Delhi District Court
Gaurav Tyagi vs . S. Balakrishanan & Anr. on 17 December, 2019
IN THE COURT OF SH. M. K. NAGPAL PRESIDING
OFFICER : MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
DAR No. 109/17
Gaurav Tyagi Vs. S. Balakrishanan & Anr.
Sh. Gaurav Tyagi
S/o. Sh. Dushyant
R/o. 1021/9, HIG Duplex, Vasundra,
Ghaziabad, U.P.
......Petitioner/claimant
Versus
1. Sh. S. Balakrishanan
S/o. Sh. N.R. Shrivasan,
R/o. G-14, 1st Floor, South Extn.,
Part - 2nd, South Delhi,
New Delhi.
2. M/s. HDFC Ergo General Ins. Co. Ltd.
Ground Floor, 14 Ambadeep Building,
Kasturba Gandhi Marg, Connuaght Place,
New Delhi-110001.
.....Respondents
Date of filing of DAR : 04.02.2017
Date of framing of issues : 25.08.2017
Date of concluding arguments : 17.12.2019
Date of decision : 17.12.2019
AWARD/JUDGMENT
1. The claim for compensation raised in the present detailed accident report (DAR) relates to injuries suffered by petitioner in a road accident that took place on 24.06.2016 at around 06:20 a.m., near the red light of Purana Qila Road, New Delhi, regarding which one FIR no.238/16, U/Sec. 279/337 IPC was registered at P.S. Tilak Marg on 06.07.2016. The offending vehicle involved in this case is a car bearing registration no.
DAR No. 109/17 Page no.1 of 20 DL2CAQ 9455, which at the time of accident was driven and owned by respondent no.1 (R-1) and insured with respondent no.2 (R-2).
2. The case of petitioner, in brief, is that on the above said date and time of accident he was on way back to his residence in Sector-3, Rohini, from his office in Gurugram on his motorcycle bearing registration no. UP14CK8977, when his motorcycle was hit on front by the above offending car. As a result thereof, the petitioner along with his motorcycle fell on road and sustained injuries. He was taken to Dr. RML Hospital for treatment and he remained hospitalized there till 01.07.2016. He had also remained hospitalized subsequently in one Yashoda Superspeciality Hospital, Ghaziabad (U.P.) from 06.07.2016 to 09.07.2016 and nature of injuries suffered by him has been declared as grievous. It has been alleged that the above accident took place due to rash and negligent driving of the said car by R-1.
3. DAR in respect of above accident was filed before this Tribunal on 04.02.2017 and appearance has also been filed on behalf of both the respondents.
4. R-1 in his reply to the DAR had though admitted the above accident, but it was his case that the accident did not take place due to his rash and negligent driving or in the manner as stated by petitioner and he had given a different version of the accident. As per him, the petitioner on his motorcycle started following another motorcyclist and both of them then started overtaking the cars being driven ahead of them, by crossing over the yellow line and driving on wrong side of the road which was not having any divider. He further claimed that suddenly a car speeded up on their side of the road and as he/R-1 was on right side of the road, the other motorcyclist managed and sneaked into the space between two cars ahead of him, but the petitioner did not get any space on his side of the road and banged his motorcycle against the rear view mirror of his car (as DAR No. 109/17 Page no.2 of 20 per the documentary evidence led on record, it is right side mirror).
5. R-2/Insurance Company had, however, filed a legal offer of Rs.40,000/- for settlement of claim of petitioner, excluding the amount of his treatment expenses and while admitting the policy of insurance issued by them in respect of the offending car. However, this offer was not accepted by the petitioner.
6. It is necessary to mention here that though vide order dated 26.09.2017, this tribunal had also directed for determination of permanent disability of the petitioner on his request, but he did not report in concerned hospital for determination of his disability.
7. From pleadings of the parties, this tribunal had framed the following issues on 25.08.2017 for disposal of claim of petitioner raised in the present DAR :-
1. Whether the injured sustained injuries in the accident which occurred on 24.06.2016 at about 06.20 am at Purana Qila Road, Near Red Light, New Delhi caused by rash and negligent driving of vehicle No. DL-2CAQ-9455 driven and owned by R-1 and insured with R-2? OPP.
2. Whether the injured is entitled for compensation? If so, to what amount and from whom? OPP.
3. Relief.
8. The petitioner in support of his case has examined on record only himself as a witness and no witness has been examined by the respondents in their defence.
9. I have heard the arguments advanced by Sh. Fauzi Sayed, Ld. Counsel for the petitioner and Sh. Sanjeev Srivastava, Ld. Counsel for R-2. I have also perused the entire material available on record. However, none has subsequently turned up on behalf of R-1 to address any arguments. My issue-wise findings are as under:-
ISSUE NO. 110. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court DAR No. 109/17 Page no.3 of 20 and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
11. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi & Ors. Vs. Himachal Road Transport Corporation & Ors., (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand & Ors., 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 etc.
12. Petitioner/PW1 has tendered on record his examination in chief by way of an affidavit Ex.PW1/A and in the said affidavit, he has almost deposed on the above lines of his case and has claimed that when he was riding on his motorcycle on the above said date, time and place, his motorcycle was hit from front side by the offending car being driven by its driver at high speed and in a rash and negligent manner. He has also deposed in the said affidavit regarding the nature of injuries suffered by him in the said accident, treatment taken therefor and also about entitlement of his claim. He has further relied up the documents Ex.PW1/1 to Ex.PW1/19 in support of his case, which include the DAR documents relied upon as Ex.PW1/9 (Colly) and these in turn include the documents of above criminal case registered about this accident.
13. It has been argued by Ld. Counsel for the petitioner that since it is an admitted fact that R-1 stands already chargesheeted for the offences punishable under Sections 279/338 IPC for causing the above accident resulting into grievous injuries on person of the petitioner and a DAR No. 109/17 Page no.4 of 20 copy of charge-sheet of the said case prepared against R-1 has also been filed on record by the IO as part of DAR documents Ex.PW1/9 (colly), it stands established by the principle of preponderance of probabilities that the above accident took place only due to rash and negligent driving of above offending car by R-1. It is also his submission that no evidence has been led on record by R-1 to substantiate his defence as taken in his WS/reply and R-1 has even not himself stepped into the witness box as a witness.
14. On this aspect and issue, it is observed that despite the above, the oral and documentary evidence which has come on record is sufficient to establish by principle of preponderance of probabilities that the above accident did not take place due to sole rash and negligent driving of R-1 and the petitioner himself had also contributed towards the said accident.
15. As already stated above, R-1 in his WS/reply had claimed that at the time of accident, the petitioner was following another motorcyclist going ahead of him and both motorcyclists started overtaking cars going ahead of them by crossing over the yellow line and driving on wrong side of the road. He also claimed therein that suddenly a car speeded up on their side of the road and as he/R-1 was on right side of the road, the driver of first motorcyclist managed and sneaked into the space between two cars ahead of him, but the petitioner did not get any space and banged his motorcycle against rear view mirror of his/R-1's car. It is observed that during his cross-examination conducted by Ld. Counsel for R-1 though the petitioner has denied the suggestion that the accident took place in the above manner as was suggested to him, but he has subsequently admitted the fact that at the relevant time of accident, his one friend namely Anup Baloni was also driving his bike along his side. He further admitted that the road on which the above accident took place, i.e. DAR No. 109/17 Page no.5 of 20 road between India Gate and Pragati Maidan, was a single road having no divider in between. He also admitted that at times, he as well as his above friend both used to cross the yellow line where there was no divider on the road.
16. Further, though, in his affidavit Ex.PW1/A and even during his initial cross-examination, he tried to maintain that the offending car had gone to hit his motorcycle from front, but on being shown the photographs of offending car marked as Annexure R1 in the court record, he went on to admit that the Ertiga car got damaged from its right side and there was no sign of any damage/dent on front side of the said car. He also even admitted that the Ertiga car did not hit him from front side and rather, his bike had hit the said car on its right side, though he volunteered that the car was coming from front side or opposite direction. The above photographs Annexure R1 further show that right side view mirror of the car is not there, which also strengthens the claim being made by R-1 in his WS that it is motorcycle of the petitioner which had banged the rear view mirror of offending car (right side mirror, as stated above). Hence, when the testimony of petitioner/PW1 is appreciated in entirety and in light of the above photographs and other evidence on record, it suggests that he was equally responsible for the above accident, besides R-1 who too could not control his vehicle and avoid the said accident even if his version of accident is accepted by this tribunal.
17. The above conclusion regarding contributory negligence of petitioner is further found substantiated from the fact that there is a delay of around 12-13 days on the part of petitioner in getting the above criminal case registered and during his cross-examination, he has almost gone to admit that he and his father had informed the IO on the date of accident that they did not want to take any action against R-1 at that time. This in opinion of this tribunal was only due to the fact that he considered himself DAR No. 109/17 Page no.6 of 20 also responsible for the said accident.
18. Hence, in view of the above factual and legal discussion, it stands proved by the principle of preponderance of probabilities that the above accident resulting into injuries on the person of petitioner was caused due to contributory negligence of both, i.e. the petitioner himself as well as of R-1, and driving their above respective vehicles and their contribution in causing the said accident was 50% each. It also stands proved that at the time of accident, the offending car bearing registration no. DL-2CAQ-9455 was owned by R-1 himslf and insured with R-2, This issue thus stands accordingly decided.
19. ISSUE NO. 2As the issue no.1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are required to be decided.
In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity DAR No. 109/17 Page no.7 of 20 etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995 SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.
20. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses Petitioner in support of his case has, inter-alia, tendered on record the original medical bills and payment receipts in respect of his treatment as Ex.PW1/4 (colly). Though in his affidavit, he has stated that he had spent a total amount of Rs.1,42,240/- on his treatment, but as per DAR No. 109/17 Page no.8 of 20 the summary/index of these bills filed on record by Ld. Counsel for the petitioner, the total amount of these bills and receipts placed on record by petitioner comes to Rs.1,46,298/-, which includes a final bill of Rs.1,10,109/- issued by the above Yashoda Hospital. Petitioner also admits in his above affidavit that out of this final bill, an amount of Rs.92,696/- was paid by his insurance/medi-claim company and rest of the amount was paid by him.
On calculations carried out and on perusal of the above bills and receipts, it has been observed that certain bills/payment receipts amounting to Rs.2,626/- in total issued by the above Yashoda Hospital are only unattested copies of the bills/receipts. Further, one bill/payment receipt of Rs.376/- dated 12.07.2015 appears to have been placed on record twice i.e. one being attested copy and the other being unattested copy thereof. Again, two separate receipts of one other bill of Rs.342/- dated 24.07.2016 are also found placed on record. While excluding these amounts of Rs.376/- & Rs.342/- of the duplicate/double bills and the amount of Rs.2,626/- of unattested bills, the total admissible amount of these bills comes to Rs.1,42,954/- including the amount of Rs.17,413/- paid by the petitioner from his pocket towards the final bill dated 09.07.2016 and the amount of Rs. 92,696/- paid against this bill by his medi-claim company.
Now coming to reimbursement of claim of Rs.92,696/- to the petitioner by his medi-claim company, it is contention of Ld. Counsel for R- 2 that this amount has to be excluded to avoid double payment of compensation. However, in a recent decision dated 19.03.2019 of the Hon'ble Mumbai High Court in First Appeal No.1620/2012 titled as Royal Sundaram Alliance Insurance Co. Ltd. Vs. Ajit Chandrakant Rakvi & Anr. this question was directly in issue before his Lordship and after considering the propositions of law laid by a Division Bench of Hon'ble DAR No. 109/17 Page no.9 of 20 Calcutta High Court in the case of New India Assurance Co. Ltd. Vs. Bimal Kumar Shah & Anr., 2018 SCC OnLine Cal. 10368 as well as the observations made by the Hon'ble Supreme court in the case of Helen C. Rebello Vs. MSRTC, AIR No. 1998 SC 3191, and it has been held that the contractual payments made under a medi-claim policy are not deductible from payments to be made under the statutory liability. The relevant observations made in this case are as under:-
"27. It must, however, be noted that there is a cleavage of judicial opinion on the point as to whether the amount of reimbursement received under a mediclaim policy, be deducted from the compensation payable under the Act, in the judgments of various High Courts. A Division Bench of Calcutta High Court in the case of New India Assurance Company Limited Vs. Bimal Kumar Shah & Anr.6 elaborately considered the judgments which hold the view that such amount is required to be deducted and those which record a contrary view and, thereafter, by placing reliance upon the observations of the Supreme Court in the case of Helen C. Rebello (Supra), especially paragraph Nos.35 to 37, extracted above, came to the conclusion that the reimbursement of medical expenses under a contract of insurance is not deductible. While arriving at the aforesaid conclusion, the Calcutta High Court observed as under :-
"..................However, the Hon'ble Supreme Court has been pleased to go on and make it clear that an amount earned out of one's own contribution cannot be said to be "pecuniary gain" only on account of the accident. After all, it is not the case that the employer paid the Mediclaim of the victim in this or any other case of third party risk. The victim took out a medical insurance as and by way of a general insurance contract by paying premium. It was his contribution. If he gets something out of his own contribution, for an accident, under an insurance policy he has taken out himself, can a statutory liability on a different insurer who has taken on the risk towards third parties due to an accident caused by the offending vehicle which he has insured, then claim deduction of the amount the victim got from a different insurer based on his own contributions? I most respectfully think not, going by the spirit of the opinion delivered by the Hon'ble Supreme Court.
.................However, in the instant case, I cannot lose sight of the principles which control the entire ratio first, that the liability of an insurer of the offending vehicle to pay a third party compensation for injury or death caused in an accident by the offending vehicle, is statutory whereas the liability to pay a sum to the insured victim for such accidental death or injury, or for any other kind of death, is contractual, and DAR No. 109/17 Page no.10 of 20 second that the sum paid by the insurer of the victim (rather than the offending vehicle) in both cases is due to the premium paid by the victim from his own earnings. Once these important differences and similarities as I have extracted above are appreciated, it will appear, with the greatest of respect to the learned coordinate benches of the other Hon'ble Courts or the learned Single Benches of those Hon'ble Courts, that none of the judgments referred to in paragraph 7 and sub-paragraphs a, b, c, d, or e, lay down the law, in the teeth of the ratio laid down by the Hon'ble Supreme Court in the case of Rebello (supra) as noticed by me above."
(emphasis supplied)
28. In the light of aforesaid enunciation as regards the statutory liability of the insurer, the nature of general contract of medical insurance needs to be noted. The medical insurance covers a variety of ailments and medical expenses therefor, which are not otherwise specifically excluded. Often there is a upper limit. The duration is also stipulated by the terms of the contract. In this backdrop, the matter can be looked at from another angle. If the claimant exhausts the upper limit or substantial part of the insured amount, for meeting the expenses of treatment, for the injury which is suffered in an accident, the claimant would not be entitled to the benefit of the medical insurance, if the occasion again arises on account of certain other ailments unconnected with the accident. If the policy is in the nature of Family Floater Plan and the limit is exhausted for meeting the expenses in connection with an injury suffered in an accident, by one member, the other members of the family cannot have the benefit of the medical insurance.
29. In the backdrop of these variables, the nature of the proceedings under the Act, becomes significant. A claim petition for compensation in regard to a motor accident filed by the injured before Tribunal constituted under Section 165 of the Act, is neither a suit nor an adversarial lis in the traditional sense. Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (United India Insurance Co. Ltd. Vs. Shila Datta & Ors. 7). This being the nature of the proceedings before the Tribunal, even in respect of the parties before it, in my view, the benefits emanating from an independent and unconnected contract of insurance cannot be considered by the Tribunal, as it besets with variables rooted in contract.
30. From this stand point, in the context of the distinction between the contractual liability under the contract of insurance (medical) and the statutory liability under the Act, the aforesaid proposition, not to deduct the amount of reimbursement received, under a mediclaim policy, appears to be in consonance with the principle of beneficial interpretation and advances the object of the Act. Hence, I am not persuaded to agree with the submission on behalf of the appellant that the said amount of Rs.1,20,000/- ought to have been deducted."
DAR No. 109/17 Page no.11 of 20 Thus, the petitioner under this head and in these proceedings is also held entitled to recover the amount of Rs.92,696/- paid by his medi- claim company.
Hence, in view of the above discussion, the petitioner is held entitled to the above total amount of Rs.1,42,954/- under this head.
(ii) Loss of actual earnings As stated above, the nature of injuries suffered by petitioner was declared as grievous, though he did not get his permanent disability determined. The petitioner has placed on record his two discharge summaries issued by RML Hospital and the above Yashoda Hospital as Ex.PW1/1 and Ex.PW1/2 respectively and his remaining medical treatment record as Ex.PW1/3 (colly). As per the depositions made by him in his above affidavit, he sustained multiple grievous injuries resulting into 'fracture shaft humersus right with radial nerve palsy (post traumtic III) right' and he remained hospitalized in RML Hospital from 24.06.2016 to 01.07.2016 and then in Yashoda Hospital from 06.07.2016 to 09.07.2016 and had even followed up in OPD for further treatment of his injuries.
A perusal of his discharge summaries reflects that when he was admitted in RML Hospital, he was subjected to a surgical process known as 'laprotomy' under general anesthesia as he was found to have suffered multiple lever lacerations and during his admission and stay in Yashoda Hospital, he was also subjected to another surgery for fixation of his above fracture injury under general anesthesia. His treatment record further reflects that he remained under treatment as a follow up patient in Yashoda Hospital even thereafter and also in one Swastic Medical Centre, Lok Nayak Jaiprakash Hospital and G.B. Pant Hospital till around August, 2016.
In his above affidavit Ex.PW1/A, he claims that at the time of accident, he was working as a BPO Senior Associate with a private DAR No. 109/17 Page no.12 of 20 company named NTT DATA Global Delivery Services Pvt. Ltd. at Gurugram at a gross salary of Rs.31,606/- pm and he had taken leaves for the period from 24.06.2016 to 03.10.2016 (around 101 days) from his job due to above injuries. Though the petitioner has not summoned any record from his office in respect of his leaves, but still keeping in view the nature and extent of injuries suffered and duration of his treatment etc., this tribunal deems it just and reasonable to compensate him for loss of earnings for a period of atleast 3 months.
Now coming to salary of the petitioner. The petitioner has claimed that his salary at the time of accident was Rs.31,606/- pm and he has also tendered in evidence his pay slips for the months of May and June, 2016 as Ex.PW1/5 & Ex.PW1/6 respectively and as per these pay slips, his gross salary for the months of May and June is Rs.30,545/- and Rs.31,606/- respectively. The above difference of his gross salary is found to be on account of difference in payment of some OD allowance. Hence, on the basis of his pay slip Ex.PW1/6 of the relevant time of accident, the petitioner is held entitled to be compensated @ Rs.31,606/- pm on account of loss of actual earnings caused to him due to above injuries.
Therefore, the petitioner is being awarded an amount of Rs.94,818/- (Rs.31,606/-X 3) under this head pertaining to loss of his actual earnings.
(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
The nature of injuries suffered by petitioner, its extent and duration of treatment etc. have already been discussed above in detail. It can be seen that due to above injuries, the petitioner might have suffered immense pain and sufferings, mental as well as physical. Hence, 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 as stated above, an effort has to be made to compensate him DAR No. 109/17 Page no.13 of 20 for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the treatment taken by him etc., an amount of Rs.20,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.10,000/- is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs. 50,000/- under this head.
(iv) Conveyance, Special Diet and Attendant Charges In his above affidavit Ex.PW1/A, the petitioner is silent about the amounts spent by him towards these requirements. However, this tribunal can very well take note of the requirement of conveyance for the petitioner for frequently visiting hospitals and doctors in connection with his treatment and hospitalization etc. and also that of special diet for his early recovery from the injuries suffered because of above accident. Hence, an amount of Rs.10,000/- each towards the requirements of conveyance and special diet is also being awarded to him.
Besides this, the requirement of an attendant for taking care of him during the period when he was not able to do the things on his own, is also felt by this tribunal and an amount of Rs.15,000/- towards attendant charges or the gratuitous services which might have been rendered by his family members during the above said period of his treatment, hospitalization and immobility is also awarded to him.
Hence, a total amount of Rs.35,000/- is being awarded to him under this head.
21. Contributory Negligence As already discussed, it has been held that the above accident took place due to contributory negligence of R-1 as driver of the offending car and of PW1/petitioner who was driving the above motorcycle DAR No. 109/17 Page no.14 of 20 and their contribution in causing the accident was in ratio of 50% each. Hence, 50% of the amount of compensation payable to petitioner is liable to be deducted on account of his own negligence or his contributory negligence.
22. Issue No.3/Relief The petitioner is thus though, held entitled to a sum of Rs.3,22,772/- as compensation (Rs. 1,42,954 + 94,818 + 50,000 + 35,000) from the respondents in this case, but after deducting 50% therefrom on account of his contributory negligence, he is being held entitled to recover an amount of Rs.1,61,386/- (Rupees One Lacs Sixty One Thousand Three Hundred Eighty Six only) only along with interest @ 9% per annum from the date of filing of DAR till deposit within 30 days from today or till notice of deposit is given to the petitioner, whichever is earlier, and 12% per annum if the deposit is made beyond 30 days from today. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
23. RELEASE Entire amount compensation in this case be released in account bearing no.90892010124845 being maintained at Syndicate Bank, Sector 5, Rohini, New Delhi having IFSC No. SYNB0009089 through RTGS or any other electronic mode of transfer of money.
24. LIABILITY Though, both the respondents are held jointly and severally liable to pay the awarded amount of compensation, but since R-2/ Insurance Co. has not proved any violation of the terms and conditions of insurance policy, R-2 is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per DAR No. 109/17 Page no.15 of 20 annum, by way of crossed cheque/DD in name of the petitioner/claimant within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-2 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi 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 the insurance company with a cost of Rs.5,000/-.
R-2 shall inform the claimants and their counsel through registered posts that the cheques of the awarded amounts are being deposited so as to facilitate them to collect their cheques.
25. A copy of this award be given to the parties free of cost. Ahlmad is directed to send a 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.
26. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
27. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:-
1. Date of the accident 24.06.2016
2. Date of intimation of the accident by I.O. to Not given the Claims Tribunal.
3. Date of intimation of the accident by I.O. to Not given the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC Not given before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report 04.02.2017 DAR No. 109/17 Page no.16 of 20 (DAR) by IO before Claims Tribunal.
6. Date of service of DAR on Insurance
-do-
Company
7. Date of service of DAR on claimant(s). -do-
8. Whether DAR was complete in all respects? Yes
9. If not, state deficiencies in the DAR No
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency DAR has been filed after 7 on the part of the Investigating Officer? If months of the accident so, whether any action/direction warranted?
12. Date of appointment of the Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Not given Designated Officer of Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his report No within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Legal offer not accepted by Officer of the Insurance Company fairly the petitioner computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Delay in filing reply/legal Officer of the Insurance Company? If so, offer whether any action/direction warranted?
17. Date of response of the claimant(s) of the Legal offer not accepted by offer of the Insurance Company. the petitioner
18. Date of the award 17.12.2019
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near their Yes place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the 09.03.2018 direction to the bank not issue any cheque book/debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the DAR No. 109/17 Page no.17 of 20 passbook of their savings bank account 07.09.2018 near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the R/o. 1021/9, HIG Duplex, Claimant(s) Vasundra, Ghaziabad, U.P.
24. Details of savings bank account (s) of the A/c no. 90892010124845 claimant(s) and the address of the bank being maintained at with IFSC Code. Syndicate Bank, Sector 5, Rohini, New Delhi having IFSC No. SYNB0009089.
25. Whether the claimant (s) savings bank account (s) is near his place of residence? Yes
26. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
28. File be consigned to Records after necessary formalities. Separate file be prepared for compliance report and be put up on Digitally signed 26.03.2020. MANOJ by MANOJ KUMAR NAGPAL KUMAR Date:
NAGPAL 2019.12.18
10:19:46
+0530
Announced in the open court. (M.K.Nagpal)
on 17.12.2019 PO/MACT, New Delhi
Encl: SUMMARIES OF COMPUTATION OF AWARD AMOUNT DAR No. 109/17 Page no.18 of 20 SUMMARY OF THE COMPUTATION OF AWARD IN FORM-IVB
1. Date of accident : 24.06.2016
2. Name of the injured : Gaurav Tyagi
3. Age of the injured : 28 years at the time of accident
4. Occupation of the injured : BPO Senior Associate
5. Income of the injured : Rs.31,606/- pm
6. Nature of injury : Grievous Injury
7. Medical treatment taken by the injured : RML Hospital, Yashoda Hospital, LNJP Hospital & Swastik Medical Centre
8. Period of hospitalization : 24.06.16 to 01.07.16 & 06.07.2016 to 09.07.16
9. Whether any permanent disability?: No got determined by petitioner
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.1,42,954/-
(ii) Expenditure on conveyance Rs. 10,000/-
(iii) Expenditure on special diet Rs. 10,000/-
(iv) Cost of nursing/attendant Rs. 15,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 94,818/-
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs.20,000/-
physical shock
(ii) Pain and suffering Rs.20,000/-
(iii) Loss of amenities of life Rs.10,000/-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships,disappointment,frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of
earning capacity
DAR No. 109/17 Page no.19 of 20
(i) Percentage of disability assessed Nil
and nature of 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 earning Nil
relation to disability
(iv) Loss of future income Nil
14. Total Compensation Rs.1,61,386/-
(after deducting 50% towards
contributory negligence)
15. Interest Awarded 9% p.a. from date of filing of
DAR till deposit within 30
days and 12% p.a. thereafter.
16. Interest amount up to the date of Rs.41,624.32
award
17. Total amount including interest Rs.2,03,010.32
rounded off to Rs.2,03,011/-
18. Award amount released Entire released
19. Award amount kept in the FDRs Nil
20. Mode of disbursement of the award Through bank/cheque
amount to the claimant (s)
21. Next date for compliance of the 26.03.2020
award
Digitally signed
by MANOJ
MANOJ KUMAR
KUMAR NAGPAL
Date:
NAGPAL 2019.12.18
(M.K. Nagpal)
10:20:00 +0530
PO/MACT, New Delhi
17.12.2019
DAR No. 109/17 Page no.20 of 20