Delhi District Court
Also At vs Raghvendra Kumar Atrey on 6 December, 2018
IN THE COURT OF SH. DEVENDER KUMAR, PRESIDING
OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL, SHAHDARA,
KKD, DELHI
MAC No. 1761/16
Ravi Kumar Srivastava
S/o Sh. Vinit Srivastava
R/o H.No.211, Block-B-2,
Harsh Vihar, Delhi
Also at
H.No.405, Pocket D,
Dilshad Garden, Delhi Petitioner
Versus
1. Raghvendra Kumar Atrey
S/o Sh. Brij Mohan Sharma
R/o H.No. B-281, Gali No-11,
Delhi-110032 Driver
2. Ashok Kumar Bansal
S/o Late Sh. Radhe Lal
R/o 1449/45A, Durga Puri,
33 Foota Road, Delhi-32 Registered Owner
3. National Insurance Co. Ltd.
C/o 124, Level 4, Jeevan Bharti,
Building Tower 2, Connaught Place,
Delhi -110001 Insurance company
...Respondents
Date of Institution : 24.02.2016
Date of Arguments : 13.08.2018
Date of Judgment : 06.12.2018
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 1/28
JUDGMENT:
1. Vide this judgment, I shall dispose off this petition filed under Section 166 r/w 140 M.V. Act by the injured / petitioner Ravi Kumar Srivastava with the allegations that on 13.07.2015 at about 11.30 pm, injured alongwith some other pilgrims was returning after performing worship in Balaji Mandir by a bus bearing No. UP-17T-0509 via Yamuna Expressway and reached near Bajna cut, under the jurisdiction of PS Naujheel, UP when suddenly the offending vehicle bearing No. UP-17T-0509, being driven by the respondent No. 1 in rash and negligent manner, hit against the truck going ahead to the bus and caused this accident which resulted into sustaining multiple grievous injuries by injured. It is further stated that injured was removed to Kailash Hospital, Noida, but referred to Max Hospital after initial treatment and remained hospitalize for 7 days. It is further stated that injured has suffered 100% permanent disability and remained under treatment for a long time. It is further stated that injured was aged about 36 years and was a commission agent by profession and was earning handsome amount by this work, but his life has become miserable by this accident and his family have spent huge amount on his treatment, whereas this accident took place by the rash and negligent driving of the offending vehicle. Petitioner has claimed Rs. 1.85 Crore alongwith interest @ 9 % per annum from the respondents.
2. Respondents No. 1 & 2 i.e. Driver and Owner have filed their joint WS thereby stating that this accident took place by the fault of the truck driver going ahead to the offending vehicle which applied sudden MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 2/28 brakes and resulted into this accident. It is further stated that the offending vehicle was insured with Insurance Company and insurance company is liable to pay this compensation, otherwise this claim is liable to be dismissed. Respondents have denied all the allegations of the injured and have prayed that this claim is liable to be dismissed.
2.1. Respondent No. 3 i.e. Insurance company has filed its WS thereby stating that offending vehicle was insured with insurance company in the name of Sh. Ashok Kumar Bansal, but it is denied that Respondent No. 1 caused this accident by his rash and negligent driving. It is further stated that the version of injured is contradictory in itself as Respondent No.2 has stated in his complaint that this accident took place as tyre bursting of the truck going ahead to vehicle and offending vehicle hit against that truck, whereas the version of the informant who lodged this FIR is altogether different that this accident took place by the rash and negligent driving of the respondent No.1 as driver applied sudden brakes due to insurance company is not liable to pay this compensation. It is further stated that even the date of accident is also disputed as informant firstly stated that this accident took place on 12/07/15, whereas he again modified the date of accident thereby stating that this accident took place on 13/07/2015, but police have not investigated this matter properly and this delay of about 140 days in lodging FIR makes this FIR doubtful and this claim is liable to be dismissed.
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 3/28
3. From the pleading of the parties following issues are framed in all the petitions as under:
1. Whether Respondent No.1 was driving vehicle bearing No. UP-17T-0509 on 13.07.2015 at 11:30 pm near Bajna Cut, Yamuna Express Way, PS Nauzheel in a high speed and in a rash and negligent manner and hit against one truck as a result it occupant namely petitioner Ravi Kumar Srivastav sustained injuries? OPP
2. Whether the petitioner is entitled for any compensation, if so and for what amount? OPP
3. Relief.
4. PETITIONER'S EVIDENCE: To prove the case, PW1 Ravi Kumar Srivastava is the injured and has repeated his allegations levelled in the petition about the mode and manner of this accident which was caused by respondent No. 1 while driving the offending vehicle in rash and negligent manner and hit against the truck going ahead and resulted into sustaining multiple grievous injuries. He has deposed that he received treatment from Kailash Hospital and then Max Hospital and has suffered 100% permanent disability towards whole body. It is further deposed that injured was working as commission agent and was earning Rs.60,000/- pm by his commission work and was also Income Tax Payee It is further deposed that he was aged about 36 years at the time of this accident and has spent huge amount on his medicine, transportation and special diet. He has relied upon documents Ex. PW1/1 to Ex.PW1/8 and Mark A to Mark Z. MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 4/28
4.1. PW1 has not been virtually cross examined by insurance company and cross examination of the insurance company is as under:-
"I have not filed ITR for the assessment year 2016-17. It is wrong to suggest that I was not travelling in the bus at the time of accident. The accident has taken place due to negligence of bus driver."
Even cross examination of the Respondents No. 1 & 2 was also not on the point of rash and negligent driving of the offending vehicle being driven by Respondent No. 1, but was centralized on financial aspect which was the domain of Respondent No.3. However, during cross examination by Respondents No.1 & 2, injured has admitted that he was working as commission agent and was earning Rs.60,000/- pm being credited against his account operated with PNB, Dilshad Garden, Delhi. It is further deposed that he was getting regular income by his commission work and even presently getting a commission of 10-12000/- pm. It is further admitted that he had one medi claim policy and received amount of Rs. 3,00,000/- for her treatment from insurance company against policy, but he has spent Rs. 1,48,700/- and Rs. 98,407/- respectively on his treatment. It is denied that his medical bills and ITRs are forged and fabricated.
4.2. PW2 Satya Singh has proved the ITRs of the injured for the financial years 2012-13, 2013-14 and 2015-16 which are Ex.PW2/A (colly).
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 5/28 4.3. PW3 Suman Kumar Shukla is branch manager of M/s. Sahara Credit Cooperative Society Ltd. and has proved that injured was field boy of the company / society which used to pay commission for his work. Injured earned Rs.13,88,687/- during financial year 2013-14 and Rs.1,38,174/- was deducted towards tax. Injured earned Rs.09,75, 033/- during the financial year 2014-15 and Rs. 97,503/- was deducted towards tax. Injured again earned Rs.11,30,793/- during the financial year 2015-16 and Rs.1,13,075/- was deducted towards tax. Injured earned Rs. 4,08,649/- during financial year 2016-17 and Rs. 20,388/- was deducted towards tax. It is further deposed that the rate of commission earned by injured was 21% at initial stage and thereafter it goes on to reduce and lastly it comes to 4% at the end of maturity. He issued TDS for years 2013-14 and 2014-15 which are Ex.PW3/1.
4.3.1. During cross examination, he has admitted that injured was getting 21% commission on RD account and 1% commission on FD for 1 year and 5.1% commission against 5 year FD. The commission was reducible i.e. 15% on 2nd & 3rd month, 10% in 4th to 15th month and collection charges of 4% from 16th months to till maturity. It is admitted that his company has not paid any amount on compassionate ground and even no monthly salary was being paid to injured.
4.4. PW4 Dr. Puneet Mishra has proved the permanent disability certificate of injured as Ex.PW1/5, as per which, injured suffered 100% permanent disability in relation to whole body. Disability is in permanent nature, but patient can use his hands to operate computer and other devices.
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 6/28
5. RESPONDENT'S EVIDENCE: Respondents No. 1 & 2 have not examined any witness, but insurance company has examined Respondent No.2 in its defense as R3W1. R3W1 Ashok Kumar Bansal has proved the passenger's list of the offending vehicle travelling by the offending bus on 12-13/7/2015 which is Ex.R3W1/1. It is further deposed that he is the proprietor of M/s. Bansal Travels and Ravi Kumar / injured and Vijay Bindal used to hire his bus in every second week of month and he received Rs. 19,500/- against it in cash but did not issue any receipt towards it. It is further deposed that he did not maintain any register of the passengers and list Ex.R3W1/1 was prepared by one of the passengers at the instance of driver, but he did not aware as to who prepared it.
6. I have heard the arguments and perused the record. My Issue wise findings are as under:
ISSUE NO. 1 - The onus to prove this issue was upon the petitioner. To discharge this onus, petitioner has examined himself as PW1 and has repeated his allegations leveled in the petition. The onus to prove this rash and negligent driving by the driver of the offending vehicle is on the petitioner who has claimed this compensation. He was required to prove rash and negligence of driver to claim this compensation under section 166 of M.V. Act and legal proposition regarding it is well established. The law to this effect is relevant to be considered. It is held in Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors. III (2007) ACC 54 (SC) that the insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 7/28 owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under section 166 of the Act. A similar proposition has held in case titled DTC and Another v.
Rajeshwari Sankar And Ors MAC. A. No. 442/2005 dated 25/5/13 that rash and negligence is supposed to be proved to claim the compensation u/s 166 of M.V. Act. Even the Hon'ble High of Delhi in MAC App. No.200/2012 case titled United India Insurance Co. Ltd. V. Smt. Rinki @ Rinku & Ors dated 23/07/2012 that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act). Even the similar proposition has been repeated in Oriental Insurance Company Limited v. Meena Variyal and Ors., (2007) 5 SCC 428, Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr., 1977 (2) SCC 441 and Surender Kumar Arora and Anr. v. Manoj Bisla and Ors., (2012) 4 SCC 552.
7. The mode and manner of proving the rash and negligent driving of the offending vehicle has also been considered in various other judgments and has held that the onus to prove the rash and negligent driving is not to be discharged beyond doubt or in the similar manner as a fact is to be proved in a civil case. Rather it has to be proved on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition based upon negligence. The observation of the Hon'ble High Court made in New India Assurance Co. Ltd. V. Sakshi Bhutani & ors, MAC APP. 550/2011 decided on 02.07.2012 is relevant that it has to be borne in mind that MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 8/28 the Motor Vehicles Act does not envisage holding a trial for a petition preferred under Section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Further in State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943, the Hon'ble Supreme Court held that the Tribunals exercising quasi-judicial functions are not courts and are not bound by strict rules of evidence.
8. Further, the approach of the tribunal has also been defined by the Hon'ble Supreme Court of India in N.K.V. Bros. (P) Ltd. v. M. Marumai Ammal, 1980 ACJ 435 (SC), that the Accidents Claims Tribunal must take special care to see that innocent victims do not suffer and persons liable do not escape liability merely because of some doubt here and some obscurity there. The court should not succumb to niceties, technicalities and mystic maybes. The court is bound to take broad view of the whole matter. As such, the case of the injured has to be decided in view of the above said proposition in this case.
9. PW1 Ravi Kumar is the main injured as well as eye witness to this accident and has duly proved that on 13.7.2015 at about 11.30 pm, he along with other pilgrims was returning after performing worship in Balaji Mandir by a bus bearing No. UP-17T-0509 via Yamuna Express Way and reached near Bajna cut, under the jurisdiction of PS Naujheel, UP when suddenly the offending vehicle bearing No. UP-17T-0509 being driven by the respondent No. 1 in rash and MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 9/28 negligent manner hit against the truck going ahead to bus and caused this accident which resulted into sustaining multiple injuries by him. It is further proved that injured was initially removed to Kailash Hospital where his MLC was prepared and thereafter was referred to Max Hospital where he received treatment for 7 days and has suffered 100% permanent disability. This testimony of PW1 is almost un- rebutted on the aspect of rash and negligent driving of the offending vehicle by respondent No. 1. Rather respondents have left no stone unturned to extract all the information in favor of the petitioner / injured regarding this accident. The cross examination conducted by the insurance company is just an eye wash and nothing was put to the witness including suggestion to dispute this accident. On the other hand, the cross examination conducted by the respondent No. 1 & 2 is only confined to the treatment aspect, spending and reimbursement instead of disputing this accident, and again nothing was put to this witness to extract the truth about the mode and manner of this accident. There was a delay of about 140 days during this accident and lodging of this FIR i.e. accident took place on 13/07/15 and FIR was lodged on 29/11/15, but no suggestion has been put to this witness as to why he did not get lodged this FIR in time. Even no explanation is tendered by injured as well, but respondents have not done anything except supporting the injured on the aspect of rash and negligent driving of the driver.
10. Further, FIR was lodged by the friend of the injured namely Umesh Kumar Yadav who initially disclosed the date of accident in FIR as 12/7/15, but later on modified it to 13/07/15 thereby alleging the MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 10/28 rash and negligent driving of the offending vehicle, on the other hand, Respondent No.2 Ashok Kumar Bansal lodged another complaint with police on 14/07/15 itself and disclosed an entirely different mode and manner of this accident and also that no one sustained any injury during this accident. Thereafter, he again made another complaint on 19.12.15 thereby stating that the tyre of the truck going ahead to the offending vehicle / bus burst and vehicle met with an accident. However, none of the respondents has put any question to PW1 to seek clarification and also by insurance company when this applicant/ respondent No.2 appeared on its behalf as defense witness i.e. R3W1 Ashok Kumar Bansal. Though this witness was summoned and examined by the insurance company on the pretext to seek information regarding delay in lodging FIR as revealed from order sheet dated 28.05.2018, yet nothing was put to this witness to seek such explanation. Rather this witness has proved a list of passengers to prove the presence of the injured in the bus at the time of this accident, whereas he was not examined for this purpose. On the other hand, the informant of this FIR or any other passenger of the bus has not been examined to prove as to why injured alone suffered injuries during this accident and that too inside the bus. It is also not clear as to whether informant was also an eye witness to this accident, as it is not clear from his FIR also, but he was not examined by the injured before this court. However, in the absence of cross examination of PW1, all the facts with regard to the rash and negligent driving of the offending vehicle remained un-rebutted.
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 11/28
11. Besides the testimony of PW1, police investigation record against the driver is also necessary to go through. However, the charge sheet against the driver is part of this record, but there is no seizure memo or mechanical inspection report of the offending vehicle on record to prove that this vehicle was ever involved in this case or suffered any damage to corroborate this accident. Similarly the site plan has not proved the position of both vehicles especially truck of which tyre allegedly burst and resulted into this accident. It is pertinent to mention here that this FIR was lodged after a delay of about 140 days, but police filed charge-sheet in a period of about 15 days and this haste in filing of charge sheet has proved that police have also not investigated this case properly. As such, it stands proved that the Respondent No. 1 caused this accident by his rash and negligent driving and resulted into sustaining injuries by the injured. On the other hand, driver / respondent No. 1 and owner have not opposed this claim and rather have supported this claim, despite the fact that there are a lot of contradictory facts on record, and are liable to pay this compensation being driver and owner of the offending vehicle. As such, injured has proved the rash and negligent driving of the offending vehicle by the Respondent No.1 and Issue No. 1 is decided in favor of the petitioner and against the respondents.
12. ISSUE NO. 2 - The onus to prove this issue was also fixed upon the petitioner. Since the petitioner has proved that the Respondent No. 1 caused this accident by his rash and negligent driving, accordingly petitioner is entitled for compensation under various heads. Injured sustained injuries due to the claim of the petitioner have to be MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 12/28 considered under different heads one by one.
13. The scope of the compensation in injury cases has been discussed by the Hon'ble Supreme Court in case titled Mr. R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd., 1995 AIR 755 in the following words as under:
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 is 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 pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit upto 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 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.
14. Further, in Raj Kumar v. Ajay Kumar (2011) 1 SCC (Cri) 1161, the court has laid down the following criteria to determine the compensation in injury cases 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. MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 13/28
(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 earning on account of permanent disability.
(iii) Future medical Expenses.
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 earning on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)
(a) do not pose much difficulty as they involved reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses-Item (ii) - depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non- pecuniary damages-Items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/ deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability- Item (ii) (a).
In view of the above said law, the damages of the petitioners have to be decided under the following heads as under:
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 14/28
15. Reimbursement of medical expenses: Petitioner sustained multiple injuries including fractures as well as permanent disability and his medical documents have proved this fact. Injured has proved his medical papers Ex.PW1/7 and Mark Z. As per cross examination of PW1, he has paid Rs. 1,48,700/- and Rs. 98.407/- respectively against medical bills and received a payment of Rs. 3 Lacs from Insurance Company. However, as per his medical bills, medical bills of Rs.
2,32,801/- are outstanding, due to injured is entitled for reimbursement of medical bills of Rs. 2,32,801/-.
16. Pain and Suffering: Petitioner / injured has proved that he sustained grievous injuries and remained hospitalize for long time. He has received treatment from different Hospitals including Max and Kailash Hospital, and has proved his medical documents. Injured remained under treatment during the period from 13/7/15 to 01/02/16 including hospitalization from 13/07/15 to 20/07/2015 and thereafter follow up treatment. Injured also suffered 100% permanent disability towards whole body as per certificate proved by PW4. It is not disputed fact that a person who sustained grievous injuries as well as permanent disability and also went such through lengthy medical process is bound to suffer great pain and suffering, due to injured is entitled for compensation under this head.
17. Conveyance & Special diet: Petitioner has not proved bills of Conveyance and Special diet to prove that he spent any amount under these heads. However, injured sustained 100% permanent disability and remained hospitalize for such a long time and roamed around to MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 15/28 get treatment from different hospitals, due to spending on conveyance was definite. Similarly, petitioner / Injured remained under treatment for long time and supposed to get special diet for expeditious recovery of injuries, due to injured is entitled for compensation under these heads of Conveyance and Special diet.
18. Attendant charges: Injured has not proved any document to prove that he engaged any attendant to look him during his hospitalization. Though the testimony of PW1 is silent about the attendant services, yet he must have been assisted by some attendant or family member during hospitalization, due to he is entitled for the attendant charges. On average basis, injured is entitled for attendant charges @ Rs. 5,000/- per month for a period of 2 years.
19. Lose of Income during treatment period: Petitioner has proved that he remained under treatment during the period from 13/7/15 to 01/02/16 including his hospitalization from 13/07/15 to 20/07/2015. In fact, he is entitled for loss of income for 6 months on average basis. As such, injured is entitled for loss of income for above said period as per the income to be determined by this court.
20. Earning of Injured- Before deciding the loss of earning of the petitioner / injured, it is necessary to determine his monthly / annual earnings. Injured was working as commission agent as proved by PW3 Suman Kumar Shukla. Injured was also income tax payee. PW3 has proved that injured was earning a lot and during the financial years 2015-16, his income was Rs.11,30,793/- and Rs. 1,13,075/- was MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 16/28 deducted towards TDS, however ITR of the injured for this financial year has proved that his taxable income was about Rs. 3,31,962/- per annum. Though injured has claimed that his monthly income about 60,000/- pm, yet his monthly income as per his ITRs comes to Rs. 26,984/-pm after 10% aggregate tax deduction and standard deduction of Rs. 2.5 Lacs being tax free income. In fact, injured was claiming refunds out of TDS amount and even in the same financial year, he claimed refund of Rs. 1,38,174/-. As such, net income of the injured is taken as Rs. 3,23,808/-per annum.
21. Lose of income due to permanent disability: Petitioner / injured has suffered 100% permanent disability towards whole body as per his disability certificate Ex.PW1/5. Though functional disability of an injured is not similar to his actual disability, yet the purpose of disability certificate is to determine the actual as well as functional disability on account of this accident. It is not disputed that the functional disability is to be determined by Schedule I of the Workmen's compensation Act, 1923 in terms of Section of Section 143 M.V. Act, if covered, and this fact has been discussed and considered by the various courts.
22. The observation of the Hon'ble Supreme Court of India made in case titled Oriental Insurance Co. Ltd. V. Mohd. Nasir (2009) 6 SCC 280 is relevant to be considered as under:
"...both the statutes provides for the mode and manner in which the percentage of loss of earning capacity is required to be calculated. They provide the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-à-vis the injuries specified in the First Schedule of the 1923 Act. Indisputably where injuries are specified in the First Schedule, the mode and manner provided for the purpose of calculating the amount MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 17/28 of compensation would be applicable. The 1923 Act would also be applicable to the claims applications arising out of the use of motor vehicles in terms of the provisions of the 1988 Act for the purpose of determination of the amount of compensation where the victim of the accident suffers from disability in the cases coming within the purview of thereof. The note appended to the Second Schedule of the 1988 Act raises a legal fiction, stating that "injuries deemed to result in permanent total disablement / permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule I under the Workmen's compensation Act,1923". Permanent disability, therefore, for certain purposes have been co-related with functional disability. In fact, the disablement and loss of earning capacity are two different and not substitute to each other, however functional disability, thus, has a direct relationship with the loss of limb."
23. In view of the above said law, the functional disability has to be determined in comparison of the permanent disability. As per the disability certificate Ex.PW1/5, the permanent disability of injured is 100% towards whole body, but he can use his hands to operate computer and other devices and still can do something. In fact, he is not 100% defunct by this disability. As such, the functional disability of the injured is taken as 90% and he is entitled for loss of income on account of permanent disability under this head at the same rate.
24. Now the multiplier is to be determined to calculate the loss of earning of injured due to this permanent disability. The multiplier of such damages has to be determined by Sarla Verma v. DTC, (2009) 6 SCC 121 after determination of the age of the petitioner / injured. As per PAN Card and ITRs, the date of birth of the injured was on 15/07/1978, whereas this accident took place on 13/07/2015. In fact, the age of injured is to be considered as 37 years to apply multiplier. The multiplier for age between the years 36 to 40 years is 15 and the loss of income of the petitioner has to be multiplied as per this multiplier. As such, the annual income of the injured was Rs. 3,23,808/-
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 18/28 per annum and loss of income @ 90% disability would be Rs. 2,91,427/- per annum. This loss of income has to be multiplied by 15 as per multiplier. Loss of income comes to Rs. 43,71,405/-. An additional 40% income has to be added towards future earning in view of ORIENTAL INSURANCE CO. LTD v/s RAHUL GUPTA @ MANOJ KUMAR & ORS MAC.APP.542/2013 and the ruling of a Constitution Bench of the Hon'ble Supreme Court of India in SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors being the age less than 40 years. In fact, the amount of future loss would be Rs. 17,48,562/-. As such, the total loss would be Rs. 43,71,405 + Rs.17,48,562 = Rs.61,19,967/-.
25. Damages for inconvenience, hardship, discomfort, frustration and mental stress in life: Petitioner has proved that he has suffered disfigurement, loss of amenities and enjoyment in life on account of multiple fracture injuries to brain and cord and inconvenience to him was / is bound to happen by such injuries. The disability certificate of the injured has proved the extent of discomfort and hardship suffered by him being 100% disable. The extent of mental stress may be presumed easily to a person who suffered such disability and family members. As such, injured is entitled for the mental shock and stress and other above said heads.
26. Compensation for future medical and other expenses:
Petitioner / injured has not proved any document that he is required further treatment, due to he is not entitled for compensation under this head.
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 19/28
27. As such, petitioner / injured is entitled for compensation as under:-
1. Reimbursement of medical expenses: Rs. 2,32,801/-
2. Pain and Suffering: Rs. 2,00,000/-
3. Attendant charges for 2 years @ Rs. Rs. 1,20,000/-
5,000/- pm :
4. Lose of Income during treatment period: (6 Rs. 1,61,904/-
months @ Rs. 3,23,808/-p.a.)
5. Loss of earning capacity including future Rs. 61,19,967/-
due to disability:
6. Conveyance & special diet: Rs.1,00,000/-
7. Compensation for mental and physical Rs.1,50,000/-
shock :
8. Loss of amenities in life: Rs.1,50,000/-
9. Damages for inconvenience, hardship, Rs. 2,00,000/-
discomfort, frustration and disfigurement:
Total = Rs.73,34,672/-(rounded
off Rs.73,35,000/-)
28. Keeping in view of the facts and circumstances, this petition is allowed. Petitioner is entitled for compensation of Rs. 73,35,000/- from the Respondent No. 3 with interest @ 9% p.a. from the date of filing of MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 20/28 the petition till its realization. The interim award amount, if any and also waiver of interest, if any as directed by the court during the pendency of this case shall also be adjusted against this award amount. Respondents No. 3 is directed to give notice regarding the deposit of the said amount to the petitioner / Counsel. The following award is passed as under:
AWARD This petition is allowed. Respondent No. 3 i.e. Insurance Company is directed to pay a compensation of Rs. 73,35,000/- with interest @ 9% p.a. to injured from the date of filing of the petition till realization and to deposit the award amount within one month from the date of this award. The interim award amount, if any and also waiver of interest, if any as directed by the court during the pendency of this case shall also be adjusted against this award amount. Copy of Form V duly filled shall be treated as part of this award.
29. Liability: Petitioner has proved that the offending vehicle was owned by the respondent No. 2 and respondent No.1 was driving the offending vehicle at the time of accident and both are liable to pay this compensation. Respondent No. 3 insured the offending vehicle due to it is liable to reimburse the owner to pay this compensation. Insurance company has not proved any breach of terms and conditions of insurance policy, due to it is liable to pay this compensation.
29.1. However, Ld. Counsel for the insurance company has filed Written Arguments on record thereby pleading that this claim is fake MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 21/28 and based on concocted FIR which was lodged after a delay of about 140 days and that too without any explanation, due to it is liable to be dismissed. It is further argued that even the complete criminal record against the driver of the offending vehicle has also not proved, due to this claim is liable to be dismissed. On the other hand, all such arguments have been strongly opposed by the Ld. Counsel for the petitioner and is prayed that this claim is liable to be awarded.
29.2. I have heard the arguments of the parties and perused the record. Though all the pleas raised by the Ld. Counsel for the Ld. Counsel for the Insurance Company have substance, yet all such pleas have not been raised by the insurance company during the cross examination of PW1 to seek clarifications and now have been taken up without supporting any contention. In fact, respondents were supposed to seek clarifications from the injured during the examination as to why he did not lodge this FIR in time and also as to why complete criminal record has not placed on record, but they have not done it. If the petitioner has deliberately concealed some material facts, then respondents were supposed to bring those concealed facts to dispute his claim before this court, but nothing such has been done by them and it shall be considered that they have no objection to this claim. As such, insurance company is liable to pay this compensation being having no defense.
30. Disbursal of Award amount: Now the disbursement of award amount has to be considered. The procedure of disbursement of the award amount has been provided in Clause-29 of Modified Claims MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 22/28 Tribunal Agreed Procedure formulated by the Hon'ble High Court of Delhi in Rajesh Tyagi v. Jaibir Singh, I (2005) ACC 838 (Del.) and Tazuddin Ansari & Ors. v. Satish Kumar & Ors, 2016 SCC OnLine Del 5380 and the disbursement of the award amount in this case has to be considered.
30.1. Petitioner / injured has been contesting this case since the year 2016 and has spent huge amount on his treatment. As such, he is entitled for an amount of Rs. 8,35,000/- out of Rs. 73,35,000/- with corresponding interest immediately out of award amount and remaining amount of Rs. 65,00,000/- shall be fixed by the way 20 FDRs of Rs.2,00,000/- each and last one i.e. 20A of Rs. 25 Lacs w.e.f. March, 2019 into automatically renewable FDRs till the period prescribed by this court. The last FDR on maturity shall be fixed further period of 10 years in the equal proportionate amount. The FDRs amount and period shall be in the following manner as under:
Sr. No. Duration of FDR Petitioner
1. 6 Months Rs. 2,00,000/-
2. 1 Year Rs. 2,00,000/-
3. 1 ½ Yrs. Rs. 2,00,000/-
4. 2 Yrs. Rs. 2,00,000/-
5. 2 ½ Yrs Rs. 2,00,000/-
6. 3 Yrs Rs. 2,00,000/-
7. 3 ½ Yrs Rs. 2,00,000/-
8. 4 Yrs Rs. 2,00,000/-
9. 4½ Yrs Rs. 2,00,000/-
10. 5 Yrs Rs. 2,00,000/-
11. 5½ Yrs Rs. 2,00,000/-
12. 6 Yrs Rs. 2,00,000/-
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 23/28
13. 6½ Yrs Rs. 2,00,000/-
14. 7 Yrs Rs. 2,00,000/-
15. 7 ½ Yrs Rs. 2,00,000/-
16. 8 Yrs Rs. 2,00,000/-
17. 8½ Yrs Rs. 2,00,000/-
18. 9Yrs Rs. 2,00,000/-
19. 9½ Yrs Rs. 2,00,000/-
20. 10 Yrs Rs. 2,00,000/-
20A 10 Years Rs. 25,00,000/-
Total = Rs. 65,00,000/-
30.2. This FDR of amount of Rs.25,000,00/- fixed by the FDRs under head 20A of the table shall remain fixed for a period of 10 years separately and shall not be en-cashed without the permission of the court. The amount on maturity shall be fixed further for a period of 1 to 10 years by the way of FDR of Rs. 2.5 Lacs per annum respectively with calculation of interest as mentioned herein below.
30.3. The interest on the above said FDRs shall be calculated on monthly basis and to be credited automatically through ECS in the saving account of the petitioner nearby to his residence on monthly basis. FDR amount shall be paid on maturity basis in the same account of the petitioner against which interest amount is being credited through ECS.
30.4. The Manager, UCO Bank or of any other bank as desired by the claimant shall open the saving bank account of the claimant or transfer to his existing account, if any, nearby to his residence after taking relevant documents.
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 24/28 30.5. The withdrawal from the aforesaid bank account of the claimant shall be after due verification by the bank and the bank shall issue photo identity card to the petitioner to facilitate the identity.
30.6. The original FDRs shall be retained by the bank in the safe custody. However, the statement containing FDR numbers, FDRs amount, date of maturity and maturity amount shall be furnished to the claimant.
30.7. No loan, advance or withdrawal / pre-mature discharge shall be allowed on the above-said FDRs without the permission of this Tribunal. The bank shall not open any joint account of the petitioners.
30.8. No cheque book or debit card shall be issued to the claimants/ petitioners without the permission of this Tribunal. 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 freeze the account of the claimant so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
30.9. That the bank shall make an endorsement on the passbook of the claimant to this 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 shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 25/28 30.10. The bank shall prepare FDRs in its own name on the receipt of the award amount from the Respondent No. 3 i.e. Insurance Company till the date petitioner approach for the release of the amount and thereafter amount along with interest shall be released to the petitioner per award of this Tribunal.
30.11. On the request of the petitioner(s), the bank shall transfer the saving account to any other bank of UCO bank or any other bank according to the convenience of the petitioner. The claimant can operate the saving bank account from the nearest branch of UCO Bank and on the request of the claimant the bank shall provide the said facility.
30.12. The petitioner(s) shall furnish all the relevant documents for opening of the saving bank account and FDR to Nodal Officer, UCO Bank, KKD, Delhi.
30.13. Petitioner (s) shall file a compliance report on next date of hearing about opening of saving bank account with the nationalized bank nearby to their/his/her residence and to get endorsed from the bank that no cheque-book, debit card or any other facility like ECS/ NFTT etc. has been provided against this bank account.
31. Before parting with this judgment, this Court considers appropriate to discuss the conduct of the respondents, especially Respondent No.3 i.e. Insurance Company which is main contestant to this case. It has already been discussed about the mode and manner of conducting the cross examination of the MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 26/28 injured by insurance company, especially when the respondents No. 1 & 2 have conducted in collusive manner. However, insurance company did not bother to contest this connivance and rather has contributed to this connivance to help the injured on the one ground or others. This court has awarded this claim just keeping in view the purpose of this beneficial legislation and also that the injured has suffered 100% permanent disability, but this court cannot forget that insurance company must contest every case with sincerity to bring out the truth and also to rule out any doubtful claim. However, in this case, FIR was lodged after a delay of about 140 days and offending vehicle was involved out of sudden, but still insurance company has virtually not contested this case on merit and conducted only symbolic cross examination of PW1. Further, insurance company is duty bound to investigate every matter to ascertain authenticity of claim but this claim was never investigated or if investigated, it was not brought into the notice of this court and was contested for name sake. In fact, the conduct of Nodal Officer / Insurance Company to whom this case was entrusted is questionable and is liable to be brought into the notice of the Higher Insurance Authorities. Copy of this judgment be sent to the General Manager, National Insurance Company Ltd. to conduct an enquiry into this case to ascertain as to whether there was any connivance between the petitioner and insurance company, if so to take suitable action, and to file a report within the period of 8 weeks before this court positively.
MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 27/28
32. A copy of this judgment be given free of cost to the parties concerned. File be consigned to RR and a separated file for compliance be maintained for 14.01.2019. Digitally signed by DEVENDER DEVENDER KUMAR KUMAR Date:
2018.12.06 16:54:22 +0530 Announced in open court (DEVENDER KUMAR) On 06.12.2018 PO-MACT/SHAHDARA KARKARDOOMA COURTS, DELHI MAC No. 1761/16 Ravi Kumar Srivastava Vs. Raghvendra Kumar Atrey & Ors. 28/28