Delhi District Court
Mohd. Shabir vs . Kavi Dutt & Ors. on 16 May, 2020
IN THE COURT OF DR. HARDEEP KAUR
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT(SE), SAKET COURTS: NEW DELHI
MACT No.3142/16
FIR No. 763/15
PS : Sarita Vihar
Mohd. Shabir Vs. Kavi Dutt & Ors.
U/s: 279/338 IPC
CNR NO.DLSE01002802015
COMPENSATION CASE FOR INJURY RECEIVED TO INJURED MOHD.
SHABIR AGED ABOUT 46 YEARS, WITH 50% PERMANENT PHYSICAL
IMPAIRMENT IN RELATION TO RIGHT LOWER LIMB
Mohd. Shabir
S/o Mohd. Shafiq
R/o C8, Block C, Okhla
Vihar, Delhi.
.......Claimant/petitioner
VERSUS
1. Kavi Dutt
Sh. Bal Kishan
R/o vilage Khali Rimgavisa
Ward no. 5,
Tehsil + PS Satayan
Rati Unchal, Distt. Satyan Nepal
also at C35, PhII, Noida UP
...Driver /respondent No.1
2. Udaiveer S/o Sh. Chander Bhan R/o H. no. 24, Gali no. 3, MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 1 of 18 Indra Marg Chajjupur Shahdra, Delhi.
3. The New India Insurance Company Limited. 12th Floor, B Block, 1215 Naurang House, 13/46, Sindhia House, 12nd Floor, Kasturba Gandhi Marg, New Delhi ..Insurance Company/Respondent No. 2 .....Respondents Date of accident : 03.10.2015 Date of filing of DAR : 26.11.2015 Date of Decision : 16.05.2020 AWARD
1. DAR, where no serious question of law or fact are involved can be disposed off by short orders. Negligence on the part of respondent no.1 is to be proved on the basis of preponderance of probability, quantum of compensation is to be determined and in case the insurance company has raised any defence the liability to pay compensation is to be fixed.
2. Brief facts of the case are that on 03.10.2015 at about 08.00 AM, petitioner was crossing the road at road no. 13 towards Noida near CNG Petrol Pump, Sarita Vihar, New Delhi then all of sudden a Car bearing no. DL 6CN 5203 which was being driven by its driver namely Kavi Dutt in a very rash and negligent manner came and hit him. Due to MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 2 of 18 said impact, he fell down on the road and sustained grievous injuries.
3. Thereafter, he was immediately taken to Dr. B. R. Ambedkar Hospital, Noida where the doctors of the said hospital have declared grievous injuries. Thereafter he was admitted in AIIMS Hospital. His MLC no. 519352/8OCT2015 prepared by the doctors in JPNA, AIIMS Trauma Center. As per said MLC, the petitioner suffered grievous injuries.
4. Further Medical Board of Pt. Madan Mohan Malviya Hospital sent the disability report of injured, according to which injured has suffered 50 % permanent physical impairment in relation to his right lower limb.
5. FIR bearing No. FIR No. 763/15 was registered at PS Sarita Vihar After completion of investigation, chargesheet u/s 279/338 IPC was filed against respondent No. 1.
6. In response to DAR, Reply filed on behalf of driver and owner wherein they stated that the claim against the answering respondent is not maintainable in the eyes of law because no such accident as alleged in the DAR has ever taken place due to any rash and negligent driving of the respondent no. 1.
7. In response to the DAR, legal offer filed on behalf of Insurance company, however, the same was not accepted by the petitioner, hence the matter proceeded further.
MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 3 of 18
8. From the pleadings of parties, the following issues were framed on 08.10.2016 by the Ld. Predecessor of this Tribunal:
Whether the petitioner suffered injuries in an accident on 03.10.2015 due to rash and negligent driving of Swift Car bearing no. DL 6CN 5203 by its driver/ Respondent no. 1? OPP Whether the petitioner is entitled to any compensation, if yes as to what amount and from whom? OPP Relief.
9. PW1 (Petitioner no.1) Mohd. Shabir stepped in the witness box and filed his evidence by way of affidavit as Ex.PW1/A. He relied upon, copy of his voter ID card as Ex.PW1/1, copy of MLC as Ex.PW1/2, copies of discharge summary of Safdarjang hospital as Ex.PW1/3 colly, OPD cards as Ex.PW1/4, medical bills as Ex.PW1/5.
10. During his evidence by way of affidavit, PW1 deposed that on 03.10.2015 at about 08.00 AM, he was crossing the road at road no. 13 towards Noida near CNG Petrol Pump, Sarita Vihar, New Delhi then all of sudden a Car bearing no. DL 6CN 5203 which was being driven by its driver namely Kavi Dutt in a very rash and negligent manner came and hit him. Due to said impact he fell down on the road and sustained grievous injuries.
11. During cross examination PW1 denied that he has sworn a false affidavit.
12. No other witness was examined on behalf of petitioner.
MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 4 of 18
13. No evidence has been led by respondents.
14. This Tribunal has heard the arguments advanced by ld. counsels for the parties and perused the record. Written Submissions in form VIB filed on behalf of petitioner. Issuewise findings are as under :
ISSUE NO. 115. Negligence in a compensation case before Claims Tribunal is to be proved by preponderance of probability and the test is not as strict as in a criminal case.
16. In this case, injured appeared into witness box as PW1, made statement and narrated the mode and manner of the accident. He deposed that accident occurred due to rash and negligent driving of driver of offending vehicle. On the contrary, no evidence has been led by the driver of offending vehicle i.e. respondent No. 1. In Cholamandlam Insurance Company Ltd. vs. Kamlesh 2009 (3) AD Delhi 310, it was held that if driver of offending vehicle does not enter the witness box, an adverse inference can be drawn against him.
17. Police after investigation had filed chargesheet against respondent no.1 under section 279/338 of IPC which is also suggestive of negligence of respondent in causing the accident. The IO has filed Detailed Accident Report before this Tribunal. In National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 5 of 18 completion of investigation and filing of chargesheet u/s 279/304A IPC are sufficient proof of negligence of the driver of the offending vehicle.
18. It is well settled that the proceedings before the Claims Tribunal are in the nature of inquiry and the finding of rash and negligent driving by driver of the offending vehicle is to be returned only at the touch stone of preponderance of probabilities. The factors noted above are sufficient to conclude that preponderance of probability is made out showing negligence of respondent No. 1 in causing the accident.
19. In view of the evidence adduced by claimant, coupled with DAR and chargesheet against R1, the issue No. 1 is decided accordingly, in favour of the injured.
ISSUE NO. 2 Sl. Pecuniary loss : Quantum
no.
1. (I) Expenditure on treatment : As per Rs. 40,427/ Ex.PW1/5, there are medical bills worth Rs. 40,427/.
(ii) Expenditure on Conveyance : The Rs. 25,000/ claimant has not filed any bill for conveyance. The nature of injuries are grievous and petitioner suffered 50% permanent physical impairment in relation to his right lower limb. By guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : There Rs.25,000/ is no prescription for special diet. The MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 6 of 18 nature of injuries are grievous and petitioner suffered 50% permanent physical impairment in relation to his right lower limb. By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even Rs.25,000/ in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : Petitioner has Rs. 4,95,612/ claimed that at the time of accident, he was working as a mason in South Delhi and earning Rs. 15,000 per month.
However, petitioner did not file any document regarding his income or employment and therefore, same will be decided as per minimum wages applicable in Delhi at the time of accident which was Rs. 9,178/ per month.
The injured has suffered 50% physical impairment in relation to his right lower limb.
This Tribunal vide order dated 22.01.2020 observed that injured was still walking with the help of walker and removable supporting metal belt was there on his right lower limb.
Considering the nature of injure, disability report and medical documents this Tribunal awards him compensation for loss of wages from the date of accident till the date of decision of this case (for about 54 months) which is 9178 x 54 = Rs. 4,95,612/.
(vi) Cost of artificial limb (if applicable) Not Applicable :
(vii) Any other loss / expenditure : Not applicable MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 7 of 18
2. NonPecuniary Loss :
(I) Compensation of mental and Rs.50,000/ physical shock : As the claimant has suffered 50% permanent physical impairment in relation to his right lower limb', he would have undergone mental and physical shock.
(ii) Pain and suffering : Compensation Rs.50,000/ for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the claimant.
(iii) Loss of amenities of life : The Rs.50,000/ claimant has suffered 50% permanent physical impairment in relation to his right lower limb.
(iv) Disfiguration : The claimant has Rs.1,00,000/ suffered 50% permanent physical impairment in relation to his right lower limb.
(v) Loss of marriage prospects : Nil Petitioner was married at the time of accident.
(vi) Loss of earnings, inconvenience, Already covered hardships, disappointment, frustration, above mental stress, dejectment and unhappiness in future life etc.
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed The claimant has and nature of disability as permanent suffered 50% or temporary permanent physical impairment in relation to his right lower limb
(ii) Loss of amenities or loss of Already covered expectation of life span on account of MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 8 of 18 disability : The claimant has suffered 50% permanent physical impairment in relation to his right lower limb
(iii) Percentage of loss of earning 25 % capacity in relation to disability:
Claimant has suffered grievous injury in the accident which led to 50% permanent physical impairment in relation to right lower limb.
In Raj Kumar Vs. Ajay Kumar 2011 (1) SCC 343 the Hon'ble Supreme Court laid down a three step approach to decide compensation for the injured persons who have suffered permanent disability as under:
i) Tribunal should see as to what the injured can do inspite of permanent disability and what the injured cannot do.
ii) Tribunal should see the age of the injured and what the injured used to do before the accident.
iii) Tribunal should see if claimant is totally disabled from earning any kind of livelihood or whether he can carry out that activity which he was doing earlier or if he could do some other kind of activity to earn his livelihood.
In the present case, injured has stated that he was doing work of mason in South Delhi but he failed to prove the same. Injured has suffered 50% permanent physical impairment in relation to his right lower limb. Due to accident, his working capacity has been reduced. In the circumstances, his functional disability is treated as 25 % for the whole body.
(iv) Loss of future Income: Injured was 25 % of (9,178 x 46 years old at the time of accident, 12) x 13 MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 9 of 18 hence multiplier of 11 is applied.
= Rs. 3,57,942/
Total Compensation Rs. 12,18,981/
Interest 9% p.a. from the
date of filing of
DAR i.e.
26.11.2015 till
realization.
20. Since there is no statutory defence, therefore, the compensation will be payable by the insurance company of offending vehicle with interest @ 9% from the date of filing of DAR i.e. 04.04.2018 till realization which comes out Rs. 12,18,981/ + Rs. 4,71,896/ = Rs. 16,90,877/.
21. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the claimant. Insurance company shall also furnish TDS certificate, if any to the claimant.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
22. This Tribunal is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 10 of 18 formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
23. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.2/insurance company is directed to deposit the amount of Rs. 16,90,877/ as stated herein above with SBI, Saket Courts, Delhi. Out of the said amount Rs. 15,00,000/ is kept in 75 FDRs of Rs. 20,000 on a monthly basis. Remaining amount of Rs. 1,90,877/ be released in the bank of petitioner near his place of residence.
24. The following conditions are to be adhered to by SBI, Saket Courts, Delhi with respect to the 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 claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank 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 amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 11 of 18 on the fixed deposits without permission of the Court.
(f) The concerned bank shall not be issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card
(s) freeze the account of the 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 passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
25. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by email to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the email as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
FORM - IVB SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 12 of 18 CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 03.10.2015 2 Name of injured Mohd. Shabir 3 Age of the injured 46 years 4 Occupation of the Not proved injured 5 Income of the injured Rs.9,178/ per month as per minimum wages applicable in Delhi for an unskilled person at the time of accident.
6 Nature injury Grievous 7 Medical treatment Hospitalization taken by the injured:
Treatment for: grievous injury in right lower limb
8 Period of 04.10.2015 to 05.10.2015 Hospitalization 21.04.2016 to 27.04.2016 Safdarjang Hospital, 03.10.2015 to same date at Dr. B. R. Ambedkar Hopsital.
9 Whether any 50% permanent physical impairment permanent disability? in relation to his right lower limb.
COMPUTATION OF COMPENSATION
S. No. Heads Awarded by the
Tribunal
11. Pecuniary Loss:
MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 13 of 18
(I) Expenditure on treatment Rs 40,427/
(ii) Expenditure on conveyance Rs 25,000/
(iii) Expenditure on special diet Rs 25,000/
(iv) Cost of nursing / attendant Rs 25,000/
(v) Loss of earning capacity See 13 (iii) & (iv)
(vi) Loss of income Rs. 4,95,612/
(vii) Any other loss which may NIL
require any special treatment or
aid to the injured for the rest of
his life.
12 NonPecuniary Loss:
(i) Compensation for mental and Rs 50,000/
physical shock
(ii) Pain and suffering Rs.50,000/
(iii) Loss of amenities of life Rs.50,000/
(iv) Disfiguration Rs.1,00,000/
(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:
(i) Percentage of disability 50% permanent physical
assessed and nature of impairment
disability as permanent or
temporary
(ii) Loss of amenities or loss of Already covered
expectation of life span on
account of disability
(iii) Percentage of loss of earning 25 percent
capacity in relation to disability
(iv) Loss of future income - (income Rs 3,57,942/ x percentage earning capacity x MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 14 of 18 multiplier) 14 TOTAL COMPENSATION Rs. 12,18,981/ 15 INTEREST AWARDED 9% p.a. 16 Interest amount up to the date Rs. 4,71,896/ of award 17 Total amount including interest Rs.16,90,877/ 18 Award amount released Rs.1,90,877/ 19 Award amount kept in FDRs Rs. 15,00,000/ 20 Mode of disbursement of the Rs.15,00,000/ be kept in award amount to the claimant 75 FDRs of Rs. 20,000/
(s) (Clause 29) on a monthly basis Cash release Balance amount of Rs.
1,90,877/ be released in the bank account of the petitioner.
21 Next Date for compliance of the 16.06.2020 award. (Clause 31) PARTICULARS OF FORMV ARE AS UNDER: 1 Date of the accident 03.10.2015 2 Date of intimation of the accident by Not mentioned the Investigating Officer to the Claims Tribunal. (Clause 2) 3 Date of intimation of the accident by Not mentioned the Investigation Officer to the Insurance Company. (Clause 2) 4 Date of filing of Report under Section Not mentioned 173 Cr.P.C. before the Metropolitan Magistrate. (Clause 10) 5 Date of filing of Detailed Accident 26.11.2015 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10) MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 15 of 18 6 Date of service of DAR on the 26.11.2015 Insurance Company. (Clause 11) 7 Date of service of DAR on the 26.11.2015 claimant(s). (Clause 11) 8 Whether DAR was complete in all Yes.
respects? (Clause 16) 9 If not, state deficiencies in the DAR NA 10 Whether the police has verified the Yes documents filed with DAR? (Clause 4) 11 Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action / direction warranted.
12 Date of appointment of the Not mentioned Designated Officer by the Insurance Company. (Clause19) 13 Name, address and contact number of No mentioned the Designated Officer of the Insurance Company. (Clause 19) 14 Whether the Designated Officer of the Not mentioned Insurance Company submitted his report within 30 days of the DAR?
(Clause 21) 15 Whether the Insurance Company Yes admitted the liability?, if so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law (Clause 92).
16 Whether, there was any delay or No deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action / direction warranted?
17 Date of response of the claimants to 04.08.2017 the offer of the Insurance Company.
(Clause 23) MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 16 of 18 18 Date of award. 16.05.2020 19 Whether the award was passed with No the consent of the parties? (Clause
22) 20 Whether the claimant (s) were Yes directed to open savings bank account (s) near their place of residence? (Clause18) 21 Date of order by which claimant (s) 17.01.2018 were 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 to issue any cheque book / debit card to the claimant (s) and make an endorsement to this effect on the passbook (s) (Clause18 ).
22 Date on which the claimant (s) Not produced yet produced the passbook of their saving bank account near the place of their residence, along with then endorsement, PAN Card and Aadhar Card. (Clause 18) 23 Permanent residential address of the R/o C8, Block C, claimant (s)? (Clause 27) Okhla Vihar, Delhi.
24 Details of saving bank account (s) of Bank details not the claimant (s) and the address of filed. the bank with IFS Code. (Clause 27) 25 Whether the claimant (s) saving bank Not known account (s) is near his place of residence? (Clause 27) 26 Whether the claimant (s) were Yes examined at the time of passing of the award to ascertain his / their financial condition? (Clause 27) 27 Account Number, MICR Number, IFS State Bank of India, MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 17 of 18 Code, Name and Branch of the Bank Saket Court of the Claims Tribunal in which the A/C No. award amount is to be 35195787436 deposited/transferred. IFS Code SBIN0014244 MICR No. 110002342
26. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate.
27. Put up on 16.06.2020 for appearance of petitioner to file bank details and for compliance.
(Typed to the dictation directly, corrected and pronounced in the open Court on 16.05.2020) (Dr. Hardeep Kaur) POMACT/(South East District) Saket, New Delhi MACT No. 3142/16 Mohd. Shabir Vs. Kavi Dutt & Ors. Page No. 18 of 18