Delhi District Court
Poonam vs Ashok Kumar Page 1 Of 23 on 2 September, 2019
Poonam vs Ashok 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. 5082716
MACT PETITION No. : 31415
UNIQUE ID No. : DLNW010016592015
Ms. Poonam w/o Sh. Vijay
R/o B92, Vijay Vihar, Phase2, Sector4, Delhi.
........ Petitioner
Vs.
1. Sh. Ashok Kumar S/o Om Prakash
R/o Flat No. 10, UCO Apptt, Sec9, Rohini, Delhi
....... Driver cum owner /R1
2. United India Insurance Co. Ltd.
Delhi.
..... Insurance co/R2
Other details
DATE OF INSTITUTION : 31.08.2015
DATE OF RESERVING JUDGMENT : 27.08.2019
DATE OF PRONOUNCEMENT : 02.09.2019
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.
Poonam vs Ashok Kumar Page 1 of 23
Poonam vs Ashok Kumar Page 2 of 23
1. Date of the accident 23.04.2015
2. Date of intimation of the accident by the 31.08.2015
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 31.08.2015
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 31.08.2015
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 31.08.2015
Company (Clause 11)
7. Date of service of DAR on the claimant (s). 31.08.2015
(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 31.08.2015
by the insurance Company. (Clause20)
13. Name, address and contact number of the Ms. Neeru Garg,
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
Poonam vs Ashok Kumar Page 2 of 23
Poonam vs Ashok 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 02.09.2019
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 13.03.2018
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 04.01.2019
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
claimant(s) and the address of the bank with Ms.Poonamsavings
IFSC Code (Clause 27) bank a/c no.
25901029486 with
Canara bank, Sector
5, Rohini Branch,
Delhi
IFSC : CNRB0002590
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.
Poonam vs Ashok Kumar Page 3 of 23
Poonam vs Ashok Kumar Page 4 of 23
JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 31.08.2015 with reference to FIR No. 349/15 U/s 279/337 IPC PS North Rohini in respect of grievous hurt sustained by the petitioner Ms. Poonam in a road accident on 23.04.2015 at about 05:30 am in front of Himalaya Public School red light, Rithala road to Madhuban chowk, Delhi. The ld. Predecessor of this court vide order dated 31.08.2015 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act').
2. Brief facts of the case as mentioned in the DAR/file are that on 23.04.2015, petitioner Poonam along with her relatives namely Rajiv, Khusboo and Kalu Ram (all injured persons in connected case files) was going to Shakarpur in an I10 car bearing no. DL8CS0468 which was being driven at a normal speed and correct side of the road. When they reached at the signal crossing at Himalaya Public School at about 5:30 am and signal was green for the said car, then a Maruti Swift Dezire Car bearing registration no. DL8CP3438 (hereinafter referred to as "offending vehicle") which was being driven by its driver at a very high speed, rashly and negligently came from Madhuban chowk side and took turn towards Rohini side and hit the car of petitioner from the front side with a great force. Due to said impact, the petitioner sustained grievous injuries. The petitioner was admitted in Saroj hospital, Rohini, Delhi by the PCR officials where her MLC No. 2156/15 was prepared by the doctors.
3. Sh. Ashok Kumar/R1/driver cum owner of the offending vehicle has filed his written statement wherein he has stated that offending vehicle was insured with United India Insurance co. Ltd vide policy no. 2219003114P111601826 covering the date of accident. He has stated that he was holding a valid driving licence bearing no. DL1119990144672 valid upto 24.04.2016 at the time of accident. He stated that the case accident occurred due to rash and negligent driving Poonam vs Ashok Kumar Page 4 of 23 Poonam vs Ashok Kumar Page 5 of 23 of the driver of the car of the petitioner as it was being driven at a very high speed.
4. M/s United India Insurance Co/R2 has filed its written statement wherein it has stated that R1 filed a complaint case u/s 156(3) Cr.PC for registration of FIR against the driver (injured) of vehicle no. DL8CS 0468 and on the direction of Ld. MM an FIR bearing no. 786/15 dated 15.10.2015 has been registered against the driver (injured) of vehicle no. DL8CS0468. It was stated that investigation was going on because R1 opposed the registration of FIR against him, produced some material evidence to sow that the driver of vehicle no. DL8CS 0468 was rash and negligent and hit the vehicle of R1. It has been admitted by R2 in that offending vehicle was insured with it vide policy no. 2219003114P111601826 for the period from 27.03.2015 to 26.03.2016 in the name of R1/Ashok Kumar i.e. covering the date of accident 23.04.2015.
5. From the pleadings of the parties, the issues were framed by the ld predecessor of this court vide order dated 07.10.2016 as under :
1. Whether on 23.04.2015 at about 5:30/6:00 am, at the red light of Himalaya Public School, Delhi, one car bearing registration no. DL 8CP3438, which was being driven rashly and negligently by Sh. Ashok Kumar hit car I10 bearing registration no. DL8CS0468 and caused injuries to Ms. Poonam, Sh. Kalu Ram, Sh. Rajiv and Ms. Khushbu? OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
It is pertinent to note that there are four connected matters relating to the same accident titled as Poonam vs Ashok Kumar, MACT No. 5082716 (present file), Rajiv vs Ashok Kumar, MACT No. 153/18, Khushboo vs Ashok Kumar, MACT No. 154/18 and Kalu Ram @ Hori Lal vs Ashok MACT No. 15518. Vide order dated Poonam vs Ashok Kumar Page 5 of 23 Poonam vs Ashok Kumar Page 6 of 23 13.03.2018 these files were clubbed for the purpose of evidence with directions that the file of Poonam vs Ashok Kumar, MACT No. 5082716 would be the main file and that the evidence would be read in all the files. It was an admitted position that the testimony of all the witnesses can be read in all the four files and that all the documents of all the files can be read together as these files arise out of the same accident.
The petitioner/injured in support of her case has examined herself as PW1. The record would show that Sh. Hori Lal @ Kalu Ram (injured/petitioner in MACT No. 155/18),Ms. Khusboo (injured/petitioner in MACT No. 154/18) and Sh. Rajiv (injured/petitioner in MACT No. 153/18) have been examined as PW2 to PW4 respectively and their testimony would be relevant and referred to in their respective cases.
The record would show that respondents have not examined any witness in support of their case.
It is pertinent to note that vide court order dated 05.12.2017 Medical Superintendent of Dr. BSA hospital, Rohini, Delhi was directed to medically examine the petitioner by a medical officer/board and to file a report and pursuant to said directions of the Tribunal, the petitioner/patient Ms. Poonam was medically examined at said hospital and gave the disability certificate no. 1098 dated 11.05.2018 qua the petitioner which showed that she suffered 19% permanent disability in relation to left lower limb with post traumatic weakness of left knee.
6. I have heard arguments addressed on behalf of ld counsel for petitioner, ld counsel for R1 and ld counsel for insurance co/R2. 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 herself as PW1. She has filed Poonam vs Ashok Kumar Page 6 of 23 Poonam vs Ashok Kumar Page 7 of 23 her evidence by way of affidavit as Ex. PW1/A. She has proved her MLC as Ex. PW1/1, her discharge summary as Ex. PW1/2, her medical treatment record as Ex. PW1/3 and her medical bills as Ex. PW1/4 (colly).
She deposed in her evidence by way of affidavit Ex. PW1/A that on 23.04.2015, she along with her relatives was going to Shakarpur in an I10 car bearing no. DL8CS0468 which was being driven at a normal speed and on correct side of the road. She deposed that when they reached at the signal crossing at Himalaya Public School and signal was green for the said vehicle, then a Maruti Swift Dezire Car bearing registration no. DL8CP3438 ( "offending vehicle") which was being driven by its driver at a very high speed, rashly and negligently came from Madhuban chowk side and took a turn towards Rohini side and hit her car from the front side with a great force. She deposed that due to said impact, she sustained grievous injuries. She deposed that she was admitted in Saroj hospital, Rohini, Delhi by the PCR officials where her MLC No. 2156/15 was prepared by the doctors.
PW1 was cross examined by ld counsel for R1 wherein she denied the suggestions that she was sleeping at the relevant time or that she did not see the occurrence of accident. She admitted that they were returning from marriage function at that time and that they were total 5 persons including her minor son aged about 12 years present in the car bearing registration no. DL8CS0468 at the time of accident. She admitted that a cross FIR had also been registered against the driver of their car namely Rajiv. She denied the suggestions that the case accident occurred due to negligent driving of Rajiv or that as Rajiv was returning from marriage ceremony, hence he was drunk at that time. She admitted that accident occurred at 4:45 am. She denied the suggestion that R1 was not at fault. She deposed that she did not know about the damage, if any, caused to the offending vehicle/Dezire car. She deposed that police did not record her statement. She deposed Poonam vs Ashok Kumar Page 7 of 23 Poonam vs Ashok Kumar Page 8 of 23 that offending vehicle was of white colour.
PW1 was cross examined by ld counsel on behalf of insurance co./R2 and that the said cross examination is not germane to the issue in hand.
PW4 has also deposed on the similar lines and he was the informant of the case FIR no. 349/15 PS North Rohini.
Nothing material has come on record in cross examination of PW1 to shake her 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 herself is the injured having sustained grievous injuries due to the accident in question and there is no reason as to why she would depose falsely against R1. Her MLC of the date of accident has also been proved as Ex. PW1/1. The testimony of PW1 is trustworthy and can be relied upon.
In the facts and circumstances, the copy of charge sheet u/s 279/337/338 IPC against respondent no. 1/Ashok Kumar 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 her evidence by way of affidavit as Ex. PW1/A. Poonam vs Ashok Kumar Page 8 of 23 Poonam vs Ashok Kumar Page 9 of 23 She deposed that due to the accident, she sustained grievous injuries and was diagnosed with fracture of left tibial condyler (of foot). She deposed that she was taken to Saroj hospital, Delhi by PCR where her MLC No.2156/2015 Ex. PW1/1 was prepared by the doctors. She deposed that thereafter she was taken to Pushpanjali hospital, Vikas Marg, Delhi and remained admitted there from 26.04.2015 to 30.04.2015.
It is pertinent to note that vide court order dated 05.12.2017 Medical Superintendent of Dr. BSA hospital, Rohini, Delhi was directed to medically examine the petitioner by a medical officer/board and to file a report and pursuant to said directions of the Tribunal, the petitioner/patient was medically examined by doctors at said hospital and gave the disability certificate no. 1098 dated 11.05.2018 qua the petitioner which showed that she suffered 19% permanent disability in relation to left lower limb with post traumatic weakness of left knee.
Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner has proved the medical bills as Ex. PW1/4 (colly). The total of the said bills comes to Rs.1,28,211/. Therefore, Rs. 1,28,211/ are granted to the petitioner under this head.
B. Special Diet and conveyance PW1/petitioner deposed that she had incurred Rs. 30,000/ each on special diet and conveyance.
Petitioner has neither examined any witness to prove the expenditure on special diet and conveyance nor proved any bill in that regard.
In her cross examination by ld counsel for R2, PW1 deposed that she had not filed on record any documentary proof regarding medical claim of Rs. 1,25,000/, conveyance charges of Rs. 30,000/, special diet Rs. 30,000/ and attendant charges of Rs. 30,000/.
As per discharge summary Ex. PW1/2 of Pushpanjali hospital, it was mentioned that the petitioner came from other hospital with diagnoses of fracture of left tibial condyler of left foot. There is also one bill dated 07.07.15 Poonam vs Ashok Kumar Page 9 of 23 Poonam vs Ashok Kumar Page 10 of 23 of Rs. 14,700/ on record which would show that the petitioner bought implants for tibial locking plating system.
Petitioner suffered grievous injuries as mentioned above and 19% permanent physical disability in relation to her left lower limb with diagnoses of post traumatic weakness of left knee.
In view of above said discussion and taking the probable period of treatment for about 3 months, a lump sum amount of Rs. 40,000/ is granted under the said head.
C. Attendant Charges PW1/petitioner has deposed that she incurred expenditure of Rs. 30,000/ on attendant charges.
Petitioner has neither examined any witness to prove the expenditure on attendant charges nor proved any bill in that regard.
In his cross examination by ld counsel for R2, PW1 deposed that she had not filed on record any documentary proof regarding medical claim of Rs. 1,25,000/, conveyance charges of Rs. 30,000/, special diet Rs. 30,000/ and attendant charges of Rs. 30,000/.
As per discharge summary Ex. PW1/2 of Pushpanjali hospital, it was mentioned that the petitioner came from other hospital with diagnoses of fracture of left tibial condyler of left foot. There is also one bill dated 07.07.15 of Rs. 14,700/ on record which would show that the petitioner bought implants for tibial locking plating system.
Petitioner suffered grievous injuries as mentioned above and 19% permanent physical disability in relation to her left lower limb with diagnoses of post traumatic weakness of left knee.
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 3 months, a lump sum amount of Rs. 30,000/ is granted under the said head. D. Loss of future earning capacity due to disability In terms of above said disability certificate of petitioner on record as Poonam vs Ashok Kumar Page 10 of 23 Poonam vs Ashok Kumar Page 11 of 23 prepared from Dr. BSA hospital upon directions of Tribunal, the petitioner suffered above said grievous injuries and 19% permanent physical disability in relation to her left lower limb with diagnoses of post traumatic weakness of left knee.
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 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 her affidavit Ex. PW1/A has deposed that she was self employed, was doing stitching work and was earning Rs. 13,000/ per month at the time of accident.
During cross examination as conducted on behalf of Poonam vs Ashok Kumar Page 11 of 23 Poonam vs Ashok Kumar Page 12 of 23 insurance co/R2, she deposed that she had not filed any documentary proof of the same on record. She also deposed that she did not know her monthly income. She denied the suggestion that neither she did stitching work nor she earned any amount.
It is evident from the cross examination of PW1 that she has not properly proved her monthly income by any documentary evidence or by examining any other witness.
She has also not proved any of her educational document on record.
In view of above said discussion and as she has not proved her income and education, 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.
The copy of aadhar card of petitioner is on record which mentions the date of birth of petitioner 12.12.1986 which would show that she was aged about 28 years & 04 months at the time of accident (23.04.15).
It is evident that due to the permanent disability suffered by the petitioner, her efficiency in doing her work would be reduced.
In view of the injuries suffered by the petitioner, the functional disability of the petitioner in relation to her whole body and the effect of permanent disability on her actual earning capacity is taken as 10%.
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 Poonam vs Ashok Kumar Page 12 of 23 Poonam vs Ashok Kumar Page 13 of 23 conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of 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 Poonam vs Ashok Kumar Page 13 of 23 Poonam vs Ashok Kumar Page 14 of 23 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) 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 28 years & 4 months and ahe 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 40% of the established income as she was below the age group of 40 years at the time of her accident.
The monthly income of petitioner is thus calculated as Rs. 9048/ +40% of 9048/ which comes to Rs. 9048/+ Rs. 3619/ (after rounding of)= Rs.12,667/.
The age of petitioner at the time of accident was about 28 Poonam vs Ashok Kumar Page 14 of 23 Poonam vs Ashok Kumar Page 15 of 23 years & 4 months. Accordingly, the multiplier of 17 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).
The compensation is accordingly assessed towards loss of earning capacity at Rs. 2,58,406/ [(Rs. 12,667/per month x12 months x 17 (age multiplier) x 10/100(functional disability)]. F. Loss of Amenities of Life.
As per discharge summary Ex. PW1/2 of Pushpanjali hospital, it was mentioned that the petitioner came from other hospital with diagnoses of fracture of left tibial condyler of left foot. There is also one bill dated 07.07.15 of Rs. 14,700/ on record which would show that the petitioner bought implants for tibial locking plating system.
Petitioner suffered grievous injuries as mentioned above and 19% permanent physical disability in relation to her left lower limb with diagnoses of post traumatic weakness of left knee.
In view of the said discussion, above mentioned injuries suffered by her and taking the probable period of treatment for about 3 months, a lump sum amount of Rs. 50,000/ is granted under the said head. G. Pain and Suffering As per discharge summary Ex. PW1/2 of Pushpanjali hospital, it was mentioned that the petitioner came from other hospital with diagnoses of fracture of left tibial condyler of left foot. There is also one bill dated 07.07.15 of Rs. 14,700/ on record which would show that the petitioner bought implants for tibial locking plating system.
Petitioner suffered grievous injuries as mentioned above and 19% permanent physical disability in relation to her left lower limb with diagnoses of post traumatic weakness of left knee.
In view of the said discussion, above mentioned injuries suffered by her and taking the probable period of treatment for about 3 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
Poonam vs Ashok Kumar Page 15 of 23 Poonam vs Ashok Kumar Page 16 of 23H. 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 3 months. Therefore, loss of income of Rs. 27,144/ (Rs. 9048/ x3 months) is granted for 3 months.
9. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 5,83,761/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/ 2 Special diet & Conveyance Rs. 40,000/
3. Attendant Charges Rs 30,000/
4. Medical Expenses Rs. 1,28,211/
5. Loss of income Rs. 27,144/
6. Loss of Earning/disability Rs. 2,58,406/
7. Loss of amenities of life Rs. 50,000/ Total Rs. 5,83,761/ Rounded of to Rs. 5,84,000/ ( Rupees Five Lakhs Eighty Four Thousand 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 31.08.2015 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 In the case in hand, the United India Insurance co./R2 has not lead any evidence and has not been able to show anything on record that R1 who Poonam vs Ashok Kumar Page 16 of 23 Poonam vs Ashok Kumar Page 17 of 23 was the driver cum owner 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/R2, hence R2 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., United India Insurance co./R2 is directed to deposit the awarded amount of Rs. 5,84,000/ 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 R2 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R2 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank 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.
APPORTIONMENT
11. Statement of petitioner in terms of clause 29 MCTAP had already been recorded on 04.01.2019. 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. 1,00,000/ be released to petitioner in cash in her saving bank a/c no. 25901029486 with Canara Bank, Sector5, Poonam vs Ashok Kumar Page 17 of 23 Poonam vs Ashok Kumar Page 18 of 23 Rohini branch, Delhi i.e. the branch near her place of residence as mentioned in her 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 24 FDRs of equal amount for a period of one month to 24 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 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 Poonam vs Ashok Kumar Page 18 of 23 Poonam vs Ashok Kumar Page 19 of 23 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 United India Insurance co./R2 is directed to deposit the award amount of Rs. 5,84,000/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 31.08.2015 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 R2/insurance to the petitioner and his advocate failing which the United India Insurance co./R2 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
United India Insurance co/R2 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 R2 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 Poonam vs Ashok Kumar Page 19 of 23 Poonam vs Ashok Kumar Page 20 of 23 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 her.
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, 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 Poonam vs Ashok Kumar Page 20 of 23 Poonam vs Ashok Kumar Page 21 of 23 wherein she had stated that petitioner was entitled to exemption from deduction of TDS and that she 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./R2 is also directed to obtain the copy of PAN card of the petitioner from the record.
Digitally
signed by
AMIT BANSAL
AMIT Date:
BANSAL 2019.09.02
17:00:12
+0530
Announced in open court (AMIT BANSAL)
on 02nd September 2019 PO MACT N/W
Rohini Courts, Delhi.
Poonam vs Ashok Kumar Page 21 of 23
Poonam vs Ashok 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 23.04.2015
2. Name of injured Ms. Poonam
3. Age of the injured 28 years & 4 months (at the time of accident)
4. Occupation of the injured: Self Employed
5. Income of the injured. 12,667/ per month
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 3 months
8. Period of hospitalization: 4 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 19% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 1,28,211/.
(ii) Expenditure on conveyance Rs. 20,000/
(iii) Expenditure on special diet Rs. 20,000/
(iv) Cost of nursing/attendant Rs. 30,000/
(v) Loss of earning capacity Rs. 2,58,406/
(vi) Loss of income Rs. 27,144/
(vii) Any other loss which may require any
special treatment or aid to the injured for
the rest of his life
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/
Poonam vs Ashok Kumar Page 22 of 23
Poonam vs Ashok Kumar Page 23 of 23
(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, 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 assessed and 19% 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 10% relation of disability
(iv) Loss of future income - (Income X 2,58,406/ %Earning capacity X Multiplier) (9048x40%x12x17x10%)
14. TOTAL COMPENSATION Rs.5,84,000 /
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 2,10,240/
17. Total amount including interest Rs. 7,94,240/
18. Award amount released Rs. 1,00,000/
19. Award amount kept in FDRs Rs. 6,94,240/
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. 15.10.2019 (Clause 31) Digitally signed by AMIT BANSAL AMIT Date:
BANSAL 2019.09.02
17:00:23
+0530
(AMIT BANSAL)
PO MACT N/W
Rohini Courts, Delhi.
02.09.2019
Poonam vs Ashok Kumar Page 23 of 23