Delhi District Court
Sh. Subhash Chand Mittal vs Sh. Kanhai Lal S/O Paragi Lal Yadav on 24 January, 2014
IN THE COURT OF SH. ARVIND KUMAR: PRESIDING OFFICER MOTOR
ACCIDENT CLAIM TRIBUNAL KARKARDOOMA COURTS: DELHI
M.A.C. Petition No.: 37/12
Unique Case I.D No: 02402C060302012
1. Sh. Subhash Chand Mittal
S/o Sh. Ganga Prashad
R/o 105, Savita Vihar, Delhi-110092. ... Petitioner
VERSUS
1. Sh. Kanhai Lal S/o Paragi Lal Yadav
R/o 57, Ulra Pur, Malihabad, P.S. Kakore,
Lucknow, U.P.
2. Shri Ram General Insurance Company Ltd.
501, Chintels Hause 16, Station Road,
Lucknow, U.P.
....Respondents
M.A.C. Petition No. 38/12 Unique Case I.D. No. :02402C060272010
1. Smt. Sindhu Mittal W/o Sh. Subhash Chand Mittal R/o 105, Savita Vihar, Delhi-110092 ... Petitioner VERSUS
2. Sh. Kanhai Lal S/o Paragi Lal Yadav R/o 57, Ulra Pur, Malihabad, P.S. Kakore, Lucknow, U.P.
3. Shri Ram General Insurance Company Ltd.
501, Chintels Hause 16, Station Road,
Lucknow, U.P. ......Respondents
M.A.C. Petition No. 39/12
Unique Case I.D. No. :02402C060242010
1. Sh. Rajendra Kumar Mittal
S/o Late Sh. Ganga Prasad Mittal
R/o 53, Kirshan Kunj, Ext. Part -1,
Laxmi Nagar, New Delhi-92. ... Petitioner
VERSUS
M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 1/19
2. Sh. Kanhai Lal S/o Paragi Lal Yadav
R/o 57, Ulra Pur, Malihabad, P.S. Kakore,
Lucknow, U.P.
3. Shri Ram General Insurance Company Ltd.
501, Chintels Hause 16, Station Road,
Lucknow, U.P. ......Respondents
Presented on : 29.02.2012
Reserved for judgment : 10.01.2014
Judgment delivered on : 24.01.2014
JUDG MENT
1. By a common judgment, I am disposing of these three petitions as the claims are arising from the same accident involving the same vehicle. In MAC Petition No. 37/12, the petitioner, Sh. Subhash Chand Mittal put up a claim for Rs. 50,00,000/- (Rs. Fifty Lacs) towards the injuries suffered by him. In MAC Petition No. 38/12, the petitioner, Smt. Sindhu Mittal put up a claim of Rs. 50,00,000/- (Rs. Fifty Lacs) towards the injuries suffered by her and in MAC Petition no. 39/12, the petitioner, Sh. Rajendra Kumar Mittal put up a claim for Rs. 50,00,000/- (Rs. Fifty Lacs) towards the injuries suffered by him in road accident dt. 06.11.2011.
2. The brief facts, as stated by petitioners, are that on 06.11.2011, the petitioners namely Sh. Subhash Chand Mittal, Sh. Rajender Kumar Mittal and Smt. Sindhu Mittal were travelling in Santro car bearing no. DL-3C-AQ-3617 and were going towards Shikarpur, Bulandshahar and when they reached in front of Bilsuri Pulia, a truck no. UP-32T-9899, driven by its driver at a high speed, rashly and negligently came from Sikandrabad side and hit the Santro car. As a result of forceful impact, all the persons travelling in the car suffered injuries.
3. The petitioner, Sh. Subhash Chand Mittal, (in petition no. 37/12), M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 2/19 stated that he suffered serious head injury, injuries on face, fracture of left hand and left knee besides other injuries. It is stated that petitioner was working as a junior Engineer (Civil) in DDA and was earning Rs. 63,266/- per month.
4. The petitioner, Smt. Sindhu Mittal, (in petition no. 38/12) stated that she suffered serious head injury, dental injury, fracture of right leg ankle and orbit. The petitioner stated that she was doing the business of advertisement and publishing and was earning Rs. 2,00,000/- per annum.
5. The petitioner, Sh. Rajender Kumar Mittal, (in petition no. 39/12) stated that he suffered serious head injury, fracture of right hand, right ankle besides other injuries. The petitioner stated that he was doing business and was earning Rs. 30,000/- per month.
6. The respondent no. 1 filed written statement stating that the vehicle no. UP-32T-9899 (truck) was insured with Shri Ram General Insurance Company Ltd. The respondent no. 1 denied almost all the material contents of the petition.
7. The respondent no. 2 filed written statement admitting that the vehicle no. UP-32T-9899 was insured with the respondent no. 2 vide policy no. 108028/31/11/016718, for the period 29.03.2011 to 28.03.2012. It is further stated that respondent no. 2 was taking all the defences available u/s 147 to 149 of M.V. Act and section 64 VB of Insurance Act. It is stated that driver of the alleged offending truck bearing no. UP-32T-9899 was not holding a legal, valid and effective driving licence at the time of said accident and hence, the Insurance company was not liable to pay any compensation. It is also stated that answering respondent would not be liable to pay compensation, if there was no route permit and fitness certificate.
8. On the basis of the pleadings following issues were framed in M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 3/19 petition no. 37/12 (Subhash Chand Mittal V/s Kanhai Lal) :-
1. Whether the petitioner suffered injuries in the accident occurred on 06.11.2011 due to rash and negligent driving of vehicle no. UP-32-
T-9899 being driven by respondent no. 1? OPP
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom?
3. Relief.
Following issues were framed in petition no. 38/12 (Smt. Sindhu Mittal V/s Sh. Kanhai Lal)
1. Whether the petitioner suffered injuries in the accident occurred on 06.11.2011 due to rash and negligent driving of vehicle no. UP-32- T-9899 being driven by respondent no. 1? OPP.
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? (OPP)
3. Relief.
Following issues were framed in petition no. 39/12(Rajender Kumar Mittal V/s Sh. Kanhai Lal)
1. Whether the petitioner suffered injuries in the accident occurred on 06.11.2011 due to rash and negligent driving of vehicle no. UP-32- T-9899 being driven by respondent no. 1? OPP
2. Whether the petitioner is entitled for any compensation, if so, to what amount and from whom? (OPP) M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 4/19
3. Relief.
9. All the cases were consolidated for recording common evidence. Sh. Subhash Chand Mittal (petitioner in petition no. 37/12) examined himself as PW 1, Sh. Naveen Kumar, Record Incharge as PW 2. Smt. Sindhu Mittal (petitioner in petition no. 38/12) examined herself as PW 3. Sh. Rajender Kumar Mittal (petitioner in petition no. 39/12), examined himself as PW 4, Sh. Muniram Nimesh, Tax Assistant as PW 5, Sh. N. Radha Krishnan, Inspector as PW 6, Doctor Harish Mansukhani, Chief Medical Officer as PW 7 and Doctor Amit Kumar Srivastava, Consultant Orthopedic Surgeon as PW 8. On the other hand, respondents did not lead any evidence.
10. I have heard counsels for the parties. My findings on issues are as under:
ISSUES NO. 1 in all the cases are connected hence are taken together
11. The PW 1 (petitioner in petition no. 37/12) stated that on 06.11.2011, the petitioner alongwith Sh. Rajender Kumar Mittal and Smt. Sindhu Mittal was travelling in Santro car bearing no. DL-3C-AQ-3617 and was going towards Shikarpur, Bulandshahar and when they reached in front of Bilsuri Pulia, a truck no. UP-32T-9899, driven by its driver at a high speed, rashly and negligently came from Sikandrabad side and hit the Santro car. As a result of forceful impact, all the persons travelling in the car suffered injuries. The PW 1 exhibited the treatment record as Ext. PW 1/1, bills as Ext. PW 1/2, letter dated 18.09.2012 claiming medical expenses for himself and for Sindhu Mittal as Ext. PW 1/3, certificate regarding salary, issued by DDA as Ext. PW 1/4, office order dated 30.07.2012 as Ext. PW 1/5, medical leave certificate from 06.11.2011 to 25.12.2011 as Ext. PW 1/6, PAN Card as Ext. PW 1/7, Election ID-Card as Ext. PW 1/8 and driving licence as Ext. PW1/9 and marked the charge sheet as mark A. During cross-examination the PW 1 denied that the accident took place because of his negligence and there was no negligence on the part of the driver of the truck.
M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 5/19
12. The PW 3, Smt. Sindhu Mittal (petitioner in petition no. 38/12) deposed almost same facts as stated by PW 1. The PW 3 exhibited the treatment record as PW 3/1, bills as Ext. PW 3/2, Election ID-Card as Ext. PW 3/3 and marked the ITR for the assessment year 2009-10, 2010-11 as mark X and PAN card as mark Y.
13. The PW 4, Sh. Rajender Kumar Mittal (petitioner in petition no. 39/12) also deposed almost same facts as stated by PW 1. The PW 4 exhibited the treatment record as Ext. PW 4/1, bills as Ext. PW 4/2, driving licence as Ext. PW 4/3 and marked the ITR for the assessment year 2010-11 as mark B, balance sheet as mark C, ITR for the assessment year 2011-12 as mark D.
14. I have gone through the material on record. The FIR, site plan, Charge sheet, MLC forms and testimonies of PWs taken together fully establish that Sh. Subhash Chand Mittal, Smt. Sindhu Mittal and Sh. Rajender Kumar Mittal sustained injuries in the accident involving the vehicle bearing registration No. UP-32T-9899 (truck), in a road accident There is nothing on record to dispel the inference that injuries sustained by them in a road accident which occurred on 06.11.2011 because of negligence of driver of the vehicle no. UP-32T-9899 (truck). There is no evidence in rebuttal. Issues no. 1 are accordingly decided in favour of petitioners and against the respondents.
ISSUE NO. 2 in petition no. 37/12(Subhash Chand Mittal Vs Kanhai Lal. )
15. The PW 1, Sh. Subhash Chand Mittal stated that he suffered head injury and injuries on face, fracture of left hand and left knee besides the other injuries and otretion plates were inserted in the left leg. The PW 1 stated that he was removed to Shubham Fracture and Maternity Hospital, Numaish Road near Khalsa School Bulandshahar and thereafter he was referred to Max Hospital where he remained admitted from 06.11.2011 to 11.11.2011. The petitioner stated that he incurred Rs. 3,50,000/- on medical treatment, Rs.
M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 6/19 40,000/- on conveyance and Rs. 40,000/- on special diet. The petitioner, PW 1 further stated that he was Government servant and a sum of Rs. 1,12,675/- out of the bills of Rs. 1,19,454/- had been reimbursed by his department. The petitioner also stated that he was doing job in DDA as JE (Civil) and was earning Rs. 63,266/- per month and he remained absent from duty from 06.11.2011 to 25.12.2011 and he engaged an attendant for about 3 months and spent Rs. 20,000/-. The petitioner stated that because of the implant inserted in his leg, he would have to incur Rs. 50,000/- on future expenses. The PW 1 exhibited the treatment record as Ext. PW 1/1, bills as Ext. PW 1/2, letter dated 18.09.2012 claiming medical expenses for himself and for Sindhu Mittal as Ext. PW 1/3, certificate regarding salary issued by DDA as Ext. PW 1/4, office order dated 30.07.2012 as Ext. PW 1/5, medical leave certificate from 06.11.2011 to 25.12.2011 as Ext. PW 1/6, PAN Card as Ext. PW 1/7, Election ID-Card as Ext. PW 1/8 and driving licence as Ext. PW1/9 and marked the charge sheet as mark A. During cross-examination, the PW 1 stated that he had not filed any bill regarding conveyance and special diet and he had not filed any disability certificate.
16. The PW 2, Sh. Naveen Kumar, Record Incharge, Max Hospital, Patparganj Delhi produced the treatment record of the petitioner and exhibited as PW 2/C and copy of duplicate bill as PW 2/D. The PW 2 stated that the patient was admitted on 06.11.2011 and was discharged on 11.11.2011.
17. The PW 8, Doctor Amit Kumar Shrivastav, consultant Orthopedic Surgeon, deposed that Sh. S.C. Mittal was admitted in their hospital on 06.11.2011 and was discharged on 11.11.2011 and he had suffered fracture of left knee joint and left hand (second Metacarpal) and during treatment the patient was operated on 09.11.2011 for left knee fracture and screw was inserted. The PW 8 deposed that it was a communited fracture. The PW 8 also deposed that the patient required an attendant for about 2-3 weeks as his family members were unable to take care of the patient. The PW 8 stated that the treatment record Ext. PW 2/C was issued from their hospital and Ext.
M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 7/19 PW 2/D was the bill issued from their hospital.
18. I have gone through the material on record. The discharge summary issued by Max Super Specialty hospital shows that petitioner has suffered left tibial plateau fracture Schatz type-vii with fracture second metacarpal left and was operated. The PW 8 had clearly stated that the petitioner required an attendant for 2-3 weeks if the family members were unable to take care of him. The petitioner has stated that he remained on commuted leave from 06.11.2011 to 25.12.2011. Therefore, in my opinion salary of 23 days will be just amount on account of loss of leaves. The petitioner has clearly stated that out of bills of Rs. 1,19,454/-, a sum of Rs. 1,12,675/- had been reimbursed to him by the department.
19. Ld. counsel for petitioner contended that the petitioner was also entitled for reimbursed amount. Ld. counsel for petitioner relied upon the judgment passed by Hon'ble High Court titled "National Insurance Co. Ltd. vs Sh. Aman Kapur & ors" MAC No. 693/2006 passed on 03.12.2013.
20. In the above said judgment Hon'ble High Court observed that the petitioner would be entitled for the amount reimbursed under mediclaim policy. In the present case the petitioner is employed with DDA and the amount has been reimbursed by DDA. The petitioner failed to establish that he had been paying any amount to DDA such as premium being paid under mediclaim policy. The case of petitioner is not of mediclaim policy which is altogether different from the government scheme regarding reimbursement. As per the rule "O.M. No. S-11011/4/2003-CGHS (P)", dated the 8th January, 2004, issued by Ministry of Health and Family Welfare, the Govt. servant can claim reimbursement of medical expenses both from insurance company with whom he had mediclaim policy and the concerned department but subject to the condition that the total amount reimbursed shall not exceed the total expenditure incurred by the government employee. It is clear that as per O.M. No. S-11011/4/2003-CGHS (P), that the government servant is not entitled for reimbursement of amount towards medical treatment more than the amount spent by him. Therefore, in my opinion, the abovesaid judgment is not applicable under the facts and circumstances of the present case. Therefore, under the facts and circumstances, I consider M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 8/19 the following amount to be the just compensation to the petitioner:-
1. Compensation towards pain and sufferings. Rs. 60,000/-
2. Loss of earning of petitioner for 23 days Rs. 48,507/- @ 63,266/- p.m.
3. Compensation towards special diet Rs. 5,000/-
and conveyance (without bills)
4. Compensation towards attendant charges Rs. 6,656/-
for 1 month.
5. Compensation towards balance medical Rs. 6,779/-
bill amount .
Therefore, in my opinion the petitioner is entitled to Rs. 1,26,942/- (rounded off Rs. 1,26,950/-) which shall be the just compensation to petitioner.
ISSUE NO. 2 in petition no. 38/12 (Smt. Sindhu Mittal Vs Kanhai Lal.)
21. The petitioner, PW 3, Smt. Sindhu Mittal stated that she suffered head injury, injuries on face, fracture in orbit eye, dental injuries, teeth broken and fracture of right leg ankle besides other injuries. The petitioner stated that initially she was taken to Shubham fracture and Maternity hospital and thereafter, referred to Max Hospital, Patparganj and during her admission, an operation was performed on her left leg. The petitioner stated that she had incurred Rs. 2,50,000/- on treatment, Rs. 40,000/- on conveyance and Rs. 40,000/- on special diet. The PW 3 stated that her husband was the Government servant and had filed bills of Rs. 1,36,418/- and out of the said amount Rs. 1,26,469/- were paid by the department and her husband also filed a claim of Rs. 24,408/- and out of the said amount Rs. 13,225/- were reimbursed by the department. The petitioner stated that she was doing the business of advertising and publishing and earning Rs. 2,00,000/- per annum and she remained out of work for about 8 months and kept an attendant for 6 months and spent M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 9/19 Rs. 20,000/-. During cross- examination PW 3 stated that she had not brought any document to show that she was running the business of advertisement. The PW 3 stated that she had appointed an attendant namely Sunita.
22. The PW 2, Sh. Naveen Kumar produced the treatment record as Ext. PW 2/A and attested copy of duplicate bills as Ext. PW 2/B and stated that the patient was admitted on 06.11.2011 and was discharged on 11.11.2011.
23. The PW 5, Sh. Muni Ram Nivesh, Tax Assistant produced the ITR for the assessment year 2009-10 and 2010 -11 of Smt. Sindhu Mittal Ext. PW 5/1 (colly). The PW 5 stated that gross income of Smt. Sindhu Mittal for the assessment year 2010 was Rs. 1,79,730/- and for assessment year 2010-11 was Rs. 1,82,150/- .
24. The PW 8, Doctor Amit Kumar Shrivastav stated that Smt. Sindhu Mittal was admitted on 06.11.2011 and was discharged on 11.12.2011. The PW 8 stated that patient had suffered fracture in her right ankle and has also suffered facial bone fracture and the patient was operated by plastic surgeon for facial injuries. The PW 8 stated that treatment record Ex. PW 2/A and bills Ext. PW 2/B were issued from their hospital. The PW-8 stated that the patient required an attendant for few days after the discharge.
25. I have gone through the material on record. The discharge summary issued by Max Super Speciality hospital shows that petitioner was admitted on 06.11.2011 and was discharged on 11.12.2011. It is recorded in the discharge summary that petitioner suffered right bimalleolar fracture with facial fracture (maxillory and zigomatic bone M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 10/19 fractures). It can be easily deduced that the petitioner must have remained out of work for about 2-3 months and must have required an attendant for 1 month. The ITR for the assessment year 2010-11 shows the gross income of the petitioner to be 15,179/- per month. The petitioner failed to establish that she suffered any loss of income because of the injury suffered by her but it cannot be ruled out that the petitioner must have remained out of work for about 2-3 months and must have suffered some loss on account of remaining out of work. In my opinion one month earning will be just amount on this account. Bills of Rs. 1,26,469/- and Rs. 13,225/- out of the amount of Rs. 1,36,418/- and Rs. 24,408/- respectively had been reimbursed to petitioner from her husband's department. As discussed above the petitioner will not be entitled for reimbursed amount. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:-
1. Compensation towards pain and sufferings. Rs. 50,000/-
2. Loss of earning of petitioner for 1 month. Rs. 15,179/-
3. Compensation towards special diet Rs. 5,000/-
and conveyance (without bills)
4. Compensation towards attendant charges Rs. 6,656/-
for 1 month @ minimum wages i.e. Rs. 6,656/-.
5. Compensation towards balance medical Rs. 21,132/-
bill amount.
Total Rs. 97,967/-
Therefore, in my opinion the petitioner is entitled to Rs. 97,967/- (rounded off Rs. 97,970/-) which shall be the just compensation to petitioner.
ISSUE NO. 2 in petition no. 39/12(Rajender Kumar Mittal Vs Kanhai Lal. )
26. The petitioner, Sh. Rajender Kumar Mittal, PW-4 stated that he suffered head injury, injuries on face, fracture of right hand, right leg M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 11/19 and right ankle. The petitioner stated that he was removed to Shubham fracture and Maternity hospital and thereafter was referred to Max Hospital and in the Max Hospital, his leg was operated upon and a rod was inserted. The petitioner stated that he incurred Rs. 3,50,000/- on medical treatment, Rs. 40,000/- on conveyance and Rs. 40,000/- on special diet. The petitioner stated that he was running business of Timber Merchant and was earning Rs. 30,000/- per month and could not work for 8 months and required an attendant for 6 months and spent Rs. 20,000/-. The PW 4 exhibited the treatment record as Ext. PW 4/1, bills as Ext. PW 4/2, driving licence as Ext. PW 4/3 and marked the MLC as mark A, ITR for assessment year 2010-2011 as mark B, balance sheet as mark C, ITR for assessment year 2011-12 as mark D, Election ID-Card as mark E and PAN Card as mark F. During cross-examination, the PW 4 stated that he had not appointed any attendant and his son was looking after him after the accident.
The PW 2, Sh. Naveen Kumar produced his treatment record, Ex. PW 2/3 and attested copy of bills, Ext. PW 2/F. The PW 2 stated that the patient remained in hospital from 06.11.2011 to 11.11.2011. The PW 6, Sh. N. Radha Krishnan, Inspector produced the ITR for the assessment year 2010-11 and 2011-12 Ext PW 2/6 (colly). The PW 6 stated that the gross income of Sh. Rajender Kumar Mittal for the assessment year 2010-11 was Rs. 1,58,988 and for the assessment year 2011-12 was Rs. 2,03,742/-.
27. The PW 7, Doctor Harish Mansukhani produced the disability certificate of Sh. Rajender Kumar Mittal and exhibited the same as Ext. PW 7/1. The PW 7 stated that patient had suffered healed fracture distal end radius right side with healed fracture distal end tibial right side and had suffered disability of 15% in relation to right lower limb and right M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 12/19 upper limb. The PW 7 stated that by mistake he could not write that the disability was permanent in nature.
28. The PW 8, Doctor Amit Kumar Shrivastav stated that Sh. Rajender Kumar Mittal was admitted in hospital on 06.11.2011 and was discharged on 12.11.2011 and Sh. Rajender Mittal had suffered fracture of right ankle as well as fracture of right wrist and on 09.11.2011 an operation was done, K-wire was inserted and external fixator was affixed around the ankle. The PW 8 stated that patient required attendant for two weeks in case family members were unable to take care of patient.
29. In the recent judgment of Raj Kumar Vs. Ajay Kumar, 2011, ACJ-1, Hon'ble SC enumerated the principles for granting the compensation in the case where the petitioner has suffered disability. In the judgment "Raj Kumar Vs. Ajay Kumar and another", ACJ-2011(Vol. I), Hon'ble Apex Court observed as under:-
" Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability [sic disability] ( this is also relevant for awarding compensation under the head loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) 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 (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 13/19 activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 per cent. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100 per cent as in the case of a driver or carpenter, nor 60 per cent which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of loosing his hand. Sometimes the injured- claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding,on account of his disability and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100 per cent (or even anything more than 50 percent), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 14/19 that as it may.
30. I have gone through the material record on record. The discharge summary Ext. PW 2/A shows that petitioner was admitted on 06.11.2011 and was discharged on 11.11.2011. It is recorded in the discharge summary that the petitioner suffered right comminuted tibial pilon fracture with poor skin condition with right comminuted distal end fracture with nasal bone fracture. Bills are for Rs. 1,89,575/-. The petitioner has exhibited the disability certificate as Ext. PW 7/1 which shows that petitioner has suffered permanent disability of 15% in relation to right upper limb and right lower limb. Under the facts and circumstances, it can be easily deduced that petitioner must have remained out of work for 3-4 months.
31. The petitioner stated that he was doing business of Timber Merchant. The petitioner failed to explain the work being done by him while working as Timber Merchant. Therefore, keeping in view the facts and circumstances, the disability in relation to whole body is taken to be 8%. The income Tax return filed by the petitioner shows income of the petitioner for the assessment year 2010-11 to be Rs. 1,58,988/- and income for the assessment year 2011-12 is Rs. 2,03,742/-. The monthly income of the petitioner comes to Rs. 16,978/-. The multiplier applicable would be 11 as the age of the injured was 51 years at the time of accident (as per the ITR). The total loss of future earning on account of disability would be Rs. 1,79,293/- (2,03,742/- x 11 x .08). Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the petitioner:-
1 Compensation towards pain and sufferings Rs. 70,000/-
M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 15/19 2 Compensation towards loss of amenities Rs. 60,000/- and enjoyment 3 Compensation towards medical bills. Rs. 1,89,575/- 4 Compensation towards loss of earning Rs. 64,712/- for four months @ Rs. 16,178/- p.m 5 Compensation towards conveyance and Rs. 10,000/- special diet (without bills) 6 Compensation towards loss of future earning Rs. 1,79,293/-
Therefore, in my opinion the petitioner is entitled to Rs. 5,73,580/- which shall be the just compensation to petitioner.
LIABILITY
33. Since Insurance company has admitted the policy as on date of accident therefore respondent no. 3, insurance company is liable to pay the compensation amount.
33. There being no evidence of violation of the policy condition and there being no evidence to support the permitted defence U/s. 149(2) of the M.V. Act, I am unable to grant the recovery rights. Therefore, insurance company shall make good the compensation in terms of the accepted policy.
RELIEF in M.A.C. Petition No. 37/12 (Subhash Chan Mittal V/s Sh. Kanhai Lal)
34. The respondent no. 3/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 1,26,950/-, within one month. The accident occurred on 06.11.2011, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 16/19 passed by Hon'ble Delhi High Court, I direct that the respondent No. 3/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 37/12
35. In view of the above the petition is allowed. The respondent no. 3/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 1,26,950/-, within one month. The respondent No. 3/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
RELIEF in M.A.C. Petition No. 38/12 (Smt. Sindhu Mittal Vs Kanhai Lal.)
36. The respondent no. 3 having admitted the policy, is hereby directed to pay a compensation of Rs. 97,970/-, within one month. The accident occurred on 06,11,2011, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 3/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 38/12
37. In view of the above the petition is allowed. The respondent no. 3/Insurance company having admitted the policy, is hereby directed to pay a M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 17/19 compensation of Rs. 97,970/-, within one month. The respondent No. 3/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioners.
RELIEF in M.A.C. Petition No. 39/12 (Rajender Kumar Mittal Vs Kanhai Lal.)
38. The respondent no. 3/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 5,73,580/-, within one month. The accident occurred on 06.11.2011, therefore following judgment Smt. Bishekha Devi & Anr. Vs. Mohd. Afsar & Ors. MAC. APP. 1087/2012 passed by Hon'ble Delhi High Court, I direct that the respondent No. 3/Insurance company shall also pay interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
For the aforesaid reasons, I pass the following award :-
AWARD IN M.A.C. Petition No. 39/12
39. In view of the above the petition is allowed. The respondent no. 3/Insurance company having admitted the policy, is hereby directed to pay a compensation of Rs. 5,73,580/-, within one month. The respondent No. 3/Insurance company shall also pay the interest @ 9% p.a. on the total compensation amount from the date of petition till realization to the petitioner.
40. In all the petitions the award amount along with interest be deposited by respondents with UCO Bank, Nodal Officer through Nodal Officer, Karkardooma Branch, within 30 days in the petitioners' accounts.
41. The compensation amount shall be deposited by respondents within 30 days, in the court.
M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 18/19
42. The insurance company is directed to give notice regarding the deposit of the amount to the petitioners at the address mentioned in the memo of parties and will also send copy of notice to the counsel for petitioners at the address mentioned in the vakalatnama.
43. List for reporting compliance on 15.03.2014. The insurance company is directed to place on record the proof of deposit of the award amount, notice of the deposit and calculation of interest on the next date of hearing.
44. The insurance company shall deposit the award amount with interest up to the date of notice of deposit to the claimants with copy to their counsel. A copy of this order be given dasti to concerned parties.
Announced in the (Arvind Kumar)
open court on 24.01.2014 Presiding Officer: MACT
Karkardooma Court
Delhi
M.A.C. Petition No: 37/12, 38/12 & 39/12 Page No. 19/19