Delhi District Court
Sunny Khudania vs Manoj Kumar And Ors on 30 January, 2024
IN THE COURT OF MS. SUNENA SHARMA
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
SUNNY KHUDANIA VS. MANOJ KUMAR & ORS.
MACP No. 127/2021
Sh. Sunny Khudania
S/o Sh. Virender Khudania
R/o House no. 308, Village Wazirpur
Ashok Vihar, North West Delhi.- 110052.
......Petitioner
Versus
1. Sh. Manoj (Driver)
S/o Sh. Suresh Chandra
R/o H.No. 103, Village Baidpura
Post Baidpura, District
Etawaha (UP).
2. Sh. Bhajinder Singh (Owner)
S/o Sh. Deedar Singh
R/o H.No. F 18A, Block F, Moti Nagar
Delhi.
3. IFFCO TOKIO General Insurance (Insurer)
Co. Ltd.
IFFCO Sadan, C1, District Centre, Saket
New Delhi. .....Respondents
Date of filing of MACP : 17.09.2021
Date of filing of DAR : 04.02.2021
Date of framing of issues : 14.07.2022
Date of concluding arguments : 11.01.2024
Date of decision : 30.01.2024
MACP No. 127/21 Page 1 of 30
AWARD/JUDGMENT
1. The claim for compensation raised in this claim petition is in respect of grievous injuries alleged to have been suffered by the petitioner Sunny Khudania in a road accident that took place on 20.06.2020 at about 2 pm, at Power House, Pragati Maidan, Ring Road, New Delhi, regarding which one FIR bearing No.033/2020, under Sections 279/337 IPC was registered at PS Tilak Marg. The vehicle involved in this case is a truck (Ashok Leyland Truck) bearing registration No. HR-38S-5359, which at the relevant time of accident was being driven by respondent No.1 (R1), owned by respondent No. 2 (R2) and insured with respondent No. 3 (R3).
2. Briefly stated, the case of the petitioner is that, on the aforesaid date, time and place of accident, the petitioner was going from his in-laws house at Bharat Nagar, New Friends Colony on his scooty bearing registration No. DL-3SEH-4292 to his house at Wazirpur, New Delhi and when he reached at Power House, Pragati Maidan, Ring Road, New Delhi, one truck (Make Ashok Leyland) came from back side, which was driven at a very fast speed and in a very rash and negligent manner by R-1 and hit the scooty of petitioner due to which the petitioner fell down on the road and sustained grievous injuries. He was removed to RML Hospital, New Delhi, where his MLC was prepared.
3. The respondent no. 1 and 2 filed written statement to the MACP No. 127/21 Page 2 of 30 present claim petition wherein, it is stated that on the date of accident, R-1 was holding a valid license and the offending vehicle was duly insured with respondent no. 3. It is further stated that where the accident took place, some construction work was going on and therefore, R-1 was driving the vehicle at a very low speed and followed the traffic rules and laws. Further that, on hearing some noise, R-1 asked his helper Shivam Kumar to check the same and upon checking, it was found that petitioner had fallen on the left side of the road along with the scooty and out of humanity R-1 stopped his vehicle and helped the petitioner. Despite helping the petitioner, police falsely implicated R-1 in the present case.
4. It is further stated that as per chargesheet, the petitioner was not holding any valid driving license on the day of accident and it was he (petitioner), who was driving his vehicle (scooty) at a high speed, rashly and negligently and he himself was responsible for the accident. Furthermore, as per the Mechanical Inspection Report of the offending vehicle, no fresh damage was found on said vehicle. Rather, the Mechanical Inspection Report of the said scooty shows damage from the front side while there was no damage detected on the back side. Even as per statement under Section 161 Cr.P.C filed with the chargesheet, no clue of the accident was found in the CCTV footage of the place of accident. It is further stated that the present claim petition is devoid of any merit and material facts have been concealed. It was further denied that the petitioner was employed with CDP in Food Studio or was earning a salary of Rs.
MACP No. 127/21 Page 3 of 3022,000/- per month. R-1 and R-2 further denied that petitioner had spent Rs. 25 lakh approx. on his medical treatment as alleged in the petition.
5. The respondent no. 3/Insurance Company also filed its written statement wherein it is stated that the offending vehicle was not having valid and effective permit on the date of accident. It is stated that as per criminal records, the victim was also negligent as he hit the offending vehicle from behind, hence it was a case of contributory negligence. It is further stated that the petitioner was not having valid and effective driving license at the time of accident and hence, as per judgment of Hon'ble Supreme Court in case Rehmani Begum, the petitioner is not entitled to any compensation. It is however admitted that the offending vehicle was duly insured with R-3 in the name of R-2 w.e.f. 31.03.2020 to 30.03.2021.
6. On 14.07.2022, the following issues were framed by the Ld. Predecessor of this Tribunal as :- :-
1. Whether the injured sustained injured/petitioner sustained injuries in the accident which occurred on 20.06.2020 at about 2 pm, in front of Power House, Pragati Maidan, Ring Road, New Delhi cause by rash and negligent driving of vehicle No. HR-38S-5359 being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 ? OPP.MACP No. 127/21 Page 4 of 30
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. In support of his claim, the petitioner examined himself as PW1 and he was duly cross examined by all the respondents. In rebuttal, R-2/owner of the offending vehicle examined himself as R2W1 and he was cross examined by the petitioner's counsel. Neither R-3/Insurance Company nor R-1/driver of the offending vehicle has led any evidence in rebuttal. Written arguments along with case law was filed on behalf of petitioner and oral arguments were addressed on behalf of parties.
8. I have given thoughtful consideration to the arguments raised in the matter and also perused the entire record. The finding on the aforesaid issues is reproduced in succeeding paragraphs hereinafter.
ISSUE No. 11. Whether the injured/petitioner sustained injuries in the accident which occurred on 20.06.2020 at about 2 pm, in front of Power House, Pragati Maidan, Ring Road, New Delhi cause by rash and negligent driving of vehicle No. HR-38S-5359 being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 ? OPP.
MACP No. 127/21 Page 5 of 309. The onus to prove this issue was upon the petitioner/injured. In order to prove negligence of respondent no. 1, the petitioner has examined himself as PW-1 and he filed his evidence by way of affidavit as Ex. PW-1/A wherein he has narrated the mode and manner of accident as well as about the injuries sustained by him and treatment taken thereafter. He relied upon DAR as Ex. PW1/1 (colly).
10. PW-1 was cross examined at length by the Ld. Counsel for the respondents. During his cross-examination, PW1 deposed that he was having a valid driving license on the date of accident and he exhibited his driving license on record as Ex. PW1/R1/X. He deposed the due to impact of accident, he lost his consciousness and got admitted in RML hospital and therefore, could not tell the registration number of the offending vehicle. He further deposed that he was driving his scooty at a speed of 30 km per hour and no construction work was going on the road at the time of accident instead the road was a kaccha road. He categorically denied that the offending vehicle was not involved in the accident or R-1 was not rash and negligent in driving the offending vehicle or that the accident had occurred due to his (PW1) own negligence.
11. On the other hand, R-2 Bhajinder Singh (owner) examined himself as R2W1 by tendering his affidavit as Ex.R2W1/A, wherein he relied upon the documents i.e. Authorization certificate of National permit (Goods) as Ex. R2W1/1 MACP No. 127/21 Page 6 of 30 (already part of DAR Ex. PW1/1); Advisories of Central Government and State Government as Ex. R2W1/2 (colly); Mechanical Inspection Reports of the two vehicles as Ex. R2W1/3 (colly) (already part of DAR Ex. PW1/1) and statement of Ct. Gograj under section 161 Cr.P.C as Mark X.
12. R2W1 was cross-examined by the counsel for the petitioner wherein he deposed that he was not present in the truck at the time of accident and he was told regarding the fact scenario of accident by his driver Manoj/R-1. He admitted that the offending vehicle bearing HR-38S-5359 was seized by the police after the accident and same was released to him on superdari and the chargesheet was filed against his driver Manoj/R-1. He categorically denied the suggestion that the accident was caused by R-1 due to high speed, rash and negligent driving. He admitted that he had not filed any complaint with any authority or police to the effect that the accident was not caused by the above mentioned truck.
13. Ld. Counsel for Insurance Company/R-3 has raised the plea of contributory negligence on the part of petitioner by alleging that the petitioner had overtaken the offending vehicle from wrong side. However, except putting the bald suggestion to this effect, which of course was denied by PW1, nothing was brought on record by R-3 in support of said plea. As per FIR, the offending vehicle had struck the scooty of petitioner from the back side. Although, it is contended that in the mechanical inspection report, no damage was found on the scooty on its back or front portion of the truck, but the MACP No. 127/21 Page 7 of 30 same cannot be a ground to presume that the offending vehicle did not hit the scooty from back side. A slightest touch of the speeding four wheeler like a truck is enough for a small two wheeler like scooty to lose the balance and it may not always result in apparent damage on the offending vehicle or the vehicle of the victim.
14. Further, respondent no. 2/R2W1 during his cross examination has also admitted that the chargesheet was filed against the respondent no. 1 and the offending vehicle was seized by the police which was released to him on superdari. The Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle rashly and negligently. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal.
15. Pertinently, Respondent no. 1 himself was the best witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident or to attribute contributory negligence on the part of the petitioner/victim, but he has failed to do. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
16. It is well settled that the procedure followed for MACP No. 127/21 Page 8 of 30 proceedings conducted by an Accident Tribunal is similar to that followed by a Civil Court and in civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in case titled as Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the petitioners and the petitioners were merely to establish their case on the touchstone of preponderance of probability.
17. In view of foregoing discussion, it is held that oral evidence led on record by the petitioner on this issue is duly substantiated by the documentary evidence i.e. chargesheet, and thus, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing No. HR-38S-5359 which was being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. Hence, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
MACP No. 127/21 Page 9 of 3018. As the issue No.1 has been proved in favour of the petitioner, he has become entitled to be compensated for the injuries suffered by him in the accident, but the computation of compensation and liability to pay the same are required to be decided.
19. In terms of Section 168 of the Motor Vehicle Act, 1988, the compensation which is to be awarded by this Tribunal is required to be 'just'. In injury cases, a petitioner is entitled to two different kinds of compensation i.e. pecuniary as well as non- pecuniary damages. The Hon'ble Apex Court in Raj Kumar Vs. Ajay Kumar reported in (2011) 1 SCC 343, has laid down heads under which compensation is awarded in personal injury cases as:-
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.
Non-pecuniary damages (General Damages) MACP No. 127/21 Page 10 of 30
(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).
20. Having considered the ratio of aforesaid judgment, the compensation payable to petitioner is assessed hereinafter under the following heads as:-
(i) Medical or Treatment Expenses
21. In his affidavit Ex. PW1/A, the petitioner has tendered on record original treatment record of BLK Hospital as Ex. PW1/2 (colly), as per which the petitioner was admitted in the said hospital on 20.06.2020 and discharged on 27.06.2020. It further reflects that the petitioner was diagnosed with Galeazzia fracture right wrist with pubic diastasis with SI joint disruption with degloving injury over right buttock and perineal region extending upto perianal region and had undergone close reduction and internal fixation with TENS nailing right radius under GA and brachial block with external fixator application of pelvis and screw fixation right SI joint with debridement of wound over right buttock and perineal region. Thereafter, the petitioner was admitted in Sri Balaji Action Medical Institute on 27.06.2020 and was discharged on 20.07.2020 and during this period, he had undergone as many as 9 surgeries and was diagnosed with large infected necrotic wound over right gluteal and MACP No. 127/21 Page 11 of 30 sacral and perianal region with septicemia. Thereafter, as per treatment record Ex. PW1/4 and Ex. PW1/6, the petitioner was admitted in North Delhi Nursing Home Pvt. Ltd. on 19.03.2021 and discharged on 25.03.2021 and again admitted there on 24.09.2022 and discharged on 27.09.2022. Further, as per discharge summary Ex. PW1/7, the petitioner was admitted in Sri Balaji Action Medical Institute on 27.09.2022 and was discharged on 28.09.2022. During his hospitalization in the said hospitals, 14 surgeries in total were conducted upon the petitioner.
22. The petitioner has tendered on record original medical bills as Ex. PW1/8 (colly) which are totalling to a sum of Rs. 16,76,072/-. During the course of final arguments, Ld. Counsel for petitioner has conceded that advance payments are liable to be adjusted in the final bill placed on record and after deduction of advance payment, the total amount of medical bills comes out to be Rs. 13,84,161/- and no dispute has been raised by the Insurance Company regarding the said amount of medical bills. Further, the respondents have failed to lead any evidence to show that the said medical bills do not relate to the injuries suffered by the petitioner in the aforesaid accident. Hence, he is held entitled to Rs.13,84,161/- towards his medical expenses.
(ii) Loss of actual earnings
23. The petitioner in his affidavit has claimed that at the time of accident, he was working with Food Studio, Hudson Lane, Kingsway Camp, Delhi as CDP Post and was drawing salary of Rs.
MACP No. 127/21 Page 12 of 3022,000/- per month, in addition to other incentives. In order to prove the same, he has tendered on record his salary certificate dated 26.08.2020 issued by his employer Food Studio as Ex. PW1/10. The petitioner has also placed on record various documents pertaining to his previous employments with different restaurant/food chain/outlet, i.e. All Heavens Restro Pvt. Ltd., Invitation Restro, Silver Service Caterers and Travel Food Services Pvt. Ltd.. The documents filed on record are copy of appreciation letters, letter of confirmation, ID cards issued by his previous employers, letter of appointment and letter for employment, which are available on record as Ex. PW1/11 to Ex. PW1/16.
24. Perusal of salary certificate of petitioner Ex. PW1/10 reveals that at the time of accident, he was employed with M/s Food Studio as CDP Post and his last drawn salary was Rs. 22,000/- per month.
25. Reliance is placed upon the judgment of Hon'ble Supreme Court of India in case Chandra @ Chanda @ Chandraram & Anr., Civil Appeal No. 6152 of 2021 (arising out of SLP (C) Bo. 6466 of 2019) wherein it was held that the oral testimony regarding income of the deceased cannot be thrown away only because there is no documentary proof on record. It further states that the income should be assessed considering the reality and occupation of deceased.
26. However, in the instant case, the petitioner besides his oral testimony, has also tendered on record his salary certificate showing his employment and salary as well as various other MACP No. 127/21 Page 13 of 30 documents pertaining to his previous employment as Chef with other restaurants/food outlets. Although, no witness was summoned from the office of said employers to prove said documents in accordance with law, but in the light of above mentioned judgment in case Chandra (supra), the verbal testimony of injured/victim regarding his vocation/job and income can not be ignored in absence of documentary proof. Accordingly, in view of evidence adduced on record, the income of petitioner is taken as Rs. 22,000/- per month.
27. Keeping in view the duration of his treatment, nature of injury and multiple surgeries undergone by him and disability suffered by him on account of said injuries, this tribunal finds it just and reasonable to compensate him for loss of earning equivalent to a period of one year. Therefore, under this head, he is being awarded an amount of Rs.2,64,000/- (Rs. 22,000/- X 12 months).
(iii) Loss of future earnings due to disability
28. As per disability certificate issued by Dr. RML Hospital as Ex. PW1/17, the petitioner was examined there and after his examination, the doctors have opined that the petitioner is a case of road traffic accident with fracture right radius with internal nail fixation with fracture pelvis with pubic diastasis and had suffered 30% permanent physical disability in relation to right upper limb and right lower limb.
29. The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. MACP No. 127/21 Page 14 of 30 was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it has been held as under :-
"4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the petitioner to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the petitioner could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out MACP No. 127/21 Page 15 of 30 whether (i) the petitioner is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the petitioner could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a petitioner is amputated, the permanent physical or functional disablement may be assessed around 60%. If the petitioner was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the petitioner was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the petitioner continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured petitioner may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier MACP No. 127/21 Page 16 of 30 holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may............."
30. Petitioner in his affidavit has deposed that he had undergone various surgeries and he is still under treatment due to the injuries sustained in the accident. Further that, he cannot walk without the support of attendant and wheel chair and cannot stand for more than five minutes. Further, he deposed that he has been rendered incapacitated to lead normal life for the rest of his life and as per the doctors, he will not be able to perform his daily normal works in future.
31. Considering the legal position already discussed coupled with the testimony of PW1 that prior to date of accident, he was working as a Chef, it cannot be ignored that job of a Chef requires staying in standing position for long hours for MACP No. 127/21 Page 17 of 30 preparing/cooking and presenting high quality dishes. Considering the fact that the petitioner has suffered serious injuries in pelvic region and has also undergone multiple surgeries, he would face difficulty in walking and standing for long duration. In view of above mentioned facts and circumstances, it is deemed appropriate to consider functional disability of the petitioner as 50% in relation to whole body.
32. To apply the multiplier, it is necessary to ascertain the age of the petitioner. In this regard, the petitioner has tendered on record copy of his Aadhar card as Ex. PW1/9 in which his year of birth is mentioned as 1988. Further, petitioner during his cross examination has also placed on record copy of his driving license as Ex. PW1/R1/X in which his date of birth is found recorded as 03.04.1988. Hence, going by these documents, the age of the petitioner as on 20.06.2020 i.e. date of accident was around 32 years, 2 months and 17 days. Therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Apex Court in a judgment of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., SLP (Civil) No. 25590 of 2014 dated 31.10.2017, the multiplier of '16' is applicable for calculating the loss of future earnings of the petitioner arising out of above disability.
33. Further, the petitioner is also held entitled to 40% future MACP No. 127/21 Page 18 of 30 prospects in view of the law laid down by the Hon'ble Apex Court in Pranay Sethi & Ors.(Supra). Thus, the loss of future earnings caused to the petitioner due to his permanent disability comes to Rs.29,56,800/- (Rs.22,000/- X 12 X 50/100 X 16 X 140/100).
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
34. As stated above, the petitioner had suffered grievous injuries in the accident. Though, it is not possible to exactly compensate him for the shock, pain and sufferings etc. which he had actually suffered because of the above injuries, but an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by him etc., an amount of Rs.60,000/- each is being awarded to him towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.30,000/- is also awarded to him towards the loss of amenities suffered by him during the said period of his treatment. Thus, he is awarded total amount of Rs.1,50,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges
35. The petitioner in his affidavit Ex. PW1/A has claimed that he had already spent huge amount of money about Rs. 25 lakhs on his treatment, special diet and conveyance. However, he is silent with regard to specific amount spent towards special diet and MACP No. 127/21 Page 19 of 30 conveyance. Still this Tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with his treatment and special diet for his early recovery from the injuries suffered because of the accident. Considering the facts and circumstances of the present case, an amount of Rs.50,000/- each is being awarded to the petitioner towards conveyance and special diet.
36. PW1 in his affidavit has deposed that he cannot walk without the support of attendant and wheelchair. Keeping in view the nature of injuries as well as disability suffered by the petitioner, he would have required assistance of some family member/attendant for doing his daily routine work for atleast 12 months, therefore, a sum of Rs.10,000/- per month for 12 months is also being awarded to the petitioner towards attendant charges. The injured/petitioner is thus entitled to an amount of Rs.2,20,000/- (Rs.50,000/- + Rs. 50,000 + Rs. 10,000/- per month X 12 months) under this head.
ISSUE No. 3/Relief
37. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.49,74,961/- (Rupees Fourty Nine Lakh Seventy Four Thousand Nine Hundred Sixty One only) (Rs.13,84,161/- + Rs. 2,64,000/- + Rs.29,56,800/- + Rs. 1,50,000/- + Rs. 2,20,000/-) along with 7.5% interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this MACP No. 127/21 Page 20 of 30 inquiry, shall be liable to be excluded from the award amount.
RELEASE
38. Considering the amount of medical bills spent by the petitioner, out of amount awarded, 70% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 200 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 200 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account opened/to be opened near the place of his residence, as directed vide order dated 14.07.2022 and the remaining 30% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
39. The disbursement to the petitioner is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from her share.
40. The bank shall not permit any joint names to be added in the saving bank account or MACAD scheme account of petitioner MACP No. 127/21 Page 21 of 30 i.e. the bank account of petitioner shall be individual account and not a joint account.
41. The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amount shall be released in account of petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
42. The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the petitioner(s) near the place of his residence.
43. The maturity amount of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of petitioner.
44. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
45. The concerned bank shall not issue any cheque book and/or debit card to petitioner(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 petitioner(s) so that no debit card be issued in respect of the account of the petitioner(s) from any other branch of the bank.
MACP No. 127/21 Page 22 of 3046. The bank shall make an endorsement on the passbook of the petitioner(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 petitioner(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
47. It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the petitioner(s) is sufficient compliance of clause above.
LIABILITY
48. The Insurance Company in its written statement has taken plea that the petitioner was not having a valid and effective driving license at the time of accident. However, perusal of record reveals that petitioner during his cross examination has produced his original driving license and has placed on record copy of the same as Ex. PW1/R1/X, which was issued on 02.04.2011 and valid upto 01.04.2031 and hence, the said plea does not hold water in the present matter.
49. Further, the Insurance Company in its written statement has also taken plea that the offending vehicle was plying on public road without permit as the validity of permit was upto 07.04.2020, however, the accident took place on 20.06.2020. In this regard, respondent no. 2 during his examination in chief has tendered on record authorization certificate of National Permit as Ex. R2W1/1 as MACP No. 127/21 Page 23 of 30 well as advisories of Central Govt. and State Govt. as Ex. R2W1/2 (colly) which reflect that the documents such as fitness, permit, driving license, registration etc., whose extension of validity could not or was not likely be granted due to lockdown and which had expired since 01.02.2020 or would expire by 31.10.2021, may be treated to be valid till 31.12.2021. Even otherwise, during the course of final arguments, the said issue was not pressed upon by the Insurance Company. Hence, this Tribunal concludes that said objection raised by the Insurance Company is not tenable in law.
50. In view of foregoing discussions, all the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioner, but respondent no. 3 being insurer of the offending vehicle is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of DAR by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of respondent No. 3 with a cost of Rs.5,000/-.
51. The respondent No. 3 shall inform the petitioner and MACP No. 127/21 Page 24 of 30 her counsel through registered post that the awarded amount has been deposited so as to facilitate her to collect the same.
52. The copy of this award be given to the parties free of cost or be sent by email. Ahlmad is directed to send the copy of the Award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
53. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
54. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 20.06.2020
2. Date of filing of Form I- First NA Accident Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from NA the Driver
5. Date of receipt of Form-IV from NA the owner
6. Date of filing of the Form-V- NA Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and NA Form VIB from the Victim (s) MACP No. 127/21 Page 25 of 30
8. Date of filing of Form-VII- 04.02.2021 Detailed Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the Legal offer not filed petitioner(s) of the offer of the Insurance Company.
14. Date of the Award 30.01.2024
15. Whether the petitioner(s) were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which petitioner(s) 14.07.2022 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the petitioner (s) and make an endorsement to this MACP No. 127/21 Page 26 of 30 effect on the passbook(s).
17. Date on which the petitioner(s) Yet to furnish produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of As mentioned above the petitioner(s)
19. Whether the petitioner(s) savings Yet to furnish bank account(s) is near his place of residence?
20. Whether the petitioner(s) were No examined at the time of passing of the award to ascertain his/their financial condition?
55. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 01.05.2024.
Digitally signed SUNENA by SUNENA
SHARMA
SHARMA Date: 2024.01.30
16:12:37 +0530
Announced in the open court. (Sunena Sharma)
on 30.01.2024 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP No. 127/21 Page 27 of 30 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 20.06.2020
2. Name of the injured : Sh. Sunny Khudania
3. Age of the injured : 32 years, 2 months and 17 days
4. Occupation of the injured : Private job
5. Income of the injured : Rs.22,000/- per month
6. Nature of injury : Grievous
7. Medical treatment taken by : BLK Hospital and North the injured Delhi Nursing Home
8. Period of hospitalization : As already discussed
9. Whether any permanent : 30% permanent physical disability? disability, but functional disability taken as 50%
10. Computation of Compensation Sr.No. Heads
11. Pecuniary Loss
(i) Expenditure on treatment : Rs.13,84,161/-
(ii) Expenditure on conveyance : Rs. 50,000/-
(iii) Expenditure on special diet : Rs. 50,000/-
(iv) Cost of nursing/attendant : Rs. 1,20,000/-
(v) Loss of earning capacity : Nil
(vi) Loss of Income : Rs. 2,64,000/-
(vii) Any other loss which may : Nil
require any special
treatment or aid to the
injured for the rest of his life
(Future treatment)
12. Non-pecuniary Loss:
MACP No. 127/21 Page 28 of 30
(i) Compensation for mental : Rs. 60,000/-
and physical shock
(ii) Pain and suffering : Rs. 60,000/-
(iii) Loss of amenities of life : Rs. 30,000/-
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
(vi) Loss of earning, : Nil
inconvenience, hardships,
disappointment,frustration,
mental stress, dejectment
and unhappiness in future
life etc.
13. Disability resulting in
loss of earning capacity
(i) Percentage of disability : 30% permanent physical
assessed and nature of disability
disability as permanent or
temporary
(ii) Loss of amenities or loss of : Nil
expectation of life span on
account of disability.
(iii) Percentage of loss of : 50% functional disability
earning relation to disability
(iv) Loss of future income : Rs.29,56,800/-
14. Total Compensation Rs.49,74,961/-
15. Interest Awarded : 7.5% pa from date of
filing of DAR till the
date of award to be
deposited in 30 days
and 9% thereafter.
16. Interest amount up to the : Rs.11,15,220/-
date of award
17. Total amount including : Rs.60,90,181/- (rounded
interest off to Rs. 60,90,500/-)
MACP No. 127/21 Page 29 of 30
18. Award amount released : 30% share
19. Award amount kept in the : 70% share
FDRs/ Motor Accident
Claims Annuity Deposit
(MACAD)
20. Mode of disbursement of : Through Bank
the award amount to the
petitioner (s)
21. Next date for compliance : 01.05.2024 of the award Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2024.01.30 16:12:08 +0530 (Sunena Sharma) PO/MACT, New Delhi 30.01.2024 MACP No. 127/21 Page 30 of 30