Delhi District Court
48713 Hari Kishan vs Mohd. Sadakat Ali Page 1 Of 21 on 2 February, 2019
48713 Hari Kishan vs Mohd. Sadakat Ali Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 4974316
MACT PETITION No. : 48713
UNIQUE ID No. : DLNW010005442013
Sh. Hari Kishan S/o Late Sh. Puran Chand
R/o 365, D Block, Shakurpur, JJ Colony,
Anandvas, Delhi34
........ Petitioner
Vs.
1. Mohd. Sadakat Ali S/o Late Inam
R/o Village Babri, P.S. Babri,
District Muzaffar Nagar, UP
Also at Village Dhanpura, P.S. Pathri, District Haridwar,
Uttrakhand.
....... Driver /R1
2. General Manager,
Transport Department Uttrakhand, Haridwar, Uttrakhand
...... Owner/R2
Other details
DATE OF INSTITUTION : 05.10.2013
DATE OF RESERVING JUDGMENT : 21.01.2019
DATE OF PRONOUNCEMENT : 02.02.2019
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
48713 Hari Kishan vs Mohd. Sadakat Ali Page 1 of 21
48713 Hari Kishan vs Mohd. Sadakat Ali Page 2 of 21
1. Date of the accident 15.07.2012
2. Date of intimation of the accident by the It is outstation
investigating officer to the Claims Tribunal accident of
(Clause 2) Uttrakhand
3. Date of intimation of the accident by the It is outstation
investigating officer to the insurance company. accident of
(Clause 2) Uttrakhand
4. Date of filing of Report under section 173 It is outstation
Cr.P.C. before the Metropolitan Magistrate accident of
(Clause 10) Uttrakhand
5. Date of filing of Detailed Accident Information It is outstation
Report (DAR) by the investigating Officer before accident of
Claims Tribunal (Clause 10) Uttrakhand
6. Date of Service of DAR on the Insurance It is outstation
Company (Clause 11) accident of
Uttrakhand
7. Date of service of DAR on the claimant (s). It is outstation
(Clause 11) accident of
Uttrakhand
8. Whether DAR was complete in all respects? It is outstation
(Clause 16) accident of
Uttrakhand
9. If not, whether deficiencies in the DAR removed It is outstation
later on? accident of
Uttrakhand
10. Whether the police has verified the documents It is outstation
filed with DAR? (Clause 4) accident of
Uttrakhand
11. Whether there was any delay or deficiency on It is outstation
the part of the Investigating Officer? If so, accident of
whether any action/direction warranted? Uttrakhand
12. Date of appointment of the Designated Officer It is outstation
by the insurance Company. (Clause20) accident of
Uttrakhand
13. Name, address and contact number of the It is outstation
Designated Officer of the Insurance Company. accident of
(Clause 20) Uttrakhand
14. Whether the designated Officer of the Insurance It is outstation
Company submitted his report within 30 days of accident of
the DAR? (Clause 20)Without insurance Uttrakhand
15. Whether the insurance company admitted the It is outstation
liability? If so, whether the Designated Officer of accident of
48713 Hari Kishan vs Mohd. Sadakat Ali Page 2 of 21
48713 Hari Kishan vs Mohd. Sadakat Ali Page 3 of 21
the insurance company fairly computed the Uttrakhand
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on It is outstation
the part of the Designated Officer of the accident of
Insurance Company? If so, whether any Uttrakhand
action/direction warranted?
17. Date of response of the claimant (s) to the offer It is outstation
of the Insurance Company .(Clause 24) accident of
Uttrakhand
18. Date of the Award 02.02.2019
19. Whether the award was passed with the consent It is outstation
of the parties? (Clause 22) accident of
Uttrakhand
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 17.04.2018
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 issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 08.10.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner Hari
claimant(s) and the address of the bank with Kishansavings bank
IFSC Code (Clause 27) a/c no.
5020101001541 with
Canara bank, Harsh
Vihar branch, Delhi.
IFSC : CNRB0005020
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition. (Clause 27)
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27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the M.V. Act') claiming compensation for a sum of Rs.20,00,000/ (Rupees Twenty Lakhs Only) along with interest @ 18% p.a. in respect of accidental injuries of Sh. Hari Kishan S/o Late Sh. Puran Chand in a motor vehicular accident.
2. Brief facts of the case as mentioned in the petition are that on 15.07.2012, petitioner along with his friend Sh. Lekh Raj @ Tikku were going to Haridwar from Delhi to bring Kanwad on motorcycle bearing registration no. DL1SR8103 which was being driven by Sh. Lekh Raj. At about 8:40 am, in front of Guru Ravidas Ashram, Uttrakhand, one Uttrakhand Roadways Bus bearing registration no. UK08PA0197 (hereinafter referred to as "offending vehicle" ) which was being driven by its driver/R1 in a rash and negligent manner hit the motorcycle on which petitioner was a pillion rider. Due to said impact, the petitioner sustained grievous injuries. It has been stated that petitioner was admitted in Jagdamba Super Speciality hospital, Haridwar and remained admitted there upto 20.07.2012 vide serial no. 397 dated 15.07.2012. It has been further stated that petitioner was further admitted in RML hospital on 21.07.2012 and was discharged on 30.07.2012. The Crime no./FIR no.120/12 PS Pathri was registered u/s 279/337/338/427 IPC.
3. Mohd. Sadakat/R1/driver and Divisional Manager (Operations) 48713 Hari Kishan vs Mohd. Sadakat Ali Page 4 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 5 of 21 Uttrakhand Transport Corporation/R2/owner of the offending vehicle have filed their written statement jointly wherein they have stated that no accident had been caused due to rash and negligent driving on the part of the R1. It has been stated that on 15.07.2012 the offending vehicle was plying from Haridwar to Lakshar Road and the injured with his friend Lekhraj was coming from the opposite side on the motorcycle bearing no. DL1SR8103 which was being driven by Sh. Lekh Raj at a very high speed. It has been stated that it was a single road, Sh. Lekh Raj was trying to over take a car ignoring the traffic rules, he did not see that the offending vehicle was coming in front of me from the opposite direction and hit the motorcycle with the offending vehicle. It was stated that offending bus was moving at a very slow speed and the accident was caused due to rash and negligent driving on the part of Sh. Lekh Raj.
4. From the pleadings of the parties, the issues were framed by learned Predecessor of this court vide order dated 16.02.2016 as under :
1. Whether on 15.07.2012 at about 8:40 am, in front of Guru Ravidas Ashram, one bus bearing registration no. UK08PA0197, which was being driven rashly and negligently by Mohd Sadakat Ali/R1 hit the motorcycle no. DL1SR8103 and caused injuries to Hari Kishan?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
The petitioner/injured in support of his case has examined himself as PW1 and Ms. Jeevan Verma, Statistical Assistant, Bhagwan Mahavir hosiptal, Pitampura, Delhi as PW2.
The record would show that respondents have not examined any witness in support of their case and were ultimately proceeded against exparte vide order dated 02.07.2018.
48713 Hari Kishan vs Mohd. Sadakat Ali Page 5 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 6 of 215. I have heard arguments addressed on behalf of ld counsel for petitioner. I have also carefully perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
6. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
The petitioner/injured has examined himself as PW1. He has filed his evidence by way of affidavit as Ex. PW1/A. He has proved certified copies of criminal case record as Ex. PW1/1 (colly), medical bills and treatment record as Ex. PW1/2 (colly), copy of his driving licence as Ex. PW1/3 and copy of his Voting ID card as Ex. PW1/4.
He deposed in his evidence by way of affidavit Ex. PW1/A that on 15.07.2012, he along with his friend Lekh Raj were going to Haridwar from Delhi to bring Kanwad on motorcycle bearing registration no. DL1SR8103 which was being driven by Sh. Lekh Raj. He deposed that at about 8:40 am one Uttrakhand Roadways Bus bearing registration no. UK08PA0197 (offending vehicle ) which was being driven by its driver/R1 in a rash and negligent manner hit the motorcycle on which he was pillion rider. He deposed that due to said impact, he sustained grievous injuries. He deposed that he was admitted in Jagdamba Super Specialty hospital, Haridwar and remained admitted from 15.07.2012 to 20.07.2012. He deposed that he was further admitted in RML hospital on 21.07.2012 and was discharged on 30.07.2012. He deposed that his right leg was crushed badly resulting in multiple fractures. He deposed that the Crime no./FIR no.120/12 PS Pathri was registered u/s 279/337/338/427 IPC.
PW1 was not cross examined by R1 and R2 despite opportunity given and his cross examination by R1 was nil, opportunity given. In the said circumstances, R1 shall be deemed to admit the above said testimony of PW1 to the effect that the case accident was 48713 Hari Kishan vs Mohd. Sadakat Ali Page 6 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 7 of 21 caused on the above said date, time and place due to the rash and negligent driving of the offending vehicle by R1 whereby he sustained injuries.
The copy of criminal case record Ex. PW1/1 would show that the case FIR No./Crime no. 120/12 u/s 279/337/338/427 IPC PS Pathri was registered and that the charge sheet u/s 279/337/338/427 IPC was also filed against R1/driver of the offending vehicle.
In the facts and circumstances of the case, the charge sheet u/s 279/337/338/427 IPC against R1 can be relied upon to show that the case accident was caused due to rash and negligent driving of R1 while driving the offending vehicle.
There is thus nothing on record to suggest even remotely that R1 did not cause the said accident in the manner as deposed on behalf of the petitioner. Accordingly, in view of the totality of facts and circumstances of the case, unrebutted testimony of PW1, on the basis of material as placed on record and in view of above discussion, there is no reason to disbelieve the version of the petitioner and hence, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent no.1.
Issue no.1 is decided in favour of petitioner and against the respondents to the effect that the case accident was caused at the above said date, time and place due to the rash and negligent driving of R1.
7. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
Petitioner has filed his evidence by way of affidavit as Ex. PW1/A. He deposed that due to the accident, he sustained grievous 48713 Hari Kishan vs Mohd. Sadakat Ali Page 7 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 8 of 21 injuries. He deposed that he was taken to Jagdamba Super Speciality hospital, Haridwar where he remained admitted from 15.07.2012 to 20.07.2012. He deposed that his leg was crushed badly resulting in multiple fracture. He deposed he was again admitted in RML hospital on 21.07.2012 and was discharged on 30.07.2012. He deposed that he also received treatment at Maharaja Agarsen Hospital for complication in his right leg. He deposed that he remained admitted at Kalawati Kaustubh hospital, Peeragarhi, Delhi from 20.10.2013 to 30.10.2013 and that his right leg had to be amputated.
Petitioner has also examined Ms. Jeevan Verma, Statistical Assistant, Bhagwan Mahavir hospital, as PW2 who has proved the disability certificate of petitioner as Ex. PW2/1. As per the said disability, petitioner suffered 80% permanent disability in relation to right lower limb and was diagnosed with above knee (A/K) amputation of 1/3rd right lower limb.
Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner has proved the entire medical bills as Ex. PW1/2 (colly). The total of the said bills comes to Rs. 1,51,458/. The same is granted to the petitioner.
B. Special Diet and conveyance PW1 deposed that he suffered financial loss on account of medical treatment, staple diet, conveyance charges, attendant, loss of income and future prospects. Petitioner has neither examined any witness to prove the expenditure on special diet and conveyance nor proved any bill/prescription in that regard.
Petitioner suffered grievous injuries with 80% permanent disability in relation to right lower limb and was diagnosed with above knee (A/K) amputation of 1/3rd right lower limb. In view of above said discussion and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
48713 Hari Kishan vs Mohd. Sadakat Ali Page 8 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 9 of 21C. Attendant Charges PW1 deposed that he suffered financial loss on account of medical treatment, staple diet, conveyance charges, attendant, loss of income and future prospect. Petitioner has not examined any witness to prove the expenditure on attendant charges. It seems that the petitioner with the above said injuries must have required an attendant as the petitioner suffered grievous injuries with 80% permanent disability in relation to right lower limb and was diagnosed with above knee (A/K) amputation of 1/3rd right lower limb. In view of above said discussion and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 80,000/ is granted under the said head.
D. Loss of future earning capacity due to disability Petitioner suffered injuries with 80% permanent disability in relation to right lower limb and was diagnosed with above knee (A/K) amputation of 1/3rd right lower limb. PW2 has proved his disability certificate as Ex. PW2/1.
The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) 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).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or 48713 Hari Kishan vs Mohd. Sadakat Ali Page 9 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 10 of 21
b) 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
c) 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."
PW1 deposed that he was a driver by profession and was earning Rs.9000/ per month. He has proved his driving licence as Ex. PW1/3 whereby he authorised to drive LMVNT and motorcycle.
As discussed above, R1 and R2 have failed to cross examine PW1 despite opportunity and hence, they shall be deemed to admit the above said testimony of PW1 to the effect that he was a driver by profession.
It is evident that with the above said permanent disability of 80% in relation to right lower limb with diagnosis of above knee (A/K) amputation of 1/3rd right lower limb, the petitioner who is admittedly a driver cannot continue his work as a professional driver. It is however further evident that even with the above said disability he 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.
In view of above discussion and the injuries suffered by the petitioner, the functional disability of the petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 90%.
The copy of driving licence of petitioner has been proved as Ex. PW1/3 which mentions his date of birth as 31.03.1985 which shows that petitioner was aged about 27 years 3 months at the time of accident.
It is evident that petitioner has not proved any document on record 48713 Hari Kishan vs Mohd. Sadakat Ali Page 10 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 11 of 21 to prove that he was actually earning Rs. 9000/ per month at the time of his accident.
Further, petitioner has not proved any educational qualification documents on record.
In view of above said discussion, it would be appropriate to assess the income of the deceased on the basis of minimum wages of a skilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of a skilled worker at the relevant time on the date of accident was Rs. 8528/ p.m. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs. 8528/ per month on the date of accident in question.
E. Addition of Future Prospects.
In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:.
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income 48713 Hari Kishan vs Mohd. Sadakat Ali Page 11 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 12 of 21 should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 by Hon'ble Delhi High Court.
The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra) after referring to the judgment of the constitution bench of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 48713 Hari Kishan vs Mohd. Sadakat Ali Page 12 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 13 of 21 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
In the case in hand, the petitioner was self employed and thus while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
The age of the petitioner, as discussed above, in the present case was about 27 years and 3 months and he was self employed. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 40% of the established income as he was below the age 40 years at the time of his accident.
The monthly income of petitioner is thus calculated as 8528/ +40% of 8528/ which comes to Rs. 8528/+ Rs.3411 / (after rounding of)= Rs. 11,939/.
The age of petitioner at the time of accident was about 27 years and 3 months the relevant multiplier of "17" is to be adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra). Accordingly, the relevant multiplier would be "17" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
The compensation is accordingly assessed towards loss of earning capacity at Rs. 21,92,000/ [(Rs. 11,939/per month x12 months x 17 (age multiplier) x 90/100(functional disability)]. F. Loss of Amenities of Life.
As discussed above, the petitioner suffered grievous 48713 Hari Kishan vs Mohd. Sadakat Ali Page 13 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 14 of 21 injuries with 80% permanent disability in relation to right lower limb with diagnosis of above knee (A/K) amputation of 1/3rd right lower limb. In view of the said discussion, above mentioned injuries with amputation suffered by him and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 1,00,000/ is granted under the said head.
G. Pain and Suffering As discussed above, the petitioner suffered grievous injuries with 80% permanent disability in relation to right lower limb with diagnosis of above knee (A/K) amputation of 1/3rd right lower limb. In view of the said discussion, above mentioned injuries with amputation suffered by him and taking the probable period of treatment for about 12 months, a lump sum amount of Rs. 1,00,000/ is granted under the said head.
H. Loss of Income As discussed above, his monthly income has been taken as Rs. 8528/ p.m at the time of accident.
The probable period of treatment of petitioner was about 12 months. Therefore, loss of income of Rs. 1,02,336/ (Rs. 8528/x12 months) is granted for 12 months.
I. Artificial Limb Petitioner has given his statement on 15.01.2019 that he did not want to get himself examined by the committee formed by the Hon'ble Delhi High Court in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 order dated 09.03.2018 and did not want any compensation under the head of artificial limb. His statement to that effect was recorded on 15.01.2019 in the presence of his ld counsel. No evidence qua this head has also been lead by the petitioner. In view of said statement, nothing is being granted under this head.
8. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 27,75,794/ which is tabulated as below: 48713 Hari Kishan vs Mohd. Sadakat Ali Page 14 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 15 of 21 Sl. No Compensation Award amount
1. Pain and suffering Rs. 1,00,000/ 2 Special diet & Conveyance Rs. 50,000/
3. Attendant Charges Rs 80,000/
4. Medical Expenses Rs. 1,51,458/
5. Loss of income Rs. 1,02,336/
6. Loss of Earning/disability Rs. 21,92,000/
7. Loss of amenities of life Rs. 1,00,000/ Total Rs. 27,75,794/ Rounded of to Rs. 27,76,000/ ( Rupees Twenty Seven Lakhs Seventy Six Thousand only) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of petition i.e. w.e.f 05.10.2013 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
9. Liability In the case in hand, admittedly offending vehicle is without insurance, however, the offending vehicle/bus is a bus of Uttrakhand Transport Corporation, Dehradun.
Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., R1/Mohd. Sadakat Ali and R2/ Uttrakhand Transport Corporation are directed to deposit the awarded amount of Rs. 27,76,000/ within 30 days from today within the jurisdiction of 48713 Hari Kishan vs Mohd. Sadakat Ali Page 15 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 16 of 21 this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R1 and R2 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R1 and R2 are further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
10. Statement of petitioner in terms of clause 27 MCTAP was recorded. I have heard the petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: Further, an amount of Rs. 3,00,000/ be released to petitioner in cash in his saving bank a/c no. 5020101001541 with Canara Bank, Harsh Vihar Branch, Delhi i.e. the branch near his place of residence as mentioned in his statement recorded under clause 29 MCTAP with necessary endorsement regarding no cheque book and debit card in terms of orders of Hon'ble Mr. Justice J.R. Midha in FAO No. 842/2013 dated 15.12.2017 and 18.01.2018 and remaining amount be kept in 96 FDRs of equal amount for a period of one month to 96 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further conditions and directions 48713 Hari Kishan vs Mohd. Sadakat Ali Page 16 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 17 of 21 in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to 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 victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings 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 amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to 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.
48713 Hari Kishan vs Mohd. Sadakat Ali Page 17 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 18 of 21(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
11. Relief R1/Mohd. Sadakat Ali and R2/ Uttrakhand Transport Corporation are directed to deposit the award amount of Rs. 27,76,000/ with interest @ 9% per annum from the date of filing of petition i.e. 05.10.2013 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R1 & R2 to the petitioner and his advocate failing which the R1 and R2 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
R1/Mohd. Sadakat Ali and R2/ Uttrakhand Transport Corporation are also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimant and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to R1 and R2 for compliance within the granted time. Nazir is directed to place a report on record in the event of nonreceipt/deposit of the compensation amount within the granted time.
12. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded wherein he had stated that petitioner was entitled to exemption from deduction of TDS and that he would submit form 15G so that no TDS is deducted.
48713 Hari Kishan vs Mohd. Sadakat Ali Page 18 of 21 48713 Hari Kishan vs Mohd. Sadakat Ali Page 19 of 2113. Form IVB has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. R1 and R2 are also directed to obtain the copy of PAN card of the petitioner from the record. Digitally signed by AMIT BANSAL AMIT Date:
BANSAL 2019.02.04
11:45:50
+0530
Announced in open court (AMIT BANSAL)
on 2nd February 2019 PO MACT N/W
Rohini Courts, Delhi.
48713 Hari Kishan vs Mohd. Sadakat Ali Page 19 of 21
48713 Hari Kishan vs Mohd. Sadakat Ali Page 20 of 21
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 15.07.2012
2. Name of injured Sh. Hari Kishan
3. Age of the injured 32 years
4. Occupation of the injured: Self Employed/labouri
5. Income of the injured. 8528/ per month
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 12 months
8. Period of hospitalization: 10 day.
9. Whether any permanent disability ? If yes, give details.
Yes. 80% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 1,51,458/
(ii) Expenditure on conveyance Rs. 25,000/
(iii) Expenditure on special diet Rs. 25,000/
(iv) Cost of nursing/attendant Rs. 80,000/
(v) Loss of earning capacity Rs. 21,92,000/
(vi) Loss of income Rs. 1,02,336/
(vii) Any other loss which may require any special treatment or aid to the injured for the rest of his life
12. NonPecuniary Loss:
(I) Compensation for mental and physical
shock
(ii) Pain and suffering Rs. 1,00,000/
(iii) Loss of amenities of life Rs. 1,00,000/
48713 Hari Kishan vs Mohd. Sadakat Ali Page 20 of 21
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(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, inconvenience,
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 80% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 90% relation of disability
(iv) Loss of future income - (Income X 21,92,000/ %Earning capacity X Multiplier) (8528+40% of 8528x12x17x90%)
14. TOTAL COMPENSATION Rs. 27,76,000/
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 13,11,660/
17. Total amount including interest Rs. 40,87,660/
18. Award amount released Rs. 3,00,000/
19. Award amount kept in FDRs Rs. 37,87,660/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 19.03.2019 (Clause 31) Digitally signed by AMIT AMIT BANSAL Date:
BANSAL 2019.02.04
11:46:09
+0530
(AMIT BANSAL)
PO MACT N/W
Rohini Courts, Delhi.
02.02.2019
48713 Hari Kishan vs Mohd. Sadakat Ali Page 21 of 21