Delhi District Court
Rohit Gautam vs Ramesh Chand Pandey on 20 May, 2024
Rohit Gautam vs Ramesh Chand and Ors. Page 1 of46
IN THE COURT OF MS. SHAMA GUPTA, PRESIDING
OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
New No. 449361/16
UNIQUE ID No.: DLNW01-000171-2013
Rohit Gautam
S/o Sh. Ram Singh Gautam
R/o 180, Block P-3, Sultanpuri, Delhi
........ Petitioner/claimant
Versus
1. Ramesh Chand Pandey
S/o Sh. Rajender Prasad Pandey,
R/o Flat No. 10, Pocket-16, Sector-22,
Rohini, Delhi.
....... Driver/R1
2. Ram Chander
S/o Sh. Ram Kumar
R/o 157/1, Block-C, Mahavir Vihar Colony,
Village Kanjhawala, Delhi
.......Owner/R2
3. Reliance General Insurance Company Ltd.
60, Okhla Industrial Area, Phase-III,
Opposite State Bank of India, New Delhi
........Insurance Company/R3
..... Respondents
DATE OF INSTITUTION : 15.07.2013
DATE OF RESERVING JUDGMENT : 22.04.2024
DATE OF PRONOUNCEMENT : 20.05.2024
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
MENTIONED IN THE AWARD AS PER FORMAT
Rohit Gautam vs Ramesh Chand and Ors. Page 1 of46
Rohit Gautam vs Ramesh Chand and Ors. Page 2 of46
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.
1. Date of the accident 19.12.2012
2. Date of intimation of the accident by the 09.09.2013
investigating officer to the Claims
Tribunal
3. Date of intimation of the accident by the 09.09.2013
investigating officer to the insurance
company.
4. Date of filing of Report under section Not available on
173 Cr.P.C. before the Metropolitan record
Magistrate
5. Date of filing of Detailed Accident 09.09.2013
Information Report (DAR) by the
investigating Officer before Claims
Tribunal
6. Date of Service of DAR on the 09.09.2013
Insurance Company
7. Date of service of DAR on the claimant 09.09.2013
(s).
8. Whether DAR was complete in all Yes
respects?
9. If not, whether deficiencies in the DAR No
removed later on?
10. Whether the police has verified the Yes
documents filed with DAR?
11. Whether there was any delay or No
deficiency on the part of the
Investigating Officer? If so, whether
any action/direction warranted?
12. Date of appointment of the Designated 09.09.2013
Officer by the insurance Company.
13. Name, address and contact number of Sh. Sujit Jaiswal,
the Designated Officer of the Insurance Ld. Counsel for
Rohit Gautam vs Ramesh Chand and Ors. Page 2 of46
Rohit Gautam vs Ramesh Chand and Ors. Page 3 of46
Company. insurance
company
14. Whether the designated Officer of the Yes
Insurance Company submitted his
report within 30 days of the DAR?
(Clause 22)
15. Whether the insurance company No
admitted the liability? If so, whether the
Designated Officer of the insurance
company fairly computed the
compensation in accordance with law.
16. Whether there was any delay or N/A
deficiency on the part of the Designated
Officer of the Insurance Company? If
so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to Legal offer not
the offer of the Insurance Company . filed
18. Date of the Award 20.05.2024
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed Yes
to open saving bank account(s) near
their place of residence?
21. Date of order by which claimant(s) were 08.04.2019
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).
22. Date on which the claimant (s) 02.07.2019
produced the passbook of their saving
bank account near the place of their
residence along with the endorsement,
PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned
Rohit Gautam vs Ramesh Chand and Ors. Page 3 of46
Rohit Gautam vs Ramesh Chand and Ors. Page 4 of46
Claimant(s) above
24. Details of saving bank account(s) of the Petitioner Rohit
claimant(s) and the address of the bank Gautam, Savings
with IFSC Code Bank A/c
No.3847011727,
SBI Sultanpuri,
Delhi,
IFSC :
SBIN0004846
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of
residence?
26. Whether the claimant(s) were examined Yes
at the time of passing of the award to
ascertain his/their financial condition.
27. Account number/CIF No, MICR 41065170303,
number, IFSC Code, name and branch 110002427,
of the bank of the Claims Tribunal in SBIN0010323,
which the award amount is to be SBI, Rohini
deposited/transferred. (in terms of order Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High
Court in FAO 842/2003 Rajesh Tyagi vs
Jaibir Singh.
JUDGMENT
1. The present claim petition under Section 166 and 140 of Motor Vehicle Act, 1988 (hereinafter referred to as M.V. Act) was filed on 15.07.2013, seeking compensation in the sum of Rs. 25,00,000/-, with interest at the rate of 12% per annum, in respect of grievous injuries, sustained by the petitioner Rohit Gautam, in a road traffic accident. Perusal of the court record reveals that FIR No. 603/2012, PS Sultanpuri, Delhi was registered on 19.12.2012, for the commission of alleged offence of causing simple injuries to Rohit Gautam vs Ramesh Chand and Ors. Page 4 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 5 of46 injured Mukesh and grievous injuries to the petitioner Rohit Gautam, by rash and negligent driving of a Tanker bearing registration number DL-1GD-35472, on a public road, punishable under Section 279/337/338 of Indian Penal Code (hereinafter referred as IPC). Subsequently, Detailed Accident Report (hereinafter referred to as DAR) was filed on 09.09.2013, with reference to aforesaid FIR, for the commission of offences punishable U/s 279/337/338 IPC. This Tribunal vide order dated 09.09.2013, treated the DAR as petition U/s 166(4) of the Motor Vehicles Act, 1988 (in short referred to as 'M.V. Act') and petition filed by the petitioner has been clubbed with the said DAR. Subsequently, a charge sheet against respondent no.1 was filed under section 279/337/338 IPC, before concerned Ld. MM, North West District, Rohini Courts, Delhi.
2. Brief facts of the case as discernible from the DAR, including the documents annexed with DAR, as well as claim petition of the petitioner are that on 19.12.2012, at about 11.30 am, when the petitioner Rohit Gautam (hereinafter referred to as the claimant/petitioner/injured) was going with his friend namely Badshah, on the scooty of Badshah, bearing registration no. DL-4SCC-3981 (hereinafter referred to as the victim's vehicle), and they reached in front of Prajapati Mandir, Kumhar Basti, at Sultanpuri, Main Road, Delhi, they were hit from behind by one tanker bearing registration no. DL-1GB-3542 (hereinafter referred as offending vehicle), which was Rohit Gautam vs Ramesh Chand and Ors. Page 5 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 6 of46 being driven in a rash and negligent manner by its driver Ramesh Chand Pandey (hereinafter referred to as Respondent no.1/R1/driver cum owner). It is further alleged that the petitioner was sitting on the scooty, as a pillion rider and due to the said impact of hitting, the petitioner fell down on the left side of the road and his friend Badshah also received injuries. It is further alleged that public persons have taken them to Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi (hereinafter referred to as SGM Hospital). It is further alleged that on 20.12.2012, the petitioner was shifted to Safdarjung Hospital where, he remain admitted from 20.12.2012 till 01.01.2013. It is further alleged that during the period of his hospitalization at Safdarjung Hospital, Exploratory Laprotomy with Bladder Wall Repair with Open Supra Pubic Catheterization and Urethral Catheterization was done and right DJ stent was also fixed. It is further alleged that on 13.05.2013, the petitioner was again admitted in Safdarjung Hospital and he was discharged on 29.05.2013 and during the said period, he was again operated upon and right DJ stent earlier fixed was removed.
3. Ramesh Chand Pandey/R1 and Sh. Ram Chander, who is the owner of the offending vehicle (hereinafter referred to as owner of offending vehicle/R2) had failed to file any written statement to the DAR/claim petition.
Rohit Gautam vs Ramesh Chand and Ors. Page 6 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 7 of46
4. Reliance General insurance Co. Ltd. (hereinafter referred as R3/insurance company) has filed its written statement, to the DAR, wherein they raised the objection that the accident has taken place on account of sole negligence of the driver of the scooty, as driver of scooty was not holding driving license to drive the scooty. However, R3 admitted that the offending vehicle was insured with R3, at the relevant time i.e. on 19.12.2012, vide Policy No. 1315522334002958, for the period 03.11.2012 to 02.11.2013, in the name of R2, on certain terms and conditions.
5. From the pleadings of the parties, following issues were framed by the Learned Predecessor Court, vide order dated 28.01.2014:-
1. Whether on 19.12.2012 at 11.30 am, at Main Road, in front of Prajapati Mandir, Kumhar Basti, Sultanpuri, Delhi, truck tanker bearing registration no. DL1GB 3542, which was being driven rashly and negligently by Ramesh Chand and hit scooty bearing registration no. DL-4SCC-3981 and caused injuries to Rohit?
OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP.
3. Relief.
6. After framing of issues, opportunities were given to all the parties to prove their respective averments, by leading Rohit Gautam vs Ramesh Chand and Ors. Page 7 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 8 of46 evidence in support of the same. In support of his case, the petitioner got examined 04 witnesses.
7. The petitioner Rohit Gautam got himself examined as PW1, by way of evidence affidavit Ex.PW1/A. His deposition qua the accident and injuries suffered in the case accident is reiteration of the facts mentioned in the petition. He further deposed that as a result of the said accident, he had received grievous injuries, which includes Fracture of pelvis, Sural fractural with vertical shift, Pubic diastasis, Haemoperitoneum with Bladder and Urethral rupture, Urinary Bladder Rupture extending upto External Urethral Sphincter, for which Exploratory Laparotomy with Bladder Repair with RT DJ Stenting was done, Mid Bulbar Urethral Stricture, Retention of urine, Bladder wall repaired and Pelvic Binder given, Below knee skin traction applied, profusely bleeding, multiple abrasions and blunt injuries all over body. He further deposed that after the accident on 19.12.2012, he was removed to SGM Hospital Mangol Puri and on 20.12.2012, he was shifted to Safdarjung Hospital, where he remained admitted from 20.12.2012 till 02.01.2013. He further deposed that he visited OPD of Safdarjung Hospital on 02.01.2013, 23.01.2013, 01.02.2013, 04.02.2013, 06.02.2013, 5.02.2013, 18.02.2013, 20.02.2013, 23.02.2013, 29.04.2013 and 10.05.2013, for regular treatment and treatment of retention of urine/ stricture of urethra. He further deposed that on Rohit Gautam vs Ramesh Chand and Ors. Page 8 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 9 of46 13.05.2013, he was again admitted at Safdarjung Hospital and discharged on 29.05.2013, for the treatment of obstructive urinary/stricture urethra and right DJ stent, which was earlier fixed was removed and thereafter, he visited OPD of Safdarjung Hospital on 03.06.2013, 06.06.2013, 07.06.2013, 05.07.2013, 08.07.2013, 07.09.2013, 12.07.2013, 19.08.2013, 23.08.2013, 13.09.2013, 27.09.2013 and 11.11.2013. He deposed that on 27.12.2013, he was again admitted in Safdarjung Hospital and discharged on 03.01.2014 and during this period, treatment of Urinary tract infection (UTI) was done. He deposed on 24.01.2014, he was again admitted in Safdarjung Hospital and discharged on 05.02.2014 and during the period of his admission, Obstructive Urinary symptoms were found and after evaluation, it was found that PW1 was having Mid Bulbar urethra stricture, for which antegrade and retrograde scopy, followed by end to end urethroplasty was done on 30.01.2014. He deposed that thereafter, he visited OPD of Safdarjung Hospital on 28.02.2014, 14.03.2014, 04.04.2014, 21.04.2014, 30.05.2014 and 13.05.2014. He further deposed that he had received serious injuries in the accident and he cannot urinate properly and his marriage prospects have also diminished, due to erectile dysfunction. He has also placed reliance on original discharge slips, OPD cards (24 pages) Ex.PW1/1 (Colly), original medical bills (120 pages) Ex.PW1/2(Colly), photocopies of medical bills mark-Z, copy of matriculation certificate Ex.PW1/3, copy of DL of Rohit Gautam vs Ramesh Chand and Ors. Page 9 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 10 of46 his friend Badshah Mark-A, CT scan report and its payment bill Ex.PW1/4 and Ex. Ex.PW1/5. He deposed that he has spent more than Rs. 60,000/- on medical treatment, Rs. 25,000/-on conveyance, Rs. 30,000/- on special diet and Rs. 70,000/- on attendant charges. He deposed that his death of birth is 12.06.1989 and he was giving home tuitions, besides doing property dealing work and earning Rs. 15,000/- per month.
8. PW1 was also cross-examined by Ld. Counsel for R3, wherein he admitted that he has not filed any document, in respect of his income and profession. He further denied that the treatment record and medical bills as filed by him are false and fabricated. He also denied that the accident has occurred, due to negligence of driver of the scooty. He was also cross-examined by Ld. Counsel for R1 and R2, wherein he denied the suggestion that the accident has taken place with some unknown vehicle and not with the offending vehicle.
9. Petitioner has further examined Sh. Hardeep Singh, Medical Record Technician, Safdarjung Hospital, Delhi as PW2, who has brought the medical record of the patient Rohit Gautam. He deposed that the said patient was hospitalized on 20.12.2012 and discharged on 02.01.2013. He exhibited the medical treatment papers of the petitioner for the aforesaid period as Ex.PW2/1 (Colly) (35 pages). He Rohit Gautam vs Ramesh Chand and Ors. Page 10 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 11 of46 further deposed that the petitioner was again hospitalized on 22.12.2013 and discharged on 04.01.2014. He exhibited the treatment record of the petitioner for the aforesaid period as Ex.PW2/2 (Colly) (6 pages). He further deposed that the petitioner was again hospitalized on 24.01.2014 and discharged on 04.02.2014. He exhibited the treatment record of the petitioner for the aforesaid period as Ex.PW2/3 (Colly) (20 pages). He further deposed that the petitioner was also hospitalized on 13.05.2013 and discharged on 29.05.2013 but, the said record was not traceable and after seeing Ex.PW1/1, i.e. discharge slip of the petitioner for the aforesaid period, he deposed that the same was issued by Safdarjung Hospital. He was cross- examined by Ld. Counsel for R1, R2 and R3, wherein he deposed that he has no personal knowledge of the case.
10. The petitioner has further examined Dr. Jitender Singh, HOD, Orthopedics, BSA Hospital, Rohini, Delhi, who has brought the record pertaining to permanent disability of the petitioner. He exhibited the original disability certificate of the petitioner bearing no. 377 dated 08.12.2015, bearing his signatures, as Ex.PW3/1. He deposed that as per the opinion, the patient has 9% permanent physical impairment, in relation to both lower limbs. He further deposed that the patient was already seen by Urologist Dr. P.S. Khatana, who has given his opinion Ex.PW3/2. PW3 identified the signatures of Dr. P.S. Khatana and exhibited the Rohit Gautam vs Ramesh Chand and Ors. Page 11 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 12 of46 photocopies of the assessment record as Ex.PW3/3. He was cross-examined by Ld. Counsel for all the respondents, wherein he deposed that due to disability in both lower limbs, the patient is having difficulty in squatting and sitting cross-leg.
11. The petitioner has further examined Dr. P.S. Khatana, HOD, Urology, Dr. BSA Hospital, who deposed that the disability certificate of the petitioner Ex.PW3/1, also bears his signatures at point B and as per the said certificate, the patient was having 9% permanent disability, regarding his physical disability. He further deposed that he has assessed the patient regarding his erectile dysfunction disability and after clinical examination, he has referred the patient to Ganesh Diagnostic Center, for penile colour doppler and after checking the report of Ganesh Diagnostic Center, he has given the opinion that the patient is suffering from Stricture Urethra and Erectile dysfunction, following road traffic accident in 2012. He has placed reliance on report of Ganesh Diagnostic Center already Ex.PW1/4 and his opinion already Ex.PW3/2. He further deposed that the document Ex.PW3/3 also bears his signature at point A, on page no. 4 and there are no guidelines for assessing the exact percentage of disability of erectile dysfunction. He was also cross-examined by Ld. Counsel for R3 and by Ld. Counsel for R1 and R2, wherein he denied the suggestion that with exercise, the petitioner would be able to function Rohit Gautam vs Ramesh Chand and Ors. Page 12 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 13 of46 properly. He deposed that the said disorder affect the marriage prospects of the petitioner /injured.
12. R3/insurance company has examined Sh. Pramod Kumar Shah, Legal Claims Manager, Reliance General Insurance Co. Ltd. as R3W1, who led his evidence by way of affidavit Ex.R3W1/A. He deposed that as per the instructions from the company, Sh. V.K. Puri had issued notice U/o XII Rule 8 CPC, to the owner and driver of the offending vehicle, to produce the insurance policy, as well as driving license of the driver of the offending vehicle, on the date of alleged accident, which was posted and despite service, the same were not returned. He exhibited the notice U/o XII Rule 8 CPC as Ex.R3W1/1 and Ex.R3W1/2, postal receipts as Ex.R3W1/3 and Ex.R3W1/4, copy of insurance policy as Ex.R3W1/5. He deposed that in Ex. R3W1/A, i.e. his evidence affidavit, he has mentioned that the offending vehicle was a petrol tanker, whereas it is a kerosene tanker. He further deposed that on the date of accident, driver was driving the kerosene tanker, which vehicle is dangerous and hazardous vehicle and for which, endorsement is required every year by the concerned authority, as per Section 14 of M.V. Act and Rule 9(2) & (3) of Central Motor Vehicle Rules and in the verification report, it is not mentioned that the driver was authorized to drive kerosene tanker. Thus, the driver was not holding valid license to drive the kerosene tanker, at the time of accident consequently, R3 is Rohit Gautam vs Ramesh Chand and Ors. Page 13 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 14 of46 not liable to pay any compensation to the petitioner. He further deposed that the period of renewal of DL of the driver was three years. However, in case of hazardous vehicle, the DL was renewed every year. Therefore, the same also confirms that the driver was not holding valid driving license to drive the kerosene tanker at the time of accident. He was also cross-examined by Ld. Counsel for the petitioner, wherein he deposed that he has no knowledge if the tanker was filled with kerosene or was empty at the time of accident. He denied the suggestion that the driver was not required to possess the license, for driving the vehicle with dangerous and hazardous goods. During the course of his cross-examination by Ld. Counsel for R1 and R2, he denied the suggestion that at the time of accident, the offending tanker was empty.
13. R3 has further examined Sh. Rakesh Kumar Srivastav, Senior Assistant, ARTO Office, Jaunpur, UP, who has brought the summoned record of driving license number 6757/JNP/2008, issued to Ramesh Chand S/o Rajender Prasad Pandey, for LMV/NT issued on 17.08.2006, upto 16.08.2026, endorsed for HTV on 08.09.2008 till 07.09.2011 and thereafter, renewed on 11.09.2015 to 10.09.2018 for HTV and exhibited the same as Ex.R3W2/1. He deposed that the said DL was not valid for dangerous / hazardous goods i.e. oil tanker. He further deposed that there is special endorsement for dangerous and hazardous Rohit Gautam vs Ramesh Chand and Ors. Page 14 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 15 of46 goods, which was not there in the present matter. He was also cross-examined by Ld. Counsel for R1 and R2, wherein he admitted that Ramesh Chand was having valid driving license for HTV on 19.12.2012 but, he voluntarily stated that it was not valid for dangerous/ hazardous goods. He deposed that kerosene oil is also covered in the category of dangerous / hazardous goods. He further admitted that the said driving license is valid for LMV/NT only till 16.08.2026 and it is not valid for HTV till 16.08.2026.
14. In the present matter, as R1 and R2 failed to file their written statement in their defence, therefore, they were not permitted to lead evidence vide order dated 17.10.2017.
15. This Tribunal has heard the final arguments as advanced by Sh. R.K. Jain, Learned counsel for the petitioner, Mohd. Shakeel Ahmed, Learned counsel for R1 & R2 and Sh. Sujeet Jaiswal, Learned counsel for the insurance company/R3.
16. On appreciation of evidence as adduced by the parties in support of their respective versions, the issue-wise findings of this Tribunal are reproduced herein below:
ISSUE No. 1Whether on 19.12.2012 at 11.30 am, at Main Road, in front of Prajapati Mandir, Kumhar Basti, Sultanpuri, Delhi, truck tanker bearing registration no. DL1GB 3542, which was being Rohit Gautam vs Ramesh Chand and Ors. Page 15 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 16 of46 driven rashly and negligently by Ramesh Chand and hit scooty bearing registration no. DL4S-CC-3981 and caused injuries to Rohit? OPP
17. The onus of proving this issue on preponderance of probabilities was upon the petitioner/claimant. For deciding the present issue, the testimony of petitioner/PW1 Sh. Rohit Gautam is relevant, being an eyewitness as well as the injured/petitioner. PW1 deposed that on 19.12.2012, at about 11.30 am, when he was going with his friend namely Badshah, on the scooty of Badshah, bearing registration no. DL-4SCC-3981 and they reached in front of Prajapati Mandir, Kumhar Basti, at Sultanpuri Main Road, Delhi, they were hit from behind, by one tanker bearing registration no. DL-1GB-3542, which was being driven in a rash and negligent manner, by its driver Ramesh Chand Pandey. PW1 further deposed that he was sitting on the scooty, as a pillion rider and due to the said impact of hitting, he fell down on the left side of the road and his friend Badshah also received injuries. He further deposed that public persons have taken him to SGM Hospital and on 20.12.2012, he was shifted to Safdarjung Hospital, from where, he was discharged on 01.01.2013. He further deposed that even after 01.01.2013, his treatment continued for a considerable period, at Safdarjung Hospital.
18. PW1 was though cross-examined by Ld. Counsel for all the respondents but, they failed to impeach the credibility of Rohit Gautam vs Ramesh Chand and Ors. Page 16 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 17 of46 PW1 and failed to elicit any admission from the testimony of PW1, so as to prove that the alleged accident had not taken place with the offending vehicle or due to rash and negligent driving of the offending vehicle by R1.
19. Ld. Counsel for the insurance company/R3, has put a suggestion to PW1, that the accident has taken place due to negligence of the driver of the scooty, on which he was sitting as a pillion rider but, he denied the said suggestion. Interestingly, no written statement was filed by R1 and R2, so as to deny the factum of accident and involvement of the offending vehicle in causing the accident in question but, Ld. Counsel for R1 and R2 had cross-examined PW1 and had put suggestions to PW1, that the accident has taken place with some unknown vehicle and not with the offending vehicle, which PW1 has denied. Thus, the testimony of PW1, to prove rashness and negligence of R1, in causing the accident in question went unrebutted. The fact that the petitioner suffered grievous injuries in the case accident is also duly corroborated from medical treatment record of the injured/petitioner of Safdarjung Hospital Ex.PW1/1, his MLC No. 21749 dated 19.12.2012 of SGM Hospital, as well as the chargesheet, which was filed against R1 U/s 279/337/338 IPC. Further, there is nothing on record which shows that R1 has ever approached to any higher authority, with respect to his false implication in the present case.
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20. Consequently, in view of the unrebutted testimony of PW1, it stands duly proved that the accident had taken place due to rash and negligent driving of the offending vehicle by R1.
Issue no.1 is accordingly decided in favour of the petitioner and against the respondents.
ISSUE No. 2Whether petitioner is entitled to compensation, if so, to what amount and from whom?OPP
21. In view of the findings of this Tribunal, qua issue no.1 regarding negligence of R1, resulting in the occurrence of the case accident, this Tribunal is of the considered opinion that the petitioner/claimant is entitled to compensation, in respect of pain and suffering, loss of marriage prospects, loss of amenities of life, medical expenses, special diet charges, conveyance charges and other expenditure incurred by him, on the account of injuries sustained in the above-mentioned road traffic accident. This Tribunal shall now examine the entire evidence including the documents of the petitioner/claimant, for the purpose of arriving at a finding about the quantum of compensation, to which the petitioner/claimant is entitled.
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22. Section 168 of the Act enjoins the Claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
MEDICAL EXPENSES
23. Petitioner/PW1 got himself examined as PW1 and had placed reliance on original medical bills Ex.PW1/2, to prove the expenditure incurred by him, for his treatment, after the accident. He also deposed that he has spent Rs. 60,000/-, on his medical treatment. However, as per Ex.PW1/2(colly), petitioner had incurred total expenses of Rs. 54,525.21/-, on his treatment, towards medicines as well as on other diagnostic procedures. Accordingly, this Tribunal is of the opinion that the petitioner is entitled for compensation towards medical expenses, to the extent of original medical bills only, filed by him on court record. Thus, this Tribunal deems it appropriate to award a sum of Rs. 54,525.21/-, as compensation to the petitioner, under this head of medical expenses.
SPECIAL DIET AND CONVEYANCE
24. The petitioner has sought Rs. 55,000/- as compensation, on account of special diet and conveyance. In his evidence Rohit Gautam vs Ramesh Chand and Ors. Page 19 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 20 of46 affidavit Ex. PW1/A, though the petitioner/PW1 deposed that he had incurred Rs. 25,000/- on conveyance and Rs. 30,000/- on special diet but, he has not placed on record any prescription slip of a doctor, medical practitioner or dietitian, issued in his name (the name of the petitioner), advising him to take any form of special diet or any bill of special diet, such as high protein diet or liquid diet or nutritional supplements, for speedy recovery of the injuries sustained in the case accident.
25. Further, he has also not placed on record any bill of conveyance, such as bills raised by any private taxi service or ambulance service, availed by him for travelling to the hospital from his residence or vice versa, during his treatment period. In such circumstances, the requirement of special diet and conveyance, if any faced by the petitioner during his treatment period, has to be ascertained in accordance with the nature of injuries sustained by the petitioner.
26. In this context, a perusal of court record reveals that as per the medical treatment papers of the petitioner, which includes OPD slips, discharge slips, Ex.PW1/1 (Colly) and medical bills Ex.PW1/2(Colly), the petitioner had sustained grievous injuries, due to the accident. As per the evidence lead by the petitioner as PW1, initially, the petitioner was taken by public persons to SGM Hospital and on 20.12.2012, he was shifted to Safdarjung Hospital, from Rohit Gautam vs Ramesh Chand and Ors. Page 20 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 21 of46 where, he was discharged on 01.01.2013. He further deposed that even after 01.01.2013, his treatment continued at Safdarjung Hospital, for a considerable period of time, where he lastly got admitted on 24.01.2024 and discharged on 04.02.2014. Besides this, the petitioner has examined PW3 Dr. Jitender Singh, HOD Orthopedics, BSA Hospital Rohini, who has proved disability certificate of the petitioner bearing No. 377, dated 08.12.2015, issued by Doctors of Disability Board of Dr. BSA Hospital, as Ex.PW3/1, as per which, the petitioner had sustained 9% physical permanent disability, in relation to his both lower limbs. PW3 Dr. Jitender Singh has also deposed during the course of his cross-examination, that petitioner would be having difficulty in squatting and sitting cross leg, as the disability is in relation to his both lower limbs. He further deposed that along-with the said disability certificate, there is opinion of Urologist Dr. P.S. Khatana, which is Ex.PW3/2, as per which Dr. P.S. Khatana, Urologist has given the opinion that after the accident, the petitioner is suffering from stricture urethra and erectile dysfunction.
27. The petitioner has also examined Dr. P.S. Khatana, HOD, Urology as PW4, who has also relied upon the final opinion given by him Ex.PW3/2 and he deposed that there are no guidelines for assessing the exact percentage of disability of erectile dysfunction. During the course of his cross- examination by Ld. Counsel for R3, he deposed that the said disorder will affect the marriage prospects of the Rohit Gautam vs Ramesh Chand and Ors. Page 21 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 22 of46 petitioner/ injured. He denied the suggestion that with exercise, the petitioner would be able to function properly.
28. The medical treatment record of the petitioner of Safdarjung Hospital Ex.PW1/1 (Colly), also stands proved by the witness from Safdarjung Hospital/PW2, as per which, after the accident, the petitioner was admitted at Safdarjung Hospital four times between 20.12.2012 till 04.02.2014 and during the said period, the petitioner has undergone various medical procedures, for retention of urine/stricture of urethra, urinary tract infection (UTI). Further, the petitioner has placed reliance on medical bills Ex.PW1/2(Colly), as per which he was continuously under medication from 20.12.2012 till 11.01.2015. Therefore, it can be safely concluded that the petitioner had remained under treatment, at least for a period of about 26 months, after the accident. Accordingly, in view of the nature of injuries sustained by the petitioner, as well as after considering the period of his hospitalization/medication, coupled with 9% physical permanent disability, in relation to both lower limbs as well as disorder of erectile dysfunction, sustained by the petitioner, the period of treatment cum recuperation, in case of the petitioner is ascertained to be about 26 months. Consequently, this Tribunal is of the opinion that during his treatment cum recuperation period, the petitioner must have incurred expenses, in procuring special diet, for speedy recovery, as well as in travelling from his residence to hospital and vice Rohit Gautam vs Ramesh Chand and Ors. Page 22 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 23 of46 versa. Accordingly, a lump sum amount of Rs.55,000/- is granted under this head to the petitioner, which includes Rs. 25,000/- towards conveyance and Rs.30,000/- towards special diet.
ATTENDANT CHARGES
29. The petitioner has sought compensation of Rs.70,000/-, on account of attendant charges. Petitioner Rohit Gautam as PW1 has deposed by way of affidavit Ex.PW1/A, that he has availed the services of medical attendant and spent Rs. 70,000/-. However, the petitioner failed to place on record any payment being made by him to any agency, from which, he had hired any attendant or any document to show credit of any amount to any attendant or agency. He had also failed to examine any attendant, allegedly hired by him during the said period. However, taking into consideration the fact that the petitioner has duly proved that as a result of the accident, he has sustained grievous injuries, with 9% permanent disability, in relation to his both lower limbs, and as his treatment cum recuperation period has already been assessed to be about 26 months, therefore, this Tribunal is of the opinion that the petitioner must have felt compelled to avail services of a medical attendant or a family member as an attendant for self care activities, such as, bathing, dressing up, using the rest room, combing his hairs, eating etc., during his treatment cum recuperation period of 26 months. Accordingly, this Tribunal deems it Rohit Gautam vs Ramesh Chand and Ors. Page 23 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 24 of46 appropriate to award a lump sum amount of Rs.70,000/-, as compensation to the petitioner, under this head towards attendant charges.
COMPENSATION DUE TO PERMANENT DISABILITY/ LOSS OF FUTURE EARNING CAPACITY DUE TO DISABILITY
30. In his written arguments, the petitioner has claimed an amount of Rs. 2,39,881.86/-, on account of loss of future earnings, due to the permanent disability sustained by the petitioner, in the case accident.
31. However, a perusal of the court record reveals that as per the disability certificate bearing No. 377 dated 08.12.2015, issued by Doctors of Disability Board of Dr. BSA Hospital, which stands duly proved by PW3/Dr. Jitender Singh, HOD Orthopedics, BSA Hospital as Ex.PW3/1, the petitioner had sustained 9% permanent disability, in relation to his both lower limbs. PW3 Dr. Jitender Singh has also deposed during the course of his cross-examination, that petitioner would be having difficulty in squatting and sitting cross leg, as disability is in relation to his both lower limbs. Thus, the said physical disability, must have affected the locomotor skills of the petitioner.
32. PW3 further deposed that along with the said disability certificate, there is also opinion of Urologist Dr. P.S. Rohit Gautam vs Ramesh Chand and Ors. Page 24 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 25 of46 Khatana, which is Ex.PW3/2, as per which Dr. P.S. Khatana, Urologist has given the opinion that after the accident, the petitioner is also suffering from stricture urethra and erectile dysfunction. The petitioner has further examined Dr. P.S. Khatana as PW4, who deposed that as a result of the accident, the petitioner has also suffered disorder of erectile dysfunction. Further, during the course of his cross-examination by Ld. Counsel for the respondents, PW4 deposed that the said disability will have impact on the marriage prospects of the petitioner. Therefore, the testimony of PW4 proves that the said disability has no impact on the future earning capacity of the petitioner.
33. The Hon'ble Delhi High Court in its order passed in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held that same percentage of permanent disability may have different impact upon earning capacity of different individuals based upon the nature of their work. Relevant extract of observations made in para no.6.4 and 6.5 of the judgment passed by Hon'ble High Court of Delhi in the above named case is reproduced hereinbelow:
"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:
Rohit Gautam vs Ramesh Chand and Ors. Page 25 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 26 of46
(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
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 all 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."
34. In the light of above cited observations made by Hon'ble High Court of Delhi, in the decided case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors (supra), it can be safely concluded that same percentage of permanent disability can have different impact on functional capacity and earning potential of an individual depending upon the nature of his job. Therefore, the functional disability has to be ascertained, taking into consideration its impact on the work of the claimant.
35. In the present matter, petitioner/PW1 deposed that he was giving home tuitions as well as doing property dealing business but, he failed to place on record any document to Rohit Gautam vs Ramesh Chand and Ors. Page 26 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 27 of46 prove that he was engaged in property dealing work or was giving any home tuitions at the time of accident. However, as the petitioner has proved that as a result of the accident, he has suffered 9% physical permanent disability, qua both lower limbs, therefore, this Tribunal is of the considered opinion that as a result of 9% physical permanent disability, qua both lower limbs, the physical movement of the petitioner must have curtailed to some extent consequently, the same would have impact on his future earning capacity. Nevertheless, in view of the observation made by Hon'ble High Court of Delhi in the above sited case of Rajesh Tyagi & Ors. vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018, the functional disability of the petitioner in relation to his whole body and the effect of physical permanent disability on his actual earning capacity is taken as 4.5%.
36. It has been claimed by the petitioner that he was earning Rs. 15,000/- per month, from home tuitions as well as property dealing business but, he has filed to prove that he was doing the said work or earning Rs. 15,000/- per month as alleged.
37. The petitioner Rohit Gautam has placed on record copy of his matriculation certificate Ex.PW1/3, as per which, his date of birth was shown as 12.06.1989 and he has passed matriculation examination from Board of High School and Intermediate Education, Uttar Pradesh. Further, as per Rohit Gautam vs Ramesh Chand and Ors. Page 27 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 28 of46 Aadhar card of the petitioner, the petitioner was residing at P-3/180, Sultanpuri, C-Block, North West, Delhi. Therefore, it can be safely concluded that at the time of accident, the petitioner was resident of Delhi and matriculate. Further, the petitioner has failed to establish on record that he knew/learnt any skill or have expertise in any work. Accordingly, the petitioner is entitled to minimum wages payable to a matriculate person in Delhi, as on the date of occurrence of the case accident. Accordingly, it would be reasonable and just to consider the income of the petitioner as Rs.8,814 /- per month, on the date of occurrence of the case accident in question i.e. on 19.12.2012.
ADDITION OF FUTURE PROSPECTS
38. In respect of entitlement of the petitioner to addition of future prospects in his monthly income, 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 Rohit Gautam vs Ramesh Chand and Ors. Page 28 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 29 of46 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 self-employed or on a fixed salary, an addition of 40% of the established income 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 herein before.
(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)
39. Reference is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court.
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40. 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 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%.
41. As per matriculation certificate of the petitioner Ex.PW1/3, his date of birth is 12.06.1989 and the accident in question had occurred on 19.12.2012, therefore the age of the injured at the time of accident was 23 years 06 months and 07 days and he was taken as a self-employed person. 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 of 40 years at the time of his accident. The monthly income of petitioner is thus calculated as Rs. 8,814/- + 40% of 8,814/-, which comes to Rs.8,814/- +3,525.60/- = Rs.12,339.60/-.
42. The age of the petitioner at the time of accident was about 23 years 06 months and 07 days. In the said circumstances, the relevant multiplier has to be calculated as per the judgment passed by Hon'ble Supreme Court of India in the case of Sarla Verma vs Delhi Transport Corporation, Rohit Gautam vs Ramesh Chand and Ors. Page 30 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 31 of46 2009 ACJ 1298. As per the guidelines laid down in Sarla Verma case by Hon'ble Supreme Court of India, multiplier of 18 is to be applied for computing compensation payable to a victim of Road Traffic Accident aged between 21 to 25 years. The compensation is accordingly assessed towards loss of earning capacity at Rs. 1,19,940.912/- (after rounding of Rs. 1,19,941/-) [(Rs.12,339.60/-per month x 12 months x 18 (age multiplier) x 4.50/100 (functional disability)].
LOSS OF MARRIAGE PROSPECTS
43. In the present matter, as per the evidence led by the petitioner, the petitioner had sustained grievous injuries, as a result of the accident. The petitioner/ PW1 further deposed that he has suffered internal injuries i.e. rupture of urethra, fracture of pelvis and has undergone treatment for stricture urethra and retention of urine and even after treatment, he is not able to urinate properly. Further, the petitioner has examined Dr. Jitender Singh, HOD Orthopedics, BSA Hospital, who has proved the disability certificate of the petitioner as Ex. PW3/1, as per which, the permanent disability of the petitioner was 9% in relation to his both lower limbs. The petitioner has further examined Dr. P.S. Khatana as PW4, who deposed that as a result of the accident, the petitioner has also suffered disorder of erectile dysfunction. Further, during the course of his cross- examination by Ld. Counsel for the respondents, PW4 deposed that the said disorder will have impact on the Rohit Gautam vs Ramesh Chand and Ors. Page 31 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 32 of46 marriage prospects of the petitioner and he denied the suggestion that with exercise, the petitioner would be able to function properly.
44. In the present matter, the petitioner has duly proved on record that at the time of accident, he was merely 23 years old and since, the petitioner has duly proved that he has suffered multiple injuries due to the accident, which includes 9% permanent physical disability in relation to both lower limbs as well as disorder of erectile dysfunction, affecting his marriage prospects therefore, under the said head, the petitioner has been awarded compensation of Rs. 3,00,000/-.
LOSS OF AMENITIES OF LIFE
45. In the present matter, considering the nature of injuries sustained by the petitioner, his period of hospitalization and medication, this Tribunal has already assessed recuperation cum treatment period of the petitioner as 26 months. The petitioner has been further able to prove that as a result of the accident, he has suffered 9% permanent disability, in relation to his both lower limbs as well as disorder of erectile dysfunction. Thus, both the disabilities must have adverse impact on the petitioner, to enjoy his life, with all amenities which a normal person can do in normal circumstances. Further, the disabilities as sustained by the petitioner, which includes disorder of erectile dysfunction, Rohit Gautam vs Ramesh Chand and Ors. Page 32 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 33 of46 will have impact on the self esteem and confidence of the petitioner. Therefore, this Tribunal deems it fit to award a sum of Rs. 1,00,000/- to the petitioner under this head.
PAIN AND SUFFERING
46. In his written arguments, the petitioner has claimed an amount of Rs. 3 lacs, on account of trauma suffered by him, due to the injuries sustained in the case accident. As per the evidence led by the petitioner, in the accident, the petitioner suffered grievous injuries, which includes rupture of urethra, due to which he was not able to urinate properly. The petitioner has further proved that after the accident, he was under medical treatment for a period of 26 months. The petitioner has also been able to prove that he has suffered 9% permanent physical disability, in relation to his both lower limbs and has also suffered disorder of erectile dysfunction. Accordingly, this Tribunal is of the opinion that the petitioner must have suffered acute pain and mental agony, during his treatment cum recuperation period and on account permanent disability and disorder of erectile dysfunction, as suffered by him. Accordingly, a lump sum amount of Rs.2,00,000/- is granted in favour of the petitioner under the said head.
LOSS OF INCOME
47. Petitioner in his evidence by way of affidavit Ex. PW1/A, Rohit Gautam vs Ramesh Chand and Ors. Page 33 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 34 of46 has deposed that he was giving home tuitions, doing business of property dealer and was earning Rs. 15,000/- per month from his business and profession. But, as the petitioner has not been able to prove that he was doing any such work or earning Rs. 15,000/ pm, therefore, the income of the petitioner is already assessed as Rs.8,814/- per month i.e minimum wages of a matriculate in Delhi, at the time of case accident. Further, this Tribunal has already assessed the treatment-cum-recuperation period of the petitioner to be 26 months. Accordingly, a sum of Rs. 2,29,164/- (Rs.8,814/- x 26 months) is awarded in favour of the petitioner, as compensation under the head of loss of income.
48. Accordingly, the over all compensation which is to be awarded to the petitioner comes to Rs.11,28,631/- which is tabulated as below:-
Sl. No Compensation Award amount
1. Pain and suffering Rs. 2,00,000/-
2 Special diet & Conveyance Rs. 55,000/-
3. Attendant Charges Rs. 70,000/-
4. Medical Expenses Rs.54,525.21 /-
5. Loss of income Rs.2,29,164/-
6. Loss of amenities of life Rs.1,00,000/-
7. Loss of future earning capacity Rs. 1,19,941/-
8. Loss of marriage prospects Rs.3,00,000/-
Total Rs. 11,28,630.21/-
(after rounding off Rs.11,28,631/-)
(Rupees Eleven Lakhs Twenty Eight Thousand Six Hundred Thirty One Only) Rohit Gautam vs Ramesh Chand and Ors. Page 34 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 35 of46
49. In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) of the back the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. Therefore, in the interest of justice, in the present case also this court is of the opinion that the claimant/petitioner is entitled to interest @ 7% per annum from the date of filing of DAR/petition i.e. w.e.f 15.07.2013 till realisation of the compensation amount.
50. 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.
LIABILITY
51. In the case in hand, it is argued by Ld. Counsel for the Insurance co./R3 that insurance company is entitled to seek recovery rights against R1 and R2, as R1/driver of the offending vehicle was not authorized to drive the offending vehicle, at the time of accident. It was argued that since the offending vehicle is a tanker, which was used for carrying kerosene oil, which falls under the category of hazardous goods, thus, to drive the said vehicle, there ought to be an endorsement on the driving license of R1, that he was Rohit Gautam vs Ramesh Chand and Ors. Page 35 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 36 of46 authorized to drive the said vehicle but, there is no such endorsement on the driving license of R1, as available on record.
52. To prove the said defence, R3 has examined R3W2 Sh.
Rakesh Kumar Srivastav, Senior Assistant, ARTO Office, Jaunpur, UP, who has brought the summoned record of driving license number 6757/JNP/2008, issued to Ramesh Chand S/o Rajender Prasad Pandey/R1, for LMV/NT, issued on 17.08.2006 upto 16.08.2026, endorsed for HTV on 08.09.2008 till 07.09.2011 and thereafter, renewed on 11.09.2015 to 10.09.2018 for HTV and exhibited the same as Ex.R3W2/1. He deposed that the said DL was not valid for dangerous/ hazardous goods i.e. oil tanker. He further deposed that there is special endorsement for dangerous and hazardous goods, which was not there in the present matter. He was also cross-examined by Ld. Counsel for R1 and R2, wherein he admitted that Ramesh Chand was having valid driving license for HTV on 19.12.2012 but, he voluntarily stated that it was not valid for dangerous/ hazardous goods. He deposed that kerosene oil is also covered in the category of dangerous/ hazardous goods. He further admitted that the said driving license is valid for LMV/NT only till 16.08.2026 and it is not valid for HTV till 16.08.2026.
53. In the present matter, admittedly, the offending vehicle was an oil tanker, used for carrying kerosene oil. Though, Ld. Counsel for R1 and R2 has put a suggestion to R3W1/ Rohit Gautam vs Ramesh Chand and Ors. Page 36 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 37 of46 Legal Claims Manager of R3, that the said tanker was empty at the time of accident but, R3W1 denied the said suggestion. Further, neither R1 nor R2 has lead any evidence to prove that at the time of accident, the tanker was empty. Thus, by the evidence of R3W1 and R3W2, R3 has been able to prove that at the time of accident, R1 was not authorized to drive the offending vehicle, which was used for carrying hazardous goods/kerosene oil.
54. To claim recovery rights, Ld. Counsel for R3 has placed on reliance on the judgment of Hon'ble High Court of Delhi, in Mangla Goods Carrier vs National Insurance Co. Ltd. MAC. APP No. 270/2001, CM APPL. 34838/2021 and CM APPL. 34839/2021 decided on 14.09.2023, wherein recovery rights as granted in favour of the insurance company, was upheld by Hon'ble High Court of Delhi, observing that when the driver was not having valid and proper driving license, to drive a vehicle carrying hazardous goods, insurance company is entitled to right of recovery. Therefore, R3/insurance company is entitled to seek recovery rights against R1 and R2, jointly and severally.
55. In the present matter, admittedly, at the time of accident, the offending vehicle was insured with R3, therefore, R3 has to first make payment of award amount to the petitioner and thereafter, insurance company/R3 is entitled to seek its recovery from R1 and R2, who are jointly and severally liable to pay the said amount to R3.
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56. 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., Reliance General Insurance co./R3 is directed to deposit the awarded amount of Rs.11,28,631/- within 30 days from today within the jurisdiction of this Tribunal at State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with 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
57. Statement of petitioner in terms of clause 29 of MCTAP was recorded on 02.07.2019 regarding his Savings Bank A/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. I have heard the petitioner and learned counsel for the petitioner/claimant regarding Rohit Gautam vs Ramesh Chand and Ors. Page 38 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 39 of46 the financial needs of the injured/petitioner and in view of the observations made by the Hon'ble Supreme Court of India in the judgment passed 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:-
58. Keeping in view the facts and circumstances of the case, and clause 32 of MCTAP, regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs. 2,28,631/- be released to him in his MACT Claims SB A/c no. 38470117273 with SBI, Sultanpuri Branch, Delhi, as per rules, that is, the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in the form of FDRs of equal amount for a period of one month to 60 months respectively with cumulative interest without the facility of advance, loan and pre-mature withdrawal without the prior permission of the Tribunal.
59. It shall be subject to the following further conditions and directions 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 :-
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(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, that is, 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 pre-mature 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.
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(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 pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
RELIEF
60. As discussed above, Reliance General Insurance Company Limited/R3 is directed to deposit the award amount of Rs.11,28,631/- with interest @ 7% per annum from the date of filing of DAR/petition, that is, 15.07.2013 till realization within the jurisdiction of this Tribunal at SBI, Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days.
61. R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the Rohit Gautam vs Ramesh Chand and Ors. Page 41 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 42 of46 claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today.
62. A copy of this judgment/award be sent to respondent no. 2 for compliance within the granted time.
63. Nazir is directed to place a report on record in the event of non-receipt/deposit of the compensation amount within the granted time.
64. In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022- 22741336/9414048606) {other details-Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai-400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
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65. 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.
66. 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 on 02.07.2019. The record would show that the relevant documents including copy of aadhar card, PAN card, copy of bank pass book and form 15G of the petitioner have already been supplied to the Ld counsel for insurance co. on 02.07.2019 itself.
67. Form IVB which has been duly filled in 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. SHAMA by Digitally signed SHAMA GUPTA GUPTA 2024.05.28 Date:
14:29:11 +0530 Announced in open court (SHAMA GUPTA) on 20th May, 2024 P.O. MACT N/W Rohini Courts, Delhi Rohit Gautam vs Ramesh Chand and Ors. Page 43 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 44 of46 FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident: 19.12.2012
2. Name of injured: Rohit Gautam
3. Age of the injured: About 23 years and 06 months and 07 days at the time of accident.
4. Occupation of the injured: Self Employed
5. Income of the injured: Rs. 8,814/- per month.
6. Nature of injury: Grievous
7. Medical treatment taken by the injured: About 26 months.
8. Period of hospitalization: As per record.
9. Whether any permanent disability ? If yes, give details: Yes.
9% Permanent Physical Disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.54,525.21/-
(ii) Expenditure on conveyance Rs. 25,000/-
(iii) Expenditure on special diet Rs.30,000/-
(iv) Cost of nursing/attendant Rs.70,000/-
(v) Loss of earning capacity Rs.1,19,941/-
(vi) Loss of income Rs.2,29,164/-
(vii) Any other loss which may require N/A
any special treatment or aid to the
injured for the rest of his life
12. Non-Pecuniary Loss:
(I) Compensation for mental and N/A
Rohit Gautam vs Ramesh Chand and Ors. Page 44 of46
Rohit Gautam vs Ramesh Chand and Ors. Page 45 of46
physical shock
(ii) Pain and suffering Rs.2,00,000/-
(iii) Loss of amenities of life Rs.1,00,000/-
(iv) Disfiguration N/A
(v) Loss of marriage prospects Rs.3,00,000/-
(vi) Loss of earning, inconvenience, N/A
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 9% Permanent Physical nature of disability as permanent or Disability temporary
(ii) Loss of amenities or loss of N/A expectation of life span on account of disability
(iii) Percentage of loss of earning 4.5% capacity in relation of disability
(iv) Loss of future income - (Income X Rs.1,19,940.912/- (after % Earning capacity X Multiplier) rounding off Rs.1,19,941/-) [(Rs. 12,339.60/- per month x12 months x 18(age multiplier) x 4.50/100 (functional disability)].
(v) Future Medical Expenses N/A 14. TOTAL COMPENSATION Rs.11,28,631/- 15. INTEREST AWARDED 7%
16. Interest amount up to the date of Rs.8,56,975.58 (rounded off to Rs.8,56,976/-) award
17. Total amount including interest Rs. 19,85,607/-
18. Award amount released Rs. 2,28,631/-
19. Award amount kept in FDRs Rs. 17,56,976/- Rohit Gautam vs Ramesh Chand and Ors. Page 45 of46 Rohit Gautam vs Ramesh Chand and Ors. Page 46 of46
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) clause 29 of MCTAP (Clause29)
21. Next date for compliance of the 01.07.2024.
award. (Clause 31) Digitally signed SHAMA by SHAMA GUPTA GUPTA 14:29:03 Date: 2024.05.28 +0530 Announced in open court (SHAMA GUPTA) on 20th May, 2024 P.O. MACT N/W Rohini Courts, Delhi Rohit Gautam vs Ramesh Chand and Ors. Page 46 of46