Delhi District Court
Sarla vs Surya Bhan Singh on 13 December, 2023
Smt. Sarla Vs. Surya Bhan & Ors. Page 1 of 32
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
New No.402-2018
UNIQUE ID No. : DLNW01-005848-2018
Smt. Sarla W/o Sh. Krishan,
R/o Village Dolcha Baghpat Khekada,
Uttar Pradesh.
........ Petitioner/claimant
Vs.
1. Sh. Surya Bhan Singh S/o Sh. Raj Bahadur,
R/o Village Mainaha, Post Bhadohi,
PS Anchal Ganj, Unnao, U.P.
....... Driver /R1
2. Army Truck
Bearing registration No.05D-166509Y
Make Ashoka Leyland (Truck)
........ Owner/R2
Other details
DATE OF INSTITUTION : 02.06.2018
DATE OF RESERVING JUDGMENT : 13.12.2023
DATE OF PRONOUNCEMENT : 13.12.2023
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED
CLAIMS TRIBUNAL AGREED PROCEDURE TO BE
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MENTIONED IN THE AWARD AS PER FORMAT REFERRED IN
THE ORDER PASSED BY THE HON'BLE DELHI HIGH COURT
IN FAO 842/2003 RAJESH TYAGI Vs. JAIBIR SINGH and ORS.
VIDE ORDER DATED 07.12.2018.
1. Date of the accident 05.06.2017
2. Date of intimation of the accident by the 02.06.2018
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 02.06.2018
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. Not mentioned in the
before the Metropolitan Magistrate DAR
5. Date of filing of Detailed Accident Information 02.06.2018
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance 02.06.2018
Company
7. Date of service of DAR on the claimant (s). 02.06.2018
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents Yes.
filed with DAR?
11. Whether there was any delay or deficiency on the N/A
part of the Investigating Officer? If so, whether
any action/direction warranted?
12. Date of appointment of the Designated Officer by Without insurance
the insurance Company.
13. Name, address and contact number of the Without insurance
Designated Officer of the Insurance Company.
14. Whether the designated Officer of the Insurance Without insurance
Company submitted his report within 30 days of
the DAR? (Clause 22)
15. Whether the insurance company admitted the Without insurance
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
Smt. Sarla Vs. Surya Bhan & Ors. Page 2 of 32
Smt. Sarla Vs. Surya Bhan & Ors. Page 3 of 32
compensation in accordance with law.
16. Whether there was any delay or deficiency on the Without insurance
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 the offer Without insurance
of the Insurance Company .
18. Date of the Award 13.12.2023
19. Whether the award was passed with the consent No
of the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were directed 15.04.2019
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) produced the 13.12.2021
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 above
Claimant(s)
24. Details of saving bank account(s) of the Petitioner Smt. Sarla
claimant(s) and the address of the bank with W/o Sh. savings
IFSC Code bank a/c
No.40597184170
with SBI, Rohini
District Courts, Delhi
IFSC :SBIN0010323
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain his/their
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financial condition.
27. Account number/CIF No, MICR number, IFSC 41065170303,
Code, name and branch of the bank of the Claims 110002427,
Tribunal in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from Detailed Accident Report (hereinafter referred to as DAR) was filed on 02.06.2018 with reference to FIR No.258/17 registered at PS Subhash Place in respect of commission of offences of causing grievous hurt and death not amounting to culpable homecide by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/338/304-A of Indian Penal Code, 1860 (hereinafter referred to as IPC) wherein subsequent charge sheet for the commission of aforementioned offences of causing grievous hurt and death not amounting to culpable homicide by rash and negligent driving of a motor vehicle on a public road punishable u/s 279/338/304-A IPC against driver, namely, Surya Bhan was also filed in respect of grievous injuries sustained by Sarla and fatal injuries sustained by one Sh. Hemant, nephew of the petitioner in a road traffic accident. The learned predecessor Court had vide order dated 02.06.2018 treated the DAR as a petition u/s 166(4) of the M.V. Act).
2. The brief facts of the case as discernible from DAR/documents of the petitioner are that on 05.06.2017, victim Sarla was travelling as a pillion rider on motorcycle of his nephew, namely, Hemant, bearing registration Smt. Sarla Vs. Surya Bhan & Ors. Page 4 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 5 of 32 No. DL8S-BU-1143 from the residence of Hemant at Village Madipur to Loni traffic intersection (GC) wherefrom she was supposed to board a bus to her matrimonial home situated at Village and Post Office Dolcha, PS Baleni, District Baghpat, U.P, however, at about 6:45 pm, upon reaching near Netaji Subhash Place, one Army Truck bearing registration No.05D-166509Y (hereinafter referred to as the offending vehicle) had come from behind which was being driven Surya Bhan Sigh (hereinafter referred to as the driver of the offending vehicle/respondent number 1/R1) in a rash and negligent manner and had over taken their vehicle before its driver had suddenly applied brakes after coming in front of their motorcycle due to which their motorcycle had got struck against the back side of the Army Truck and had gone underneath its body. As a consequence of collision of their motorcycle against the back side of the offending truck, victim Sarla and Hemant had sustained injuries for treatment of which they were removed to Fortis Hospital, Shalimar Bagh, where victim Sarla was medically examined vide MLC No. 1352/2017, containing a finding to the effect that she had sustained grievous injuries due to fracture of distal end of radius in her right wrist.
3. Learned counsel for R1 and R2 had jointly filed their written statement mentioning therein that the petitioner had not approached the court with clean hands and had concealed material facts from the court. Besides, it was a defence of the respondents that the claim filed by the claimant was highly exaggerated and without any basis as the accident had occurred due to fault and negligence of one of the victim of the case accident, namely, Hemant, who was driving his motorcycle at an excessive Smt. Sarla Vs. Surya Bhan & Ors. Page 5 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 6 of 32 speed. It was also averred in the written statement of R1 and R2 that deceased Hemant was driving his motorcycle in a rash and negligent manner in the lane meant for heavy vehicles in which the army truck was being plied and the bike being driver by the deceased had hit into the left rear side of the army truck at a high speed due to the fault of deceased Hemant, who was one of the victim in the case accident along with petitioner Sarla.
4. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor Court vide order dated 22.01.2019:-
(1) Whether on 05.06.2017 at about 7:00 am, at Ring Road towards Azadpur in front of Subhash Place Depot, Delhi, one truck bearing registration No. 05D-166509Y, which was being driven by Sh. Surya Bhan, hit the motorcycle bearing registration No.DL8S-BV-1143, and caused the injuries to Smt. Sarla? OPP (2). Whether petitioner is entitled to compensation, if so, to what amount and from whom?
(3) Relief.
5. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioner had examined two witnesses in support of her case. Sh. Om Prakash, father of deceased Hemant (nephew of petitioner Sarla) had been examined as PW-1 in connected case, whereas Smt. Sarla, injured-cum-eye witness of the present case had been examined as PW-2 in both the matters and Sh. Sandeep Kumar, Team Leader, Adecco, Karol Bagh, Delhi had been examined as PW3 in both matters. No other witness had been examined by the petitioner.
Smt. Sarla Vs. Surya Bhan & Ors. Page 6 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 7 of 326. A perusal of court record reveals that R1/driver of the offending vehicle had examined himself in support of his version of the case. No other witness had been examined by R1.
7. A perusal of court record reveals that R2/owner of the offending vehicle had not examined any witness in support of its version of the case.
8. I have heard the final arguments addressed by Sh. Vichitar Kumar, learned counsel for the petitioner and Sh. Abhishek Kaushik, learned counsel for R1 and R2. My issue-wise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
9. Issue wise findings are as under:-
ISSUES No. 1(1) Whether on 05.06.2017 at about 7:00 am, at Ring Road towards Azadpur in front of Subhash Place Depot, Delhi, one truck bearing registration No. 05D-166509Y, which was being driven by Sh. Surya Bhan, hit the motorcycle bearing registration No.DL8S-BV-1143, and caused injuries to Smt. Sarla? OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioner/claimant.
9.1 The petitioner had examined two witnesses in support of her case. Sh. Om Prakash, father of deceased Hemant (nephew of petitioner Sarla) had been examined as PW-1 in connected case, whereas Smt. Sarla, injured- cum-eye witness of the present case had been examined as PW-2 in both the matters and Sh. Sandeep Kumar, Team Leader, Adecco, Karol Bagh, Delhi Smt. Sarla Vs. Surya Bhan & Ors. Page 7 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 8 of 32 had been examined as PW3 in both matters. No other witness had been examined by the petitioner. No other witness had been examined by the petitioner.
9.2 Petitioner, Smt. Sarla W/o Sh. Krishan, who has been examined as PW2 had deposed that on the fateful day of accident, that is, on 05.06.2017, she was travelling as a pillion rider on a motorcycle bearing registration No.DL8S-BV-1143 along with her nephew, who was driving the said motorcycle. She deposed that on that day, at about 6:45 am, when they reached near Netaji Subhash Palace, all of a sudden one Army Vehicle bearing registration No.05D-166509Y make Ashoka Leyland (Truck), which was being by its driver in a very rash and negligent manner without adhering to the traffic rules, had over taken their motorcycle and after that the driver of the said truck had applied brakes suddenly and rashly, due to which their motorcycle had gone inside (beneath) the truck and she along with her nephew had fell down on the road side and had thereby sustained grievous injuries for treatment of which they were both shifted to Fortis Hospital, Shalimar Bagh, Delhi, where she was medically examined vide MLC No.1352/17, containing a finding to the effect that she had sustained grievous injuries due to fracture of distal end of radius in her right wrist. She deposed that she had spent an amount of Rs. 100/- per day for three months as attendant charges during her treatment period and Rs. 10,000/- as medical charges -cum-charges incurred on her healthy diet. She further deposed that she had spent another amount of Rs.5,000/- as conveyance charges on travel to hospital during her treatment period and a sum of Rs. 15,000/- on her physiotherapy. She relied upon the DAR, filed by the IO as Smt. Sarla Vs. Surya Bhan & Ors. Page 8 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 9 of 32 Ex.PW1/1 (colly).
9.3 In her cross-examination by Sh. Abishek Kaushik, learned counsel for R1 and R2, PW2 stated that she was illiterate and could only put her signatures in Hindi. She further stated that her evidence by way of affidavit Ex.PW2/A was prepared by her counsel upon her instructions and she knew its contents. She deposed that she was a resident of U.P and the accident had occurred at Delhi and hence she was not aware about the name or location of the road where the said accident had occurred. She deposed that there was substantial traffic on the road in question at the time of accident and the deceased was driving his motorcycle at a normal speed, however, she was not in a position to tell the exact speed of the motorcycle of the deceased. She denied the suggestion that the deceased was driving his motorcycle at a very high speed and had caused the case accident due to rash and negligent driving of his motorcycle. She denied the suggestion that she was not wearing a helmet at the time of her accident. She voluntarily clarified that she herself as well as deceased Hemant were wearing helmets. She deposed that police officials had visited her residence after the accident. She, however, expressed her inability to recall the number of documents which she had signed at the instance of the police official. She admitted that in photographs Ex.PW2/R-X1 and Ex.PW2/R-X2 only one helmet was visible which was lying on the seat of the motorcycle bearing registration No. DL8S-BV-1143. She denied the suggestion that the deceased was driving his motorcycle in a wrong lane at the time of accident despite being confronted with site plan Ex.PW2/R-X3. She further denied the suggestion that her medical bills and medical documents were forged and fabricated Smt. Sarla Vs. Surya Bhan & Ors. Page 9 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 10 of 32 documents. She admitted that motorcycle being driven by the deceased had struck the military truck at the back side. She denied the suggestion that the alleged offending military truck was being driven in the correct lane or that the said truck was following all the rules and regulations and the accident in question had occurred due to rash and negligent and high speed driving of the motorcycle of the deceased.
9.4 PW3 Sandeep Kumar, Team Leader, Adecco, Karol Bagh, Delhi produced the summoned record, that is, appointment letter of deceased Hemant Kumar Yadav, Ex.PW3/1 and his salary slip Ex.PW3/2. 9.5 In his cross-examination by Sh. Shyam Kharbanda, Learned proxy counsel for Sh. Abhishek Kaushik, Learned counsel for R1 and R2, PW3 deposed that deceased Hemant Kumar Yadav was not getting any travelling allowance from his employer. He stated that the deceased had joined Adecco as a diploma engineer on 07.05.2015 on contractual basis for one year and his contract could be extended on yearly basis. He stated that on the date of his death, that is, 05.06.2017 victim Hemant Kumar Yadav was still working as a diploma engineer in the said company. He deposed that the total monthly salary of the deceased for the month of May, 2017 was Rs. 16,182/- and no TDS had been deducted on the same as the same was not amenable to tax. He clarified that the contract of the deceased would have expired in the year 2018 and the salary of the deceased was being paid through deposit in bank account of deceased Hemant bearing account no.13590150930. He stated that the contract for any employee was not extended after June, 2018 and the contract of deceased vide which he was to report before BSES RPL would have also expired and would not have been extended after June, 2018.
Smt. Sarla Vs. Surya Bhan & Ors. Page 10 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 11 of 329.6 The respondents had examined R1W1 Sh. Surya Bhan S/o Raj Bahadur, driver of the offending vehicle by way of affidavit Ex.R1W1/A, wherein he had reiterated his defence to the effect that the case accident had occurred due to rash and negligent driving of his motorcycle by victim Hemant himself. He relied upon the following documents in support of his testimony:-
1. Photographs of the vehicle of the victim Ex.R1W1/1.
2. Copy of log book of the alleged offending vehicle and copy of his driving licence attested by his department Ex.R1W1/2 (colly). 9.7 In his cross-examination by Sh. Vichitar Kumar, learned counsel for the petitioners, R1W1 deposed that at the time of accident, the alleged offending vehicle was being driven by him and was not on war duty. He stated that his vehicle was seized by the police in the present matter. He denied the suggestion that he was driving his vehicle without obeying the traffic rules at the time of accident. He admitted that a criminal case was lodged against him in respect of the case accident. 9.8 No contradictions or material discrepancies have appeared in the cross examination of PW2 Sarla to discredit her above said testimony which were capable of demolishing the case of the petitioner to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and grievous injuries had been sustained by her (victim Sarla) in the said accident. The testimony of PW2 is reliable and she is a trustworthy witness whose deposition has remained infallible during her lengthy cross-examination by the learned counsel for the respondents. 9.9 The issue no. 1 is only to be proved by claimants beyond Smt. Sarla Vs. Surya Bhan & Ors. Page 11 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 12 of 32 preponderance of probabilities as distinguished from beyond reasonable doubt. In view of above said discussion, criminal case record including charge sheet and testimony of PW2, it has been proved beyond preponderance of probabilities that the case accident had been caused by R1 who was driving the offending vehicle in a rash and negligent manner at the above said date, time and place and had suddenly applied brakes after overtaking the motorcycle of the two victims thereby causing the motorcycle of the victims to get struck against the backside of the offending truck and thereafter go underneath the body of the said truck resulting in suffering of grievous injuries by victim Sarla.
Issue no.1 is accordingly decided in favour of petitioners and against the respondents.
10. Issue No. (2) Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP 10.1 In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioner/claimant is entitled to compensation towards medical expenses, special diet charges, conveyance charges and charges incurred by her on availing services of a medical attendant during her treatment period in respect of grievous injuries sustained by her in the case accident. I shall now examine the entire evidence led by the parties 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.
Smt. Sarla Vs. Surya Bhan & Ors. Page 12 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 13 of 3210.2 Petitioner has examined two witnesses in support of her version of the case including herself as PW2 and one Sandeep Kumar, Team Leader, Adecco, Karol Bagh from the office of employer of her deceased nephew Hemant as PW-3 to prove the salary of the deceased.
10.3 PW2 Sarla was the victim-cum-eye witness in the present case who had categorically stated that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 Surya Bhan, who had suddenly applied brakes after over taking their motorcycle, thereby causing their motorcycle to collide against the back side of the truck of R1 before going underneath the body of the said truck. PW2 had claimed to have incurred Rs. 10,000/- as expenses on medicine and healthy diet, Rs. 15,000/- as expenses on physiotherapy and Rs. 5,000/- as expenses on her conveyance for visiting various doctors and hospitals as well as Rs. 100/- per day as charges on availing services of a medical attendant for about 3 months. Accordingly, after considering the submissions and documents of the petitioner, this Tribunal is of the opinion that the petitioner is entitled to following compensation.
11. Medical Expenses.
11.1 The petitioner in her evidence by way of affidavit Ex.PW2/A claimed to have spent an amount of Rs.10,000/- on medicines and Rs. 15,000/- on physiotherapy, however, she has neither placed on record any bills raised by any doctor or chemist or pharmesist towards procurement of medicines by her nor placed on record any bills of physiotheraphy session, if any undergone by her for treatment of injuries sustained in the case accident. In fact, the petitioner has placed on record a single bill dated 05.06.2017 raised Smt. Sarla Vs. Surya Bhan & Ors. Page 13 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 14 of 32 by Fortis Hospital, A-Block, Shalimar Bagh, Delhi in respect of treatment of injuries sustained by victim Sarla in the case accident. The said bill is in the sum of Rs. 4,349/- and the same does not appear to have been reimbursed from any mediclaim services provider or employer of victim Sarla. Accordingly, the petitioner is granted to Rs.4,349/- as compensation under the said head of medical expenses.
12. Special Diet and conveyance 12.1 Petitioner Sarla has stated in her evidence by way of affidavit Ex.PW2/A that she had incurred Rs.10,000/- as expenses on her medicines and healthy diet apart from having incurred another sum of Rs. 5,000/- as expenses on her conveyance. She has, however, neither examined any witness to prove the expenditure on special diet and conveyance nor proved any bill in this regard.
12.2 Petitioner Sarla has also failed to place on record any prescription of a doctor or Medical Practitioner or dietitian containing details of special diet, such as, nutritional supplements/protein diet/liquid diet etc. prescribed to her for speedy recovery of the injuries sustained in the case accident. She has also not produced any bills of nutritional supplements purchased by her and travel expenses incurred by her for commuting to various hospitals and doctors from her residence and vice-versa during her treatment period. 12.3 Moreover, the petitioner has not examined any witness to prove her expenditure on special diet and conveyance. Neither any supplier of nutritional supplements nor any transporter has stepped has into the witness box in support of the case of the petitioner to the effect that she had incurred any expenses on special diet and conveyance. In such circumstances, the Smt. Sarla Vs. Surya Bhan & Ors. Page 14 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 15 of 32 entitlement of the petitioner to receive compensation towards special diet and conveyance has to be determined in accordance with the nature of injuries sustained by the petitioner.
12.4 The MLC of the petitioner bearing No.1352 prima facie establishes that the petitioner had sustained grievous injuries due to fracture of distal end of radius in right wrist. Besides, a perusal of final bill-cum-receipt of treatment dated 05.06.2017, issued by Fortis Hospital, Shalimar Bagh, Delhi reveals that victim Sarla had been discharged from the hospital on 05.06.2017 itself after application of below elbow plaster of paris slab (POP slab) on her right arm.
12.5 A perusal of court record further reveals that the petitioner has annexed copies of treatment prescription and copies of diagnostic test report with effect from the date of accident, that is, 25.06.2014 to 02.08.2014. 12.6 In view of my foregoing discussion regarding the nature of injuries including fracture of distal end of radius of right wrist sustained by the petitioner which had been conservatively managed by application of plaster of paris slab on her right arm, this Tribunal is of the opinion that the petitioner must have remained under treatment for a period of about 2 months from the date of occurrence of the alleged accident. Also, this Tribunal is further of the opinion that the petitioner must have required some special diets for speedy recovery and must have also incurred expenses on travelling to hospital from her residence and vice-versa during her treatment period. Accordingly, a lump sum amount of Rs. 20,000/- is granted as compensation to the petitioner under this head including Rs.10,000/- each towards special diet and conveyance respectively.
Smt. Sarla Vs. Surya Bhan & Ors. Page 15 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 16 of 3213. Attendant Charges 13.1 The petitioner has claimed in her evidence by way of affidavit Ex.PW2/A that she had incurred Rs. 100/- per day as charges for availing services of a medical attendant for a period of three months after having met with case accident as she had become bed ridden due to injuries sustained in the case accident.
13.2 Petitioner has, however, neither examined any witness to prove the expenses incurred by her on hiring medical attendant nor proved any bill in this regard. It is noteworthy that the petitioner has neither examined the attendant hired by her nor any other employee of the agency supplying medical attendants for proving her total expenditure on availing the services of an attendant nor has the petitioner led any other form of documentary evidence including bill, invoice or receipt issued in her favour reflecting the charges incurred by her for availing services of a medical attendant. In such circumstances, the need for availing services of a medical attendant faced by the petitioner during her treatment period has to be ascertained in accordance with the nature of injuries sustained by the petitioner. 13.3 In this context, a perusal of the MLC of the petitioner, bearing No.1352 prima facie establishes that the petitioner had suffered fracture of distal end of radius of right wrist. Besides, a perusal of final bill-cum- receipt of treatment dated 05.06.2017, issued by Fortis Hospital, Shalimar Bagh, Delhi, victim Sarla had been discharged from the hospital on 05.06.2017 itself after application of below elbow plaster of paris slab on her right arm.
13.4 In view of my foregoing discussion regarding nature of injuries and Smt. Sarla Vs. Surya Bhan & Ors. Page 16 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 17 of 32 fractures sustained by the petitioner in her right wrist, which was conservatively managed by application of below elbow plaster of paris slab on the right arm of the petitioner, this Tribunal has already arrived at an opinion in the preceding discussion regarding the probability that the petitioner had remained under treatment for a period of about two months with effect from the date of occurrence of the alleged accident. This Tribunal is also opinion that in view of the nature of injuries sustained by the petitioner, she must have faced difficulty in her day to day activities involving use of her right arm, such as combing her hair, bathing, eating and dressing up etc. and must have required the services of either a medical attendant or a family member as an attendant during her treatment period of two months, and therefore, a lump sum amount of Rs.10,000/- is granted as compensation to the petitioner under this head towards attendant charges.
14. Pain and Suffering 14.1 The MLC of the petitioner bearing No.1352 prima facie establishes that the petitioner had sustained grievous injuries due to fracture of distal end of radius in right wrist. Besides, a perusal of final bill-cum-receipt of treatment dated 05.06.2017, issued by Fortis Hospital, Shalimar Bagh, Delhi, victim Sarla had been discharged from the hospital on 05.06.2017 itself after application of below elbow plaster of paris slab on her right arm. 14.2 In view of the nature of fracture injuries sustained by the petitioner which were treated by way of application of plaster of paris slab on the right arm of the petitioner, this Tribunal is of the opinion that the petitioner must have endured considerable physical pain and mental agony during her treatment period and accordingly a lump sum amount of Rs.50,000/- is Smt. Sarla Vs. Surya Bhan & Ors. Page 17 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 18 of 32 granted under the said head as compensation towards pain and suffering.
15. Loss of Income 15.1 Learned counsel for R1 and R2 has objected to grant of any benefit to the petitioner towards loss of income on the ground that the petitioner was 53 year 05 months and 04 days old housewife having no income. However, in this context, it is noteworthy the husband of victim Sarla and her children if any must have been dependent upon the petitioner for gratuitous services rendered to them by the petitioner as a housewife and therefore the petitioner cannot be treated as a person, who could not have suffered any financial loss due to injuries sustained in the case accident. The gratuitous services rendered by a housewife to her husband and children can always be quantified in monetary terms.
15.2 In this context, it is noteworthy that the the Hon'ble Supreme Court of India had chosen to assign monetary value to the gratuitous services rendered by a housewife or even by an elderly housewife upto the age of 72 years. Relevant extract of the observation made by the Hon'ble Supreme Court in the case of Lata Wadhwa vs. State of Bihar and Others, Writ Petition(Civil) No.232/1991 decided on 16.08.2001 is reproduced herein below:
"So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000/- per annum in cases of some and Rs.10,000/- for others, appears to us to be grossly Smt. Sarla Vs. Surya Bhan & Ors. Page 18 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 19 of 32 low. It is true that the claimants, who ought to have given datas for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such datas and taking into consideration, the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs.3000/- per month and Rs.36,000/- per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore should be re-calculated, taking the value of services rendered per annum to be Rs.36,000/- and thereafter applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs.50,000/- instead of Rs.25,000/- given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs.10,000/- per annum and multiplier applied is eight. Though, the multiplier applied is correct, but the values of services rendered at Rs.10,000/- per annum, cannot be held to be just and, we, therefore, enhance the same to Rs.20,000/- per annum. In their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at Rs.20,000/- per annum and then after applying the multiplier, as already applied and thereafter adding Rs.50,000/- towards the conventional figure."
15.3 In another case of Rajendra Singh Vs. National Insurance Company Limited, AIR 2020 SC 3144, arising out of SLP (Civil) No(s).13964 of 2018, pertaining to death of a housewife aged about 30 years as well as death of her daughter aged about 12 years, the notional income of housewife has been assesssed to be Rs.3,000/- per month or Rs.36,000/- per annum by the Claims Tribunal, however, the Hon'ble Apex Court had Smt. Sarla Vs. Surya Bhan & Ors. Page 19 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 20 of 32 enhanced the notional income of the deceased housewife to Rs.5,000/- per month considering her skills in contributing to the welfare and care of her family members as well as upbringing of her children. Besides, the Hon'ble Apexl Court had also granted 40% addition towards future prospects in the notional income of the deceased housewife. Relevant extract of observations made in paras No.3 and 11 of the judgement passed in this case is reproduced hereinbelow:-
3. The deceased in the first appeal was a housewife aged about 30 years. The second deceased was her daughter aged about 12 years. The claimants are the husband/father of the deceased and three minor siblings. The two deceased on 25.12.2012 were travelling in a horse cart along with some others to a religioius congregation. The horse cart was hit by a bus resulting in their death. The Tribunal assessed the notional income of the first deceased at Rs. 36,000/- per annum and after ¼ th deducation towards personal expenses, with a multiplier of 17 awarded a compensation of Rs. 4,59,000/-. The Tribunal then deducted 50% on ground of contributory negligence as the horse cart was stated to have been in the middle of the road when the accident took place. A sum of Rs. 1,00,000/- was then added as loss of consortium and Rs. 25,000/-
towards funeral expenses leading to an award total of Rs. 3,54,000/- with interest at the rate of 7.5%.
11. The notional income of the first deceased is therefore held to be Rs. 5,000/- per month at the time of death. The compensation on that basis with a deduction of 1/4th i.e. Rs. 15,000/- towards personal expenses with a multiplier of 17 is assessed at Rs. 7,65,000/-. If the deceased had survived, in view of observations in Lata Wadhwa (supra), her skills as a matured and skilled housewife in contributing to the welfare and care of the family and in the upbringing of the children would have only been enhanced by time and for Smt. Sarla Vs. Surya Bhan & Ors. Page 20 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 21 of 32 which reason we hold that the appellants shall be entitled to future prospects at the rate of 40% in addition to the loss of consortium and funeral expenses already granted. We therefore assess the total compensation payable to the appellants in the first appeal at Rs. 11,96,000/-.
15.4 In another similar case decided by Hon'ble Supreme Court of India titled as Kirti and Anr. Etc. Vs. Oriental Insurance Company Ltd., Civil Appeal Nos. 19-20 of 2021, arising out of Special Leave petition(C) Nos.18728-29 of 2018), pertaining to death of a husband, who was a teacher by profession and a wife who was a home maker, the Hon'ble Apex Court had enhanced the income of husband computed on the basis of minimum wages payable to unskilled labourer to that of a skilled labourer but had maintained that the deceased lady who was a house wife was entitled to minimum wages payable to an unskilled labourer as on the date of occurrence of the accident in question. Besides, the Hon'ble Apex Court had also advised the trial courts to be mindful of the contribution of home makers in computing the notional income. Relevant extracts of observations made in para no.26 of the judgement passed in this case of Kirti and Anr. (supra) is noteworthy in this context and is reproduced below:-
26. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers and the grant of future prospects with respect to them, for the purpose of grant of compensation which can be summarized as follows:-
a. Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of low. b. Taking into account the gendered nature of Smt. Sarla Vs. Surya Bhan & Ors. Page 21 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 22 of 32 housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all.
c. Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.
d. The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.
e. The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation.
15.5 In the light of aforecited observations made by Hon'ble Apex Court in the decided cases of Lata Wadhwa vs. State of Bihar and Others (supra), Rajendra Singh Vs. National Insurance Company Limited (supra) and Kirti & Anr. Etc. Vs. Oriental Insurance Company Ltd. (supra), this Tribunal is of the opinion that notional income of victim Sarla has to be computed in a just and reasonable manner so as to ensure that the compensation awarded to her is neither a pittance nor a windfall or bounty and accordingly this Tribunal deems it appropriate to compute the notional income of victim Sarla a housewife on the basis of minimum wages payable to an unskilled labourer in the National Capital Territory of Delhi (NCT) as on the date of occurrence of the case accident which was Rs.13,584/-.
Besides, this Tribunal has already determined the period of treatment in the case of petitioner has already been determined to be about 2 months. 15.6 In view of my foregoing discussion whereby the monthly income of Smt. Sarla Vs. Surya Bhan & Ors. Page 22 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 23 of 32 the petitioner had been computed as Rs.13,584/- per month and the period of treatment-cum-medical rest had been computed as 2 months, I am of the considered opinion that the petitioner had suffered loss of income for a period of four months to the tune of Rs.27,168/-. Accordingly, a sum of Rs.27,168/- (Rs.13,584/- x 3 months) is awarded as compensation under the head of loss of income.
16. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs.1,30,101/- which is tabulated as below:-
Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/-
2. Special diet &Conveyance Rs. 20,000/-
3. Attendant Charges Rs. 10,000/-
4. Medical Expenses Rs. 4,349/-
5. Loss of income Rs. 27,168/-
Total Rs. 1,11,517/-
(Rupees One Lac Thirty Thousand One Hundred and One Only) 16.1 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) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 02.06.2018 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the Smt. Sarla Vs. Surya Bhan & Ors. Page 23 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 24 of 32 claimant/petitioner is entitled to interest at the prevailing bank rate of 7% per annum from the date of filing of DAR/petition, that is, with effect from 02.06.2018 till realisation of the compensation amount.
16.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioners.
17. Liability 17.1 In the case in hand, the R2 Army/Northern Command vehicle Depot. 9th Battalion, Rajputana Rifles, C/o 56 APO has not been able to show anything on record to the effect that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle. As per settled law, since the offending vehicle was a government vehicle belonging to Indian Army, therefore the same was not required to be insured by any Insurance company and the concerned department i.e. R2 Army/Northern Command vehicle Depot. 9th Battalion, Rajputana Rifles, C/o 56 APO is liable to pay the entire compensation amount to the petitioner as per law.
17.2 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., R2 Army/Northern Command vehicle Depot. 9th Battalion, Rajputana Rifles, C/o 56 APO is directed to deposit the awarded amount of Rs.1,11,517/- 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 Smt. Sarla Vs. Surya Bhan & Ors. Page 24 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 25 of 32 awarded amount to be given by R2 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgment with the Nazir as per rules. R2 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 claimants mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
18. Joint statement of petitioners in terms of clause 29 MCTAP was recorded on 13.12.2021 regarding her savings bank a/c with no loan, cheque book and ATM/debit card. I have heard the petitioner and Ld. counsel for the petitioner/claimandt regarding financial needs of the petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and 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:-
18.1 It is deemed appropriate by this court after hearing learned counsels for all parties that maximum amount of compensation be kept in FDRs and only a very small amount be released to the claimant. Keeping in view the facts and circumstances of the case, the statements made by the petitioner, it is hereby directed that on realization of the entire award Smt. Sarla Vs. Surya Bhan & Ors. Page 25 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 26 of 32 amount, an amount of Rs.11,517/- be released to petitioner in her bank account No.40597184170 with SBI, Rohini District Courts, Delhi, that is, the branch near her 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 from 1 month to 10 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. 18.2 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 :-
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.Smt. Sarla Vs. Surya Bhan & Ors. Page 26 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 27 of 32
(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.
(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.
19. Relief 19.1 As discussed above, R2 is directed to deposit the award amount of Rs. 1,11,517/- with interest @ 7% per annum from the date of filing of DAR/petition, that is, 02.06.2018 till realization within the jurisdiction of this Tribunal, that is, SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R2 to the petitioner and their advocate failing which the R2 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days. 19.2 R2 is also directed to place on record the proof of deposit of the Smt. Sarla Vs. Surya Bhan & Ors. Page 27 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 28 of 32 award amount, proof of delivery of notice in respect of deposit of the award amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 19.3 A copy of this judgment/award be sent to respondent no. 2 for compliance within the granted time.
19.4 Nazir is directed to place a report on record in the event of non- receipt/deposit of the compensation amount within the granted time.
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 and Ors vs Jaibir Singh and 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.
19.5 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 and Ors. vide order dated 12.12.2014.
Smt. Sarla Vs. Surya Bhan & Ors. Page 28 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 29 of 32In 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, joint statement of petitioners was also recorded on 13.12.2021 wherein she had stated that she was entitled to exemption from deduction of TDS and that they would submit form 15G to insurance co. so that no TDS is deducted.
20. 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.
Announced in open court (JASJEET KAUR)
on 13 December, 2023 PO MACT N/W
Rohini Courts, Delhi.
Smt. Sarla Vs. Surya Bhan & Ors. Page 29 of 32
Smt. Sarla Vs. Surya Bhan & Ors. Page 30 of 32
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY
CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident: 05.06.2017
2. Name of injured: Smt. Sarla
3. Age of the injured: 54 years 05 months and 01 days at the time of accident.
4. Occupation of the injured: Housewife.
5. Income of the injured: Rs.13,584/- (minimum wages)
6. Nature of injury: Grievous
7. Medical treatment taken by the injured: 3 months.
8. Period of hospitalization: Nil.
9. Whether any permanent disability ? If yes, give details:
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.4,349/-
(ii) Expenditure on conveyance Rs. 10,000/-
(iii) Expenditure on special diet Rs. 10,000/-
(iv) Cost of nursing/attendant Rs. 10,000/-
(v) Loss of earning capacity due to Nil.
disability
Smt. Sarla Vs. Surya Bhan & Ors. Page 30 of 32
Smt. Sarla Vs. Surya Bhan & Ors. Page 31 of 32
(vi) Loss of income Rs.27,168/-
(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
physical shock
(ii) Pain and suffering Rs.50,000/-
(iii) Loss of amenities of life Nil.
(iv) Disfiguration N/A
(v) Loss of marriage prospects N/A
(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 nature of disability as permanent or temporary
(ii) Loss of amenities or loss of N/A expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in relation of disability
(iv) Loss of future income - (Income X Smt. Sarla Vs. Surya Bhan & Ors. Page 31 of 32 Smt. Sarla Vs. Surya Bhan & Ors. Page 32 of 32 %Earning capacity X Multiplier)
14. TOTAL COMPENSATION Rs. 1,11,517/-
15. INTEREST AWARDED 7%
16. Interest amount up to the date of Rs. 43,172.49/-
award
17. Total amount including interest Rs.1,54,689.49/-
18. Award amount released Rs.11,517/-
19. Award amount kept in FDRs Rs.1,43,172.49/- (rounded off Rs.1,43,173/-)
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 12.01.2024 award. (Clause 31) Announced in open court (JASJEET KAUR) on 13th December, 2023 PO MACT N/W Rohini Courts, Delhi.
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