially removed to Sanjeevani Hospital by the MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 6 of 24 people collected over there as his condition was very serious but on the same day after first aid, he was shifted to AIIMS and thereafter to Safdarjung Hospital where he reamied admitted from 11.07.2017 to 21.07.2017. He further deposed that even after discharge his treatment continued. He further place on record the emergency prescription dt. 10.07.2017 by Sanjeevani Hospital as ExPW1/1. He further place on record MLC of AIIMS ExPW1/2 and discharge summary of Safdarjung hospital as Ex.PW1/3.
Thus, such witness / injured described in detailed coupled with documentary proof of the Govt. hospital regarding the injury suffered by him.
In his cross examination by Ld counsel for insurance company, he denied the suggestion that accident never took place through the offending the vehicle in question. He further denied the suggestion that his injury occurred due to fall from somewhere and not from the alleged bus. He further stated that people gathered there to remove him to the hospital but he do not know their name but there was one parking guard. He further described the proceedings which took place after the accident on that day.
20. No evidence to the contrary led by any of the respondents. Further R-1 & 2 adopted the cross examination of insurance company only.
21. Further, no evidence is led by the respondent/driver regarding mode and manner of the accident in question, although he has filed reply to the present petition. It may be noted that in this background that in Cholamandlam Insurance Company Ltd. vs. Kamlesh 2009 (3) AD-Delhi 310 , it was held that if driver of offending vehicle does not enter the witness box, an adverse inference can be drawn against him.
22. It may further be noted that police after investigation had filed charge-
MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 7 of 24 sheet against respondents under section 279/337/338 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 chargesheet u/s 279/304 A IPC are sufficient proof of negligence of the driver of the offending vehicle.
23. Further, in this case there are medical treatment papers and discharge summary of the PW-1.
24. Thus this tribunal do not find substance in arguments of the insurance company or R-1 & 2 that accident in question did not take place due to rash and negligent driving of offending vehicle in question. Further this Tribunal does not find any substance in the submissions of respondent side that such accident took place by falling from somewhere, particularly having regard to nature of such injury which can be seen from the photographs which are placed on record coupled with corresponding medical treatment given to the injured by the govt. hospital immediately after the accident. Further, such injury corresponds with disability certificate issued by concerned medical board.
25. Further it appears that petitioner belongs to a poor section of society. Criminal complaint regarding accident in question, copy of which is placed on record, was not entertained by the police officials concerned for the reason best known to them. It is further surprising that despite such evident injury to the victim and his treatment from Govt. Hospitals giving description of such injury in medical record by govt. hospitals, the concerned SHO still did not bother to register the FIR which is nothing but first information report and not final MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 8 of 24 information report. In any case, under such peculiars facts and circumstances, no adverse inference can be taken against the victim for the lapses on the part of police official concerned who failed to timely register and investigate the matter to arrive at logical conclusion.
26. Thus, in view of the above mentioned evaluation of evidence / material on record, law in this respect including the case law and evidence on record in the present case coupled with charge-sheet against Respondent-1, issue no.1 is decided accordingly, in favour of the petitioner.
ISSUE NO. 227. Further at this stage, it may be noted that the heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 9 of 24
28. In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv).
29. It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
30. Assessment of pecuniary damages under Item (i) and under Item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence.
31. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof.
32. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)-- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of Hon'ble SC and Hon'ble High Courts contain necessary guidelines for award under these heads, if necessary.
Loss of income
33. In this case, as per the case of petitioner himself, he was working as helper on a bus for few days before the accident in question took place. He further claimed that he was hired for a salary of Rs. 9,500/- per month but the MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 10 of 24 employer refused the salary certificate after the accident in question. It may further be noted that minimum waged for unskilled worker at the relevant time of the accident in question of 10.07.2017 was Rs. 13,350/-. Thus, the same is more than Rs. 9,500/- claimed by the petitioner.
34. Further as per evidence on record, it is stated by the petitioner that due to such accident, he was under treatment from 10.07.2017 till October 2017. Further the petitioner deposed that due to some injury he was bed ridden for about 10 months and treatment was continued. No evidence to the contrary is placed on record by the respondent side. Further, having regard to nature of injury which even resulted in permanent injury relating to left leg, this tribunal has no reason to disbelief that petitioner could not work for such ten months.
35. Thus, it is held that total of the income of injured due to such accident is 95,000/- (Rs. 9,500/- X 10 months).
Assessment of future loss of earnings due to permanent disability.
36. It was further observed by Hon'ble SC in such case of Raj Kumar (supra) that what usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii) (a).
37. We are concerned with that assessment in this case.
38. It may further be noted that disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being.
Permanent disability refers to the residuary incapacity or loss of use of some MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 11 of 24 part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation.
Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident.
39. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
40. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency).
MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 12 of 24
41. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body,that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
42. Thus ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps.
42.1. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
42.1.1. In the present case,as per evidence on record, after such accident, injured was bed ridden for ten months. It is further stated that his treatment was still continuing. He further stated that due to such accident, he cannot run or MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 13 of 24 walk briskly. Thus, meaning thereby that he can walk but cannot walk briskly or run having regard to nature of injuries suffered in such accident. 42.2. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
42.2.1. In the present case as per evidence on record, the petitioner was doing unskilled work of a helper in a bus. He was about 17 years old at the time of accident.
42.3. The third step is to find out whether :
(i) the claimant is totally disabled from earning any kind of livelihood, or
(ii)whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
42.3.1. having regard to the material and evidence on record, it cannot be said that petitioner cannot perform his duty or work. But it is further clear that due to such accident, his ability to perform unskilled work for a labour is hampered to some extent, as there is a 73% permanent disability in left leg as per the disability certificate placed on record.
Thus, it is held that case of present petitioner is not that petitioner is totally disabled from earning any kind of livelihood. But he cannot do intense labour work particularly which involves active walking.
Under such circumstances, his functional disability is treated as 25 % to the whole of the body.
43. Loss of future Income: As per evidence proved, his last drawn salary MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 14 of 24 was 9,500/-.
The functional disablement is held as 25% in relation to whole . Injured was about 17 years old at the time of accident, hence multiplier of 18 is applicable (kindly see judgment of Rajkumar (Supra), para-11 r/w judgment of Sarla Verma v. DTC, para-40).
Thus Loss of future Income: 25 % of [ (9,500/- X 12) X 18 ]= Rs. 5,13,000/-.
44. Thus having regard to the law, as also discussed above, regarding compensation, in the present case award amount is calculated as under:
Sl. no. Pecuniary loss : - Quantum
1. (I) Expenditure on treatment : In this Rs. 9,732/-
particular case, no DAR was filed but a petition was filed. He proved on record his medical bills as Ex.PW1/4 (colly).
Same are allowed on actual basis.
(ii) Expenditure on Conveyance : The Rs. 25,000/- petitioner has not filed any bill for conveyance. The nature of injuries are grievous and petitioner suffered 73% permanent physical disability in relation to left lower limb.
Further, as per record, petitioner was residing in IP Extension Delhi and treatment is from Safdarjung and AIIMS Hospital.
By guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : Rs.25,000/- There is no prescription for special diet.
The nature of injuries are grievous and MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 15 of 24 petitioner suffered 73% permanent physical disability in relation to left lower limb.
By guess work, having regard to his age and nature of permanent disability, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even Rs.25,000/- in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members. In this case,having regard to her age and nature of permanent disability which is regarding 73% permanent physical disability in relation to left lower limb, age, sufficient compensation need to be awarded for attendant/nursing.
(v) Loss of income : as discussed above. Rs.95,000/-
(vi) Cost of artificial limbs (if Not Applicable applicable) :
(vii) Any other loss / expenditure : Not applicable
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.25,000/-
physical shock : As the petitioner has suffered grievous injuries and suffered 73% permanent physical disability in relation to left lower limb, he would have undergone mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 25,000/- for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 16 of 24
(iii) Loss of amenities of life : The Rs.50,000/- petitioner has suffered grievous injuries and suffered 73% permanent physical disability in relation to left lower limb.
(iv) Disfiguration : Rs. 20,000/-
(v) Loss of marriage prospects : Rs. 1,00,000/-
Petitioner was an unmarried young boy of 17 years only at the time of accident.
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed The petitioner has suffered and nature of disability as permanent 73% permanent physical or temporary disability in relation to left lower limb
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability :
(iii) Percentage of loss of earning 25 %
capacity in relation to disability:
As discussed above.
(iv) Loss of future Income:As
discussed above. Rs. 5,13,000/-
Total Compensation Rs. 9,12,732/-
Deduction, if any Nil
Total Compensation after deduction Rs. 9,12,732/-
Interest Simple interest @ 9% p.a.
from the date of filing of
petition i.e. 25.09.2017 till
actual realization of Award
amount/compensation.
LIABILITY:
45. Since there is no statutory defence, therefore, the compensation MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 17 of 24 will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of petition i.e. 25.09.2017 till actual realization.
46. 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 TRIBUNAL AGREED PROCEDURE' (MCTAP).
47. 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.
Apportionment:-
48. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
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49. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi- illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No.
(i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 19 of 24 considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 20 of 24 view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
50. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, it is held that he had suffered permanent disability and as such, compensation for attendant/nursing including for future is granted. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same as well as to ensure that his future earning is augmented, in the same manner in which he would have otherwise earned.
51. At present, petitioner is a major male person, who ought to know about his financial affairs and needs. Thus, out of total, a sum of Rs. 5,00,000/- is kept in FD of Rs. 10,000/- per months each. Rest of the award amount along with interest be release to him in his bank account near his place of residence as per rule/ directions.
52. As per record, there is no statutory defence raised by the insurance company. As such the claim is payable by insurance company. Accordingly, the MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 21 of 24 Insurance Company /respondent no.3 is directed to deposit the amount of Rs. 9,12,732/- alongwith simple interest @ 9% p.a. from the date of filing of petition i.e. 25.09.2017 till actual realization of Award amount/compensation.
53. 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 System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature 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.
54. In accordance with the orders dated 08.02.2019 passed by the Hon'ble MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 22 of 24 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. 022- 22741336/9414048606 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 e-mail 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 e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 10.07.2017 2 Name of injured Abdul Rahim 3 Age of the injured About 17 years at the time of accident 4 Occupation of the Helper in bus injured 5 Income of the injured Rs. 9,500/- per month.
6 Nature injury Grievous + disability 7 Medical treatment Sanjeevani Hospita, AIIMS Trauma taken by the injured: Center, Safdarjung Hospital MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 23 of 24 8 Period of w.e.f. 11.07.2017 to 21.07.2017.
Hospitalization 9 Whether any 73 % permanent disability in relation to permanent disability? his left leg Fracture dislocation with Degloving
55. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate.
56. Put up on 01.10.2022 for filing of bank details of petitioner and for compliance.
(Pronounced in open
court on 01.09.2022) (Naveen Kumar Kashyap)
PO-MACT (South-East)
Saket Court/ New Delhi
01.09.2022
MACT No.772/17 Abdul Rahim Vs. Ganga Ram & Ors. Page No. 24 of 24