Delhi District Court
37515 Rajesh Kumar vs Pardeep Kumar Page 1 Of 23 on 5 July, 2019
37515 Rajesh Kumar vs Pardeep Kumar Page 1 of 23
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 5087916
MACT PETITION No. : 37515
UNIQUE ID No. : DLNW010020402015
Sh. Rajesh Kumar S/o Sh. Ram Mehar
R/o H. No. 712, Ishwar Pardhan Wali Gali, VPO Kanjhawala, Delhi81
........ Petitioner
Vs.
1. Sh. Pradeep Kumar S/o Sh. Kedar Singh
R/o H. No. 275, Teen Pana, VPO Kanjhawala, Delhi
....... Driver/R1
2. Smt. Rekha W/o Sh. Pradeep Dabas
R/o H. No. 247, Teen Pana, Near Boys Primary School,
VPO Kanjhawala, Delhi81
.....Owner/R2
3. Bharti AXA General Insurance Co. Ltd.
A8, Netaji subhash Place,
2nd Floor, BIG JOS Building, Pitampura, Delhi.
..... Insurance co/R3
Other details
DATE OF INSTITUTION : 30.10.2015
DATE OF RESERVING JUDGMENT : 04.07.2019
DATE OF PRONOUNCEMENT : 05.07.2019
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
37515 Rajesh Kumar vs Pardeep Kumar Page 1 of 23
37515 Rajesh Kumar vs Pardeep Kumar Page 2 of 23
1. Date of the accident 21.05.2015
2. Date of intimation of the accident by the 30.10.2015
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 30.10.2015
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
(Clause 10)
5. Date of filing of Detailed Accident Information 30.10.2015
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 30.10.2015
Company (Clause 11)
7. Date of service of DAR on the claimant (s). 30.10.2015
(Clause 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 N/A
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 30.10.2015
by the insurance Company. (Clause20)
13. Name, address and contact number of the Sh. V.K. Gupta,
Designated Officer of the Insurance Company. Advocate
(Clause 20)
14. Whether the designated Officer of the Insurance No.
Company submitted his report within 30 days of
the DAR? (Clause 20)Without insurance
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 N/A
the part of the Designated Officer of the
37515 Rajesh Kumar vs Pardeep Kumar Page 2 of 23
37515 Rajesh Kumar vs Pardeep Kumar Page 3 of 23
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer Legal offer not filed.
of the Insurance Company .(Clause 24)
18. Date of the Award 05.07.2019
19. Whether the award was passed with the consent No.
of 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 17.05.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 05.10.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner Sh.
claimant(s) and the address of the bank with Rajesh Kumar
IFSC Code (Clause 27) savings bank a/c no.
37550440860 with
SBI bank,
Kanjhawala Branch,
Delhi
IFSC : SBIN0001416
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
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JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 30.10.2015 with reference to FIR No. 368/15 U/s 279/337 IPC PS Kanjhawala in respect of grievous hurt sustained by the petitioner Sh. Rajesh Kumar in a road accident on 21.05.2015 near SBI Kanjhawala, Delhi. The ld. Predecessor of this court vide order dated 30.10.2015 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act').
The record would show that petitioner has also filed a petition u/s 166/140 of M.V. Act on 06.06.2016 which was clubbed with the DAR vide order dated 06.06.2016.
2. Brief facts of the case as mentioned in the DAR/file are that on 21.05.2015 at about 10:00 pm, petitioner was going from his house on foot towards Kanjhawala chowk to attend his duty. When he reached near the Mini bus stand, Kanjhawala, suddenly a Zen Estilo car bearing registration no. DL8CP8106 (hereinafter referred to as "offending vehicle") which was being driven at a very high speed and negligently manner came from Ghevra side and hit the petitioner from behind. Due to said impact, the petitioner fell down but the offending vehicle did not stop and it dragged the petitioner towards Kanjhawala chowk. Due to intervention of public, the driver of the offending vehicle stopped the car. It has also been stated that the petitioner was admitted in Savitri Hospital, Kanjhawala, Delhi. The FIR no.368/15 PS Kanjhawala was registered u/s 279/337 IPC.
3. Sh. Pardeep Kumar/R1/driver and Ms. Rekha/owner of the offending vehicle have not filed any written statement and were ultimately proceeded against exparte vide order dated 18.01.2018.
4. M/s Bharti Axa General Insurance Co/R3 has filed its written statement wherein it has submitted that R1 was driving the offending vehicle under influence of alcohol and hit the injured due to which injured sustained grievous injuries. It has been admitted by R3 in its 37515 Rajesh Kumar vs Pardeep Kumar Page 4 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 5 of 23 written statement that the offending vehicle was insured with it vide policy no. FPV/S1021232/12/03/003228 for the period from 19.03.2015 to 18.03.2016 in the name of Ms. Rekha Kumari/R2 i.e. covering the date of accident dated 21.05.2015.
5. From the pleadings of the parties, the issues were framed by this court vide order dated 15.02.2017 as under :
1. Whether on 21.05.2015 at about 10:00 pm, at Kanjhawala road near chhota bus stand, Ghewra, Delhi, one Zen Estilo car bearing registration no. DL8CP8106, which was being driven rashly and negligently by Pardeep Kumar hit Rajesh Kumar and caused injuries to him?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
The petitioner/injured in support of his case has examined himself as PW1, Dr. Sameer Mehta, HOD (Orthopedic), Deep Chand Bandhu hospital, Delhi as PW2 and Dr. S.K. Singh, CMO, Saroj Hospital, Madhuban Chowk, Delhi as PW3.
The record would show that respondents have not examined any witness in support of their case.
6. I have heard arguments addressed on behalf of ld counsel for petitioner and ld counsel for insurance co/R3. Now, I proceed to discuss the issues in the succeeding paragraphs.
7. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
The petitioner/injured has examined himself as PW1. He has filed and proved his evidence by way of affidavit as Ex. PW1/A. He has proved the entire DAR as Ex. PW1/1 (colly), his remaining bills and treatment papers filed after DAR as Ex. PW1/2 (colly), his original 37515 Rajesh Kumar vs Pardeep Kumar Page 5 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 6 of 23 disability certificate as Ex. PW1/3, future estimate regarding surgery as Ex. PW1/4 and his PAN card as Ex. PW1/5.
He deposed in his evidence by way of affidavit Ex. PW1/A that on 21.05.2015 at about 10:00 pm, he was going on foot from his house towards Kanjhawala chowk to attend his duty. He deposed that when he reached near the Mini bus stand, Kanjhawala, then a Zen Estilo car bearing registration no. DL8CP8106 ( "offending vehicle") which was being driven at a very high speed and negligently manner came from Ghevra side and hit him from behind. He deposed that due to said impact, he fell down, he got entangled with the car, the offending vehicle did not stop and it dragged him towards Kanjhawala chowk. He deposed that due to intervention of public, the driver of the offending vehicle stopped the car. He deposed that he was firstly taken to Savitri Hospital, Kanjhawala, Delhi for first aid and thereafter he was admitted in Saroj Hospital & Heart Institute, Madhuban Chowk, Delhi.
PW1 was not cross examined by R1 and R2 despite opportunity given and his cross examination by them was nil, opportunity given. In the said circumstances, R1 shall be deemed to admit the above said testimony of PW1 to the effect that the case accident was caused on the above said date, time and place due to the rash and negligent driving of the offending vehicle by R1 whereby the petitioner sustained grievous injuries.
PW1 was cross examined by ld counsel on behalf of insurance co./R3 wherein he inter alia deposed that on the day of accident, he was going to his office and that he was on foot. He denied the suggestions that at the time of accident he was going in the middle of the road or that accident had taken place due to his sole negligence.
Nothing material has come on record in cross examination of PW1 to shake his version regarding the manner in which the said accident was caused due to rash and negligent driving of offending vehicle by R1. Even otherwise, PW1 himself is the injured having 37515 Rajesh Kumar vs Pardeep Kumar Page 6 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 7 of 23 sustained grievous injuries due to the accident in question and there is no reason as to why he would depose falsely against R1. The testimony of PW1 is trustworthy and can be relied upon.
In the facts and circumstances, the copies of FIR and charge sheet u/s 279/338 IPC against respondent no. 1 can also be looked into to determine the negligence on the part of respondent no. 1.
Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material as placed on record and in view of above discussion, there is no reason to disbelieve the version of PW1 and hence, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent No.1.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
8. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
Petitioner has filed his evidence by way of affidavit as Ex. PW1/A. He deposed that due to the accident, he was firstly taken to Savitri hospital, Delhi and after first aid he was admitted in ICU at Saroj Hospital & Heart Institute, Madhuban Chowk, Delhi on 22.05.2015. He deposed that surgery of his both hips and plastic surgery was done there.
Petitioner has examined Dr. Sameer Mehta, HOD (Orthopedic), Deep Chand Bandhu hospital as PW2 who has proved the disability certificate of petitioner as Ex. PW1/3. He deposed that as per the disability certificate, the patient suffered 23% permanent physical disability in relation to his left lower limb and left upper limb and was diagnosed with post traumatic stiffness of left hip, left knee, left elbow, left wrist and left hand.
To a court question, PW2 deposed that the patient/petitioner could 37515 Rajesh Kumar vs Pardeep Kumar Page 7 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 8 of 23 continue his work as a watchman but would have some difficulty while standing for a long time, walking for long hours and doing heavy work.
PW2 was cross examined by ld counsel for insurance co. wherein he inter alia denied the suggestion that the patient was not assessed as per the guidelines. He deposed that he could not give the exact definition of long hours/long time and that it may be six hours or may be 15 hours.
Petitioner has also examined Dr. S.K. Singh, CMO, Saroj Hospital, Madhuban Chowk, Delhi as PW3 who deposed that he had examined the patient and prepared the MLC no. 2193 dt. 22.05.2018. He has proved the MLC of petitioner as Ex. PW3/A. He was cross examined by ld counsel for R3 wherein he deposed that the result of the injuries was not mentioned on the MLC and the same was to be given only by the treating doctor and that the patient was under
observation as per MLC.
Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner sustained grievous injuries in the case accident. His photographs showing his injuries are also on record. The petitioner has proved the medical bills which are part of the DAR as Ex. PW1/1 (colly) and bills which were filed after filing of the DAR as Ex. PW1/2 (colly). The total of the said bills comes to Rs.4,98,817/. Therefore, Rs. 4,98,817/ are granted to the petitioner under this head.
B. Special Diet and conveyance PW1/petitioner deposed that he had incurred about Rs. 39,000/ on special diet and Rs. 50,000/ on conveyance.
During cross examination, PW1 denied the suggestion that he had not incurred any amount on the conveyance, special diet and medical treatment.
Petitioner has neither examined any witness to prove the expenditure on special diet and conveyance nor proved any bill in that regard.
As per discharge summary and card of Saroj hospital, the petitioner suffered polytrauma, closed reduction of his pelvis was done with external 37515 Rajesh Kumar vs Pardeep Kumar Page 8 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 9 of 23 fixator and U/T pin.
Petitioner suffered grievous injuries as mentioned above and 23% permanent physical disability in relation to his left lower limb and left upper limb with diagnoses of post traumatic stiffness of left hip, left knee, left elbow, left wrist and left hand.
In view of above said discussion and taking the probable period of treatment for about 6 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
C. Attendant Charges PW1/petitioner has deposed that he incurred expenditure of about Rs. 1,10,500/ on attendant.
Petitioner has neither examined any witness to prove the expenditure on attendant charges nor proved any bill in that regard.
As per discharge summary and card of Saroj hospital, the petitioner suffered polytrauma, closed reduction of his pelvis was done with external fixator and U/T pin.
Petitioner suffered grievous injuries as mentioned above and 23% permanent physical disability in relation to his left lower limb and left upper limb with diagnoses of post traumatic stiffness of left hip, left knee, left elbow, left wrist and left hand.
Keeping in view of the above said permanent disability, it is evident that the petitioner must have required the services of an attendant. In view of above said discussion and taking the probable period of treatment for about 6 months, a lump sum amount of Rs. 50,000/ is granted under the said head. D. Loss of future earning capacity due to disability Petitioner suffered above said grievous injuries and 23% permanent physical disability in relation to his left lower limb and left upper limb with diagnoses of post traumatic stiffness of left hip, left knee, left elbow, left wrist and left hand vide disability certificate Ex. PW1/3.
The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 37515 Rajesh Kumar vs Pardeep Kumar Page 9 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 10 of 23
09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
Petitioner in his affidavit Ex. PW1/A has deposed that he was working as a watchman and was earning Rs. 18,000/ per month at the time of accident.
Petitioner has placed on record copy of his aadhar card mentioning his date of birth as 15.06.1973 which would show that he was aged about 41 years & 11 months at the time of accident (21.05.15).
During cross examination as conducted by insurance co./R3, PW1 deposed that he had not filed any documentary proof regarding his income.
37515 Rajesh Kumar vs Pardeep Kumar Page 10 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 11 of 23The petitioner has thus failed to prove his monthly income by any independent witness or proper evidence. Petitioner has also not proved on record his any educational certificate to prove his education status.
In view of above said discussion and as he has not proved his monthly income on record, it would be appropriate to assess the income of the petitioner on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of an unskilled worker were Rs. 9048/ per month as on the date of accident.
Petitioner was doing the work of a watchman and PW2 Dr. Sameer Mehta has deposed that the petitioner could do his work with some difficulty but would face some difficulty while standing for a long time, walking for long hours and doing heavy work.
It is thus evident that due to permanent disability although the petitioner can continue his work of a watchman but he would face some difficulty and his working efficiency would be reduced to an extent.
In view of above discussion and the injuries suffered by the petitioner, the functional disability of the petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 12%.
E. Addition of Future Prospects.
In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:.
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of 37515 Rajesh Kumar vs Pardeep Kumar Page 11 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 12 of 23 actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) 37515 Rajesh Kumar vs Pardeep Kumar Page 12 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 13 of 23 Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 by Hon'ble Delhi High Court & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018.
The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra) after referring to the judgment of the constitution bench of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
In the case in hand, the petitioner was self employed and thus while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
The age of the petitioner, as discussed above, in the present case was about 41 years & 11 months and he was self employed. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 25% of the established income as he was between the age group of 40 years to 50 years at the time of his accident.
The monthly income of petitioner is thus calculated as Rs. 9048/ +25% of 9048/ which comes to Rs. 9048/+ Rs. 2262/ = Rs.11,310/.
The age of petitioner at the time of accident was about 41 years & 11 months. Accordingly, the multiplier of 14 is being adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra).
37515 Rajesh Kumar vs Pardeep Kumar Page 13 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 14 of 23The compensation is accordingly assessed towards loss of earning capacity at Rs. 2,28,009/ (after rounding of) [(Rs. 11,310/per month x12 months x 14 (age multiplier) x 12/100(functional disability)]. F. Loss of Amenities of Life.
As per discharge summary and card of Saroj hospital, the petitioner suffered polytrauma, closed reduction of his pelvis was done with external fixator and U/T pin.
Petitioner suffered grievous injuries as mentioned above and 23% permanent physical disability in relation to his left lower limb and left upper limb with diagnoses of post traumatic stiffness of left hip, left knee, left elbow, left wrist and left hand.
In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about 6 months, a lump sum amount of Rs. 50,000/ is granted under the said head. G. Pain and Suffering As per discharge summary and card of Saroj hospital, the petitioner suffered polytrauma, closed reduction of his pelvis was done with external fixator and U/T pin.
Petitioner suffered grievous injuries as mentioned above and 23% permanent physical disability in relation to his left lower limb and left upper limb with diagnoses of post traumatic stiffness of left hip, left knee, left elbow, left wrist and left hand.
In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about 6 months, a lump sum amount of Rs. 50,000/ is granted under the said head. H. Loss of Income As discussed above, his monthly income has been taken as Rs. 9048/ p.m at the time of accident.
As per record, the probable period of treatment of petitioner was about 6 months. Therefore, loss of income of Rs. 54,288/ (Rs. 9048/ x6 months) is granted for 6 months.
37515 Rajesh Kumar vs Pardeep Kumar Page 14 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 15 of 23I. Future Estimated expenditure on Surgery.
The petitioner as PW1 has deposed that his one operation of left wrist and hand was still due which would incur an expenditure of Rs. 60,000/ as per the medical estimate given by the concerned doctor of Saroj Superspeciality hospital. The said advise and expected expenditure estimate as given by the concerned doctor of Department of Orthopedic of Saroj Superspeciality hospital has been proved as Ex. PW1/4. In his cross examination by ld counsel for R3, the petitioner as PW1 has denied the suggestion that he had filed false and fabricated document of expected expenditure of future estimate regarding surgery.
It seems from the document Ex. PW1/4 of the said hospital that the petitioner has to further undergo a surgery of left wrist and hand of which expected expenditure would be Rs. 60,000/. In the said circumstances, Rs. 60,000/ are granted to the petitioner under the said head of future estimated expenditure on surgery.
Having regard to the fact that the compensation under the head of future estimated expenditure on surgery is being given in advance, there shall be no interest levied on that part of the award for the period the claim petition remained pending before the Tribunal. Thus, in calculating the total compensation, the period of 30.10.2015 to 05.07.2019 shall be excluded for computing the interest.
9. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs.10,41,500/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/ 2 Special diet & Conveyance Rs. 50,000/
3. Attendant Charges Rs 50,000/
4. Medical Expenses Rs. 4,98,817/
5. Loss of income Rs. 54,288/ 37515 Rajesh Kumar vs Pardeep Kumar Page 15 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 16 of 23
6. Loss of Earning/disability Rs. 2,28,009/
7. Loss of amenities of life Rs. 50,000/
8. Future Estimate Rs. 60,000/ Total Rs. 10,41,114/ Rounded of to Rs. 10,41,500/ ( Rupees Ten Lakhs Forty One Thousand Five hundred only) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 30.10.2015 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
10. Liability The ld counsel for R3 has argued that R1 was under influence of alcohol at the time of accident which was reflected from his MLC of Sanjay Gandhi Memorial hospital, Mangolpuri, Delhi. He further submitted that as per MLC a blood sample was also taken for alcohol estimation. He has thus prayed for recovery rights.
The MLC of R1 would indeed show that he has been mentioned as under influence of alcohol and his blood sample was also taken in a vial for alcohol estimation. The record would show that however, no such alcohol estimation of R1 is on record. The order sheet dated 16.05.2019 would show that SHO PS Kanjhawala submitted that although it was mentioned in the MLC of R1 that his blood sample was taken and handed over to the IO for alcohol estimation, however, as per available record no blood sample was found to be deposited by the IO in case FIR no. 368/15 PS Kanjhawala. He further submitted that in the said circumstances, the report regarding blood of R1 could not be filed before the court.
37515 Rajesh Kumar vs Pardeep Kumar Page 16 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 17 of 23Be that as it may, it is evident from the submissions of SHO PS Kanjhawala as recorded in the ordersheet 16.05.2019 that the alcohol estimation report of R1 is not on record and was never prepared. In the said circumstances, the quantity of alcohol consumed by R1 at that time cannot be ascertained. It can thus not be held that R1 had consumed alcohol beyond permissible limits. In facts, the said submissions of ld counsel for insurance co/R3 are without any merits and are accordingly rejected. No recovery rights can thus be granted in favour of insurance co/R3.
In the case in hand, the Bharti Axa General Insurance co./R3 has not lead any evidence and has not been able to show anything on record that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law. Since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law.
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., Bharti Axa General Insurance co./R3 is directed to deposit the awarded amount of Rs.10,41,500/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
37515 Rajesh Kumar vs Pardeep Kumar Page 17 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 18 of 23APPORTIONMENT
11. Statement of petitioner in terms of clause 29 MCTAP had already been recorded on 05.10.2018. I have heard the petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: Further, an amount of Rs. 2,00,000/ be released to petitioner in cash in his saving bank a/c no. 37550440860 with SBI, Kanjhawala branch, Delhi i.e. the branch near his place of residence as mentioned in his statement recorded under clause 29 MCTAP with necessary endorsement regarding no cheque book and debit card in terms of orders of Hon'ble Mr. Justice J.R. Midha in FAO No. 842/2013 dated 15.12.2017 and 18.01.2018 and remaining amount be kept in 48 FDRs of equal amount for a period of one month to 48 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further conditions and directions 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 37515 Rajesh Kumar vs Pardeep Kumar Page 18 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 19 of 23 claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(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.
12. Relief Bharti Axa General Insurance co./R3 is directed to deposit the award amount of Rs.10,41,500/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 30.10.2015 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3/insurance to the petitioner and his advocate failing which the Bharti Axa 37515 Rajesh Kumar vs Pardeep Kumar Page 19 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 20 of 23 General Insurance co./R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
Bharti Axa General Insurance co./R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimant and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to R3 for compliance within the granted time. Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
It is clarified that latest directions of Hon'ble Delhi High Court regarding opening of MACT Claims SB account by the claimants in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case of Rajesh Tyagi and Ors. Vs. Jaibir Singh & Ors. FAO 842/2003 under the Motor Accident Claims Annuity Deposit (MACAD) Scheme have been given separately in the order sheet. It is further clarified that the present award has only been passed as the statement of the claimant under clause 29 of MCTAP had already been recorded. It is also clarified that if the claimant fails to comply with the said directions then the compensation amount shall not be disbursed to her till compliance of the aforesaid directions by him.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other details Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, 37515 Rajesh Kumar vs Pardeep Kumar Page 20 of 23 37515 Rajesh Kumar vs Pardeep Kumar Page 21 of 23 Madame Cama Road, Nariman Point, Mumbai400021} 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.
13. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded wherein he had stated that petitioner was entitled to exemption from deduction of TDS and that he would submit form 15G to the insurance co. so that no TDS is deducted.
14. Form IVB has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. The insurance co./R3 is also directed to obtain the copy of PAN card of the petitioner from the record.
Digitally
signed by
AMIT BANSAL
AMIT Date:
BANSAL 2019.07.06
11:48:35
+0530
Announced in open court (AMIT BANSAL)
on 5th July 2019 PO MACT N/W
Rohini Courts, Delhi.
37515 Rajesh Kumar vs Pardeep Kumar Page 21 of 23
37515 Rajesh Kumar vs Pardeep Kumar Page 22 of 23
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 21.05.2015
2. Name of injured Rajesh Kumar
3. Age of the injured 41 years & 11 months (at the time of accident)
4. Occupation of the injured: Self Employed
5. Income of the injured. 11,310/ per month
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 6 months
8. Period of hospitalization: about 7 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 23% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.4,98,817/.
(ii) Expenditure on conveyance Rs. 25,000/ (iii) Expenditure on special diet Rs. 25,000/ (iv) Cost of nursing/attendant Rs. 50,000/ (v) Loss of earning capacity Rs. 2,28,009/ (vi) Loss of income Rs. 54,288/ (vii) Any other loss which may require any Future estimate of Rs. 60,000/
special treatment or aid to the injured for (no interest is given on the said the rest of his life amount)
12. NonPecuniary Loss:
(I) Compensation for mental and physical
shock
(ii) Pain and suffering Rs. 50,000/
(iii) Loss of amenities of life Rs. 50,000/
(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, inconvenience,
hardships, disappointment, frustration,
37515 Rajesh Kumar vs Pardeep Kumar Page 22 of 23
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mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 23% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 12% relation of disability
(iv) Loss of future income - (Income X 2,28,009/ %Earning capacity X Multiplier) (9048x25%x12x14x12%)
14. TOTAL COMPENSATION Rs.10,41,500/
15. INTEREST AWARDED 9% .
16. Interest amount up to the date of award Rs. 3,09,171/ (interest is calculated on Rs. 9,81,500/ as no interest is given on Rs.
60,000/ being future estimated cost of surgery)
17. Total amount including interest Rs. 13,50,671/
18. Award amount released Rs. 2,00,000/
19. Award amount kept in FDRs Rs. 11,50,671
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 09.08.2019 (Clause 31) Digitally signed by AMIT BANSAL AMIT Date:
BANSAL 2019.07.06
11:48:55
+0530
(AMIT BANSAL)
PO MACT N/W
Rohini Courts, Delhi.
05.07.2019
37515 Rajesh Kumar vs Pardeep Kumar Page 23 of 23