Delhi District Court
Smt. Somari vs Consolidated New Cases Bearing No. ... on 24 November, 2018
IN THE COURT OF SH. RAKESH KUMAR-III
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL-02:
(CENTRAL):DELHI
New Suit No. 56461-16
1. Smt. Somari
W/o Late Sh. Chandresh Ram
2. Smt. Asha
W/o Sh. Jitender
D/o Late Sh. Chandresh Ram
3. Smt. Sarita
W/o Sh. Ramesh
D/o Late Sh. Chandresh Ram
4. Ms. Nisha
D/o Late Sh. Chandresh Ram
5.Smt. Samadei
W/o Late Sh. Khushi Ram @ Khuddi Ram
All R/o C-3/295, Sultanpuri, New Delhi.
..........Petitioners in the First petition.
New Suit No. 56346-16
Nargis
W/o Mohd. Talib
R/o 9727, Gali Neem Wali,
Nawab Ganj, Azad Market, Delhi.
............Petitioner in the Second Petition
New Suit No. 56401-16
Sh. Sandeep Jain
S/o Sh. Sultan Singh Jain
R/o E-4/118, First Floor,
Block-E, Pocket-4,
Sector-7, Rohini, Delhi-110085.
...............Petitioner in the Third Petition
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 1 / 48
New Suit No. 56402-16
Sh. Raj Kumar Jaiswal
S/o Sh. Jagan Nath Jaiswal
R/o A-21, Gali No. 1,
Part-5, Near Water Tank,
Sonia Vihar, Delhi-110094.
...............Petitioner in the Fourth Petition
1.
New Suit No. 56482-16
Sh. Gauri Shankar
S/o Sh. Mangli Prasad
R/o 47, Block E-3,
Sultan Puri, Delhi.
........................Petitioner in the Fifth Petition
New Suit No. 56735-16
Sh. Waqar Ahmed
S/o Sh. Sageer Ahmed
R/o 9727, Gali Neem Wali,
Nawab Ganj, Delhi.
....................Petitioner in the Sixth Petition
New Suit No. 57509-16
Sh. Id Mohammad
S/o Sh. Samser
R/o Jai Durga Garrage,
Near ISBT Gate No.1,
Kashmere Gate, Delhi.
Permanent Address:
Edrakpur Purbapara,
Nandigram Murarai-2,
Murarai, Rampurhat,
Birbhum West Bengal.
....................Petitioner in the Seventh Petition
VERSUS
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 2 / 48
1 Sh. Sunil Kumar
S/o Sh. Bhagwan
R/o Vill. Thana Kalan
Chandan Panna, Tehsil, Kharkhoda,
Sonepat, Haryana. (Driver)
2. M/s A.B.Grain Sprits Pvt Ltd.
B-143, 1st Floor, Okhla Industrial Area,
Phase-I, New Delhi. (Regd. Owner)
3. The New India Insurance Co. Ltd.
Divisional Office 312300,
902-905, Hemkunt House,
Rajendra Place, New Delhi-110008 (Insurer)
.......... Respondents in all the petitions
Date of filing of DAR in all the seven cases : 04/07/2014(DAR) Date of reserving judgment/order : 24/11/2018 Date of pronouncement : 24/11/2018 Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 3 / 48 CONSOLIDATED JUDGMENT-CUM-AWARD:
INFORMATION IN TERMS OF PROVISIONS OF THE MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP) Date of Accident 26.04.2014 Date of intimation of the accident by 30.04.2014 the Investigation Officer to the Claims Tribunal (Clause2) Date of intimation of the accident by 04.07.2014 the Investigation Officer to the Insurance Company (Clause2) Date of filing of the Report under 04.07.2014 section 173 Cr.PC before the Metropolitan Magistrate (Clause 10) Date of filing of Detailed Accident 04.07.2014 Information Report(DAR) by the Investigation Officer before Claims Tribunal (Clause) Date of service of DAR on the 04.07.2014 Insurance Company (clause11) Date of service of DAR on the 04.07.2014 claimant(s)(Clause11) Whether DAR was complete in all Yes respects? ( Clause11) If not state deficiencies in the DAR No Whether the police has verified the Yes documents filed with DAR? (clause4) Whether there was any delay or No deficiency on the part of the Investigation Officer? If so, whether any action/ direction warranted?
Date of appointment of the Not mentioned Designated Officer by the Insurance Company
Name, address and contact number Not mentioned of the Designated Officer of the Insurance Company(Clause 19) Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 4 / 48 Whether the Designated officer of the No insurance Company submitted his report within 30 days of the DAR?
(Clause 21) 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. (Clause22) Whether there was any delay or No deficiency on the part of the Designated officer of the Insurance Company? If so whether any action/ direction warranted?
Date of response of the claimant(s) to Not applicable the offer of the Insurance Company?
(Clause 23) Date of Award 24.11.2018 Whether the award was passed with No the consent of the parties? (Clause
22) Whether the claimants(s) examined Yes at the time of passing of the award to ascertain his/ their financial condition? (Clause 26) Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/ legal heirs of the deceased taken at the time of passing of the award? (Clause26) Mode of disbursement of the award Mentioned in the Award amount to the claimant(s) (Clause 28) Next Date of compliance of the 24.12.2018 award(Clause30) Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 5 / 48 CONSOLIDATED JUDGMENT CUM AWARD:
1. This consolidated judgment cum award shall decide the petitions under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred as Act) filed by petitioners bearing New Suit no. 56461/16 (Old Suit no. 730/14) for grant of compensation for the death of Sh. Chandresh Ram as well as for the injuries sustained by injured in New suits bearing no. 56346/16; 56401/16;
56402/16; 56482/16; 56735/16 & 57509/16 in the road vehicular accident.
2. Vide this consolidated judgment cum award, I shall dispose of all seven petitions bearing New suits No. 56346/16; 56401/16; 56402/16; 56461/16; 56482/16; 56735/16 & 57509/16 (hereinafter called the first petition; the second petition, third petition, fourth petition, fifth petition sixth petition and seventh petition respectively) filed by the petitioners u/s 166 and 140 Motor Vehicle Act 1988 amended upto date (hereinafter referred as Act). Since all these petitions arise out of the same motor vehicle accident, they can be conveniently disposed off altogether.
3. All these cases were consolidated vide order dated 10/10/2014 and the New Suit No-56461/16 (Old Suit No. 730/14) was ordered to be treated as lead case.
4. The case of the petitioner in Petition No. 56461/16 is that on 26.04.2014 at about 10:15 AM, Late Sh. Chandresh Ram (husband of petitioner no.1 and father of petitioners no. 2 to 5) was going to Azad Market on foot and when he reached near Aggarwal Sweet Shop, Rani Jhansi Road, suddenly a bus bearing registration no. DL-1PC-6531, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, firstly hit the TSR and then Chandresh Ram and due to the Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 6 / 48 impact, Chandresh Ram fell down on the road and received multiple grievous injuries. Chandresh Ram was taken to Bara Hindu Rao Hospital, where he was declared brought dead and his postmortem was conducted at Bara Hindu Rao Hospital.
In Petition No. 1 bearing no. 56461/16, the petitioners have claimed Rs. 30,00,000/- as compensation on account of fatal injuries sustained by late Chandresh Ram.
The case of the petitioner in petition no. 2 bearing no. 56346/16 is that on 26.04.2014 at about 10:15 am, she was proceeding from Bara towards his residence at Nawab Ganj, Azad Market, Delhi, while sitting in cycle rikshaw along with his relative Sh. Waqar Ahmed and when they reached in front of Aggarwal sweet Shop, Red Light, Azad Market, the cycle rikshaw puller stopped his rikshaw due to red light and suddenly, a bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, came from behind and hit the cycle rikshaw and due to the impact, the petitioner received multiple injuries. He was taken to Bara Hindu Rao Hospital, where he was treated and his MLC bearing no. 2706/14 was prepared by the concerned doctor.
In Petition No. 2 bearing no. 56346/16, Nargis (petitioner) has claimed the compensation on account of simple injuries sustained by her.
The case of the petitioner in the Petition no. 3 bearing no. 56401/16 is that on 26.04.2014 at about 10:15 am, the petitioner was standing along with his motorcycle by the extreme side of the road near Aggarwal Sweet Shop, Red Light, Azad Market Chowk, Delhi, and suddenly, a bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, and hit the pedestrians, other vehicles, one green colour Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 7 / 48 DTC Bus and the petitioner and due to the accident, the petitioner received grievous injuries. The injured was taken to St. Stephen's Hospital for treatment and his MLC No. 227/14 was prepared.
In Petition No. 3 bearing no. 56401/16, Sandeep Jain (petitioner) has claimed Rs.5,00,000/- as compensation on account of grievous injuries sustained by him.
The case of the petitioner in the Petition no. 4 bearing no. 56402/16 is that on 26.04.2014 at about 10:15 am, the petitioner was driving his TSR bearing registration no. DL-1RL-5309 and after dropping the passengers at Filmistan, he was proceedings towards his residence at Sonia Vihar, Delhi, and when he reached at Rani Jhansi Road, Red Light, Azad Market Chowk, Near Aggarwal Sweet Shop, then suddenly, one bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, and hit the TSR from behind with forceful impact and also hit the pedestrians, biker, cycle rishaw and green colour DTC Bus and due to the accident, the petitioner received multiple injuries on all parts of his body. The petitioner was removed to Hindu Rao Hospital, where his MLC bearing no. 2709/14 was prepared.
In Petition No. 4 bearing no. 56402/16, Ms. Raj Kumar Jaiswal (petitioner) has claimed Rs.3,00,000/- as compensation on account of simple injuries sustained by him.
The case of the petitioner in petition no. 5 bearing no. 56482/16 is that on 26.04.2014 at about 10:15 AM, he was going towards Azad Market, Delhi, on foot to attend his duties and when he was crossing the road near Red Light, Azad Market Chowk, near Aggarwal Sweet Shop, then suddenly, one bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 8 / 48 rashly and negligently, and hit the petitioner with great force and as a result, he received multiple injuries and he was taken to Hindu Rao Hospital, Delhi, where his MLC bearing no. 2702/14 was prepared.
In Petition No. 5 bearing no. 56482/16, Sh. Gauri Shankar (petitioner) has claimed Rs.15,00,000/- as compensation on account of grievous injuries sustained by him.
The case of the petitioner (in Petition No. 6 bearing no. 56735/16) is that on 26.04.2014 at about 10:15 AM, the petitioner was proceeding from Bara towards his residence at Nawab Ganj, Azad Market, Delhi, while sitting on cycle rikshaw and when he reached in front of Aggarwal Sweet Shop, Red Light, Azad Market Chowk, Delhi and due to the red light, the cycle rikshaw was standing and suddenly, one bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, hit the cycle rikshaw from behind and due to the accident, he sustained injuries. He was taken to Hindu Rao Hospital, where his MLC bearing no. 79/14 was prepared and his right leg below knee was amputated on 13.05.2014.
In Petition No. 6 bearing no. 5673516, Waqar Ahmed (petitioner) has claimed Rs10,00,000/- as compensation on account of grievous injuries sustained by him.
The case of the petitioner in Petition No. 7 bearing no. 57509/16 is that on 26.04.2014 at about 10:15 AM, the petitioner was pulling his rikshaw and two passengers were sitting and they boarded the rikshaw from Bara and they were proceeding towards Nawab Ganj, when the petitioner reached in front of Aggarwal Sweet Shop, Red Light, Azad Market, Delhi, he stopped his rikshaw due to the red light and suddenly, one bus bearing registration no. DL-1PC-6531, Route No. 937A, which Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 9 / 48 was being driven by respondent no. 1 at a very high speed, rashly and negligently, hit the cycle rikshaw from behind and due to the accident, he sustained injuries. He was taken to Hindu Rao Hospital, where his MLC bearing no. 2704/14 was prepared.
In Petition No. 7 bearing no. 57509/16 Id Mohammad (petitioner) has claimed Rs.10,00,000/- as compensation on account of grievous injuries sustained by him.
5. The written statement was not filed by Respondent No. 1, despite opportunity.
6. Written Statement was filed by the Respondent No.2 stating therein that respondent is operating a fleet of cluster buses in Delhi in pursuance to a Concession Agreement dated 11.01.2011 executed between the answering respondent and the DTC and the answering respondent is the registered owner of the bus in question.
7. The written statement was filed by respondent no.3 / insurance company and it was admitted that the offending vehicle was insured with it as on the date and time of accident.
8. From the pleadings of the parties, following Consolidated Issues were framed on 21.11.2014:-
1. Whether the deceased Sh.
Chandresh Ram suffered fatal injuries and Sh. Raj Kumar, Nargis, Id Mohammad, sh. Gori Shankar, Sh.
Waqar Ahmed and Sh. Sandeep Jain suffered injuries in an accident that took place on 26.04.2014 at about 10.15 a.m involving Bus bearing registration No. DL-1P-C6531 driven by the Respondent No.1, owned by Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 10 / 48 the Respondent No.2 and insured with the Respondent No.3?OPP
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
9. In order to establish their case, the petitioners in the case titled as Smt. Somari Devi Vs Sunik Kumar & Ors. bearing MACT No. 56461/14 examined Petitioner no. 1 Smt. Somari Devi as PW1 and relied upon the documents viz. I card of the petitioners as Ex.PW1/1, Ex.PW1/3 to Ex.PW1/5, photocopy of voter I card of the deceased Ex.PW1/6 and DAR as Ex.PW1/7 (Colly).
In order to establish her case, Ms. Nargis petitioner in the case titled as Nargish Vs Sunil Kumar & Ors bearing MACT No. 56346/16 examined herself as PW-1 and relied upon the documents viz. Copy of his aadhar card Ex.PW1/1 (OSR), medical record (collectively) Ex.PW1/2 and DAR Ex.PW1/3.
In order to establish his case, Sh. Sandeep Jain petitioner in the case titled as Sandeep Jain Vs Sunil Kumar & Ors. bearing MACT No. 56401/16 examined himself as PW1 and relied upon the documents viz. Copy of his identity card Ex.PW1/1 (OSR), Discharge summary Ex.PW1/2, Treatment card Ex.PW1/3, Medical bills of Rs. 42,102.96/- Ex.PW1/4 (colly), copy of his ITR for assessment year 2013-14 Ex.PW1/5, two photographs Ex.PW1/6 (colly) and DAR Ex.PW1/7 (Colly).
In order to establish his case, Sh. Raj Kumar Jaiswal petitioner in the case titled as Raj Kumar Jaiswal Vs Sunil Kumar & Ors. bearing MACT No. 56402/16 examined himself as PW1 and relied Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 11 / 48 upon the document viz. Copy of his voter identity card Ex.PW1/1.
In order to establish his case, Sh. Gauri Shankar petitioner in the case titled as Gauri Shankar Vs Sunil Kumar & Ors. bearing MACT No. 56482/16 examined himself as PW1 and he has also examined Dr. B.Kanhar who proved the permanent disability certificate of the petitioner Gauri Shankar as PW2 and relied upon the documents viz. Photocopies of his Election I card and discharge summary were exhibited as Ex.PW1/1 and Ex.PW1/2, but being the photocopies, same were de- exhibited and marked as Mark A and B during the examination of PW1, Medical bills of Rs. 4625.10 as Ex.PW1/3 (colly) and six photographs Ex.PW1/4 (colly).
In order to establish his case, Sh. Waqar Ahmed petitioner in the case titled as Waqar Ahmed Vs Sunil Kumar & Ors. bearing MACT No.56735/16 examined himself as PW2 and relied upon the documents viz. Copy of his voter I card Ex.PW2/1 (OSR), original discharge summary Ex.PW2/2, medical bills Ex.PW2/3 and two photographs Ex.PW2/4. He has also examined Dr. B.Kanhar, who proved the permanent disability certificate of the petitioner Waqar Ahmad, as PW1.
In order to establish his case, Sh. Id Mohammad petitioner in the case titled as Id Mohammad Vs Sunil Kumar & Ors. bearing MACT No. 57509/16 examined himself as PW1 and relied upon the documents viz. Photocopy of his voter I card Ex.PW1/1 (OSR), original discharge summary Ex.PW1/3, medical bills Ex.PW1/4 (Colly), three photographs Ex.PW1/5 (colly) and copy of discharge slip exhibited as Ex.PW1/2 in the affidavit of PW1, however same was de-exhibited being photocopy and marked as Mark A. He has also examined Dr. B.Kanhar, who proved the permanent disability certificate of the petitioner Gauri Shankar, as PW2.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 12 / 4810. The Respondent No. 1 did not lead any evidence in his defence.
11. The Respondent No. 2 examined Sh. Ghanshyam Singh as R2W1 in his defence.
12. The insurance company/Respondent No. 3 examined three witnesses Sh. Gajender Singh, as R3W1, Ms. Nili Niranjan as R3W2, Sh. P.S.Panchpal as R3W3 in its defence.
13. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties.
My findings on aforementioned issues are as under :
ISSUE NO.1 IN ALL THE SEVEN PETITIONS
14. The present petition is under Section 166 of M V Act and as such it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
15. The police has filed the Detailed Accident Report (DAR) pertaining to the FIR bearing No. 59/14 P.S. Bara Hindu Rao u/s 279/337/304A IPC including chargesheet etc.
16. PW-1 Smt. Somari Devi (wife of the deceased) in the first petition bearing no. 56461/16 has deposed that on 26.04.2014 at about 10:15 AM, Late Sh. Chandresh Ram (husband of petitioner no.1 and father of petitioners no. 2 to 5) was going to Azad Market on foot and when he reached near Aggarwal Sweet Shop, Rani Jhansi Road, Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 13 / 48 suddenly a bus bearing registration no. DL-1PC-6531, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, firstly hit the TSR and then Chandresh Ram and due to the impact, Chandresh Ram fell down on the road and received multiple grievous injuries. Chandresh Ram was taken to Bara Hindu Rao Hospital, where he was declared brought dead and his postmortem was conducted at Bara Hindu Rao Hospital.
PW1 Ms. Nargis (petitioner) in the Second Petition bearing no. 56346/16 deposed that on 26.04.2014 at about 10:15 am, she was proceeding from Bara towards his residence at Nawab Ganj, Azad Market, Delhi, while sitting on cycle rikshaw along with his relative Sh. Waqar Ahmed and when they reached in front of Aggarwal sweet Shop, Red Light, Azad Market, the cycle rikshaw puller stopped his rikshaw due to red light and suddenly, a bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, came from behind and hit the cycle rikshaw and due to the impact, the petitioner received multiple injuries. He was taken to Bara Hindu Rao Hospital, where he was treated and his MLC bearing no. 2706/14 was prepared by the concerned doctor.
PW1 Sh. Sandeep Jain (petitioner) in the Third Petition bearing no. 56401/16 deposed that on 26.04.2014 at about 10:15 am, he was standing along with his motorcycle by the extreme side of the road near Aggarwal Sweet Shop, Red Light, Azad Market Chowk, Delhi, and suddenly, a bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, and hit the pedestrians, other vehicles, one green colour DTC Bus and the petitioner and due to the accident, the petitioner received grievous injuries. The injured was taken to St. Stephen's Hospital for treatment and his MLC No. 227/14 was prepared.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 14 / 48PW1 Sh. Raj Kumar Jaiswal (petitioner) in the Fourth Petition bearing no. 56402/16 deposed that on 26.04.2014 at about 10:15 am, he was driving his TSR bearing registration no. DL-1RL-5309 and after dropping the passengers at Filmistan, he was proceedings towards his residence at Sonia Vihar, Delhi, and when he reached at Rani Jhansi Road, Red Light, Azad Market Chowk, Near Aggarwal Sweet Shop, then suddenly, one bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, and hit the TSR from behind with forceful impact and also hit the pedestrians, biker, cycle rishaw and green colour DTC Bus and due to the accident, he received multiple injuries on all parts of his body. He was removed to Hindu Rao Hospital, where his MLC bearing no. 2709/14 was prepared.
PW1 Sh. Gauri Shankar (petitioner) in the Fifth Petition bearing no. 56482/16 deposed that on 26.04.2014 at about 10:15 AM, he was going towards Azad Market, Delhi, on foot to attend his duties and when he was crossing the road near Red Light, Azad Market Chowk, near Aggarwal Sweet Shop, then suddenly, one bus bearing registration no. DL- 1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, and hit the petitioner with great force and as a result, he received multiple injuries and he was taken to Hindu Rao Hospital, Delhi, where his MLC bearing no. 2702/14 was prepared.
PW2 Sh. Waqar Ahmed (petitioner) in the Sixth Petition bearing no. 56735/16 deposed that on 26.04.2014 at about 10:15 AM, he was proceeding from Bara towards his residence at Nawab Ganj, Azad Market, Delhi, while sitting on cycle rikshaw and when he reached in front of Aggarwal Sweet Shop, Red Light, Azad Market Chowk, Delhi and due to the red light, the cycle rikshaw was standing and suddenly, one bus Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 15 / 48 bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, hit the cycle rikshaw from behind and due to the accident, he sustained injuries. He was taken to Hindu Rao Hospital, where his MLC bearing no. 79/14 was prepared and his right leg below knee was amputated on 13.05.2014.
PW1 Sh. Id Mohammad (petitioner) in the Seventh Petition bearing no. 57509/16 deposed that on 26.04.2014 at about 10:15 AM, he was pulling his rikshaw and two passengers were sitting and they boarded the rikshaw from Bara and they were proceeding towards Nawab Ganj, when the petitioner reached in front of Aggarwal Sweet Shop, Red Light, Azad Market, Delhi, he stopped his rikshaw due to the red light and suddenly, one bus bearing registration no. DL-1PC-6531, Route No. 937A, which was being driven by respondent no. 1 at a very high speed, rashly and negligently, hit the cycle rikshaw from behind and due to the accident, he sustained injuries. He was taken to Hindu Rao Hospital, where his MLC bearing no. 2704/14 was prepared.
All these Pws were cross-examined by Ld. Counsels for respondent no. 2 and respondent no. 3 / Insurance company and the cross-examination carried on by them is not suggestive of anything which may discard the claim of the petitioners to the effect that the driver of the offending vehicle was not rash and negligent at the time of accident. These Pws were not cross-examined by the respondent no.1 / driver.
17. It is pertinent to note that the respondent no.1/driver of aforesaid, Bus bearing No. DL-1PC-6531 was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 16 / 48 witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Bus bearing No. DL-1PC- 6531. The insurance company has not led any evidence on this aspect.
18. Not only this, the Respondent No. 1 namely Sunil Kumar (accused in the State case) has been charge sheeted for offences punishable U/s 279/337/304A IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending vehicle I.e Bus bearing No. DL-1PC-6531 by him. Same would also point out towards rash and negligent driving of Bus bearing No. DL-1PC-6531 by respondent no.1.
19. While determining the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 17 / 48 human being or damage to property would made the petition maintainable under section 166 and 140 of the Act.
20. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
21. Further the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by the Hon'ble High Court of Delhi, held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 18 / 48
22. Therefore, after considering oral as well as documentary evidence in all the petitions, it is clear that respondent No.1 was driving the vehicle in a rash and negligent manner.
23. The Issue No. 1, therefore, is decided in favour of the petitioners and against the respondents.
ISSUE NO.2 : COMPENSATION COMPENSATION IN THE FIRST PETITION (Suit No. 56461-16)
24. As per the copy of the election I card of the deceased Chandresh Ram Ex PW1/6, age of the deceased on 01.01.2002 was 42 years. The date of accident was 26/04/2014. Accordingly, the deceased was around 54 years as on the date of accident.
25. The deceased was stated to be a Tailor and was earning Rs.15,000/- but no income proof has been filed or proved on record. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 26/04/2014 on which the Minimum Wages for Unskilled Persons were Rs.8554/-.
26. The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 19 / 48 Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(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 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 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 funeral 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."
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 20 / 48After going through the facts and circumstances of the present case and the aforesaid case law laid down, I hereby grant 10% future prospects on the income of the deceased.
Thus, the income of the deceased per month comes to Rs.9409.4p (Rs.8554/- + Rs. 855.40/ which is 10% of Rs. 8554/-).
The appropriate multiplier applicable is '11' ( for the age group of 51 years to 55 years) as mentioned in Sarla Verma's judgment.
27. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending one-third of Rs.9409.4/- on his personal expenses as he had left behind only three dependents. The Petitioners No. 2 & 3 are not considered dependent upon the deceased, as they are the married daughter of the deceased. Therefore, after deducting one-third towards personal expenses, the loss of dependency per month comes out to be Rs.9409.40/- less Rs.3136.46/-=Rs.6272.94/-.The appropriate multiplier applicable is 11, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs.8,28,028.080/- (Rs.6272.94/-x 12 x 11). Same is rounded off to Rs. 8,28,029/-
28. The Hon'ble Supreme Court of India in, "National Insurance Company Ltd. vs. Praney Sethi & Ors. in Special Leave Petition (Civil) No.25590 of 2014 has granted a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on account of loss of estate, loss of consortium and funeral expenses respectively. The aforesaid amounts are to be enhanced at the rate of 10% in every three years.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 21 / 4829. In view of the abovesaid judgment age, I hereby award Rs. 15,000/- towards loss of estate; Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral charges.
30. Therefore, in total, I hereby award a sum of Rs. 8,98,029/- (Rupees Eight Lacs Ninety Eight Thousand Twenty Nine Only) ( Rs.8,28,029/- + 70,000/- ) in favour of the petitioners and against the respondents.
ISSUE NO.3:R E L I EF
31. I award Rs. 8,98,029/- (Rupees Eight Lacs Ninety Eight Thousand Twenty Nine Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR I.e. 04/07/2014 till realization. The Petitioner No. 1 shall have 60% share in the award amount whereas the Petitioners No. 4 & 5 shall have 20% share in the award amount. The Petitioners No. 2 & 3 shall have no share in the award amount, as they are married daughters.
32. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in terms of the judgment of Hon'ble High Court of Delhi in FAO 842/2003 @ CM Applns. No. 32859/2017, 41125-41127/2017 titled as Rajesh Tyagi & Ors. Vs. Jasbir Singh & Ors. Dated 01.05.2018, in order to avoid the money being frittered away, Ninety percent (90%) of the amount awarded to aforementioned petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioners No. 1, 4 & 5 can withdraw the interest monthly from Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 22 / 48 the said FDRs. No loan or advance shall be allowed against the said fixed deposit. 10% of the award amount alongwith proportionate interest be transferred in the savings bank accounts of the Petitioners No. 1, 4 & 5 immediately upon providing their necessary details and identification.
COMPENSATION IN THE SECOND PETITION (Suit No. 56346-16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS
33. As per medical record Ex PW1/2, the petitioner has suffered simple injuries. It is common knowledge that generally people during the treatment do not maintain the bills etc as they are not aware of this benevolent legislation having provisions for compensation. Keeping in view the overall circumstances,I hereby grant a sum of Rs. 3000/- towards medical expenses.
34. PAIN AND SUFFERINGS :
It is settled law that a particular amount can not be fixed for pain and sufferings in all the cases and it varies from case to case. Judicial notice can be taken to the fact that since the petitioner had got injuries as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have taken heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgement of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 23 / 48 be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment."
35. Keeping in view the said guidelines, nature of injuries and duration of treatment, I hereby grant Rs. 5,000/- towards pain and sufferings. I hereby award a sum of Rs.3,000/- towards special diet and conveyance.
LOSS OF GRATUTIOUS SERVICES DURING TREATMENT PERIOD
36. The petitioner was stated to be housewife. Keeping in view the nature of injuries, duration of treatment as per medical record, it appears to me that petitioner could not have rendered gratuitous services to her family for about 15 days. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 26/04/2014 on which the Minimum Wages for Unskilled were Rs. 8554/-. Accordingly, I award Rs.4277/- (Rs. 8554 X 1/2) towards loss of gratuitous services to her family during treatment period.
The total compensation is assessed as under:-
Treatment expenses: Rs. 3,000/-
Pain and sufferings: Rs. 5,000/-
Special diet and
conveyance : Rs. 3,000/-
Compensation on account
of loss of gratuitous services Rs. 4277/-
_____ ____________
Total: Rs. 15,277/-
RELIEF:
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 24 / 48
37. I award Rs.15,277/- (Rupees Fifteen Thousand Two
Hundred Seventy Seven Only ) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 04/07/2014 (DAR) till realization.
The entire amount be transferred in the savings bank account of the petitioner with upto date interest upon necessary providing necessary details and identification.
COMPENSATION IN THE THIRD PETITION (Suit No. 56401/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
38. As per copy of discharge summary Ex PW1/2 of St. Stephens's Hospital, the petitioner has suffered proximal Tibial Avulsion fracture left leg.The petitioner has filed the medical bills to the tune of Rs. 45,602.96/-.
(Same is rounded of to Rs. 45,603/-). Therefore, I hereby award a sum of Rs. 45,603/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
PAIN AND SUFFERINGS :
39. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs.60,000/- towards pain and sufferings and loss of amenities of life.
Besides this, I hereby award a sum of Rs. 30,000/- towards special diet and conveyance.
LOSS OF INCOME DURING TREATMENT PERIOD
40. The petitioner in the third petition is stated to be doing trading of electrical goods and was stated to be earning Rs. 30,000/- per month. He has filed the ITRs for the assessment year 2013-14 & 2014-15, vide Ex.PW1/5 and Ex.PW1/R2X1, but the date of accident is 26.04.2014. The aforementioned ITRs have not been considered, as same do not pertain to Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 25 / 48 the relevant period. Hence, the income of the petitioner can very well assessed on the basis of minimum wages.
Keeping in view the nature of injuries and as per medical record, it appears to me that petitioner could not have not have worked for about 4 months. Accordingly, I award Rs.34,216/- (Rs. 8554 X 4) towards loss of income.
The total compensation is assessed as under:-
Treatment expenses: Rs. 45,603/-
Pain and sufferings: Rs. 60,000/-
Special diet and
conveyance : Rs. 30,000/-
Compensation on account
of loss of income Rs. 34,216/-
_____ ______
Total: Rs. 1,69,819/-
RELIEF:
41. I award Rs. 1,69,819/- (Rupees One Lakh Sixty Nine
Thousand Eight Hundred Nineteen Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR Ie. 04/07/20104 (DAR) till realization.
The entire amount be transferred in the saving account of the petitioner with upto date interest upon providing necessary details and identification documents.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 26 / 48COMPENSATION IN THE FOURTH PETITION (Suit No. 56402/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
42. As per medical record Ex PW1/2, the petitioner has suffered simple injuries. It is common knowledge that generally people during the treatment do not maintain the bills etc as they are not aware of this benevolent legislation having provisions for compensation. Keeping in view the overall circumstances,I hereby grant a sum of Rs. 3000/- towards medical expense PAIN AND SUFFERINGS :
43. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs.
5,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 3,000/- towards special diet and conveyance.
LOSS OF INCOME DURING TREATMENT PERIOD
44. The petitioner in the Fourth Petition is stated to be self employed and was stated to be earning Rs. 15,000/- per month but no income proof has been filed or proved. Keeping in view the nature of injuries, duration of treatment as per medical record, it appears to me that petitioner could not have worked for about 15 days. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 26/04/2014 on which the Minimum Wages for Unskilled were Rs. 8554/-. Accordingly, I award Rs. 4277/- (Rs. 8554 X 1/2) towards loss of income during treatment period.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 27 / 48The total compensation is assessed as under:-
Treatment expenses: Rs. 3,000/-
Pain and sufferings: Rs. 5,000/-
Special diet and
conveyance : Rs. 3,000/-
Compensation on account
of loss of income Rs. 4277/-
_____ ____________
Total: Rs. 15,277/-
RELIEF:
45. I award Rs.15,277/- (Rupees Fifteen Thousand Two
Hundred Seventy and Seven Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR I.e. 04/07/20104 (DAR) till realization.
The entire amount be transferred in the savings bank account of the petitioner with upto date interest upon necessary providing necessary details and identification.
COMPENSATION IN THE FIFTH PETITION (Suit No. 56482/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
46. As per copy of medical records, the petitioner has suffered crush injury left foot. The petitioner has filed the medical bills to the tune of Rs. 4625/-. Therefore, I hereby award a sum of Rs. 4625/ towards medical bills keeping in view the nature of injuries and medical bills placed on record.
PAIN AND SUFFERINGS :
47. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs.
75,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 50,000/- towards special diet and Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 28 / 48 conveyance.
LOSS OF INCOME DURING TREATMENT PERIOD
48. The petitioner in the fifth petition is stated to be doing the work of packer and was stated to be earning Rs. 10,000/- per month but no income proof has been filed or proved.. Keeping in view the nature of injuries, duration of treatment as per medical record, it appears to me that petitioner could not have worked for about 6 months. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 26/04/2014 on which the Minimum Wages for Unskilled were Rs. 8554/-. Accordingly, I award Rs.51,324/- (Rs. 8554 X 6) towards loss of income during treatment period.
49. COMPENSATION ON ACCOUNT OF DISABILITY:
As per the disability certificate Ex.PW2/1, the petitioner has got 30% permanent physical impairment in relation to his left lower limb.
50. It is settled law that it is the percentage of functional disability arising out of physical disability which matters while assessing the compensation arising out of disability. On this aspect, I gain support from judgment of Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ I in which it was held as under:-
"11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 29 / 48 assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation ( see for example, the decisions of this Court in Arvind Kumar Mishra v New India Assurance Co. Ltd. 2010(10) SCC 254 and Yadava Kumar v D. M. National Insurance Co. Ltd. 2010(10) SCC 341."
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. 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 ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or
(ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry . On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 30 / 48 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand.
Sometimes the injured claimant may be continued in service but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emolument, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
51. After going through the testimony of PW-2 and keeping in view the work of packer, I am of the opinion that permanent disability of 30% in relation to permanent physical impairment in relation to left lower limb shall effect 20% upon his working capacity
52. Ld. Counsel for the petitioner has relied upon the judgment titled as Pushpa Devi Vs Puran Singh & Ors passed in MAC App. 174/2011 by Hon'ble Justice Sh. R.K.Gauba dated 09/03/2018. The relevant portion of the said judgment is as under:-
4. In above facts and circumstances while the conclusion of the tribunal about the extent of disability to be 40% is correct, error in computation of compensation for loss of income due to disability has crept in due to the assumption that the claimant's income be taken as Rs. 15,000/- per annum. It appears, the tribunal has gone by the prescription in the Second Schedule appended to the Motor Vehicles Act, 1988.
The present case is under Section 166 of Motor Vehicles Act, 1988. The calculation of loss of income due to disability should have been made with the help of minimum wages of Rs. 2783.90 as payable on the relevant date to an unskilled worker, there being Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 31 / 48 nothing on record to show any educational or trade qualifications of the claimant. It may be added that in computing the loss of future income due to disability, the element of future prospects to the extent of 40% will have to be added. (see judgment of the Constitution Bench of the Supreme Court rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. Vs Pranay Sethi and Ors.,). Thus, the loss of income due to permanent disability is in future is computed with the multiplier of 16 as (2783.9 X 140/100 X 40/100X12X16) Rs. 2,99,325/, rounded of to Rs. 3,00,000/-.
53. Ld. Counsel for the claimant has relied upon the judgment of the Hon'ble Apex Court which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 (Supra).
54. The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
55. As per the copy of election I card of the petitioner, the age of the petitioner as on 01.01.2013 is 49 years..The date of accident was 26.04.2014. Accordingly, the petitioner was around 50 years of age on the date of accident.
56. Accordingly, the petitioner was around 50 years of age as on the date of accident for which the relevant multiplier 13, as mentioned in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 is Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 32 / 48 applicable. In view of the aforementioned judgment Pushpa Devi (supra), the loss of income due to permanent disability in future is computed with the multiplier of 13 as (Rs.8,554X125/100X12X13X20/100) Rs. 3,33,606/-.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
57. In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,00,000/- as compensation towards loss of amenities of life and enjoyment of life (Reliance placed on "IFFCO TOKIO GENERAL INSURANCE COMPANY LTD VS. ARJUN & ORS., MAC APP. NO. 01/2013, DECIDED ON 04.01.2018 BY HON'BLE HIGH COURT OF DELHI).
The total compensation is assessed as under:-
Treatment expenses : Rs. 4,625/-
Pain and sufferings : Rs. 75,000/-
Conveyance & special diet: Rs. 50,000/-
Loss of income during Rs. 51,324/-
treatment period
Compensation on account of
disability: Rs. 3,33,606/-
Compensation on account of
loss of amenities of life and
enjoyment of life Rs. 1,00,000/-
Total: Rs. 6,14,555/-
58. RELIEF:
I award Rs. 6,14,555/- (Rupees Six Lacs Fourteen Thousand Five Hundred Fifty Five Only as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR I.e. 04/07/2014 till realization.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 33 / 4859. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in terms of the judgment of Hon'ble High Court of Delhi in FAO 842/2003 @ CM Applns. No. 32859/2017, 41125-41127/2017 titled as Rajesh Tyagi & Ors. Vs. Jasbir Singh & Ors. Dated 01.05.2018, in order to avoid the money being frittered away, Ninety percent (90%) of the amount awarded to aforementioned petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest monthly from the said FDRs. 10% of the award amount alongwith proportionate interest be transferred in the Savings Bank Account of the petitioner upon furnishing his identification documents and necessary account details.
COMPENSATION IN THE SIXTH PETITION (Suit No. 56735/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
60. As per copy of discharge slip of petitioner Ex PW2/2 issued by Hindu Rao Hospital, Delhi, the petitioner has suffered B/K Traumatic Amputation. The petitioner has filed the medical bills to the tune of Rs.3663/-. Therefore, I hereby award a sum of Rs. 3663/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
PAIN AND SUFFERINGS :
61. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 75,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 50,000/- towards special diet and conveyance.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 34 / 48LOSS OF INCOME DURING TREATMENT PERIOD
62. The petitioner in the sixth petition is stated to sell clothes on patri and was stated to be earning Rs. 15,000/- per month but no income proof has been filed or proved.. Keeping in view the nature of injuries, duration of treatment as per medical record, it appears to me that petitioner could not have worked for about 12 months. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 26/04/2014 on which the Minimum Wages for Unskilled were Rs. 8554/-. Accordingly, I award Rs. 1,02,648/- (Rs. 8554 X 12) towards loss of income during treatment period.
63. COMPENSATION ON ACCOUNT OF DISABILITY:
As per the disability certificate Ex.PW2/1, the petitioner has got 60% permanent physical impairment in relation to his right lower limb.
64. Keeping in view the guidelines given in the judgment of Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ I (supra) and after going through the testimony of PW- 1, I am of the opinion that permanent disability of 60% in relation to permanent physical impairment in relation to right lower limb shall effect 60% upon his working capacity
65. No future towards disability is given as the petitioner is more than 60 years of age, in terms of the judgment Pranay Sethi (Supra).
66. As per the copy of election I card of the petitioner, the age of the petitioner as on 01.01.2014 is 63 years..The date of accident was 26.04.2014. Accordingly, the petitioner was around 63 years of age on the date of accident.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 35 / 4867. Accordingly, the petitioner was around 63 years of age as on the date of accident for which the relevant multiplier 7 as mentioned in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 is applicable. In view of the aforementioned judgment Pushpa Devi (supra), the loss of income due to permanent disability in future is computed with the multiplier of 7 as (Rs. 8,554X12X7X60/100) Rs. 4,31,121.60/-. (Same is rounded of to Rs. 4,31,122/-).
68. LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,00,000/- as compensation towards loss of amenities of life and enjoyment of life (Reliance placed on "IFFCO TOKIO GENERAL INSURANCE COMPANY LTD VS. ARJUN & ORS., MAC APP. NO. 01/2013, DECIDED ON 04.01.2018 BY HON'BLE HIGH COURT OF DELHI).
The total compensation is assessed as under:-
Treatment expenses : Rs. 3,663/-
Pain and sufferings : Rs. 75,000/-
Conveyance & special diet: Rs. 50,000/-
Loss of income during Rs. 1,02,648/-
treatment period
Compensation on account of
disability: Rs. 4,31,122/-
Compensation on account of
loss of amenities of life and
enjoyment of life Rs. 1,00,000/-
Total: Rs. 7,62,433/-
69. RELIEF:
I award Rs. 7,62,433/- (Rupees Seven Lacs Sixty Two Thousand Four Hundred Thirty Three Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR I.e. 04/07/2014 till realization.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 36 / 4870. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in terms of the judgment of Hon'ble High Court of Delhi in FAO 842/2003 @ CM Applns. No. 32859/2017, 41125-41127/2017 titled as Rajesh Tyagi & Ors. Vs. Jasbir Singh & Ors. Dated 01.05.2018, in order to avoid the money being frittered away, Ninety percent (90%) of the amount awarded to aforementioned petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest monthly from the said FDRs. 10% of the award amount alongwith proportionate interest be transferred in the Savings Bank Account of the petitioner upon furnishing his identification documents and necessary account details.
COMPENSATION IN THE SEVENTH PETITION (Suit No. 57509/16) NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
71. As per copy of medical record, the petitioner has suffered grievous injuries. The petitioner has filed the medical bills to the tune of Rs. 4516/-. Therefore, I hereby award a sum of Rs. 4516/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
PAIN AND SUFFERINGS :
72. Keeping in view the aforesaid said guidelines and keeping in view the aforesaid observation made by this court, I hereby allow Rs. 75,000/- towards pain and sufferings and loss of amenities of life. Besides this, I hereby award a sum of Rs. 50,000/- towards special diet and conveyance.
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 37 / 48LOSS OF INCOME DURING TREATMENT PERIOD
73. The petitioner in the seventh petition is stated to be Rickshaw Puller and was stated to be earning Rs. 12,000/- per month but no income proof has been filed or proved.. Keeping in view the nature of injuries, duration of treatment as per medical record, it appears to me that petitioner could not have worked for about 8 months. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 26/04/2014 on which the Minimum Wages for Unskilled were Rs. 8554/-. Accordingly, I award Rs. 68,432/- (Rs.8554 X 8) towards loss of income during treatment period.
74. COMPENSATION ON ACCOUNT OF DISABILITY:
As per the disability certificate Ex.PW2/1, the petitioner has got 50% permanent physical impairment in relation to his both lower limbs.
75. Keeping in view the guidelines given in the judgment of Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ I (supra) and after going through the testimony of PW- 2, I am of the opinion that permanent disability of 50% in relation to permanent physical impairment in relation to left lower limb shall effect 50% upon his working capacity
76. Ld. Counsel for the petitioner has relied upon the judgment titled as Pushpa Devi Vs Puran Singh & Ors passed in MAC App. 174/2011 by Hon'ble Justice Sh. R.K.Gauba dated 09/03/2018 (Supra) and SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Pranay Sethi & ors decided on 31.10.2017 (Supra). He has also relied upon the judgment of Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 (Supra).
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 38 / 4877. As per the copy of election I card of the petitioner Ex PW1/1, the age of the petitioner as on 01.01.1995 is 20 years..The date of accident was 26.04.2014. Accordingly, the petitioner was around 39 years of age on the date of accident.
78. Accordingly, the petitioner was around 39 years of age as on the date of accident for which the relevant multiplier 15, as mentioned in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 is applicable. In view of the aforementioned judgment Pushpa Devi (supra), the loss of income due to permanent disability in future is computed with the multiplier of 15 as (Rs.
8,554X140/100X12X15X50/100) Rs.10,77,804/-.
79. LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE In view of the nature of injuries including permanent disability suffered by him and his continued treatment for considerable period, I award a notional sum of Rs. 1,00,000/- as compensation towards loss of amenities of life and enjoyment of life (Reliance placed on "IFFCO TOKIO GENERAL INSURANCE COMPANY LTD VS. ARJUN & ORS., MAC APP. NO. 01/2013, DECIDED ON 04.01.2018 BY HON'BLE HIGH COURT OF DELHI).
The total compensation is assessed as under:-
Treatment expenses Rs. 4,516/-
Pain and sufferings: Rs. 75,000/-
Conveyance & special diet: Rs. 50,000/-
Loss of income during Rs. 68,432/-
treatment period
Compensation on account of
disability: Rs. 10,77,804/-
Compensation on account of loss
of amenities of life and enjoyment of life Rs. 1,00,000/-
Total: Rs. 13,75,752/-
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 39 / 48
80. RELIEF:
I award Rs. 13,75,752/- (Rupees Thirteen Lacs Seventy Five Thousand Seven Hundred Fifty Two Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the DAR I.e. 04/07/2014 till realization.
81. As per the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 and in terms of the judgment of Hon'ble High Court of Delhi in FAO 842/2003 @ CM Applns. No. 32859/2017, 41125- 41127/2017 titled as Rajesh Tyagi & Ors. Vs. Jasbir Singh & Ors. Dated 01.05.2018, in order to avoid the money being frittered away, Ninety percent (90%) of the amount awarded to aforementioned petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest monthly from the said FDRs. 10% of the award amount alongwith proportionate interest be transferred in the Savings Bank Account of the petitioner upon furnishing his identification documents and necessary account details.
APPORTIONMENT OF LIABILITY:
82. I have taken the note of the submissions of Ld. Counsel for insurer for recovery right for the breach of the terms and condition of the policy as the driver of the vehicle was not carrying effective and valid DL as on the date of accident i.e. 26.04.2014.
83. During the course of arguments, Ld. Counsel for the insurance company vehemently argued that the offending vehicle was being used by the Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 40 / 48 respondent no. 1 without having a valid and effective license and hence, the insurance company is not liable to pay the compensation to the petitioner. It is further submitted by Insurance Company that because of the reason that the owner of the offending vehicle has committed breach of the terms and conditions of the policy (as the driver of the offending vehicle was driving the vehicle for which he was not authorized to drive, the insurance company be absolved of the liability.
84. On the other hand, Ld. counsel for respondent no. 2 argued that at the time of giving job to respondent no. 1, his driving license bearing no.
10200100956 was having validity upto 10.12.2016 was seen by him which was duly signed by the Licensing Authority, which on the fact of it, looked valid and genuine.
85. It is argued by Ld. Counsel for the Insurance company that respondent no. 2 company has examined Sh. Ghanshyam Singh as R2W1, but neither any resolution has been proved, as per Evidence Act, nor original minute book has been produced and without these documents, Sh. Ghanshyam Singh has no authority to appear on behalf of the company and to depose. No original letter of employment has been placed on record by the respondent no. 2 / company. It is argued by Ld. Counsel for the Insurance company that no witness has been summoned by the Respondent No. 2 company that the driver was having valid and effective license at the time of accident and several buses of respondent no. 2 / Company are plying on the road and it was the bounden duty of the company to verify the genuineness of the license before giving the appointment to the driver and in support of his contention, he has relied upon the Order bearing MAC. APP. 1005/2017 titled as Delhi Transport Corporation (DTC) Vs. Kamal Kishore & Ors. passed by Hon'ble Mr. Justice J. R. Midha dated 27.07.2018. The relevant portion of the aforesaid order is as under :-
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 41 / 48"This court is of the view that the appellant, being a public corporation, it was their bounded duty to have verify the genuineness of the license before confirming the appointment of the driver. In that view of the matter, taking the driving test of the driver and believing the driving licence produced by driver to be true, is not sufficient discharge of the duties."
86. In order to substantiate its claim, the insurance company examined four witnesses Sh. Gajender Singh, UDC, Transport Authority Janak Puri, (West Zone) Delhi as R3W1, Ms. Nili Niranjan, AO/AM, New India Assurance Company Ltd, Delhi as R3W2 and Sh. P.S.Panchpal, MLO, Licensing Authority WZ-II, Raja Garden, Delhi R3W1-Sh. Gajender Singh UDC, Transport Authority, Janak Puri (West Zone) Delhi has proved that DL bearing No. DL-10200100956 in the name of Respondent No. 1 / Sunil Kumar S/o Sh. Bhagwan Singh was not found in their computer and he further deposed that on search the record by name, they found that DL in the name of Respondent No.1/Sunil Kumar S/o Sh. Bhagwan was issued by their office on 01/10/2014 and same was valid till 30/09/2017 vide DL bearing No. DL-0420020179676 and bearing Old DL No.C-04012002290156. He proved the driving license detail duly attested by MLO Sant Ram which is Ex R3W1/1.
R3W2 - Ms. Nili Niranjan, AO/AM, New India Assurance Company Ltd, Delhi has proved the DL verification report so filed by the IO alongwith DAR duly attested by the Inspector MACT Cell Ex R3W2/1 (Colly), the copy of legal notice Ex R3W2/2, the postal receipts Ex R3W2/3 and Ex R3W2/4 and attested insurance policy Ex R3W2/5.
R3W3-Sh. P. S. Panchpal, MLO, Licensing Authority WZ-II, Raja Garden, Delhi deposed that DL bearing No. DL-10200100956 is not correct, as the same bears eleven digits instead of thirteen digits, as all the driving license number are having 13 numerical digits. He further deposed Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 42 / 48 that aforementioned DL has not been issued from their office at any point of time. He relied upon the report duly signed by him is Ex R3W3/A. Moreso, IO has also filed the DL verification report along with the DAR from the Transport Authority, Janakpuri, Delhi, in respect of DL bearing no. 10200100956, which depicts that no such driving license has been issued in the name of respondent no. 1 I.e. Sunil Kumar S/o. Sh. Bhagwan. As per Rule 7 of the Delhi Motor Accident Claims Tribunal Rules 2008, report submitted by the Investigating Officer to the Claims Tribunal shall be presumed to be correct and shall be read in evidence without formal proof, till proved to the contrary.
In view of the aforesaid discussion, I am of the considered opinion that the Respondent No.1/Driver was not having a valid and effective DL as on the date of accident which took place on 26.04.2014. Being a big company plying several buses on road, it was the bounden duty of the company to verify the DL of the driver, which the company has failed to do so and by this negligent act, it put the life of several persons walking on the road or driving vehicles in danger. The driver dashed against several people and several vehicles and did not stop the bus and by his negligence act, one person died and several others were seriously injured and for this, company I.e. the owner and the driver, both are liable.
87 In order to decide the defence raised by the Ld. Counsel for insurer, I am being guided by the judgment of Hon'ble High Court in MAC. App. 476/2011 in case title as ' National Insurance Company Ltd vs. Sarita Hasija & Ors' decided by Hon'ble Justice G. P. Mittal wherein Hon'ble High Court have relied upon its own judgment in case titled as 'New India Assurance Company Ltd. v. Sanjay Kumar & Ors', ILR(2007) 11, Delhi 733 wherein it was held as under:-
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 43 / 48"23. Where the assured chooses to run away from the battle i.e fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at he trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving license. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
88. In view of the aforesaid judgment of Hon'ble High Court of Delhi and in view of the fact that the insurer have duly proved the notice u/s 12 R 8 CPC, this court has come to the conclusion that the insurance company is entitled to recovery rights against Respondent nos. 1 and 2 but only after the disbursement of claim to the claimant in terms of the judgment of the Hon'ble Supreme Court in Swaran Singh's case, 2004 ACJ 1 (SC) (Supra).
89. The Respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, the respondent No. 3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
90. The Hon'ble High Court of Delhi in its judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 44 / 48 decided on 13.1.2010 as well as in MAC. APP No. 422/2009 titled as Sobat Singh Vs. Ramesh Chandra Gupta & Anr. & FAO 842/2003 & CM32859/2017, 41125-41127/2017 titled as Raesh Tyagi & Ors. Vs. Jaibir Singh & Ors. Dated 15/12/2017 has given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon'ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 45 / 48
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody .However, the original pass book shall be given to the claimant alongwith the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
91. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its Nodal Officer, Relationship Manager, Tis Hazari Branch, Tis Hazari or to UCO Bank through Mr. M. M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 46 / 48 the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
92. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit number of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
93. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
94. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
95. A copy of this award be given to the insurance company as well as to the petitioner free of cost.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 47 / 48File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 24.12.2018.
Digitally signed by RAKESH RAKESH KUMAR
KUMAR Date:
2018.11.26
15:50:10 +0530
Announced in the open court ( RAKESH KUMAR-III)
On this 24th November, 2018 Judge, MACT (CENTRAL-02)
Delhi/24.11.2018
Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 48 / 48
Suit No. 56461-16 16(Copy be also placed in Suit Nos. 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 24/11/2018 Present: None.
Consolidated Judgment in Suits Nos. 56461/16 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 is announced vide separate sheets of even date.
A copy of this consolidated award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
The petitioners are further directed to open a bank account, if not opened earlier, near his place of residence and to file the photocopy of his passbook, with due endorsement on the passbook that no cheque book or debit card is issued and file the copy of the same with the Nazir of this court.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 24.12.2018.
(RAKESH KUMAR-III ) PO: MACT-02(CENTRAL) :
DELHI/24.11.2018 Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 49 / 48 Consolidated New Cases bearing No. 56461/16, 56346/16; 56401/16; 56402/16; 56482/16; 56735/16 & 57509/16 Page 50 / 48