Delhi District Court
Rajesh vs Pradeep on 5 September, 2024
IN THE COURT OF SHRI TARUN YOGESH
LD. PO-MACT-01, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
MACT No. 840/2016
CNR No. DLSW01-000882-2014
FIR No. 54/2013
P.S. Jaffarpur Kalan
In the matter of :
1) Smt. Rajesh
W/o Sh. Tajvinder,
R/o Village Saulda,
PS Bahadurgarh,
Distt, Jhajjar, Haryana-124507.
... Petitioner
Versus
1) Sh. Pradeep
S/o Sh. Satbir,
R/o Village and PO Shahpur,
Teshil Bahadurgarh,
Distt, Jhajjar, Haryana. .... (Driver)
2) Sh. Ashok
S/o Sh. Satbir,
R/o Village and PO Shahpur,
Teshil Bahadurgarh,
Distt, Jhajjar, Haryana. .... (Owner)
3) IFFCO Tokio General Insurance
Company Limited
FAI Building,
10 Shaheed Jeet Singh Marg,
Qutub Institutional Area,
New Delhi. .... (Insurance company)
... Respondents
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 1 of 26
Date of Institution :03.01.2014
Date of judgment :05.09.2024
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
TO BE MENTIONED IN THE AWARD
1. Date of the accident 18.05.2013
2. Date of intimation of the accident by the 03.01.2014
investigating officer to the Claims Tribunal (Clause
2)
3. Date of intimation of the accident by the Not Available
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not Available
before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information 03.01.2014
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company 03.01.2014
(Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 03.01.2014
11)
8. Whether DAR was complete in all respects? Yes
(Clause 16)
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? (Clause 4)
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 Not known
the insurance Company (Clause 20)
13. Name, address and contact number of the -do-
Designated Officer of the Insurance Company.
(Clause 20)
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 2 of 26
14. Whether the designated Officer of the Insurance Not known
Company submitted his report within 30 days of
the DAR? (Clause 20)
15. Whether the insurance company admitted the No
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the Not known
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 of Not accepted
the Insurance Company. (Clause 24)
18. Date of the Award 05.09.2024
19. Whether the award was passed with the consent of No
the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were directed 18.01.2018
to open saving bank account (s) near his place of
residence and produce PAN Card and Aadhar Card
and the direction to the bank not issue any cheque
book/debit card to the claimant(s) and make an
endorsement to this effect on the passbook(s).
(Clause 18)
22. Date on which the claimant (s) produced the 20.02.2020
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card? (Clause
18)
23. Permanent Residential Address of the Claimant(s) R/o Village
(Clause 27) Saulda,
PS Bahadurgarh,
Distt, Jhajjar,
Haryana-124507
24. Details of saving bank account(s) of the S.B Account No.
claimant(s) and the address of the bank with IFSC 20336616815
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 3 of 26
Code (Clause 27) with SBI Bank,
Branch
Bahadurgarh,
Railway Road,
Bahadurgarh
(IFSC Code:
SBIN0000743)
25. Whether the claimant(s) saving bank account(s) is Yes
near his/her place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time No
of passing of the award to ascertain his/their
financial condition? (Clause 27)
27. Account number, MICR number IFSC Code, name Account No.
and branch of the bank of the Claims Tribunal in 42709452600 at
which the award amount is to be SBI Dwarka, Sec-
deposited/transferred. 10, Dwarka
Courts Complex,
IFSC Code:
SBIN0011566 &
MICR No.
110002483.
AWAR D
Preface
1. Detailed Accident Report (DAR) prepared in FIR
No.54/13, PS Jaffarpur Kalan has been tagged with claim petition
under section 166 & 140 of M.V. Act seeking compensation for
grievous injury sustained in road accident.
Background
2. Facts of the case gleaned from application read with Final Report under section 279/338 IPC would reveal that Smt. Rajesh along with her husband was returning home from RTRM Hospital in Maruti Van bearing No.HR-55H-2581 on 18.05.2013. As they reached near Dada Khera Mandir, Saulda Road, at MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 4 of 26 around 9:00 pm, alleged Tractor bearing No.HR-13E-8331 attached with trolley driven in rash and negligent manner suddenly hit their van with forceful impact resulting in grievous injuries sustained on her right hand, thumb, fingers and all over her body.
3. Petitoner got admitted at Brahm Shakti Sanjivini Hospital, Bahadurgarh where MLC No.1629/13 was prepared recording injuries sustained in road accident which were opined grievous. She remained admitted at the hospital for six days till 24.05.2013 and two fingers of her right hand were amputed consequent to injuries sustained in motor vehicle accident.
4. R1/ Pradeep (driver) was formally arrested on 27.05.2013 and released on police bail whereas offending Tractor was released on suprdari after its mechanical inspection. Documents including DL, RC & policy of the vehicle upon verification were found genuine and IO thereafter concluded investigation and prepared DAR which was filed in Court along with copy of Final Report under section 279/338 IPC.
Defence:
5. R1/Pradeep (driver) and R2/Ashok (owner) have filed written statement disputing rash and negligent driving of offending Tractor. Respondents, in addition, have averred about
(i) valid and effective driving license held by the driver AND (ii) Policy No.83143723 of offending Tractor insured with IFFCO TOKIO General Insurance Co. from 09.03.2013 to 08.03.2014.
6. R3/IFFCO TOKIO General Insurance Co. on the other hand has alleged violation of terms and condition of the policy by contending that Tractor No.HR-13E-8331 combined with Trolley MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 5 of 26 being used to transport bricks/goods would constitute 'Goods Carriage' under section 2(14) and consequently a 'Transport Vehicle' under section 2(47) of M.V. Act for raising statutory defence under section 149(2)(a)(i) of M.V. Act in the absence of valid permit.
Inquiry
7. Following issues were settled on 13.02.2014 and matter was posted for petitioner's evidence.
i. Whether Ms. Rajesh sustained grievous injuries in a motor vehicle accident dtd. 18.5.2013 due to rash and negligent driving of vehicle no. HR-13E-8331 by R1 and insured with respondent no.3? .... OPP ii. Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? ... OPP iii. Relief.
8. PW-1 Smt. Rajesh in paras 2 to 9 of affidavit Ex.PW-1/A has inter alia deposed about - (i) grievous injury resulting in amputation of two fingers of her right hand in motor vehicle accident caused due to rash and negligent driving of Tractor No. HR-13E-8331 on 18.05.2013 at about 9:00 pm; (ii) treatment at Bhram Shakti Sanjivani Hospital, Bahadurgarh; (iii) expenses incurred on treatment, conveyance, attendant, special diet; (iv) criminal record including FIR, Site-Plan, Mechanical Inspection Report & Charge-sheet; (v) Mark-sheet, Ration Card and PAN Card of injured AND (vi) mental pain, agony, loss of income/prospects, loss of amenities and other general and special damages as a result of amputation of fingers consequent to injuries suffered in road accident. PW-1 Smt. Rajesh has also relied upon following documents referred in her affidavit:
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 6 of 26 i. MLC No. 1629/2013 - Ex.PW-1/1;
ii. Discharge Summary - Ex.PW-1/2;
iii. Treatment Record - Ex.PW-1/3 (9 pages);
iv. Photocopy of Marksheet of Middle Examination (8th
Standard) - Mark A
v. Copy of Ration Card - Ex.PW1-/4 (OSR)
vi. Photocopy of PAN Card - Mark B
vii. Original Bills/receipts for a sum of Rs. 81,305/- -
Ex.PW-1/7
viii. Criminal Record forming part of DAR - PW-1/5
(Colly.)
9. Her cross-examination by Ld. Counsels for R3/insurance company has been recorded and petitioner's evidence was closed on 10.05.2018.
10. R3W1 Ms. Sunidhi Mittal, Executive (Legal), IFFCO TOKIO General Insurance Co. on the other hand has disputed liability to pay compensation and/or indemnify the owner by raising statutory defence under section 149(2)(a)(i) of M.V. Act in the absence of valid permit by relying upon following documents in her affidavit Ex.R3W1/A tendered in evidence.
i. Notice under Order XII Rule 8 CPC issued to owner and driver - Ex.R3W1/1;
ii. Original postal receipts - Ex.R3W1/2 & Ex.R3W1/3;
iii. Office copy of Insurance Policy - Ex.R3W1/4;
iv. Copy of RC of Swaraj Tractor - Ex.R3W1/5;
11. No other witness has been examined and respondents' evidence was closed on 18.04.2019.
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 7 of 26 Discussion and Conclusion
12. Advocate Sh. Sanjeev Gupta for injured and Advocate Shri R.P. Mathur for IFFCO TOKIO General Insurance Co. have addressed their submissions.
13. I have carefully perused pleadings and evidence adduced on judicial file. My issue wise finding is recorded below:
14. Issue No.1:
Whether Ms. Rajesh sustained grievous injuries in a motor vehicle accident dtd. 18.5.2013 due to rash and negligent driving of vehicle no. HR-13E-8331 by R1 and insured with respondent no.3? .... OPP
15. Onus to prove the issue is upon injured Smt. Rajesh who in para 2 of affidavit Ex.PW-1/A has deposed about grievous injury resulting in amputation of two fingers of her right hand in motor vehicle accident caused due to rash and negligent driving of Tractor No.HR-13E-8331.
16. Smt. Rajesh during cross-examination by Ld. Counsel for insurance company has deposed to be sitting on the back side of driver's seat and admitted that other occupants did not suffer any major injury except abrasions on their elbow. PW-1 has also admitted that Tractor/Trolley had grazed (ragadta hua) against the Maurti Van resulting in accident but denied suggestion that grievous injuries were sustained on her hand and fingers due to her own negligence as she had kept her hand outside the window.
17. Testimony of PW-1 has remained consistent and nothing material could be elicited during cross-examination by ld. Counsel for insurance company which could assail her testimony or impeach its veracity.
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 8 of 26
18. R1/Pradeep (driver) and R2/Ashok (owner), on the other hand, have neither availed their right to cross-examine PW-1 nor entered witness-box to establish their contention that accident was not caused due to rash and negligent driving of Tractor No.HR-13E-8331. Since R1/Pradeep despite being the best person to explain the incidents has not entered witness box for disputing rash and negligent driving of offending Tractor so adverse inference is required to be raised against the driver as per the dicta of Hon'ble High Court of Orissa in National Insurance Company Ltd. Vs. Durdadshya Kumar Samal & Ors. 1987 SCC Online Ori. 57
19. It is well settled law that negligence of driver of offending vehicle in case of road traffic accident is required to be established on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt does not apply to claim petitions under Motor Vehicle Act as held by Hon'ble Supreme Court of India in para 15 of Bimla Devi & Ors. Vs. Himachal Road Transport Corporation & Ors (2009) 13 SCC
530.
20. Following observations in para 15 of aforesaid judgment of Hon'ble Apex Court being relevant are extracted herein below :
"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 an accident caused by a praticular bus in a particular manner may not be possible to be done by the claimants. The claimaints 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...."
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 9 of 26
21. Similar observation has been recorded by Hon'ble High Court of Delhi in para 12 of its judgment delivered in National Insurance Co. Ltd. Vs. Smt. Pushpa Rana & Ors. 2007 SCC Online Del 1700 by holding that proceedings under Motor Vehicle Act are not akin to proceeding in a civil suit hence strict rules of evidence are not required to be followed and FIR against the driver along with criminal record of the case showing completion of investigation by the police leading to Final Report are sufficient proof to reach the conclusion that the driver was negligent.
22. FINDING : Since R1/Pradeep (driver) has been charge- sheeted after conclusion of investigation so Issue No.1 is decided in favour of Smt. Rajesh by holding that grievous injury sustained in road accident on 18.05.2013 was caused due to rash and negligent driving of offending Tractor/Trolley No.HR-13E- 8331 by R1/Pradeep which vehicle was registered in the name of R2/Ashok (owner) and insured with R3/IFFCO TOKIO General Insurance Co.
23. Issue No.2 Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? ... OPP
24. Onus to prove the issue is upon injured Smt. Rajesh who has relied upon (i) MLC No.1629/13 - Ex.PW-1/1; (ii) Discharge Summary dated 24.05.2013 - Ex.PW-1/2; (iii) Treatment Record
- Ex.PW-1/3 AND (iv) Medical Bills - Ex.PW-1/7.
25. It is evident from MLC No.1629/13 and Discharge Summary of Brahm Shakti Sanjivani Hospital that injured Smt. MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 10 of 26 Rajesh being diagnosed with crush injury and deformity remained admitted at the hospital from 18.05.2013 to 24.05.2013 where she was treated/operated resulting in amputation of middle finger of her right hand.
26. It is also revealed from record that application for assessment of permanent disability was allowed on 15.05.2014 and Disability Certificate bearing No.F.1(1)/DDU/MB/2012/6034 dated 07.06.2014 has been received from office of Medical Superintendent, DDU Hospital assessing '24% (Twenty Four Percent) permanent physical disability in relation to right upper limb'.
27. Injured Smt. Rajesh being described as case of 'Post Traumatic Amputation of Right Index and Middle Finger at MCP Joint' is therefore, entitled to be compensated for pecuniary and non-pecuniary loss suffered on account of grievous injury sustained in road accident. Quantum of compensation payable to injured has to be assessed separately under pecuniary and non- pecuniary heads.
28. Following para of judgment of Hon'ble Supreme Court of India in R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors. (1995) 1 SCC 551 being relevant is extracted herein below:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 11 of 26 pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
29. Heads of compensation under pecuniary and non- pecuniary damages have been further explained by Hon'ble Apex Court in para 6 of Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 SCC 343 which reads as under:
"6. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 12 of 26 Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii),
(v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
NATURE AND EXTENT OF INJURIES
30. MLC No.1629/13 - Ex.PW-1/1 read with Discharge Summary dated 24.05.2013 - Ex.PW-1/2 AND Treatment Record
- Ex.PW-1/3 reveals crush injury and deformity which was treated/operated resulting in amputation of middle finger of the right hand whereas Disability Certificate dated 07.06.2014 would reveal that injured Smt. Rajesh has been opined as Post Traumatic Amputation of Right Index and Middle fingers at MCP joints with Permanent Physical Disability of 24% (Twenty Four Percent) in relation to Right Upper Limb.
31. No other document has been filed on record or relied in evidence to show any other injury.
MEDICINES AND TREATMENT MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 13 of 26
32. PW-1 Smt. Rajesh in para 4 of affidavit Ex.PW-1/A has deposed to have spent Rs.81,305/- on her tratement. Aggregate sum of Rs.81,305/- (Rupees Eighty One Thousand Three Hundred Five only) against medical bills and cash memos is therefore granted to injured towards pecuniary loss under the head - Medicines & Treatment.
CONVEYANCE AND SPECIAL DIET
33. As averred in para 6 of affidavit Ex.PW-1/A, a sum of Rs.35,000/- each has been spent on conveyance and special diet. However, no bill/document verifying such expenses has been adduced in evidence. Treatment record of Brahm Shakti Sanjivani Hospital reveals that injured Smt. Rajesh having sustained injuries on 18.05.2013 remained admitted till 24.05.2013 and thereafter continued to visit the hospital as outdoor patient till 15.07.2013. It is assumed that injured might have hired private vehicle/taxi for undergoing treatment till 15.07.2013. A sum of Rs.20,000/- (Rupees Twenty Thousand only) is therefore awarded towards conveyance. Similarly, injured might have also needed special diet for full and complete recovery from crush injury on her right hand. A sum of Rs.30,000/- (Rupees Thirty Thousand only) is therefore awarded towards expenses for special diet on conservative estimate.
ATTENDANT CHARGES
34. PW-1 Smt. Rajesh in para 6 of affidavit has deposed to have spent Rs.45,000/- @ Rs.5000/- per month on attendant charges. Though no bill and/or documentary proof has been filed on record verifying such expenses but it is assumed that injured MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 14 of 26 being housewife with amputed right index and middle finger must have needed an attendant to assist her for at least 04 months even if such gratuitous service was rendered by some or the other of her family/relatives. Hon'ble High Court of Delhi in Delhi Transport Corporation and Anr. Vs. Kumari Lalita 1982 SCC Online Delhi 123 has held that the victim cannot be deprived of compensation towards gratuitous service rendered by some of her family member. Accordingly, in the facts and circumstances of the case and in view of material on record, injured Smt. Rajesh shall be entitled to an amount of Rs.5,000/- x 04 = Rs.20,000/- (Rupees Twenty Thousand only) towards attendant charges. LOSS OF INCOME
35. Having suffered grievous injury in road accident resulting in amputation of right index and middle finger, it is presumed that injured Smt. Rajesh would have taken around four months to recover from injuries. Since Smt. Rajesh being housewife has relied upon photocopy of Mark-sheet of Middle Examination (8 th Standard) so monthly income of injured is taken as per minimum wages of Non-Matriculate person @ Rs.8,528/- applicable in Delhi on the date of accident. Injured Smt. Rajesh shall therefore be entitled to Rs.8,528/- x 04 months = Rs.34,112/- (Rupees Thirty Four Thousand One Hundred Twelve only) towards loss of earning during period of treatment. PAIN AND SUFFERING
36. Following factors are to be taken into account for assessing compensation under the head - Pain and Suffering:
i. Nature of injury ii. Parts of body where injuries occurred MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 15 of 26 iii. Surgeries, if any iv. Confinement in hospital v. Duration of the treatment
37. Hon'ble Supreme Court of India in para 9 of Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. & Anr. (2010) 10 SCC 254 has observed that whole idea in case of assessment of all damages for personal injury is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of wrongdoer and Court must take care to give him full and fair compensation for that he had suffered.
38. In the instant case, injured Smt. Rajesh having sustained grievous injury resulting in amputation of right index and middle finger remained admitted at Bharm Shakti Sanjivani Hospital, Bahadurgarh from 18.05.2013 till 24.05.2013 and thereafter continued to be treated as outdoor patient till 15.07.2013. Disability Certificate No.F.1(1)/DDU/MB/2012/6034 dated 07.06.2014 has been also received from office of Medical Superintendent, DDU Hospital assessing '24% (Twenty Four Percent) permanent physical disability in relation to right upper limb'. Hence, considering the nature of injury, amputation of two fingers of her right hand and follow-up treatment, it would be apposite to award a sum of Rs.40,000/- (Rupees Forty Thousand only) towards Pain & Suffering. LOSS OF AMENITIES AND LIFE
39. Facts of the present case disclose that Smt. Rajesh having suffered grievous injury resulting in amputation of right index MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 16 of 26 and middle finger has been opined as case of Post Traumatic Amputation of Right Index and Middle Finger at MCP Joint. Since injured Smt. Rajesh was 27 years of age at the time of accident whereas amputation of Right Index and Middle Finger is bound to affect her overall health, quality of life and lifestyle, so in the facts of the present case and in view of law laid down in Rekha Jain Vs. National Insurance Co. Ltd. (2013) 8 SCC 389 a sum of Rs.40,000/- (Rupees Forty Thousand only) is awarded as compensation towards loss of enjoyment of life and amenities, in addition to Rs.20,000/- (Rupees Twenty Thousand only) as compensation for mental and physical shock suffered in road traffic accident.
LOSS OF FUTURE INCOME/PROSPECTS
40. Application for assessment of physical disability suffered in road accident was allowed on 15.05.2014 whereas Disability Certificate dated 07.06.2014 has been placed on record verifying Permanent Physical Disability of 24% (Twenty Four Percent) in relation to Right Upper Limb.
41. It is well settled law that percentage of loss of earning capacity arising from permanent disability will be different from the percentage of permanent disability and ascertainment of the effect of permanent disability on the actual earning capacity would involve three steps as laid down in para 13 of the judgment of Hon'ble Supreme Court of India titled Raj Kumar Vs. Ajay Kumar (Supra).
42. What is required to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 17 of 26 percentage of the income, it has to be quantified in terms of money to arrive at the future loss of earning by applying the standard multiplier method used to determine the loss of dependency as held in para 11 of aforesaid judgment titled Raj Kumar Vs. Ajay Kumar (Supra).
43. Since injured Smt. Rajesh was 27 years of age at the time of accident as per copy of PAN Card (Mark-B) mentioning date of birth 15.02.1986, so considering her age coupled with the fact that injured being housewife would be finding it difficult to carry out household chores after amputation of two fingers of her right hand, this court is of the opinion that permanent physical disability of 24% in relation to right upper limb could have resulted in 10% functional disability.
44. Injured Smt. Rajesh being 27 years of age at the time of accident will be entitled to loss of future income by applying multiplier of 17 in addition to future prospect @ 40% upon her established income in terms of principles laid down in National Insurance Co. Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680.
45. Loss of future income is calculated as - Rs.8,528/- x 140/100 x 12 x 17 x 10/100 = Rs.2,43,559.68/- (Rupees Two Lakh Forty Three Thousand Five Hundred Fifty Nine point Sixty Eight Paisa only). Petitioner Smt. Rajesh is, therefore, entitled to Rs.2,43,559.68/- towards loss of future income/ prospects.
Disfigurement
46. Grievous injury sustained in road accident resulting in amputation of Right Index and Middle Finger is bound to have resulted in disfigurement. Injured Smt. Rajesh is, therefore, MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 18 of 26 awarded a sum of Rs.50,000/- (Rupees Fifty Thousand only) for disfiguration.
47. Break-up of compensation awarded to injured under pecuniary and non-pecuniary heads is mentioned below in tabulated form:
S. No. HEADS AMOUNT (in
Rupees)
1. Medicines & Treatment Rs.81,305/-
2. Conveyance Rs.20,000/-
3. Special Diet Rs.30,000/-
4. Attendant Charges Rs.20,000/-
5. Loss of Income Rs.34,112/-
6. Pain & Suffering Rs.40,000/-
7. Loss of amenities of life Rs.40,000/-
8. Mental & physical shock Rs.20,000/-
9 Loss of future income/prospect Rs.2,43,559.68/-
10 Disfiguration Rs.50,000/-
TOTAL Rs.5,78,976.68/-
rounded off to
Rs.5,79,000/-
INTEREST
48. There is nothing on record to justify withholding interest on the award amount. Having regard to the facts and circumstances of the present case, it will be just and proper to award interest @ 9% per annum on the award amount in view of the law laid down in Erudhaya Priya vs State Express Transport Corporation Ltd. 2020 SCC Online SC 601. Injured is therefore awarded interest @ 9% per annum upon award amount MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 19 of 26 ₹5,79,000/- from the date of filing of DAR on 03.01.2014 till realization.
LIABILITY
49. R1/Pradeep being principal tortfeasor driving offending Tractor bearing No.HR-13E-8331 in rash and negligent manner resulting in accident near Dada Khera Mandir, Saulda Road and R2/Ashok (owner) being vicariously liable for the act of the driver are jointly and severally liable to pay compensation with interest.
50. Though, R3/IFFCO TOKIO General Insurance Co. has alleged violation of terms and condition of the policy by contending that Tractor combined with Trolley was being used to transport bricks/goods and insurance company is therefore not liable to pay compensation in the absence of valid permit under section 66 read with 149(2)(a)(i) of M.V. Act, however, it would be apt to refer to judgment of Hon'ble High Court of Delhi in New India Assurance Co. Ltd. Vs. Farzana Rahat & Ors. (Neutral Citataion 2022 DHC 005136) wherein Hon'ble Court in a similar case has upheld the finding returned by the Claims Tribunal in respect of Tractor attached with Trolley by holding insurance company liable to pay compensation with interest without any recovery right.
51. Since offending Tractor No.HR-13E-8331 attached with Trolley was not registered as commercial vehicle so R3/IFFCO TOKIO General Insurance Co. being statutorily liable under Section 149 (1) of M. V. Act shall pay the award amount along with interest to injured without any right to recover the amount from the driver and owner.
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 20 of 26
52. FINDING : Issue No.2 is decided accordingly by holding that R3/IFFCO TOKIO General Insurance Co. shall pay award amount along with interest to injured Smt. Rajesh. RELIEF
53. In view of foregoing discussion and observations and having regard to the facts and circumstances of the case, award for a sum of Rs.5,79,000/- along with interest @ 9% p.a. from the date of filing of DAR on 03.01.2014 till realization is passed in favour of injured Smt. Rajesh.
54. FORM-IVB SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASE TO BE INCORPORATED IN THE AWARD
1. Date of accident : 18.05.2013
2. Name of the injured : Smt. Rajesh
3. Age of the injured : 27 years (at the time of accident)
4. Occupation of the injured : Home Maker
5. Income of the injured : Rs.8,528/- (Minimum Wage of Non-Matriculate applicable in Delhi)
6. Nature of injury : Grievous
7. Medical treatment taken : Brahm Shakti Sanjivini by the injured Hospital, Bahadurgarh
8. Period of hospitalization : 18.05.2013 to 24.05.2013
9. Whether any permanent : Yes disability? If yes, give details.
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10. Computation of Compensation S. No. Heads Awarded by the Tribunal
11. Pecuniary Loss:
(i) Expenditure on treatment Rs.81,305/-
(ii) Expenditure on conveyance Rs.20,000/-
(iii) Expenditure on special diet Rs.30,000/-
(iv) Cost of nursing/attendant Rs.20,000/-
(v) Cost of artificial limb - (vi) Loss of earning capacity 10% (vii) Loss of income (during treatment) Rs.34,112/-
(viii) Any other loss which may require -
any special treatment or aid to the injured for the rest of her life
12. Non-Pecuniary Loss:
(i) Compensation for mental and Rs.20,000/-
physical shock
(ii) Pain and suffering Rs.40,000/-
(iii) Loss of amenities of life Rs.40,000/-
(iv) Disfiguration Rs.50,000/-
(v) Loss of marriage prospects -
(vi) Loss of earning, inconvenience, -
hardship, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed 24% permanent and nature of disability as physical disability permanent or temporary in relation to right upper limb
(ii) Loss of amenities of loss of -
MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 22 of 26 expectation of life span on account of disability
(iii) Percentage of loss of earning 10% capacity in relation to disability
(iv) Loss of future Income - (Income x Rs.2,43,559.68/-
% Earning Capacity x Multiplier)
14. TOTAL COMPENSATION Rs.5,78,976.68/-
rounded off to Rs.5,79,000/-
15. INTEREST AWARDED
16. Interest amount up to the date of @ 9% p.a. from award the date of filing of DAR i.e. 03.01.2014 till realization.
17. Total amount including interest Rs.5,79,000/- + interest @ 9% p.a. from the date of filing of the DAR i.e. 03.01.2014 till realization
18. Award amont released As per table given below
19. Award amount kept in FDRs As per table given below
20. Mode of disbursement of the By credit in the award amount to the claimant(s). SB Account of the injured 21 Next Date for compliance of the 16.10.2024 award.
55. The award amount shall be deposited by R3/IFFCO TOKIO General Insurance Co. in Account No.42709452600 of MACT, South West, Dwarka Courts, New Delhi at State Bank of India, District Court Complex, Sector-10, Dwarka, New Delhi MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 23 of 26 (IFSC Code SBIN0011566 and MICR Code 110002483) through RTGS/NEFT/IMPS within 30 days of award as per section 168(3) of M.V. Act under intimation to the Nazir of this court with proof of notice to the claimant/injured and his counsel.
56. Statement of regarding financial status, needs and liabilities has been recorded. In view of the said statement and having regard to the facts and circumstances of the present case, the award amount shall be disbursed in following manner:
S. Name Status Amount of Release Amount of FDR No Award Amount
1. Smt. Injured Rs.5,79,000/- Rs.2,79,000/- Rs.3,00,000/-
Rajesh + interest @ - with with 9% from the proportionate proportionate date of filing interest in interest be kept of DAR on MACT in 20 FDRs for 03.01.2014 Claims SB the period from till realization Account of 1st to 20th month injured in the name of injured Smt. Rajesh with cumulative interest.
TOTAL Rs.5,79,000/- Rs.2,79,000/-
57. The above-said compensation shall be disbursed through Motor Accident Claims Annuity Deposit Scheme (MACAD Scheme) formulated vide Orders dated 01.05.2018 and 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO No. 842/2013 (Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors.).
58. Smt. Rajesh has mentioned details of SB Account No.S.B Account No.20336616815 with SBI Bank, Branch Bahadurgarh, Railway Road, Bahadurgarh (IFSC Code: SBIN0000743) in her MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 24 of 26 statement recorded on 20.02.2020 and it is requested that cash amount may be transferred to the said SB Account.
59. Accordingly, Manager, State Bank of India, District Courts Complex, Sector-10, Dwarka, New Delhi is directed to transfer Rs.2,79,000/- with proportionate interest in SB Account No.20336616815 with SBI Bank, Branch Bahadurgarh, Railway Road, Bahadurgarh (IFSC Code: SBIN0000743) and keep remaining amount in the form of FDRs in terms of Motor Accident Claims Tribunal Annuity Deposit (MACAD) Scheme formulated vide orders dated 01.5.2018 and 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO No. 842/2013 (Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors.).
60. All original FDRs shall be retained by the concerned bank, however, statement containing FDR number, amount, date of maturity and maturity amount shall be provided to injured Smt. Rajesh. Manager of the concerned bank is directed NOT to permit premature encashment or loan against FDRs in the name of injured Smt. Rajesh without prior permission of the Court.
Further, the interest on the said FDRs shall be paid monthly by automatic credit/transfer of interest amount in aforesaid SB Account of injured Smt. Rajesh.
The above-said petitioner's bank is also directed not to issue any cheque book and/or debit card to the petitioner and if the same has already been issued, the said bank is directed to cancel the same and make an endorsement on the pass book that no cheque book or debit card shall be issued to petitioner.
The above-said petitioner's bank shall permit account MACT No. 840/2016 Rajesh Vs. Pradeep & Ors. Page No. 25 of 26 holder Smt. Rajesh to withdraw money from the above-said SB Account by means of withdrawal form.
At the time of maturity, the fixed deposit amount shall be credited in the aforesaid SB Account of injured Smt. Rajesh.
61. The insurance company shall inform the petitioner/injured and his counsel through registered post regarding award amount being transferred/deposited in MACT Account so as to facilitate the petitioner/ injured to know about the deposit in the account.
62. Copy of this award be sent to the concerned Manager, SBI, District Courts Complex, Sector-10, Dwarka, New Delhi and SBI Bank, Branch Bahadurgarh, Railway Road, Bahadurgarh (IFSC Code: SBIN0000743) for information /compliance.
63. Dasti copy of award be given to Ld. Counsel for injured and Ld. Counsel for R3/IFFCO TOKIO General Insurance Co.
64. Copy of Award be also sent to the concerned Ld. Metropolitan Magistrate and Delhi State Legal Services Authority.
65. Ahlmad is directed to prepare separate miscellaneous file to be listed on 16.10.2024 for filing compliance report.
66. File be consigned to the record room.
Announced in the open Court Digitally signed
On 05.09.2024 TARUN by TARUN
YOGESH
YOGESH Date: 2024.09.06
17:19:39 +0530
(Tarun Yogesh)
PO, MACT-01, Dwarka Courts,
New Delhi
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