Delhi District Court
Satya Narayan Rao vs . Thane Ram & Ors. Page 1 Of 42 on 30 July, 2022
Satya Narayan Rao Vs. Thane Ram & Ors. Page 1 of 42
IN THE COURT OF MS. JASJEET KAUR, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 502702016
UNIQUE ID No. : DLNW010000502007
1. Sh. Satya Narayan Rao S/o Sh. Kare Deen,
R/o 772, Haider Pur Village, T Huts,
Delhi110088.
........ Petitioner/claimant
Vs.
1. Sh. Thane Ram S/o Sh. Daya Chand,
R/o Village Anang Pur, Faridabad,
Haryana.
....... Driver/R1
2. Sh. Baleshwar S/jo Sh. Hari Chand,
R/o Village & Post Anang Pur,
District Faridabad, Haryana.
....... Owner/R2
3. The Oriental Insurance Company Limited,
Oriental House A25/27, Asaf Ali Road,
New Delhi110002.
..... Insurance co./R3
.......... Respondents
Other details
DATE OF INSTITUTION : 05.07.2007
DATE OF RESERVING JUDGMENT : 30.07.2022
DATE OF PRONOUNCEMENT : 30.07.2022
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
Satya Narayan Rao Vs. Thane Ram & Ors. Page 1 of42
Satya Narayan Rao Vs. Thane Ram & Ors. Page 2 of 42
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI
Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 01.04.2007
2. Date of intimation of the accident by the Petition was filed
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 13.09.2007
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Cr.P.C. N/A
before the Metropolitan Magistrate
5. Date of filing of Detailed Accident Information Petition was filed
Report (DAR) by the investigating Officer before
Claims Tribunal
6. Date of Service of DAR on the Insurance Company 13.09.2007
7. Date of service of DAR on the claimant (s). Petition was filed
8. Whether DAR was complete in all respects? Petition was filed
9. If not, whether deficiencies in the DAR removed Petition was filed
later on?
10. Whether the police has verified the documents Petition was filed
filed with DAR?
11. Whether there was any delay or deficiency on the Petition was filed
part of the Investigating Officer? If so, whether
any action/direction warranted?
12. Date of appointment of the Designated Officer by 13.09.2007
the insurance Company.
13. Name, address and contact number of the Sh. M. Awasthi, Ld.
Designated Officer of the Insurance Company. Counsel for the
insurance co.
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of
the DAR? (Clause 22)
15. Whether the insurance company admitted the Not fairly computed
liability? If so, whether the Designated Officer of the compensation
the insurance company fairly computed the
Satya Narayan Rao Vs. Thane Ram & Ors. Page 2 of42
Satya Narayan Rao Vs. Thane Ram & Ors. Page 3 of 42
compensation in accordance with law.
16. Whether there was any delay or deficiency on the No
part of the Designated Officer of the Insurance
Company? If so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to the offer of N/A
the Insurance Company .
18. Date of the Award 30.07.2022
19. Whether the award was passed with the consent No
of the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were directed 15.04.2019
to open saving bank account (s) near his place of
residence and produce PAN Card and Aadhar Card
and the direction to the bank not issue any cheque
book/debit card to the claimant(s) and make an
endorsement to this effect on the passbook(s).
22. Date on which the claimant (s) produced the 18.09.2019
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the Claimant(s) As mentioned above
24. Details of saving bank account(s) of the Satya Narayan Rao,
claimant(s) and the address of the bank with IFSC savings bank a/c
Code No.039200000002704
4 with Nainital Bank,
Shalimar Bagh
Branch, Delhi.
IFSC :
NTBL0DEL039
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain his/their
financial condition.
Satya Narayan Rao Vs. Thane Ram & Ors. Page 3 of42
Satya Narayan Rao Vs. Thane Ram & Ors. Page 4 of 42
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the Claims 110002427,
Tribunal in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from a claim petition preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act') on 05.07.2007 for seeking compensation in the sum of Rs.10,00,000/ (Rupees Ten Lakhs Only) along with interest @ 18% p.a. in respect of injuries sustained by one Satya Narayan Rao (hereinafter referred to as 'the injured/ the petitioner/ the claimant') in a motor vehicular accident. A perusal of court record reveals that another victim of the same accident, namely, Master Manoj @ Monu had also sustained injuries in the case accident in respect of which a separate claim petition seeking compensation to the tune of Rs.5 lakhs with interest @ 18% per annum had also been instituted.
2. A perusal of court record reveals that an FIR bearing No.240/2007 was also registered at PS Jahangir Puri in respect of the alleged commission of offences of causing hurt to Satya Narayan Sharma and Master Manoj @ Monu by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/337 of Indian Penal Code 1860, wherein subsequent charge sheet for alleged commission of offences of causing simple hurt to child Manoj @ Monu S/o Sh. Vipin and grievous hurt to Sh. Satya Narayan Sharma S/o Sh. Kade Singh was filed against one Thane Ram.
3. The brief facts of the case as discernible from the claim petition and documents of the petitioner are that on 01.04.2007, the petitioner, namely, Satya Satya Narayan Rao Vs. Thane Ram & Ors. Page 4 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 5 of 42 Narayan Sharma was driving the scooter bearing registration No. DL8SL9528 along with Smt. Geeta W/o Sh. Vipin, R/o Jhuggi No. N23/43, J.J. Camp in front of Ayurvedic Hospital, Village Haider Pur, who was travelling on the above said scooter as a pillion rider with her two kids from her residence in village Haiderpur to Nirankari Ground via Outer Ring Road and at about 11:30 am, upon reaching near Mukund Pur, Red Light, on Outer Ring Road, Delhi, one Eicher Tempo bearing registration No.HR38N7134 (hereinafer referred to as the offending vehicle) being driven by its driver, namely, Thane Ram (hereinafter referred to as the respondent no.1/R1), in a very fast speed and negligent manner had hit the abovesaid scooter of the petitioner from right side. As a consequence of collision with the offending vehicle, the scooter of the victim had fell down alongwith scooter rider and all pillion riders(passengers), thereby resulting injuries on the persons of victim/petitioner Satya Narayan Rao and child Master Manoj @ Monu. The petitioner was medically examined at Babu Jagjeevan Ram Hospital (hereinafter referred to as BJRM Hospital) vide MLC No.28919 dated 01.04.2007 containing a finding to the effect that he had sustained various injuries including swelling and deformity over both wrists and forearms, clear lacerated wound over lateral aspect of right thigh with exposed bone chips apart from fracture of right radius and right distal ulna as well as other injuries. The petitioner had remained admitted at Lok Nayak Jai Prakash Narayan Hospital (LNJP Hospital) with effect from 03.04.2007 and had been discharged therefrom on 23.05.2007 after under going open reduction internal fixation surgery for management of fracture of supra condylar femur of right leg on 08.05.2007 as well as after being administered conservative treatment for other injuries including Volar Barton's fracture of right D/F radius.
4. R1/Sh. Thane Ram S/o Sh. Daya Chand, who was the driver of the offending vehicle and Sh. Baleshwar S/o Sh. Hari Chand, who was the owner of Satya Narayan Rao Vs. Thane Ram & Ors. Page 5 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 6 of 42 the offending vehicle had filed their separate written statements wherein they had taken common defences, including the defence to the effect that the case accident had occurred due to negligence of petitioner himself who was riding his scooter without obeying the rules and regulations of the road in a hurried manner and had therefore collided with some other vehicle. They had further claimed in their defence that the petitioner had falsely implicated R1 in the present matter and even otherwise the claim of the petitioner was highly excessive and was not maintainable. It had been further claimed in the written statements of R1 and R2 that the offending vehicle was duly insured with Oriental Insurance Company Limited vide policy No. 364719 having its validity period commencing from 26.05.2006 and expiring on 25.05.2007 and therefore as such they had no liability to pay any compensation to the petitioner.
4.1 The Oriental Insurance Company Limited, the insurer of the offending vehicle (hereinafter referred to as respondent No.3/R3) had filed its written statement wherein it had been stated that the claim of the petitioner seeking compensation in the sum of Rs. 10 lakhs as well as the interim award, if any, alongwith interest @ 18% was baseless, misconceived and without any cause of action and R3 was not liable to pay any such compensation to the petitioner. It had been avered in the written statement of R3 that the accident in question had occurred on account of negligence on the part of the petitioner himself, who was driving the scooter bearing registration No. DL8SL9528 with three pillion riders/passengers in contravention of the seating capacity of the two wheeler scooter. It had been further mentioned in the written statement of R3 that, if in case it was found during investigation or trial of the present matter that R1/driver of the offending vehicle, that is, Eicher Canter bearing registration No.HR38N 7134 was driving the said vehicle without holding the proper, effective and valid driving licence to drive the class of the vehicle involved in the alleged accident, Satya Narayan Rao Vs. Thane Ram & Ors. Page 6 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 7 of 42 then no liability may be fastened upon R3 to pay any compensation to the victim and liberty may be granted to R3 to avail all the defences available to it U/s 149(2) of Motor Vehicle Act. R3 had, however, admitted that the offending vehicle was insured with it in the name of Sh. Baleshwar vide policy No.272400/31/2007/751 having its validity period commencing from 26.05.2006 to 25.05.2007.
5. From the pleadings of the parties/petition, the following issues were framed by the learned Predecessor of this court vide order dated 23.07.2008: (1) Whether on 01.04.2007 at about 11:30 am on outer ring road tempo no. HR38N7134 which was being driven rashly and negligently hit scooter No. DL8SL9528 and caused injuries to petition? OPP (2) Whether the scooter was being driven negligently? OPR1, 2 & 3. (3) Whether petitioner is entitled to compensation as prayed for if so from which of the respondent? OPP (4) Relief.
6. Petitioner/claimant had examined himself as PW1 and Dr. Meenakshi Sidhar, HOD Blood Bank, Dr. BSA Hospital, Sector6, Rohini, Delhi as PW2 in the present matter. No other witness had been examined by the petitioner in support of his version of the case.
6.1 A perusal of the court record reveals that R1 and R2 had not examined any witness in support of their respective versions of the case. R1 had failed to appear on several dates of hearing and was proceeded against exparte vide order dated 15.09.2017. R2 had also failed to appear on several dates of hearing and was also proceeded against exparte vide order dated 27.10.2017. 6.2 A perusal of the court record further reveals that the insurance co./R3 had examined only one witness, namely Ms. Neelam Rani, Assistant, Oriental Satya Narayan Rao Vs. Thane Ram & Ors. Page 7 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 8 of 42 Insurance Company Limited as R3W1 in the present matter. No other witness had been examined by the insurance co. in support of its version of the case.
7. I have heard the final arguments addressed by Sh. Rakesh Kumar, learned counsel for the petitioner and Sh. M. Awasthi, learned counsel for the insurance co./R3. None had appeared on behalf of R1 and R2 for addressing final arguments. Even otherwise R1 and R2 had already been proceeded against exparte vide orders dated 15.09.2017 and 27.10.2017 respectively. My issue wise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below:
8. Issue wise findings: ISSUE No. 1 (1) Whether on 01.04.2007 at about 11:30 am on outer ring road tempo no. HR38N7134 which was being driven rashly and negligently hit scooter No. DL8SL9528 and caused injuries to petition? OPP The onus of proving this issue beyond preponderance of probabilities was upon the petitioner.
8.1 Petitioner Sh. Satya Narayan Rao had examined himself as PW1 by way of affidavit Ex. PW1/A wherein he had reiterated the facts narrated in the petition by stating that on 01.04.2007, he was driving the scooter bearing registration No. DL8SL9528 alongwith Smt. Geeta W/o Sh. Vipin, R/o Jhuggi No. N23/43, J.J. Camp in front of Ayurvedic Hospital, Village Haider Pur, who was travelling as a pillion rider/passenger with her two kids from his residence in village Haiderpur to Nirankari Ground via Outer Ring Road and at about 11:30 am, upon reaching near Mukund Pur, Red Light, on Outer Ring Road, Delhi, one Eicher Tempo bearing registration No.HR38N7134 being driven by R1 in a very fast speed and negligent manner had hit his scooter from right side, as a consequence of which, Satya Narayan Rao Vs. Thane Ram & Ors. Page 8 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 9 of 42 he alongwith his scooter and all the pillion riders/passengers travelling on the same had fell down and had thereby sustained injuries on their person. He deposed that he had spent Rs. 2 lakhs on his treatment and had remained admitted in LNJP Hospital with effect from 03.04.2007 and was discharged therefrom on 23.05.2007 after undergoing an open reduction internal fixation surgery for management of fracture of supra condylar femur in his right thigh. He stated that subsequently he had again remained admitted at the same hospital with effect from 25.08.2008 to 04.09.2008 during which period rod and iron wires had been removed from his fractured leg and Ilazrov Stalin Ring Fixator had been implanted in lieu thereof at the fracture site. He deposed that he had been practising as a private doctor as well as an insurance agent for monthly emoluments to the tune of Rs. 10,000/. He had relied upon his original treatment record and original medical bills Ex.PW1/1 (colly). He also relied upon the certified copy of challan/charge sheet Ex.PW1/2 (colly).
8.2 None had appeared on behalf of R1 and R2 in the Court to cross examine PW1 and the crossexamination of PW1 was treated as nil despite opportunity having been given to R1 and R2 to cross examine the witness. 8.3 In his crossexamination by Sh. M. Awasthi, learned counsel for the insurance company/R3, PW1 admitted that he had not brought his driving licence since the same had been lost at the time of accident. He further stated that his driving licence was issued by transport authority, Nimri Colony, Ashok Vihar, Delhi two years prior to the accident, however, he expressed his inability to recall the date of issuance as well as the date of expiry of the said driving licence. He admitted that a scooter was meant for two persons to sit. He further admitted that in front portion of scooter, boy Manoj was standing who was about ten years old and a girl, namely, Kiran was sitting in between him and Geeta Dass who was sitting on the pillion (rear) seat of the scooter. He denied the suggestion that Satya Narayan Rao Vs. Thane Ram & Ors. Page 9 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 10 of 42 the scooter had become imbalanced due to the standing of the boy in the front portion of scooter and had therefore got struck against the back of the offending vehicle. He further denied the suggestion that the said accident had occurred due to his own negligence. He deposed that he was a registered Ayurvedic Medical Practitioner at Patna. He, however, stated that he was not having any documentary proof in his possession to establish the fact that he was the medical practitioner as he had not brought the relevant certificate in the court. He denied the suggestion that he was not a qualified doctor and was not registered as a medical practitioner. He admitted that he had not filed any income proof along with his evidence by way of affidavit. He denied the suggestion that he had not spent Rs. 2 lakhs on medicines, medical treatment, conveyance, special diet and other special and general admitted heads.
8.4 Dr. Meenakshi Sidhar, HOD Blood Bank, Dr. BSA Hospital, Sector6, Rohini, Delhi had been examined as PW2. She deposed that she was chairperson of disability board in Dr. BSA Hospital, Delhi. She further deposed that patient, namely, Satya Narain Rao S/o Sh. Karedeen had been examined in their hospital by the disability board on 08.07.2011 vide disability certificate Ex.PW2/A containing a finding to the effect that the patient was having permanent physical disability to the tune of 28% in relation to his right lower limb and the permanent disability certificate issued by the board Ex.PW2/A contained the signature of Dr. Sanjeev Gahbhir, Specialist Orthopedic at point A. 8.5 In her crossexamination by Sh. M. Awasthi, learned counsel for the insurance company/R3, PW2 stated that the file which she had brought was not containing the MLC of the patient and the injuries due to which the disability of the petitioner had been assessed were the injuries which had occurred in the case accident as per MLC.
8.6 None had appeared on behalf of R1 and R2 in the Court to cross examine
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PW2 and the crossexamination of PW2 was treated as nil despite opportunity being given to R1 and R2 to cross examine the witness.
8.7 R1/Thane Ram/driver of the offending vehicle and R2/Sh. Baleshwar, owner of the offending vehicle had not examined any witness in support of their version of the case.
8.9 The Oriental Insurance Company Limited/R3 had examined only one witness in support of its case, namely, Ms. Neelam Rani, Assistant, Oriental Insurance Company Limited, F14, Connaught Circus, New Delhi as R3W1. She deposed that the insurance co. had issued the policy No.272400/31/207/751 for vehicle No.HR38N7134 for the period commencing from 26.05.2006 and expiring on the mid night of 25.05.2007 to Sh. Baleshwar, Ex.R3W1/1 and the insurance co. had verified the registration certificate of the vehicle No. HR38N7134 through Sh. Manohar Lal vide report Ex.R3W1/2. She proved on record the report of Transport Authority, Faridabad regarding name of the owner of the offending vehicle and date of its salecumtransfer to the second owner as Ex.R3W1/3. She further deposed that insurance co. had also verified the driving licence of driver Sh. Thane Ram from the transport authority, Faridabad through auto risk and proved on record the report of transport authority, Faridabad regarding validity of licence of R1 Thane Ram as Ex.R3W1/4. She further deposed that the insurance co. had also obtained the fard of driving licence in respect of seizure of driving licence of R1 Thane Ram by the IO of FIR No.240/07 and proved the same on record as Ex.R3W1/5. She further deposed that the insurance co. had also given notice U/o XII Rule 8 CPC to the alleged driver/R1 and owner/R2 of vehicle bearing number HR38N7134 and proved on record the office copy of said notice dated 27.03.2014 as Ex.R3W1/7. She stated that the above mentioned notice was dispatched to the addresses of R1 and R2 through registered post vide postal receipts Ex.R3W1/7 and Ex.R3W1/8.
Satya Narayan Rao Vs. Thane Ram & Ors. Page 11 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 12 of 42 She proved on record the copies of track reports/result of said registered post as mark A and B respectively. She deposed that the insurance co. had also tried to obtain the permit of the said vehicle through investigator Sh. Charan Singh and proved his report on record as Ex.R3W1/9. She further deposed that R1 was not holding a valid and effective driving licence to drive the vehicle in question at the time of accident.
8.10 In her crossexamination by Sh. P.C. Katiyar, learned proxy counsel for Sh. N.D. Patel, learned counsel for the petitioner, R3W1 stated that she had brought her authority letter to depose before the Hon'ble Court as Ex.X. 8.11 None had appeared on behalf of R1 and R2 in the Court to cross examine PW2 and the crossexamination of PW2 was treated as nil despite opportunity being given to R1 and R2 to cross examine the witness.
8.12 No material contradiction or discrepancy has appeared in the cross examination of PW1 to discredit his above said testimony which prima facie establishes that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 thereby causing grievous injuries on the person of the petitioner. PW1 Satya Narayan Rao is the injured himself and he had no reason to depose falsely in the present matter against R1. Even otherwise, R1 and R2 have failed to cross examine PW1 and therefore his testimony has remained unrebutted as well as unchallenged on behalf of R1 and R2. Hence, R1 and R2 shall be deemed to have admitted the deposition of the petitioner regarding occurrence of the case accident due to rash and negligent driving of the offending vehicle by R1. Besides, the testimony of PW1 is otherwise reliable and trustworthy as he has withstood his cross examination conducted by learned counsel for the insurance company.
8.13 Moreover, a copy of the criminal case record has been filed by the petitioner in the present matter. A perusal of the same reveals that the charge Satya Narayan Rao Vs. Thane Ram & Ors. Page 12 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 13 of 42 sheet for the commission of offences punishable u/s 279/338 IPC was also filed against R1/driver of the offending vehicle in respect of the case accident. The criminal case record can also be relied upon to prove the involvement of the offending vehicle and the negligence on the part of R1. Even otherwise, the factum of accident has not been disputed by R1.
8.14 The issue no.1 is only to be proved by claimant beyond preponderance of probabilities as distinguished from beyond reasonable doubt. 8.15 Accordingly, in view of the totality of facts and circumstances of the case, on the basis of materials placed on record and in view of above discussion, there is no reason to disbelieve the version of PW1, and hence, Issue No.1 is decided in favour of the petitioner and against the respondents by arriving at a finding to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and that the petitioner had suffered grievous injuries in the accident in question.
Issue no.1 is decided in favour of petitioner and against the respondents accordingly.
9. Issue No. (2) Whether the scooter was being driven negligently? OPR1, 2 & 3 The onus of proving this issue beyond preponderance of probabilities was upon the respondents.
9.1 The respondents no.1 and 2 had not lead any evidence in support of their claim that the petitioner was driving his scooter in a rash and negligent as well as hurried manner with three pillion riders.
9.2 The insurance co. has also not lead any evidence to establish that the victim Satya Narayan Rao was driving a scooter in a rash and negligent manner with three pillion rider. Nevertheless, it is the admitted case of the parties that Satya Narayan Rao Vs. Thane Ram & Ors. Page 13 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 14 of 42 there were in fact three pillion riders travelling on the scooter being driven by Sh. Satya Narayan Rao including Smt. Geeta and her two minor children. 9.3 Learned counsel for insurance co/R3 has argued that injured had also contributed to the accident as he had taken the risk of allowing three persons including one lady and two minor children to travel on the scooter being driven by him as pillion riders/passengers.
9.4 A similar situation had come up for consideration before Hon'ble High Court of Delhi in the case of Darwan Singh Aswal vs The United India Insurance Company Ltd., MAC.APP.97/2012 date of decision 01.11.2012, wherein three persons were riding on a motorcycle as pillion riders. The Hon'ble High Court of Delhi had held that although a motorcycle is meant for two persons including motorcycle rider and a pillion rider and tripple riding is an offence U/s 128/177 of M.V. Act, however, there is no presumption in law that there would always be negligence on the part of two wheeler driver if three persons are riding on the two wheeler in question and negligence has to be established as a fact. The relevant extract of observations made by Hon'ble High Court of Delhi in para no.6 of the judgment is reproduced herein below: It was not disputed that the truck came from behind and dashed against the two wheeler. The Claims Tribunal, therefore, rightly concluded that the accident was caused on account of rash and negligent driving of the truck driver, but fell into error while holding that the two wheeler driver contributed to the accident because of triple riding. Triple riding on a two wheeler is in contravention of the provisions of the Motor Vehicles Act, 1988 (the Act). Appropriate punishment is provided for triple riding on a two wheeler under Section 128 Satya Narayan Rao Vs. Thane Ram & Ors. Page 14 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 15 of 42 read with Section 177 of the Act. However, there is no presumption that there would always be negligence on the part of two wheeler driver if three persons are riding on a two wheeler. The negligence has to be established as a fact. In the instant case, as stated earlier, the manner of the accident has not been disputed in crossexamination of the two eye witnesses produced by the Appellants. The Claims Tribunal without any material on record simply on the ground that three persons were riding on the two wheeler concluded that there was contributory negligence. The conclusion of contributory negligence, therefore, cannot be sustained.
9.5 The above cited judgment of Darwan Singh Aswal (Supra) is squarely applicable to the facts of the present case. As held in the said case, the appropriate punishment is provided for triple riding on a two wheeler under section 128 r/w section 177 of M.V. Act, however, there is no presumption in law that there would always be negligence on the part of a two wheeler driver if three persons were riding on it, hence it can be safely concluded that neglgience of a two wheeler rider carrying three passengers has to be established as a matter of fact in accordance with legal procedures as leading admissible and reliable evidence. Further, the manner of occurrence of the case accident has not been disputed in the cross examination of PW1 and therefore it has been established that the offending vehicle had hit the scooter of the injured from behind due to which the scooter rider as well as three pillion riders had fell down on the road. In the said circumstances and on the basis of evidence available on record, the arguments of learned counsel for R3/insurance co. regarding contributory negligence on the part of the victim is not sustainable and it devoid of any merit.
9.6 In view of my forgoing discussion issued no.2 is decided in favour of the
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petitioner and against the respondents by arriving at a finding that there was no negligence on the part of the petitioner as no inculpatory evidence regarding negligence of the petitioner has been brought on record by any of the three respondents and therefore as such this tribunal is of the opinion that the accident in question had occurred due to sole negligence of R1 who had hit the scooter of the petitioner from behind while driving his vehicle rashly and negligently.
10. Issue No.3 Whether petitioner is entitled to compensation as prayed for if so from which of the respondent? OPP 10.1 In view of my findings in issue no.1 and 2 above regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioner is entitled to compensation in respect of medical expenses incurred by him as well as pain and suffering endured by him on account of injuries sustained in the case accident. I shall now examine the entire evidence led by parties including the documents of the petitioner for the purpose of arriving at a finding about the quantum of compensation to which the petitioner is entitled.
10.2 Petitioner Satya Narayan Rao had examined himself as PW1 by way of affidavit Ex. PW1/A wherein he had reiterated the facts narrated in the petition by stating that on 01.04.2007, he was driving the scooter bearing registration No. DL8SL9528 alongwith Smt. Geeta W/o Sh. Vipin, R/o Jhuggi No. N23/43, J.J. Camp in front of Ayurvedic Hospital, Village Haider Pur, who was travelling as a pillion rider with her two kids from her residence in village Haiderpur to Nirankari Ground via Outer Ring Road and at about 11:30 am, upon reaching near Mukund Pur, Red Light, on Outer Ring Road, Delhi, the offending vehicle being driven by R1 in a very fast speed and negligent manner had hit his scooter from right side due to which he along with his scooter and three pillion riders travelling Satya Narayan Rao Vs. Thane Ram & Ors. Page 16 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 17 of 42 on the same had fell down on the road and he had sustained grievous injuries including fracture of supra condylar femur of right leg as well as Volar Barton's fracture of right D/F radius. Accordingly, the petitioner is entitled to the following compensation:
11. Medical Expenses.
11.1 PW1 petitioner Ram Deo Sahu deposed in his evidence by way of affidavit that he had incurred expenses more than 2 lakhs on medicine, medical treatment, conveyance, special diet and other special and general admitted heads. However, perusal of court record reveals that the petitioner had relied upon the medical bills Ex.PW1/1 (colly) to tune of Rs. 18,496.83/ (rounded off Rs.18,497/) on his treatment. The petitioner has filed original medical bills in support of his averment to the effect that he had incurred expenses to the tune of Rs.18,497/. Therefore, the petitioner is entitled to receive an amount of Rs. 18,497/ as compensation towards his medical expenses.
12. Special Diet and conveyance 12.1 Petitioner as PW1 has deposed by way of affidavit Ex.PW1/A wherein he had sought compensation of more than Rs. 2 lakhs towards expenses on medicines, medical treatment, conveyance, special diet and other special and general heads. He had, however, not specified the exact expenses incurred by him on procuring special diet and nutritional supplements as well as on travelling to the hospital from his residence and viceversa during the treatment period.
12.2 The petitioner has also not endeavoured to prove the expenses incurred by him on special diet and conveyance by leading any documentary evidence in the form of prescription of special diet issued in his name by any doctor or dietitian as well as by placing on record his transport bills and bills for purchases made by him towards special diet such as nutritional supplements, liquid diets, Satya Narayan Rao Vs. Thane Ram & Ors. Page 17 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 18 of 42 protein diets, etc. In such circumstances, the requirement of special diet etc. by the petitioner and the expenses incurred by him on the same have to be determined in accordance with the nature of injuries sustained by him. 12.3 In this context, a perusal of the petitioner's MLC bearing No.28919 dated 01.04.2007 reveals that the petitioner had sustained various injuries including swelling and deformity over both wrist and forearms, clear lacerated wound over lateral aspect of right thigh with exposed bone chips due to fracture of femur bone apart from fracture of right radius and right distal ulna as well as other injuries. The petitioner had remained admitted at LNJP Hospital with effect from 03.04.2007 and had been discharged therefrom on 23.05.2007 after under going open reduction internal fixation surgery for management of fracture of supra condylar femur of right leg on 08.05.2007 as well as after being administered conservative treatment for other injuries including Volar Barton's fracture of right D/F radius. Thus, from a perusal of MLC and discharge summary of the petitioner, it is prima facie evident that the petitioner had suffered grievous injuries in the case accident.
12.4 Besides, the petitioner has placed on record his second discharge summary dated 04.09.2008 and a perusal of the same reveals that the petitioner had remained admitted at LNJP Hospital for the second time with effect from 25.08.2008 to 04.09.2008 during which period he had undergone another surgery whereby implants, that is, iron rod and wires were removed from his fractured femur bone and in lieu thereof IlzorovStalin ring fixator had been implanted at the fracture site. Thereafter the petitioner had remained under treatment in out patient department (OPD) of LNJP Hospital and has annexed his OPD record upto 18.03.2009. Thus, from the material on record it is primafacie evident that the petitioner had remained under treatment with effect from the date of accident till 18.03.2009, that is, for a period of about two years from the date of Satya Narayan Rao Vs. Thane Ram & Ors. Page 18 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 19 of 42 occurrence of the case accident and had also undergone two surgeries out of the which the last surgery was performed from the leg of the injured on 30.08.2008 nearly 1½ year after the date of accident. Accordingly, the period of treatment cumrecuperation in the case of the petitioner is ascertained to be about 20 months.
12.5 Keeping in view the nature of injuries sustained by the petitioner and the two surgeries undergone by him this Tribunal is of the opinion that the petitioner must have been required to take some special diets, including nutrition supplements, high protein diet etc. for speedy recovery of the fracture of supra condylar femur, Volar Barton fracture of left radius, fracture of shaft of right radius and right distal ulna sustained by the petitioner in the case accident as well as the period of his treatment, this Tribunal deems it appropriate to grant a sum of Rs. 1,00,000/ as compensation to the petitioner under this head including Rs. 50,000/ each towards special diet and conveyance respectively.
13. Attendant Charges 13.1 Petitioner as PW1 has deposed by way of affidavit Ex.PW1/A wherein he had sought compensation to the tune of Rs.2 lacs towards his medical expenses. He had, however, nowhere claimed in his evidence by way of affidavit that he had hired any medical attendant for his care and look after during his treatment period. Nevertheless, the petitioner had sustained fracture of supra condylar, femur Volar Barton fracture of left radius, fracture of shaft of right radius and right distal ulna sustained. In view of the above detailed multiple fracture injuries sustained by the petitioner, the petitioner must have required services of a medical attendant for his care and lookafter including providing assistance required by him in moving around, bathing, wearing clothes etc. Besides, the treatment cum recuperation period of the petitioner has already been determined to be about 20 months. Accordingly, keeping in view the nature of injuries Satya Narayan Rao Vs. Thane Ram & Ors. Page 19 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 20 of 42 sustained by the petitioner as well as by considering the period of his treatment to be about 20 months, this Tribunal deems it appropriate to award Rs.80,000/ as compensation to the petitioner under this head of attendant charges.
14. Loss of future earning capacity due to disability 14.1 A perusal of the petitioner's MLC bearing No.28919 dated 01.04.2007 reveals that he had sustained various injuries including swelling and deformity over both wrist and forearms, clear lacerated wound over lateral aspect of right thigh with exposed bone chips apart from fracture of right radius and right distal ulna as well as other injuries in the case accident. The petitioner had remained admitted at LNJP Hospital with effect from 03.04.2007 and had been discharged therefrom on 23.05.2007 after under going open reduction internal fixation surgery for management of fracture of supra condylar femur of right leg on 08.05.2007 as well as after being administered conservative treatment for other injuries including Volar Barton's fracture of right D/F radius. 14.2 Besides the petitioner has placed on record his second discharge summary dated 04.09.2008 and a perusal of the same reveals that the petitioner had remained admitted at LNJP Hospital for the second time with effect from 25.08.2008 to 04.09.2008 during which period he had undergone another surgery whereby implants, that is, iron rod and wires were removed from his fractured femur bone and in lieu thereof IlzorovStalin ring fixator had been implanted at the fracture site. Thereafter the petitioner had remained under treatment in OPD of LNJP Hospital and has annexed his OPD record upto 18.03.2009.
14.3 Also as per the disability certificate Ex.PW2/A, the petitioner had suffered 28% permanent disability in relation to right lower limb. The findings contained in the disability certificate of the petitioner have been coroborated with the deposition of PW2 Dr. Meenakshi Sidhar, who has Satya Narayan Rao Vs. Thane Ram & Ors. Page 20 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 21 of 42 categorically reaffirmed that the petitioner had sustained 28% permanent physical disability in relation to his right lower limb in the case accident.
The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors.
6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn Satya Narayan Rao Vs. Thane Ram & Ors. Page 21 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 22 of 42 or can continue to earn his livelihood."
14.4 Petitioner in his affidavit Ex. PW1/A has deposed that he was a private practitioner as well as insurance agent and was earning Rs.10,000/ per month. PW1 deposed that after the case accident, due to grievous injuries, he was unable to do any work.
14.5 During cross examination as conducted on behalf of insurance co/R3, no question was put to the petitioner regarding the impact of permanent disability sustained by the petitioner in the case accident his earning capacity. Therefore, as such, the testimony of PW1 regarding the factum of loss of job and earning capacity sustained by him on account of injuries sustained in the case accident. It is correct that the petitioner had sustained permanent disability in right lower limb due to injuries sustained in the case accident. Nevertheless, the other limbs of the petitioner were completely functional even after the case accident and he may have got himself suitably employed by seeking a desk job which did not require any field work or travelling.
14.6 It is thus evident from court record that he could have done any job which did not require him to walk or drive his vehicle to a long distances as well as to do any driving or other complicated task involving use of his right lower limb and thus the functional disability sustained by the petitioner with respect to his whole body and the effect of permanent disability on his actual earning capacity can be taken as 14%. In the facts and circumstances of the case and in view of my foregoing discussion, the functional disability of the petitioner with respect to his whole body and the effect of permanent disability on his actual loss of earning capacity is taken Satya Narayan Rao Vs. Thane Ram & Ors. Page 22 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 23 of 42 as 14%.
14.7 Petitioner/Satya Narayan Rao as PW1 has deposed by way of affidavit Ex.PW1/A that at the time of occurrence of the case accident, he had been working as a private doctor as well as insurance agent and was earning Rs.10,000/ per month and after the case accident, due to injuries sustained in the case accident, he was unable to do any work and had lost his job as private doctor as well as insurance agent. He has, however, not filed any documentary evidence in support of his monthly emoluments in the form of his ITRs, receipt for payment issued to his patients by himself or any other proof such as fees charged by him on monthly basis from his patients. 14.8 Besides the petitioner has not even filed any documentary proof of educational qualification such as graduation or MBBS or his any certificate if having acquired any degree/diploma in alternate medicine etc. so as to indirectly facilitate a finding by this court regarding his earning capacity as well as his capability of working as a private medical practitioner. 14.9 Nevertheless, the petitioner has placed on record his PAN Card and Aadhar Card, showing his date of birth as 01.08.1967 which prima facie establish that the age of the petitioner was aged about 39 years and 8 months at the time of accident. Moreover, in the Aadhar Card of the petitioner, his address has been mentioned as A.V.H Ke Samne, 772 T Huts, Haidarpur Village, North West Delhi, Delhi and therefore it can be prima facie concluded that the petitioner was a resident of Delhi as on the date of occurrence of the case accident. Accordingly, it can be safely concluded that the petitioner was entitled to minimum wages payable to unskilled labour in the National Capital Territory of Delhi as on the date of Satya Narayan Rao Vs. Thane Ram & Ors. Page 23 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 24 of 42 occurrence of the case accident which was Rs.3,470/.
15. Addition of Future Prospects.
15.1 In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made.
The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the Satya Narayan Rao Vs. Thane Ram & Ors. Page 24 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 25 of 42 deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) 15.2 Reference is also placed upon the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court.
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15.3 The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra)
after referring to the judgment of the constitution bench of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision
31.10.2017 granted element of future prospects of increase in the income in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%. 15.4 In the case in hand, the petitioner was a self employed medical practitioners as well as insurance agent and thus while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
15.5 The age of the petitioner, as discussed above, in the present case was about 39 years and 08 months as on the date of occurrence of the case accident. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 40% of the established income as he was below the age group of 40 years at the time of his accident.
15.6 The monthly income of petitioner is thus calculated as Rs.4858/ (3,470/ +40% of 3,470/ which comes to Rs. 1,388/= Rs.4,858/. 15.7 The age of petitioner at the time of accident was about 39 years and 08 months. The multiplier of 15 is adopted when the age of victim is between 35 years to 40 years. In the said circumstances, the relevant multiplier of "15" is to be adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been Satya Narayan Rao Vs. Thane Ram & Ors. Page 26 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 27 of 42 upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra). 15.8 The compensation is accordingly assessed towards loss of earning capacity at Rs. 1,22,421.6/ [(Rs.4,858 /per month x12 months x 15 (age multiplier) x 14/100(functional disability)].
16. Loss of Amenities of Life.
16.1 A perusal of the petitioner's MLC bearing No.28919 dated 01.04.2007 reveals that he had sustained various injuries including swelling and deformity over both wrists and forearms, clear lacerated wound over lateral aspect of right thigh with exposed bone chips on account of fracture of supra condylar femur apart from fracture of right radius and right distal ulna as well as other injuries. The petitioner had remained admitted at LNJP Hospital with effect from 03.04.2007 and had been discharged therefrom on 23.05.2007 after under going open reduction internal fixation surgery for management of fracture of supra condylar femur of right leg on 08.05.2007 as well as after being administered conservative treatment for other injuries including Volar Barton's fracture of right D/F radius.
16.2 Besides, the petitioner has placed on record his second discharge summary dated 04.09.2008 and a perusal of the same reveals that the petitioner had remained admitted at LNJP Hospital for the second time with effect from 25.08.2008 to 04.09.2008 during which period he had undergone another surgery whereby implants, that is, iron rods and wires were removed from his fractured femur bone and in lieu thereof IlzorovStalin ring fixator had been implanted at the fracture site. Thereafter the petitioner had remained under treatment in OPD of LNJP Hospital and has annexed his OPD record upto 18.03.2009.
16.3 Besides, as per the disability certificate Ex. PW2/A, the petitioner had suffered 28% permanent disability in relation to right lower limb .
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16.4 In view of the foregoing discussion regarding injuries and
permanent disability suffered by the petitioner, this Tribunal is of the opinion that the petitioner was infact deprived of amenities of life and had suffered great hardship due to permanent disability sustained by him on account of the case accident. Accordingly, this Tribunal deems it appropriate to grant a total compensation in the sum of Rs. 80,000/ to the petitioner under the said head of loss of amenities of life.
17. Pain and Suffering 17.1 As discussed above, a perusal of the petitioner's MLC bearing No.28919 dated 01.04.2007 reveals that he had sustained various injuries including swelling and deformity over both wrist and forearms, clear lacerated wound over lateral aspect of right thigh with exposed bone chips due to fracture of supra condylar femur apart from fracture of right radius and right distal ulna as well as other injuries. The petitioner had remained admitted at LNJP Hospital with effect from 03.04.2007 and had been discharged therefrom on 23.05.2007 after under going open reduction internal fixation surgery for management of fracture of supra condylar femur of right leg on 08.05.2007 as well as after being administered conservative treatment for other injuries including Volar Barton's fracture of right D/F radius.
17.2 Besides the petitioner has placed on record his second discharge summary dated 04.09.2008 and a perusal of the same reveals that the petitioner had once again remained admitted at LNJP Hospital with effect from 25.08.2008 to 04.09.2008 during which period he had undergone another surgery whereby implants, that is, iron rod and wires were removed from his fractured femur bone and in lieu thereof IlzorovStalin ring fixator had been implanted at the fracture site. Thereafter the petitioner had remained under treatment in OPD of LNJP Hospital and has annexed the OPD record upto 18.03.2009.
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17.3 In view of the grievous nature of injuries suffered by the petitioner, this
Tribunal is of the opinion that the petitioner must have endured physical pain and mental agony during his recuperation period. Accordingly, a lump sum amount of Rs.80,000/ is granted as compensation to the petitioner under the said head of pain and suffering.
18. Loss of Income 18.1 As per the PAN Card of the petitioner, his date of birth is 01.08.1967 and the case accident had occurred on 01.04.2007. Accordingly, as already discussed above it can be safely concluded that the petitioner was aged about 39 years and 08 months as on the date of occurrence of the case accident. 18.2 Also afater considering the MLC of the petitioner bearing No.28919 dated 01.04.2007, his two discharge summaries, the two surgeries undergone by the petitioner and the record pertaining to his follow up treatment taken by the petitioner in the OPD of LNJP Hospital.
18.3 Also the monthly income of the petitioner has already been computed be Rs. 3470/ on the basis of minimum wages payable to an unskilled labourer in the National Capital Territory of Delhi. In such circumstances, the petitioner is entitled to loss of income for the treatment period of 20 months to be computed in accordance with minimum wages payable to an unskilled labourer in the National Capital Territory of Delhi as on the date of occurrence of the case accident, that is Rs. 3,470/ per month. Hence, this Tribunal deems it appropriate to grant compensation to the tune of Rs. 69,400/ (Rs.3,470 x 20) to the petitioner under this head of loss of income.
19. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 6,05,018.6/ which is tabulated as below: Satya Narayan Rao Vs. Thane Ram & Ors. Page 29 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 30 of 42 Sl. No Compensation Award amount
1. Pain and suffering Rs. 80,000/ 2 Special diet & Conveyance Rs. 1,00,000/
3. Attendant Charges Rs 80,000/
4. Medical Expenses Rs. 18,497/
5. Loss of income Rs. 69,400/
6. Loss of amenities of life Rs. 80,000/
7. Loss of future earning capacity due Rs. 1,22,421.6/ to disability Total Rs. 5,50,318.6/ After rounding of Rs. 5,50,319/ ( Rupees Five Lakh Fifty Thousand Three Hundred Nineteen only) 19.1 In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) of the back the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present claim petition/DAR had been instituted on 05.07.2007 and the rate of interest on fixed deposits in nationalized banks had fluctuated/dropped several times during the pendency of the present matter. Therefore, in the interest of justice, in the present case also this court is of the opinion that the claimant/petitioner is entitled to interest @ 6% per annum from the date of filing of DAR/petition i.e. w.e.f 05.07.2007 till realisation of the compensation amount. 19.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
20. Liability 20.1 In the case in hand, Oriental Insurance Company Limited/R3 has not been able to show anything on record that R1/Thane Ram, who was the driver of Satya Narayan Rao Vs. Thane Ram & Ors. Page 30 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 31 of 42 the offending vehicle was not having a valid driving licence conferring authority upon him to drive the vehicle in question on a public road issued in his favour by the competent authority. Moreover, the insurance policy of the offending vehicle stood valid in favour of R2/Baleshwar as on the date of the occurrence of the alleged accident. As per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law. However, it is a defence of the insurance company that R2 was not having a valid permit to drive the offending vehicle on the particular route on which the alleged accident had taken place. In this context, learned counsel for the insurance company has argued that the insurance company had issued a notice U/o XII Rule 8 CPC calling upon R1 and R2 to produce the permit of the offending vehicle, however, neither any such permit was produced by R1 and R2 nor had they furnished any reply to the notice U/o XII Rule 8 CPC.
20.2 I have considered the above submissions of learned counsel for the insurance company in the light of facts of the present case as well as in the light of law of precedents. In this context, a perusal of court record reveals that the accident in question had taken place on 01.04.2007 whereas the notice U/o XII Rule 8 of CPC was issued to R1 and R2 on 27.03.2014 nearly seven years after the occurrence of the case accident and in the intervening period R2/Sh. Baleshwar had sold the offending vehicle to a third person, namely, Sh. Tusnav Jindal S/o Sh. Braham Pal on 20.11.2012 as per the verification report of Sh. Manohar Lal, SurveyorcumInvestigator of the insurance company Ex.R3W1/2. Thus, from the documents relied upon by the insurance company itself, it is prima facie evident that the insurance company had unfortunately not taken any steps for verification of permit and other documents of the offending vehicle upto 2014 and had called upon R1 and R2 to produce permit the offending vehicle Satya Narayan Rao Vs. Thane Ram & Ors. Page 31 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 32 of 42 nearly seven years after the case accident as well as three years after R2 had sold the offending vehicle to some third person. Thereafter, the insurance company had waited for another year for getting the permit of the offending vehicle verified from the concerned R.T.O and one Charanjeet Singh, Surveyor cuminvestigator of the insurance company had in the year 2015 attempted to conduct verification of permit of the offending vehicle. The report of this investigator dated 08.09.2015 Ex.R3W1/9 is also on record wherein it is mentioned that the concerned RTO office, situated at Faridabad had refused to verify the permit of the offending vehicle on the ground that he (the said investigator) had failed to produce a copy of the permit before the concerned official of the RTO, Faridabad, Haryana for its due verification. In such circumstances, it is prima facie evident that no prompt and expeditious action had been taken by the insurance company for verification of the permit of the offending vehicle or for seeking production of permit of the offending vehicle from the owner of the offending vehicle and at a belated stage a notice U/o XII Rule 8 CPC had been issued by the insurance company to complete an empty formality as well as to malafidely evade the liability to pay compensation to the victim of the case accident. Moreover, it is settled law that mere issuance of notice U/o XII Rule 8 CPC by the insurance company does not establish the defence of the insurance company to the effect that the owner of the offending vehicle was not having in his possession a valid and effective permit of the offending vehicle as on the date of occurrence of the case accident. The insurance company was required to make sincere efforts to summon the concerned official from RTO, Faridabad with the record pertaining to the permit of the offending vehicle to prove its defence. However, no such effort has been made on the part of the insurance company.
20.3 It was similarly held by Hon'ble High Court of Madhya Pradesh in the
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case of Budhe Singh vs. Amman Khan & Anr. 2011 ACJ 2600 decided on 15.11.2010, that when no positive evidence had been led by the insurance company to establish that there was a breach of any terms and conditions of the insurance policy of the vehicle in question or the same was being run without a valid permit then the insurance company cannot get itself absolved from the liability to pay compensation to the victim of the case accident merely by issuing a notice U/o XII Rule 8 CPC to the owner of the offending vehicle. Relevant extract of observations made in para 7 of the judgement is reproduced herein below: "In the present matter, the insurance company has examined only one witness, i.e., Ashok Kumar Sharma, NAW 1, the Administrative Officer of the insurance company, but this witness has not specifically stated that the bus in question was running without permit. No investigation was done by the insurance company in this regard. There is no material on record showing that any inquiry was made by the insurance company from the concerned R.T.O. The Tribunal has placed reliance upon the notice, Exh. NA2 which was a general notice given by the insurance company to owner of the vehicle to produce the relevant documents such as R.R. book, permit, fitness certificate, driving licence etc. but from this notice and from the statement of Ashok Kumar Sharma, NAW 1, the burden of the insurance company is not discharged. There is no positive evidence on record on the part of the insurance company showing the breach of the policy condition or to establish that the vehicle in question was running without Satya Narayan Rao Vs. Thane Ram & Ors. Page 33 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 34 of 42 permit. The Claims Tribunal has committed an error in exonerating the insurance company on this ground. Thus, the finding of the Tribunal in this regard is unsustainable and is hereby set aside by holding that no breach of the policy condition has been proved by the insurance company and the insurance company is liable to satisfy the award".
In view of the afore cited observations made by the Hon'ble High Court of Madhya Pardesh in the decided case Budhe Singh vs. Amman Khan & Anr. (supra), it can be safely concluded that there is no merit in the contention of learned counsel for the insurance company to the effect that the insurance company is entitled to recovery rights on the ground that the offending vehicle was being driven without a valid permit at the relevant time. R3/insurance company is accordingly held liable to pay entire compensation amount to the victim.
20.4 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Oriental General Insurance Company Ltd./R3 is directed to deposit the awarded amount of Rs.6,05,019/ within 30 days from today within the jurisdiction of this Tribunal at State Bank of India, Rohini Courts Branch, Delhi along with interest at the rate of 7% per annum from the date of filing of the petition/DAR till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimant mentioned therein. The said bank is further directed to keep the said Satya Narayan Rao Vs. Thane Ram & Ors. Page 34 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 35 of 42 amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
21. Statement of petitioner in terms of clause 29 of MCTAP was recorded on 18.19.2019 regarding his savings bank a/c with endorsement of MACT claims SB Account, no loan, cheque book and ATM/debit card. I have heard the petitioner and learned counsel for the petitioner/claimant regarding the financial needs of the injured/petitioner and in view of the observations made by the Hon'ble Supreme Court of India in the judgment passed in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 21.1 Keeping in view the facts and circumstances of the case, said statement of the petitioner/injured and clause 32 of MCTAP regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs.5,50,319/, an amount of Rs.50,319/ be released to him in his MACT Claims SB A/c no.0392000000027044 with Nainital Bank, Shalimar Bagh Branch, Delhi, as per rules, that is, the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in Motor Accident Claims Annuity Account (MACAD) so that the maximum benefits can be availed by the petitioner. In case, the MACAD scheme has not become fully operational in the concerned bank, till the time the same becomes fully operational, the remaining amount be kept in 40 FDRs of equal amount for a period of one month to 40 months respectively with cumulative interest Satya Narayan Rao Vs. Thane Ram & Ors. Page 35 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 36 of 42 without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
21.2 The aforesaid award amount shall be disbursed to the claimant through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to following conditions:
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim, that is, the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book Satya Narayan Rao Vs. Thane Ram & Ors. Page 36 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 37 of 42 have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
22. Relief 22.1 As discussed above, Oriental Insurance Company Ltd./R3 is directed to deposit the award amount of Rs.5,50,319/ with interest @ 7% per annum from the date of filing of DAR/petition, that is, 05.07.2007 till realization within the jurisdiction of this Tribunal at SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days. 22.2 R3 is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc. in the court within 30 days from today. 22.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
22.4 Nazir is directed to place a report on record in the event of non
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receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded on 18.09.2019. The record would show that the relevant documents including copy of aadhar card, PAN card, copy of bank pass book and form 15G of the petitioner have already been supplied to the learned counsel for insurance co. on 18.09.2019 itself.
23. Form IVB which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of Satya Narayan Rao Vs. Thane Ram & Ors. Page 38 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 39 of 42 necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
On 30th July 2022 PO MACT N/W
Rohini Courts, Delhi.
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FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident: 01.04.2007
2. Name of injured: Satya Narayan Rao
3. Age of the injured: About 39 years and 08 months at the time of accident.
4. Occupation of the injured: Minimum wages
5. Income of the injured: Rs.3,470/
6. Nature of injury: Grievous
7. Medical treatment taken by the injured: About 20 months.
8. Period of hospitalization: 62 days
9. Whether any permanent disability ? If yes, give details: Yes, 28%
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.18,497/
(ii) Expenditure on conveyance Rs.50,000/
(iii) Expenditure on special diet Rs.50,000/
(iv) Cost of nursing/attendant Rs.80,000/
(v) Loss of income Rs.69,400/
(vi) Any other loss which may require any N/A special treatment or aid to the injured for the rest of his life
12. NonPecuniary Loss:
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(I) Compensation for mental and physical N/A
shock
(ii) Pain and suffering Rs.80,000/
(iii) Loss of amenities of life Rs.80,000/
(iv) Disfiguration N/A
(v) Loss of marriage prospects N/A
(vi) Loss of earning, inconvenience, N/A
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 28% nature of disability as permanent or temporary
(ii) Loss of amenities or loss of N/A expectation of life span on account of disability
(iii) Percentage of loss of earning capacity 14% in relation of disability
(iv) Loss of future income - (Income X Rs.1,22,421.6/ %Earning capacity X Multiplier)
14. TOTAL COMPENSATION Rs.5,50,318.6/ (rounded of Rs. 5,50,319/)
15. INTEREST AWARDED 7%
16. Interest amount up to the date of Rs.5,80,509.95/ (after award rounding of Rs.5,80,510/)
17. Total amount including interest Rs. 11,30,829/
18. Award amount released Rs.50,319/ Satya Narayan Rao Vs. Thane Ram & Ors. Page 41 of42 Satya Narayan Rao Vs. Thane Ram & Ors. Page 42 of 42
19. Award amount kept in FDRs Rs.10,80,510/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 30.08.2022 (Clause 31) Announced in open court (JASJEET KAUR) On 30th July, 2022 PO MACT N/W Rohini Courts, Delhi.
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