Delhi District Court
Macp No.6036/2016 (Old No.23/2016): ... vs Satbir Singh & Anr. on 20 September, 2022
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr.
MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
IN THE COURT OF VINOD YADAV: PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL: ROHINI COURTS: DELHI
MAC Petition No.6036/2016 (Old No.23/2016)
1. Smt.Kamlesh, (Wife/widow of deceased)
W/o Late Shri Narender Kumar @ Anil
2. Shri Ishu, (Son of deceased)
S/o Late Shri Narender Kumar @ Anil
3. Ms.Riya, (Daughter of deceased)
D/o Late Shri Narender Kumar @ Anil
4. Shri Ram Chander, (Father of deceased)
S/o Late Shri Rishal Singh
5. Smt.Santosh Devi, (Mother of deceased)
W/o Shri Ram Chander
All R/o House No.247, Village Mukhmelpur,
Delhi-110036.
.....Petitioners
Versus
1. Shri Satbir Singh, (Driver-cum-Owner)
S/o Shri Ratan Singh,
R/o House No.1800, Village & PO: Alipur, Delhi-110036.
Presently/Also at: 81/332, Sector-1, Gole Market, New Delhi.
2. The Bajaj Allianz General Insurance Company Limited, (Insurer)
Office at: 2nd Floor, DLF Industrial Plot, Moti Nagar, New Delhi.
Policy Issuing Office: Office Space No.104/105, 1st Floor,
Rishab Corporate Tower, Plot No.16, Karkardooma Community Centre,
Delhi-110092.
Registered Office: GE Plaza, Airport Road, Yerwada, Pune-411006.
(Policy No.OG-15-1146-1801-00000871 for the period from
04.02.2015 to 03.02.2016)
.....Respondents
AND
Date of Decision: 20.09.2022 || Page 1 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr.
MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
MAC Petition No.6032/2016 (Old No.14/2016)
Shri Ram Chander, (Injured)
S/o Late Shri Rishal Singh
R/o House No.247, Village Mukhmelpur,
Delhi-110036.
.....Petitioner
Versus
1. Shri Satbir Singh, (Driver-cum-Owner)
S/o Shri Ratan Singh,
R/o House No.1800, Village & PO: Alipur, Delhi-110036.
Presently/Also at: 81/332, Sector-1, Gole Market, New Delhi.
2. The Bajaj Allianz General Insurance Company Limited, (Insurer)
Office at: 2nd Floor, DLF Industrial Plot, Moti Nagar, New Delhi.
Policy Issuing Office: Office Space No.104/105, 1st Floor,
Rishab Corporate Tower, Plot No.16, Karkardooma Community Centre,
Delhi-110092.
Registered Office: GE Plaza, Airport Road, Yerwada, Pune-411006.
(Policy No.OG-15-1146-1801-00000871 for the period from
04.02.2015 to 03.02.2016)
.....Respondents
AND
MAC Petition No.6031/2016 (Old No.15/2016)
Shri Devender Kumar, (Injured)
S/o Shri Ramphal,
R/o House No.249, Village Mukhmelpur,
Delhi-110036.
.....Petitioner
Versus
1. Shri Satbir Singh, (Driver-cum-Owner)
S/o Shri Ratan Singh,
R/o House No.1800, Village & PO: Alipur, Delhi-110036.
Presently/Also at: 81/332, Sector-1, Gole Market, New Delhi.
Date of Decision: 20.09.2022 || Page 2 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr.
MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
2. The Bajaj Allianz General Insurance Company Limited, (Insurer)
Office at: 2nd Floor, DLF Industrial Plot, Moti Nagar, New Delhi.
Policy Issuing Office: Office Space No.104/105, 1st Floor,
Rishab Corporate Tower, Plot No.16, Karkardooma Community Centre,
Delhi-110092.
Registered Office: GE Plaza, Airport Road, Yerwada, Pune-411006.
(Policy No.OG-15-1146-1801-00000871 for the period from
04.02.2015 to 03.02.2016)
.....Respondents
PARTICULARS
1. UID/CNR Number (i) DLNT01-002012-2016
(MACP No.6036/2016 (Old No.23/2016)
(ii) DLNT01-002007-2016
(MACP No.6032/2016 (Old No.14/2016)
(iii) DLNT01-002005-2016
(MACP No.6031/2016 (Old No.15/2016)
2. Under Section Detailed Accident Report (DAR) & Petition(s) 166
& 140 M.V Act
3. Date of institution of 07.01.2016
petition(s)
4. Date of Arguments 22.08.2022
5. Date of Decision/ 20.09.2022
Final Order
6. Final Order Allowed
APPEARANCES:
Shri R.K Jain and Ms.Riya Jain, Ld. Counsels for the petitioners/LRs of deceased
Narender Kumar @ Anil as also for both the injured persons aforesaid.
None for driver-cum-owner Satbir Singh.
Shri Sujit Jaiswal, Ld. Counsel for Insurance Company.
Date of Decision: 20.09.2022 || Page 3 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr.
MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
Petition(s) under Section 166 & 140 of Motor Vehicle Act, 1988 for grant of compensation
20.09.2022
AWARD:
BACKGROUND PREFACE/INTRODUCTION
1. By way of this common order, I shall dispose off three Detailed Accident Reports (hereinafter referred to as "DAR") filed by the police/investigating agency in respect of motor vehicular accident which took place in the night at about 10.00 PM on 19.07.2015, at old GTK Road, near SSN College Bus Stand, within the jurisdiction of PS Alipur, Delhi.
2. The facts of the case in brief, as borne out from the record are that on the fateful night of 19.07.2015, three persons namely Shri Narender Kumar @ Anil, his father Shri Ram Chander and their relative namely Shri Devender Kumar (cousin of Narender Kumar @ Anil) were heading towards their residence/home at Mukhmelpur village (Alipur), Delhi on scooter (make Bajaj Chetak) bearing registration No.DL-8SAC-1265. The said scooter was being driven by Narender Kumar @ Anil, while his father Ram Chander and cousin Devender Kumar were the pillion riders. At about 10.00 PM, when they reached on old GTK road, near SSN College bus stand, suddenly a car (Hyundai i10 Magna) bearing registration No.DL- 2CAM-2228 (offending vehicle), being driven by respondent No.1 at the relevant time came from the side of Budhpur village (wrong side) and hit against the said scooter, as a consequence whereof all the three riders fell down and sustained injuries. The driver of the offending vehicle was apprehended at the spot, whose name on inquiry was revealed as Satbir Singh. All the aforesaid three injured persons/scooter riders were removed to Satyawadi Raja Harish Chandra Hospital (in Date of Decision: 20.09.2022 || Page 4 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) short SRHC Hospital) where they were medically examined and opined to have sustained "grievous injuries" and considering the nature of injuries sustained by them, all the three were referred to higher centre for further treatment. Meanwhile, the family members/relatives of said injured persons also came to know of the accident in question and they got them admitted to private hospital(s) of their choice. But, as the fate would have it, even after making available best medical treatment to injured Narender Kumar @ Anil in three top notch private hospitals of the city by his relatives, that too within a span of 1½ months, his life could not be saved and he ultimately succumbed to his injuries on 06.09.2015 (hereinafter referred to as "deceased").
3. (i) Now, coming back. FIR No.639/2015, dated 20.07.2015, U/s 279/337 IPC was registered at PS Alipur with regard to the said accident. Thereafter, taking into account the nature of injuries suffered by other two injured persons as also consequent death of deceased, sections 338/304-A IPC were invoked in the matter. The police went about doing its job. It investigated and filed Detailed Accident Report(s) (DARs), in all the aforesaid three matters, which vide order(s) dated 07.01.2016 were treated as a claim petition(s) under 166 (4) of Motor Vehicles Act, 1988 (hereinafter referred to as "MV Act").
(ii) During the course of investigation, respondent No.1/Satbir Singh was found to be the driver-cum-owner of the offending vehicle at the relevant time. Furthermore, as on the date and time of accident, the offending vehicle was found to be lying insured with respondent No.2/Bajaj Allianz General Insurance Company Limited vide Policy No.OG-15-1146-1801-00000871 for the period from 04.02.2015 to 03.02.2016.
Date of Decision: 20.09.2022 || Page 5 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
4. (i) It is noted that irrespective of the DARs filed in the matter(s), the L.Rs of deceased and both the injured persons aforesaid also preferred their respective separate claim petitions under requisite sections of M.V Act. Needless to say with the filing of DAR(s) in matter(s), the individual claim petitions stood merged/clubbed with them.
(ii) It is further noteworthy that since all the three claim petitions/DARs arose out of the same motor vehicular accident and considering the fact that eye witnesses in the said cases were same vis-à-vis common witnesses were to be examined, accordingly vide order dated 31.05.2016, same were consolidated for the sake of convenience and recording of evidence and "MACP No.6036/2015", titled as, "Smt.Kamlesh & Ors. (LRs of Narender Kumar @ Anil) V/s Satbir Singh & Anr." was treated as the "leading case". As such, evidence was led on behalf of both the sides in the "leading case".
5. (i) Now, let us have a bird's eye view of the respective cases set up by the petitioners.
(ii) In MACP No.6036/2016 (Old No.23/2016), it has been the case of L.Rs of deceased Narender Kumar @ Anil, that deceased was aged about 40 years at the time of accident. He was a matriculate, running a hair-dresser shop under the name & style of "M/s Anil Hair Dresser" at Alipur, Delhi and earning about Rs.30,000/- to Rs.35,000/- per month. From the date of accident till his unfortunate demise on 06.09.2015, deceased remained admitted in different hospitals for about 1½ month and incurred substantial amount on his treatment. Deceased had left behind five dependents/L.Rs and as such grant of compensation @ Rs.61,35,073/- (Rupees Sixty One Lakhs Thirty Five Thousand Seventy Three Only) alongwith interest @ 9% per annum has been prayed for (as per Form VI-A filed on behalf of petitioners).
Date of Decision: 20.09.2022 || Page 6 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(iii) In MACP No.6032/2016 (Old No.14/2016), it has been the case of injured/claimant Ram Chander that he was aged about 68 years at the time of accident and used to assist his deceased son in the hair dresser shop and earning about Rs.10,000/- per month. He has suffered 88% permanent disability in relation to his lower limb and spent/incurred more than Rs.5,00,000/- on his medical treatment. As such, grant of claim/compensation @ Rs.18,51,377/- (Rupees Eighteen Lakhs Fifty One Thousand Three Hundred Seventy Seven Only) alongwith interest @ 9% per annum has been prayed for [as per Form XIV (VI-B) filed on his behalf].
(iv) In MACP No.6031/2016 (Old No.15/2016), it has been canvassed on behalf of injured/claimant Devender Kumar, that he was matriculate/Diploma Holder, aged about 28 years at the time of accident, doing job of pest control and earning Rs.25,000/- to Rs.30,000/- per month. He has suffered 41% disability in relation to his right lower limb and spent/incurred more than Rs.5,00,000/- on his medical treatment. As such, grant of claim/compensation @ Rs.23,72,876.71 (Rupees Twenty Three Lakhs Seventy Two Thousand Eight Hundred Seventy Six and paise Seventy One Only) alongwith interest @ 9% per annum has been prayed for [as per Form XIV (VI-B) filed on his behalf].
6. Respondent No.1/driver-cum-owner by way of written statement filed in the matter did not dispute either the accident or the fatality and injuries suffered by the injured persons. But, he did not accept the blame for any of these. For him, the deceased's negligence was solely responsible for the accident in question. It was further categorically stated that he was having a valid Driving Licence to drive the alleged offending vehicle and the same was lying insured with respondent No.2 and as such, respondent No.2/insurance company is liable to pay Date of Decision: 20.09.2022 || Page 7 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) compensation/claim, if any, to the petitioners. He denied the averments made in the DAR(s) and prayed for its dismissal.
7. (i) Respondent No.2/Insurance Company by way of its reply/legal offer accepted the factum that the offending vehicle, i.e car bearing registration No.DL-2CAM-2228 was duly lying insured with it on the date and time of accident vide Policy bearing No.OG-15-1146-1801-00000871 for the period from 04.02.2015 to 03.02.2016).
(ii) However, it was claimed by respondent No.2/Insurance Company that the accident in question had taken place due to the "contributory negligence" on the part of deceased and injured persons, based upon the fact that firstly three grown up adults were "triple-riding" a two-wheeler/scooter in total contravention of the traffic rules and regulations and secondly none of them was wearing helmet at that time.
(iii) Be that as it may, respondent No.2/insurance company made the following legal offer to the L.Rs of deceased and the two injured persons towards full and final settlement of the claim petition(s), however, the said offer stood rejected by them in one voice, claiming the same to be on a very lower side.
(i) In MACP No.6036/2016 Legal offer of Rs.8,33,172/- was made (after (Old No.23/2016) deducting 50% towards "contributory negligence").
(ii) In MACP No.6032/2016 Legal offer of Rs.3,75,000/- was made (after (Old No.14/2016) deducting 25% towards "contributory negligence").
(iii) In MACP No.6031/2016 Legal offer of Rs.3,34,644/- was made (after (Old No.15/2016) deducting 25% towards "contributory negligence").
Date of Decision: 20.09.2022 || Page 8 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
8. Before proceeding further, it is pertinent to mention here that during the interregnum, petitioners had moved application(s) under Section 140 M.V Act, inter alia praying for grant/release of interim Award in the matter(s). The applications moved in this regard were duly allowed by this Tribunal and resultantly following amount was released as interim award to the petitioners:
(i) In MACP No.6036/2016 Vide order dated 03.09.2016, interim Award @ (Old No.23/2016) Rs.50,000/- (Rupees Fifty Thousand Only) alongwith interest 9% per annum was ordered to be released in favour of Smt.Kamlesh/wife of deceased.
As per report of Nazir dated, 11.09.2017, a sum of Rs.58,926/- was deposited by respondent No.2/ Insurance company in this regard.
(ii) In MACP No.6032/2016 Vide order dated 14.11.2017, interim Award @ (Old No.14/2016) Rs.25,000/- (Rupees Twenty Five Thousand Only) alongwith interest 9% per annum was ordered to be released in favour of injured/ claimant Ram Chander.
As per report of Nazir dated, 07.02.2018, a sum of Rs.30,517/- was deposited by respondent No.2/ Insurance company in this regard.
(iii) In MACP No.6031/2016 Vide order dated 14.11.2017, interim Award @ (Old No.15/2016) Rs.25,000/- (Rupees Twenty Five Thousand Only) alongwith interest 9% per annum was ordered to be released in favour of injured/claimant Devender Kumar.
As per report of Nazir dated, 07.02.2018, a sum of Rs.30,517/- was deposited by respondent No.2/ Insurance company in this regard.
Date of Decision: 20.09.2022 || Page 9 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
9. (i) Now, I am required to enquire into the following aspects. First: "What happened, and how did it happen". Second: "How to compensate the L.Rs of deceased/petitioners". Third: Effect of deceased and other two injured persons "triple riding" a two-wheeler/scooter vis-à-vis the defence of "contributory negligence" taken by respondent No.2/insurance company".
(ii) For deciding the aforesaid aspects, it would be appropriate to have a glimpse of the issues framed in the matter(s). From the pleadings of the parties, following issues were framed in the matter(s) vide order dated 31.05.2016:
Issues framed in MACP No.6036/2016 (Old No.23/2016) (1) Whether the deceased Narender Kumar @ Anil suffered fatal injuries in road traffic accident on 19.07.2015, at about 10.00 PM, at old GTK road, near SSN College bus stand, Alipur, Delhi, within the jurisdiction of PS Alipur, due to rashness and negligence on the part of driver Satbir Singh, who was driving car bearing registration No.DL-2CAM-2228, owned by him and insured with Bajaj Allianz General Insurance Company Limited? OPP. (2) Whether the L.Rs of deceased/petitioners are entitled to any compensation, if so, to what amount and from whom? OPP.
(3) Relief.
Issues framed in MACP No.6032/2016 (Old No.14/2016) (1) Whether the injured Ram Chander suffered injuries in road traffic accident on 19.07.2015, at about 10.00 PM, at old GTK road, near SSN College bus stand, Alipur, Delhi, within the jurisdiction of PS Alipur, due to rashness and negligence on the part of driver Satbir Singh, who was driving car bearing registration No.DL-
2CAM-2228, owned by him and insured with Bajaj Allianz General Insurance Company Limited? OPP.
(2) Whether the injured is entitled to any compensation, if so, to what amount and from whom? OPP.
(3) Relief.
Date of Decision: 20.09.2022 || Page 10 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) Issues framed in MACP No.6031/2016 (Old No.15/2016) (1) Whether the injured Devender Kumar suffered injuries in road traffic accident on 19.07.2015, at about 10.00 PM, at old GTK road, near SSN College bus stand, Alipur, Delhi, within the jurisdiction of PS Alipur, due to rashness and negligence on the part of driver Satbir Singh, who was driving car bearing registration No.DL-2CAM-2228, owned by him and insured with Bajaj Allianz General Insurance Company Limited? OPP.
(2) Whether the injured is entitled to any compensation, if so, to what amount and from whom? OPP.
(3) Relief.
10. As discussed in preceding paragraph No.4, since all the three claim petitions/DARs arose out of the same accident, therefore, in terms of order dated 31.05.2016, evidence was led in the "leading case", i.e in MACP No.6031/2016, titled as, "Smt.Kamlesh & Ors. (L.Rs of deceased Narender Kumar @ Anil V/s Satbir Singh & Ors.". The details of witnesses examined by the petitioners in the matter(s) is as under.
11. (i) Shri Ram Chander, injured/claimant (father of deceased Narender Kumar @ Anil) was examined as PW-1 in the matter; Shri Devender Kumar, injured/claimant (in MACP No.6031/2016) was examined as PW-2; Shri Liazley Illias, Medical Record Clerk from St.Stephen's Hospital, Tis Hazari, Delhi was examined as PW-3; Shri Ajay Singh Rawat, Medical Record Technician from Max Hospital, Shalimar Bagh was examined as PW-4; Dr.Arun Koul from G.B Pant Hospital was examined as PW-5; Dr.Ashutosh Gupta, SR (Ortho) from SRHC Hospital was examined as PW-6; Dr.R.K Sunkaria, MS (Ortho) from Navjeevan Hopsital, Pitampura, Delhi was examined as PW-7; Shri Ashok Kumar, Date of Decision: 20.09.2022 || Page 11 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) Receptionist/X-ray Technician from Navjeevan Hospital was examined as PW-8 and last, but not the least, Smt.Kamlesh (wife of deceased Narender Kumar @ Anil) (in MACP No.6036/2016) was examined as PW-9 in the matter. Thereafter, PE in all the three matters was closed vide order dated 21.09.2021.
(ii) On the other hand, despite being granted enough opportunities, none of the respondents led any evidence in the matter(s). As such, vide order dated 21.09.2021, RE in the matter(s) was also closed.
12. I have heard arguments advanced at Bar by learned counsel for petitioners as well as learned counsel for respondent No.2/insurance company and carefully perused the entire material on record. I have also gone through the written submissions filed on behalf of both the parties. None appeared on behalf of respondent No.1/driver-cum-owner to advance arguments in the matter. My findings on the issues are as under.
Issue No.(1) in all the three petitions
13. (i) The onus to prove Issue No.(1) in all the three petitions aforesaid was upon the petitioners/claimants. Since, the finding on said issue(s) is going to be common, so they are being taken up simultaneously for consideration. For the purpose of said issue(s), the testimonies of PW-1/Ram Chander and PW-2/Devender Kumar are very relevant, as besides being the injured persons, they are also the eye witnesses of the accident in question. Both the said witnesses have categorically deposed on the lines of averments made in the DAR(s). Both of them in their deposition before this Tribunal categorically fastened the blame upon respondent No.1/driver-cum-owner for causing the accident in question by stating in simple and plain words that it was the rash and negligent driving on Date of Decision: 20.09.2022 || Page 12 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) the part of respondent No.1 which resulted in this tragic accident.
(ii) They have proved on record the following documents:
Documents proved on record by Documents proved on record by PW-1/Ram Chander PW-2/Devender Kumar
(a) Copy of his Election I-Card as (a) Copy of his Election I-Card as Ex.PW1/1 (OSR); Ex.PW2/1 (OSR);
(b) Original DAR, including chargesheet (b) Copy of his MLC as Ex.PW2/4; as Ex.PW1/2;
(c) Copy of FIR No.639/2015, PS Alipur (c) Copies of his medical treatment as Ex.PW1/3; record as Ex.PW2/9;
(d) Copy of MLC Ex.PW1/4; (d) His original medical bills as Ex.PW2/10 (Colly);
(e) Copy of photographs as Ex.PW1/5 (e) His Income Affidavit filed in DAR as (Colly); Ex.PW2/14; and
(f) Copy of site plan Ex.PW1/6 (f) Estimate for implant removal as Ex.PW2/15.
(g) Copies of mechanical inspection Note: This witness also placed reliance report of offending vehicle and scooter on some of the documents proved on as Ex.PW1/7 (Colly); record by PW-1, viz., Ex.PW1/2,
(h) Copy of seizure memo of offending Ex.PW1/3, Ex.PW1/5 to Ex.PW1/8 and vehicle as Ex.PW1/8 (Colly);
Ex.PW1/11 to Ex.PW1/13.
(i) Copies of medical treatment record as Ex.PW1/9 (Colly);
(j) Copies of medical bills as Ex.PW1/10 (Colly);
(k) Copy of Driving Licence of
respondent No.1 as Ex.PW1/11;
(l) Copy of RC of offending vehicle as
Ex.PW1/12;
Date of Decision: 20.09.2022 || Page 13 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(m) Copy of insurance policy of
offending vehicle as Ex.PW1/3; and
(n) Income Affidavit filed in the DAR as
Ex.PW1/14.
(ii) Both the said witnesses were thoroughly cross-examined on behalf of respondent No.2/insurance company, by putting suggestions to the effect that since they were triple riding on the scooter at the time of accident, therefore, it was contributory negligence on the part of deceased also for causing the accident. The suggestions to this effect were vehemently denied by both these witnesses. Further suggestions were put that since deceased was tired after working the whole day and he was driving two pillion riders on the scooter, as such he could not control his scooter and hit against the offending vehicle. Needless to say, the said suggestion(s) were also categorically denied by both these witnesses.
14. The learned counsel for insurance company made a strong pitch by arguing that after working for the entire day, deceased was palpably tired/exhausted, he was driving the scooter with two grown-up pillion riders and had just entered on the main road after taking a turn, in the process he could not control his scooter, got disbalanced and hit against the offending vehicle. As such, it has been contended that contributory negligence @ 50% should be taken on the part of deceased and in any event not less than 25%. To put teeth to this his aforesaid contentions, learned counsel for insurance company has placed strong reliance upon the following two judgments:
(a) Case titled as, "United India Insurance Company Limited V/s K. Anjaiah", dated 08.12.2003, decided by the Hon'ble High Court of Andhra Pradesh and;Date of Decision: 20.09.2022 || Page 14 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(b) Case titled as, "Managing Director, Tamil Nadu State Transport Corporation V/s Adbul Salam", decided by Hon'ble High Court of Madras.
15. (i) I have given thoughtful consideration to the arguments of learned counsel for respondent No.2/insurance company on this account. As regards ground of "contributory negligence" in case of triple riding a two-wheeler, the legal position is well settled. The Hon'ble Supreme Court of India in Civil Appeal No.79/2020, titled as, "Mohammed Siddique & Anr. V/s National Insurance Company Limited & Ors." (decided on 08.01.2020) has been pleased to lay down as under:
xxxxx
13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, im-
poses a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle driv- ers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection be- tween the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could Date of Decision: 20.09.2022 || Page 15 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple in- jury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the acci- dent could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the ac- cident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the acci- dent would have been averted, if three persons were not rid- ing on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. There- fore, the finding of the High Court that 2 persons on the pil- lion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon plead- ing or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.
14. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed ei- ther to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.
xxxxx
(ii) A careful perusal of site plan/Ex.PW1/6 filed in the matter (being part of DAR) would reveal that the deceased was driving his scooter on his extreme left side while going towards Budhpur village side, while the respondent No.1/driver of Date of Decision: 20.09.2022 || Page 16 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) the offending vehicle instead of driving on his left side was driving on the extreme right side in the direction going from Budhpur village side towards Alipur side. This fact has not even been disputed by learned counsel for the insurance company. It is further an admitted position on record that the offending vehicle had hit the scooter of deceased from the side and it was not a head on collision. The said fact gets confirmed from the bare perusal of mechanical inspection report(s)/Ex.PW1/7 (Colly) of offending vehicle and the scooter. It has further been nowhere the case of respondent No.2/insurance company that deceased was driving his scooter in the wrong lane or moving in wrong direction. It is further an admitted position on record that plying of heavy vehicles on the said road was prohibited at the relevant time, meaning thereby that there was no heavy vehicle plying on the road at the relevant time. Even the volume of vehicular traffic was not so heavy at the relevant time. It was night time and it is expected from the driver of a four wheeler to be much more vigilant while driving out in the night taking due care and caution of the pedestrians and two-wheelers plying on the road. The judgments relied upon by the learned counsel for respondent No.2/insurance company on the point of "contributory negligence" are of no help to him owing to the peculiar facts and circumstances of the case in hand, wherein the offending vehicle had hit the scooter of deceased by its side (said factum also lying mentioned in the chargesheet, which is part of DAR); whereas in the judgments relied upon by learned counsel are the cases pertaining to head on collision. As such, the defence of "contributory negligence" raised by respondent No.2/insurance company does not hold any water, same accordingly stands rejected.
Date of Decision: 20.09.2022 || Page 17 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
16. (i) Moving further, the precise testimony of PW-1 and PW-2, who themselves are injured and eye witness(es) of the case nails the culpability of respondent No.1/driver-cum-owner. Neither he, nor respondent No.2/insurance company were able to poke any holes therein. Admittedly, respondent No.1 has not led any evidence to controvert the case of petitioner(s).
(ii) It is further an undisputed fact that case FIR No.639/2015, dated 20.07.2015, U/s 279//338/304-A IPC was registered at PS Alipur with regard to the accident in question. The contents of said FIR would show that offending vehicle had hit the scooter driven by deceased on the date and time of accident. Not only this, respondent No.1/driver-cum-owner Satbir Singh (accused in State case) has also been chargesheeted for offences punishable under Sections 279/338/304-A IPC. Same would also point out towards rash and negligent driving of the offending vehicle by respondent No.1.
17. Further, there is no gainsaying that respondent No.1/driver-cum-owner of the offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that accident had occurred due to his rash and negligent driving of the offending vehicle.
18. Apart from above, copy of MLCs of deceased and other two petitioners/injured persons (Ex.PW1/4 and Ex.PW2/4), prepared at SRHC Hospital is also available on record (being part of DAR), which shows that they had been removed to said hospital on 19.07.2015 at about 10.35 PM, with the alleged history of road traffic accident (RTA). Needless to say, the injuries mentioned in the said Date of Decision: 20.09.2022 || Page 18 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) MLCs are consistent with the injuries which are sustained in motor vehicular accident.
19. Rule 7 of the Delhi Motor Accident Claims Rules lends authenticity to the documents filed alongwith the DAR. For the sake of ready reference, said Rule is re-produced as under:
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7.Presumption about reports.- The contents of reports submitted to the Claims Tribunal in Form "A" and Form "D" by investigating police officer and concerned registering authority respectively, and confirmation under clause (b) of rule 5 by the insurance company shall be presumed to be correct, and shall be read in evidence without formal proof, till proved to the contrary.
xxxxx
20. Furthermore, it is an established principle of law that in a claim petition under the Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In case of "Kaushnamma Begum and others V/s New India Assurance Company Limited" reported as, (2001) 2 SCC 9, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
Date of Decision: 20.09.2022 || Page 19 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
21. (i) It may also be mentioned here that the standard of proof of negligence as required in a claim petition u/s 166 M.V Act is on the touchstone of preponderance of probability, as held by Hon'ble Supreme Court of India in case of "Bimla Devi V/s Himachal Road Transport Corporation [(2009) 13 SCC 530]".
(ii) The Hon'ble Gauhati High Court in case reported as, "[2012 (4) GLT 516]", titled as, "Godavari Devi Sharma and Ors/ V/s United India Insurance Company Ltd. and Ors." has been pleased to observe as under:
xxxxx (14) Moreover, while conducting the inquiry into a claim under Section 166 of the M. V. Act, the Tribunal is not expected to search for proof or evidence beyond reasonable doubt, rather it is preponderance of probability, what the tool is, for assessment of the evidence. The Tribunal can arrive at its finding on the prima facie materials, such as the First Information Report to presume existence of the certain facts, in absence of other evidence which might debase such presumption."
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22. Both PW-1 and PW-2 besides being injured/claimants are also the victims of accident and their direct evidence of rash and negligent driving against the driver-cum-owner of offending vehicle has been corroborated by the documentary evidence relied upon by them as well as filed alongwith the DAR and, therefore, the case does not warrant any other best evidence. In view of the aforesaid discussion and the evidence which has come on record, it is held that the rashness and negligence on the part of respondent No.1/driver-cum-owner is clearly visible and as such, he was responsible not only for this accident, but also for everything that followed thereafter. Accordingly, this issue is answered in favour of petitioners and against the respondents.
Date of Decision: 20.09.2022 || Page 20 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) COMPENSATION: ASSESSMENT & DISTRIBUTION ISSUE No.(2) in MACP No.6036/2016 (Deceased Narender Kumar @ Anil)
23. This issue is the most ticklish, yet the most important one. The reasons are obvious. The human loss suffered by legal representatives of any deceased cannot be measured/ compensated in monetary terms, yet this Tribunal has to award just and reasonable compensation. In this regard, I am guided by Section 168 of the Act which enjoins the Claims Tribunal to hold an inquiry to the claim to make an Award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
24. In celebrated case of "Sarla Verma and Others Vs. Delhi Transport Corporation and Another", (2009) 6 Supreme Court Cases 121, which has been reiterated by the Constitution Bench of Hon'ble Supreme Court in case titled as "National Insurance Company Vs. Pranay Sethi & Ors." Decided on 31.10.2017 (2017) 16 SCC 680, the Hon'ble Supreme Court of India has laid down general principles for computation of compensation in death cases. The relevant paras of the judgment are reproduced here as under:
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9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents. These issues to be determined by the Tribunal to arrive at the loss of dependency are: (i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinations are standardized, there will be uniformity and Date of Decision: 20.09.2022 || Page 21 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step-1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step-2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several mponderables in life and identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step-3 (Actual Calculation) The annual contribution to the family(multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs.5,000/- to Rs.10,000/- may be added as loss of estates. Where the deceased is survived by his widow, another conventional amount in the range of Rs.5,000 to Rs.10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) and the cost of any medical treatment of the deceased before death (if incurred) should also be added."
xxxxx Date of Decision: 20.09.2022 || Page 22 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
25. Before ascertaining whether the petitioners/claimants are eligible for any compensation in the matter(s), it is pertinent to mention here that during the course of final arguments, learned counsel for respondent No.2/Insurance company took a plea that accident in question had taken place due to "contributory negligence" on the part of deceased on account of triple riding a two-wheeler/ scooter and as such, he had prayed for 50% deduction in the claim/compensation to be awarded to the petitioners. I have already dealt with the said contention of insurance company in detail and rejected the same while giving my findings on issue No.(1). Now, coming to the heads and quantum of claim/compensation to be paid to the L.Rs of deceased/petitioners.
LOSS OF FINANCIAL DEPENDENCY
26. (i) As already stated above, the claimants/petitioners in the aforesaid petition are widow, two children and parents of deceased. PW-1/Smt.Kamlesh (wife of deceased Narender Kumar @ Anil) in her evidence by way of affidavit (Ex.PW9/A) has stated that at the time of accident, her husband was aged about 46 years (DOB: 10.01.1975), he was matriculate, running a hair-dresser shop under the name & style of "Anil Hair Dresser" at Alipur, Delhi and earning about Rs.30,000/- to Rs.35,000/- per month.
(ii) She further stated that at the relevant time her son/petitioner No.2 and her daughter M/s Riya were studying in class 10th and 8th respectively in Shri Ram Shiksha Mandir, Jindpur, Delhi-110036 and their tuition fees were being paid by her husband.
(iii) She further stated that her deceased husband had also invested @ Rs.10,000/- per annum in Sahara Credit Co-operative Society, he was also maintaining a motorcycle and paying for household expenses including electricity, Date of Decision: 20.09.2022 || Page 23 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) water, telephone charges etc.
(iv) She further stated that her deceased husband had also purchased one residential property at village Alipur for Rs.26,00,000/- in the joint name with one Shri Sonu and paid his 50% share of Rs.13,00,000/- to one Brijesh Kumar Bansal. She further stated that her husband was holding a valid and effective Driving Licence on the date and time of accident.
(v) She has proved on record the following documents:
(a) Copy of her Aadhar Card Ex.PW9/1 (OSR);
(b) Medical treatment record of her deceased Ex.PW9/2 (Colly) (running into husband six sheets)
(c) Original medical bills and receipts in respect Ex.PW9/3 (Colly) (56 sheets) of the medical treatment of her deceased husband
(d) List of medical bills Mark A
(e) Photocopies of Aadhar Card of petitioners, Ex.PW9/4 (Colly) (OSR) (5 copy of Birth Certificate of Ms.Riya sheets)
(f) Photocopy of matriculation certificate of her Ex.PW9/5 (OSR) deceased husband
(g) Photocopy of Aadhar Card of her deceased Ex.PW9/6 (OSR) husband
(h) Photocopy of PAN Card of her deceased Ex.PW9/7 (OSR) husband
(i) Original school fee receipts of her son Ishu, Ex.PW9/8 filed alongwith the DAR
(j) Certificate of payment of school fee Ex.PW9/9
(k) Original school fee receipt of her daughter Ex.PW9/10 Ms.Riya, filed alongwith the DAR
(l) Certificate of payment of school fee of her Ex.PW9/11 daughter Ms.Riya
(l) Certificate of Investment made by her Ex.PW9/12 deceased husband with M/s Sahara Credit Co-
Date of Decision: 20.09.2022 || Page 24 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) operative Society
(m) Photocopy of RC of motorcycle of her Ex.PW9/13 deceased husband
(n) Original electricity and telephone bills of Ex.PW9/14 (Colly) (8 sheets) their house
(o) Copy of Agreement to Sell and Purchase, Mark B receipt and possession letter with respect to the plot purchased by her husband
(p) Photocopy of Driving Licence of her Ex.PW9/15 deceased husband
(vi) In her cross-examination by the Insurance company, she vehemently denied having filed exaggerated medical bills and documents showing expenses on education of children borne by her deceased husband. She could not tell whether her husband was an income-tax payee not. She further stated that presently the hair-dresser shop is being run by one Arif, however, no amount is being given to her by him. She denied the suggestion that said hair-dresser shop is being run by them through Arif. She further stated that after the death of her husband, she had started her own beauty parlour. She denied the suggestion that her husband was not earning Rs.30,000/- to Rs.35,000/- per month at the time of her death.
27. (i) As regards the income of deceased, learned counsel for respondent No.2/insurance company submitted that in absence of any documentary proof and considering the fact that deceased was not an income-tax payee, his income should be assessed that of a matriculate person on the basis of minimum wages applicable in the State of Delhi at the relevant time.
(ii) I am afraid, the said contention of learned counsel is without any basis. It is settled law that Motor Accident Claim Tribunal has to conduct an inquiry for Date of Decision: 20.09.2022 || Page 25 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) grant of compensation. The inquiry has to be conducted in respect of all the aspects involved in a compensation case, including the aspect of income of deceased. There is no doubt that in case of business persons or self-employed persons, the books of accounts are the best evidence and if the books of accounts are produced then there is no need for further evidence for proving the income and the Tribunal can infer income from the books of accounts. However, where a person indulges in a small business or is a self-employed person, like the deceased was in the instant case, and the family is not involved in his business activities and is not aware about his business affairs, the family can prove the income of deceased by indirect evidence. In the present case, it is not disputed that deceased was the sole earning member of the family. He had also employed a helper/assistant namely Arif, whom he used to pay salary. PW-1/wife of deceased has proved the monthly income of her husband by placing on record school fee receipts of her two children (Ex.PW9/8 to Ex.PW9/11) which were used to be borne by her deceased husband. As per Ex.PW9/9 and Ex.PW9/11, deceased had paid annual tuition fee @ Rs.38,640/-and Rs.33,120/- for the period from April' 2014 to March' 2015 in respect of his son Ishu (Class-IX) and daughter Ms.Riya (class VII) respectively. It is further apparent from the record that deceased had also been investing Rs.10,000/- per annum in Sahara Credit Co-operative Society (Certificate Ex.PW9/12); he was also maintaining motorcycle bearing registration No.DL-8SNB-7130 (RC Ex.PW9/13); he was also paying electricity, telephone, water charges etc and meeting household expenses. The deceased also stated to have purchased one residential property at village Alipur in joint name with one Sonu and stated to have paid his share of Rs.13,00,000/- (photocopies of Agreement to Sell, Receipt and Possession Letter marked as Mark B Colly-06 sheets). Though, there is no direct evidence available qua the income of deceased, however, from the material produced on record by PW-
Date of Decision: 20.09.2022 || Page 26 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) 9 (wife of deceased), there is no gainsaying that deceased was earning handsomely from his hair-dressing shop and maintaining a reasonable standard of living for his family. Preserving the existing standard of living of a deceased's family is a fundamental endeavour of motor accident compensation law. Accordingly, the monthly income of deceased as on the date and time of accident is computed as Rs.30,000/-. I am supported in my aforesaid view by the decision(s) rendered by Hon'ble High Court of Delhi in case reported as, "MAC.APP.No.274/2010", titled as, "New India Assurance Company Limited V/s Suminder Kaur & Ors." (DOD: 28.04.2010) and MAC APP.No.646-648/2005, titled as, "Surinder Kaur Chhabra & Ors. V/s Kusum & Ors.", (DOD: 05.12.2012).
28. (i) The next limb of arguments put forth by learned counsel for insurance company has been that PW-1/wife of deceased had duly admitted in her cross- examination that the hair-dresser shop is now being run by employee of deceased namely Arif and thus, it cannot be said that there has been complete loss of business. It is argued that in such a scenario, multiplier less than usual should be used. I am afraid, the aforesaid argument of the learned counsel is ex-facie erroneous for the simple reason that employee of deceased cannot take the place of deceased and the same at the most can be said to an exigent temporary arrangement. The dependents of the deceased are his widow, two children and his parents. Their dependency was upon the deceased and not on his so called employee. The assessment has to be on account of loss of dependency of deceased. In MAC APP.No.1092/2018, titled as, "Royal Sundaram General Insurance Co. Ltd. V/s ITI Goyal & Ors., DOD: 16.10.2019, somewhat similar issue was raised by the appellant, wherein it was pleaded that since the business of deceased was continued by his father, there was no loss of income or dependency for the claimants. While Date of Decision: 20.09.2022 || Page 27 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) rejecting the said contention of appellant, the Hon'ble High Court of Delhi has been pleased to observe as under:
xxxxx
2. The aforesaid argument of the appellant is ex-facie erroneous for the simple reason that for the father of the deceased to continue the business of the deceased is an exigent temporary arrangement. The dependents of the deceased are his widow and minor children. Their dependency was on the deceased and not on his father i.e. father-in-law and grand-father of the claimants, respectively.
The assessment has to be on account of the loss of dependency of the deceased. The father-in-law stepping in for support of the family is a temporary arrangement and he can never replace or take the place of the husband of the widow and the father of the children.
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(ii) Somewhat similar observations were made by Hon'ble High Court of Delhi in case reported as, "MAC.APP.No.23/2013, titled as, "Geeta & Ors. V/s Dinesh Chander & Ors.", DOD: 13.01.2015, wherein the Hon'ble Court has pleased to lay down as under:
xxxxx INCOME FROM BUSINESS:
6. The learned counsel for the Appellants referred to the judgment in Rukmani Devi & Ors. v. Om Prakash & Ors., Civil Appeal no.4608/1984 decided on 17.01.1990 whereby the Supreme Court set aside the order of the High Court whereby the compensation was reduced from Rs.1,25,000/- to Rs.48,000/- on the reasoning that the benefit from the business was still enuring for the benefit of the claimants. The Supreme Court held that there was no justification whatsoever to reduce the compensation in such case. It appears that Rukmani Devi was decided on its own facts. At the same time, it may be noted that the deceased was running a small business and even if the business is continued either Date of Decision: 20.09.2022 || Page 28 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) by the widow of the deceased or by the brother of the deceased or by employing other workers, it will be difficult to say that the loss will be only that of the wages of a skilled worker. In my view, in the peculiar circumstances of the case when the business was small, the loss of dependency ought to have been granted on the income of the deceased from the business.
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(iii) The story does not end here. In another judgment reported as, "MAC.APP.No.81/2013, titled as, "TATA AIG General Insurance Co.Ltd. V/s Bhavna Dhingra & Ors.", DOD: 20.03.2014, the Hon'ble High Court of Delhi has further been pleased to observe as under:
xxxxx
6. On the other hand, Mr. Uchit Bhandari, Ld. Counsel appearing on behalf of the claimants submits that PW1, Bhavna Dhigra, wife of the deceased, deposed that deceased was the sole bread earner of the family comprising of herself and two sons. The untimely demise of the deceased, due to the accident in question, has caused severe jolt in the family as she is left alone as a housewife and unable to cope up with the complex worthy affairs around. The elder son of the deceased just completed his CA, whereas his younger son who was pursuing MBA from Symbiosis Institute, Pune, suffered complete loss of his studies as he was compelled to abandon his studies in between in order to run the shop left by his deceased father. Since the deceased's younger son does not have much experience to run the shop, there has been severe loss of income. The family has suffered great loss on account of dependency as the deceased during his lifetime was commanding handsome income of not less than Rs.50,000/-
per month.
xxxxx Date of Decision: 20.09.2022 || Page 29 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(iv) In view of the law laid down in the aforesaid judgments by Hon'ble High Court, the contentions put forth by learned counsel for respondent No.2/ insurance company does not have elbow room to stand, same accordingly stands rejected.
29. (i) The learned counsel for the insurance company has further very vehemently argued that as per matriculation certificate (Ex.PW9/5), the Date of Birth (DOB) of deceased is 10.01.1975. The date of accident in the matter is 19.07.2015, meaning thereby that deceased was aged 40 years 06 months and 09 days as on the date of accident. Since the deceased was aged more than 40 years, as such multiplier of 14 should be taken in view of pronouncement made by Constitutional Bench of Apex Court in case titled as "Smt.Sarla Verma & Ors. V/s Delhi Transport Corporation & Anr." 2009 ACJ 1298 SC.
(ii) Per contra, learned counsel for the petitioners/claimants very vociferously argued that even if the deceased was aged 40 years 06 months and 09 days, then also multiplier of 15 is liable to be taken. In this regard, he has referred to the following judicial pronouncements:
(a) MAC APP.No.138/2012, titled as, "Oriental Insurance Company Limited V/s Shri Krishan & Ors.", decided by Hon'ble High Court of Delhi (Date of Decision: 13.10.2014) (paragraphs No.5 & 6 thereof);
(b) MAC APP.No.613/2012, titled as, "United India Insurance Company Limited V/s Smt.Neelam & Ors.", decided by Hon'ble High Court of Delhi (Date of Decision: 26.11.2015) (paragraph No.20 thereof);Date of Decision: 20.09.2022 || Page 30 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(c) MAC.APP.No.586/2017, titled as, "U.P State Road Transport Corporation V/s Rajan Raut & Anr.", decided by Hon'ble High Court of Delhi (Date of Decision: 22.08.2022) (paragraph No.34).
(iii) I have gone through the aforesaid judgments. The Hon'ble High while dealing with the question of multiplier in the said cases has been pleased to emphatically lay down as under:
(a) MAC APP.No.138/2012, (Submissions put forth by appellant/insurance company) titled as, "Oriental xxxxx Insurance Company 5. Learned counsel appearing for the appellant Insurance Company has made two submissions to Limited V/s Shri Krishan & impugn the Award. He firstly submits that the Ors.", decided by Hon'ble Tribunal while calculating loss of dependency has wrongly adopted the multiplier of 15. He submits High Court of that the deceased on the date of his death was 40 (paragraphs No.5 & 6) years and 10 months of age and hence, the multiplier keeping in view of the judgment of the Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 should be 14 and not 15.
6. For this proposition he also relies upon a judgment of this High Court dated 30.05.2012 passed in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Meenakshi & Ors. in MAC.APP. 1061/2011 where this court had held that for the age groups 20-21, 25-26, 30-31 and so on, the multiplier is silent. This court took the view that the multiplier has to be taken which is nearer to the relevant age meaning if a deceased was say aged 30 years and 8 months, the multiplier applicable to the age of 31 would apply.
Xxxxx Date of Decision: 20.09.2022 || Page 31 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) Findings of the Hon'ble High Court:
xxxxx
10. Accordingly, in my opinion it would not be appropriate for this Court to go into the merits of the submission made by learned counsel for the appellant on the issue of multiplier. The said contention is accordingly rejected.
xxxxx
(b) MAC APP.No.613/2012, xxxxx
20. As per the service book, the date of birth of the titled as, "United India deceased HC Shri Bhagwan is 30.01.1970. He Insurance Company suffered injuries on 01.11.2010 and succumbed to those injuries on 08.11.2010. Thus, at the time of his Limited V/s Smt.Neelam& death, he had not completed 41 years. The deceased Ors.", HC Shri Bhagwan has left behind six dependents and as per Sarla Verma's case (Supra), deduction (paragraph No.20) for personal and living expenses could be 1/4th , which has been done by the Tribunal and the multiplier to be applied, if the age of the deceased is between 36 to 40 years is '15'. If the age of the deceased is between 41 to 45 years, the multiplier applicable will be '14'. Here in this case, the deceased had not attained the age of 41 years at the time of his death, hence the learned Tribunal has rightly applied the multiplier of '15'.
xxxxx
(c) MAC.APP.No.586/2017, xxxxx
34. It is borne out from the records that the date of titled as, "U.P State Road birth of the claimant is 15.09.1948. Taking into Transport Corporation V/s account the date of birth, the claimant was 60 years 8 months and 1 day old on the date of accident i.e. Rajan Raut & Anr."
16.05.2009. As per the judgment passed by the (paragraph No.34) Hon'ble Supreme Court in the case of Sarla Varma & Ors. Vs DTC Vs Ors. reported in (2009) 6 SCC 121, the multiplier of 7 was applicable if the claimant was aged 61 to 65. In the present case the claimant has not attained the age of 61 and as Date of Decision: 20.09.2022 || Page 32 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) such the learned Tribunal has rightly applied the multiplier of 9.
xxxxx
(iv) In view of the law laid down by Hon'ble High Court in the aforesaid authorities, I do not find any substance in the submission of learned counsel for respondent No.2/insurance company on this account. Accordingly, multiplier of "15" is taken even if the deceased was aged about 40 years 06 months and 09 days as on the date of accident. That is also the mandate of pronouncement made by Constitutional Bench of Apex Court in case titled as "Smt.Sarla Verma & Ors. V/s Delhi Transport Corporation & Anr." 2009 ACJ 1298 SC.
30. Considering the fact that deceased was aged 40 years, 06 months and 09 days at the time of accident and was not having a permanent job at that time, future prospects @ 25% has to be awarded in favour of L.Rs of deceased/petitioners in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", Special Leave Petition (Civil) No.25590/2014, decided on 31.10.2017 as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.2017.
31. (i) Since, deceased Narender Kumar @ Anil was married and there are five claimants/dependents upon him (i.e, wife/petitioner No.1 + two children/petitioners No.2 & 3 + parents of deceased/petitioners No.4 & 5), there has to be deduction of one fourth (1/4), as held by the Hon'ble Supreme Court of India in case titled as "Smt.Sarla Verma & Ors. V/s Delhi Transport Corporation & Anr.", 2009 ACJ Date of Decision: 20.09.2022 || Page 33 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) 1298 SC. Thus, total loss of dependency would come out as under:
S.No. Head Amount Remarks
(Rs.)
(1) Monthly Income of deceased (A) 30,000.00 As per evidence produced on
record
(2) Add: Future prospects @ 25% (B) 7,500.00 25% of (A)
(3) Less: Personal expenses of deceased (C) 9,375.00 [(A) + (B)] / 4 = (C)
@ one fouth (1/4)
(4) Monthly loss of dependency (D) 28,125.00 [(A)+(B)] - (C) = (D)
(5) Annual Loss of dependency (E) 3,37,500.00 (D) x 12 = (E)
(6) Multiplier @ 15
(7) Total Loss of dependency (F) 50,62,500.00 (E) x 15 (multiplier) = (F)
Rounded Off to: 50,63,000.00
(ii) Calculating, the total loss of dependency other way also comes out to Rs.50,62,500.00 (Rs.30,000- x 3/4 x 125/100 x 12 x 15). Hence, a sum of Rs.50,63,000/- (rounded off) is awarded under this head in favour of the petitioners/L.Rs of deceased.
MEDICAL EXPENSES
32. (i) The accident in this case occurred on 19.07.2015, whereas deceased Narender Kumar @ Anil had expired on 06.09.2015. It is evident from the material produced on record by the L.Rs of deceased/petitioners that during this interregnum period of one month and eighteen days (7 weeks), they had left no stone unturned in providing best available medical treatment to the deceased which is apparent from the fact that deceased was taken to atleast four top notch hospitals (private and government) of the city. For ascertaining the medical expenses incurred on the treatment of deceased, we have to again revert back to the evidence PW- 9/Smt.Kamlesh (wife/widow of deceased) as also the testimonies of Medical Record Clerk(s)/doctors, called from the hospital(s) from where the deceased had taken medical treatment. PW-9/Smt.Kamlesh in her evidence has categorically stated that Date of Decision: 20.09.2022 || Page 34 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) on the date of accident (19.07.2015) itself, they had shifted the deceased from SRHC Hospital to Max Hospital at Shalimar Bagh, where he remained lying admitted till 21.07.2015. On 21.07.2015 deceased was shifted to G.B Pant Hospital, where he remained lying admitted till 02.09.2015. Thereafter, on 03.09.2015 deceased was admitted in St.Stephens' Hospital, Tis Hazari, where he remained lying admitted till 05.09.2015. In support of her aforesaid contentions, PW-9 has relied upon medical treatment record of her husband which has been proved on record as Ex.PW9/2 (Colly). Even otherwise, the period of hospitalization of deceased aforesaid has not at all be disputed by the respondent No.2/insurance company.
(ii) As regards the medical expenses, PW-9/Smt.Kamlesh (wife/widow of deceased) had categorically stated that she had incurred more than Rs.5,00,000/- on this account. However, the medical bills and receipts which have been proved on record by her in this regard as Ex.PW9/3 (Colly) coupled with list/chart of medical bills (Mark A Colly) are only to the tune of Rs.1,82,072.93 paise only. It is noted that besides giving formal suggestion to PW-9 that medical bills/receipts (Ex.PW9/3 Colly) are exaggerated ones, the authenticity thereof have not been questioned on other accounts by respondent No.2/insurance company. Mere giving formal suggestion of filing of exaggerated medical bills by PW-9 in this regard is neither here nor there. It was incumbent upon respondent No.2/insurance company to have led some evidence in rebuttal in support of its aforesaid contention, so as to create any doubt on the genuineness or otherwise of the medical bills, which it admittedly has failed to do so. Thus, the said contention is of no help to the respondent No.2/insurance company.
(iii) Furthermore, the following witnesses have also proved the medical treatment record, period of hospitalization, medical bills raised by them and Date of Decision: 20.09.2022 || Page 35 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) consequent payment made by the L.Rs of deceased/petitioners:
(a) PW-3 Shri Liazley Roburt This witness testified that the deceased was Illias, Medical Record Clerk admitted in St.Stephen's Hospital on 03.09.2015 from St.Stephen's Hospital, and discharged on 05.09.2015. He has proved Tis Hazari, Delhi. medical treatment record of deceased as Ex.PW3/1 (Colly). He has further proved the duplicate computerized bills and receipts in respect of deceased as Ex.PW3/2 (Colly) and stated that entire payment of medical bills, amounting to Rs.24,210/- was received in cash on behalf of said patient.
(b) PW-4, Shri Ajay Singh This witness stated that deceased was admitted in Rawat, Medical Record the said hospital on 19.07.2015 and discharged on Technician, Max Hospital, 21.07.2015. He has proved the medical treatment Shalimar Bagh record in respect of deceased as Ex.PW4/1 (Colly). He has further proved the duplicate computerized bills and receipts in respect of deceased as Ex.PW4/2 (Colly) and stated that entire payment of medical bills, amounting to Rs.1,43,395/- was received in cash on behalf of said patient.
(c) PW-5, Dr.Arun Koul, G.B This witness testified that deceased was admitted Pant Hospital in G.B Pant Hospital on 21.07.2015 and discharged on 02.09.2015. However, he clarified in his cross-examination that deceased never remained under his treatment.Date of Decision: 20.09.2022 || Page 36 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(iv) In view of the testimonies of aforesaid witnesses and the documents/medical bills proved by them on record, a sum of Rs.1,82,075/- (rounded off) (Rupees One Lakh Eighty Two Thousand Seventy Five Only) is awarded to the L.Rs of deceased/petitioners under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
33. During the course of arguments, learned counsel for the L.Rs of deceased/petitioners has very vehemently argued that petitioners have spent considerable amount on the special diet, conveyance and attendant charges for the deceased. Though, the L.Rs of deceased/petitioners have failed to lead any cogent evidence on record in respect of amount incurred by them under the aforesaid head, however, as discussed in the preceding paragraph, during the interregnum period, i.e from the date of accident (19.07.2015) till his demise on 06.09.2015, the deceased was shifted between four different hospitals. The period of hospitalization of deceased has not at all been disputed by the insurance company. Considering the serious nature of injuries suffered by the deceased vis-à-vis the period of hospitalization, it is clearly evident that he would have taken special rich protein diet for his speedy recovery and petitioners would have also incurred considerable amount towards conveyance charges while commuting for his regular check up & follow up during the period of his medical treatment. Furthermore, the deceased would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In case reported as, AIR 1981 Delhi 558, titled as, "DTC V/s Lalit", Hon'ble High Court of Delhi has been pleased to hold that victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services. In these facts and circumstances, I hereby award a Date of Decision: 20.09.2022 || Page 37 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) notional sum of Rs.30,000/- for conveyance charges and a sum of Rs.40,000/- for special diet and Rs.60,000/- for attendant charges to the L.Rs of deceased/petitioners.
LOSS OF LOVE & AFFECTION
34. After the celebrated judgment of "National Insurance Company Ltd. V/s Pranay Sethi & Ors. mentioned supra and recent judgment titled New India Assurance Company Limited versus Somwati & Ors., Civil Appeal no. 3093 of 2020 dated 07.09.2020 the petitioners are not entitled to be compensated under this head. Further, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other non-pecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF CONSORTIUM
35. In view of the judgment of Hon'ble Supreme Court in case titled as, "New India Assurance Company Limited V/s Somwati & Ors.", Civil Appeal No.3093 of 2020, dated 07.09.2020, I am of the considered opinion that the wife, two children and both the parents of deceased are entitled for payment of Rs.40,000/- each towards loss of consortium. Furthermore, as per judgment of Pranay Sethi (supra), the amount awarded under this Head should be enhanced @ 10% in every three years. This judgment was passed by Hon'ble Supreme Court on 31.10.2017. Consequently, a sum of Rs.40,000/-+Rs.4,000/- (10% of Rs.40,000/-) = Rs.44,000/- each to each petitioner is awarded under this head. Since, there are five L.Rs of deceased in MACP No.6036/2016, therefore, a total sum of Date of Decision: 20.09.2022 || Page 38 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) Rs.2,20,000/- (@Rs.44,000/- x 5 petitioners) is awarded to the petitioners under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
36. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs.15,000/-+Rs.1,500/- (enhancement @ 10% of Rs.15,000/-)=Rs.16,500/- each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
37. Thus, the total compensation (in MACP No.6036/2016/Old No.23/2016) is assessed as under:
S.No. Head Amount (Rs.)
(1) Loss of dependency 50,63,000.00
(2) Expenditure on medical expenses 1,82,075.00
(3) Conveyance + Special Diet + Attendant 1,30,000.00
Charges (@ Rs.30,000/-+Rs.40,000/-
+Rs.60,000/- respectively)
(2) Loss of Consortium (Rs.44,000/-x 5) 2,20,000.00
(3) Loss of Estate & Funeral Expenses 33,000.00
(Rs.16,500/- each)
TOTAL 56,28,075.00
(Rounded off to
Rs.56,28,100.00)
Date of Decision: 20.09.2022 || Page 39 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) Compensation in MACP No.6032/2016 (Old No.14/2016) Issue No.(2)
38. The assessment of damages in personal injury cases raise great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should be made. To assess compensation in personal injury cases arising out of rash and negligent driving of motor vehicle while awarding compensation the Hon'ble Supreme Court in the case "Sanjay Kumar V/s Ashok Kumar & Anr.", reported as "(2014) 5 SCC 330"
held the heads under which compensation is awarded , as follows:-
Pecuniary damages
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:-
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non pecuniary damages (General damage)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
39. In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is Date of Decision: 20.09.2022 || Page 40 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
40. Furthermore, in "Civil Appeal No.7603/2012", titled as, "K. Suresh V/s New India Assurance Company Ltd. and Anr." (DOD: 19.10.2012), the Hon'ble Supreme Court of India has been pleased to observe as under:
xxxxx
2...There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity the Act) stipulates that there should be grant of just compensation. Thus, it becomes a challenge for a court of law to determine just compensation which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance.
xxxxx
41. Applying the aforesaid principles, I now proceed on to assess the compensation to be awarded to the claimant/petitioner Shri Ram Chander.
MEDICAL EXPENSES
42. (i) Injured/petitioner Shri Ram Chander, who donned the witness box as PW-1 in the matter stated that after the accident on 19.07.2015, he was immediately removed to SRHC Hospital, where he was opined to have suffered "grievous injury" vide MLC Ex.PW1/4. Owing to the nature of injuries suffered by him, on Date of Decision: 20.09.2022 || Page 41 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) 19.07.2015 itself, he/PW-1 was referred/taken to Max Hospital, Shalimar Bagh, Delhi where he remained lying admitted till 21.07.2015. PW-1/injured Ram Chander further stated that on 21.07.2015 he was admitted in Navjeevan Hospital, Pitampura, Delhi and remained lying admitted therein till 03.08.2015. It has been the case of claimant/injured Ram Chander that he had incurred/spent more than Rs.5,00,000/- on his medical treatment, medicines, purchase of surgical equipments, x-ray, doctor's prescription, regular visits etc. He has proved on record copies of his medical treatment record as Ex.PW1/9 (Colly) and medical bills as Ex.PW1/10 (Colly). As per medical treatment record, PW-1/Ram Chander had suffered the following injuries:
(a) Fracture distal end radius compound (R);
(b) Fracture shaft femur right treated with ORIF with DC+BG fracture with
S/C femur (R);
(c) Fracture both bone leg (R) - compound;
(d) Treated with ORIF with interlocking nail - Tibia (R);
(e) Head injury -left parietal SDH;
(f) Abrasions and blunt injuries all over the body
(ii) Furthermore, the following witnesses have also proved the medical
treatment record, period of hospitalization and medical bills raised by them in respect of injured/claimant Ram Chander:
(a) PW-4, Shri Ajay Singh This witness testified that injured/claimant Ram Rawat, Medical Record Chander was admitted in the said hospital on Technician, Max Hospital, 19.07.2015 and discharged on 21.07.2015. He Shalimar Bagh has proved on record entire treatment record of said patient as Ex.PW4/3 (Colly) and duplicate Date of Decision: 20.09.2022 || Page 42 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) computerized medical bills as Ex.PW4/4 (Colly), amounting to Rs.1,06,493/-.
(b) PW-8, Shri Ashok Kumar, This witness stated that injured/claimant Ram Receptionist/X-Ray Chander was admitted in the said hospital on Technician, 21.07.2015 and discharged on 03.08.2015. He Navjeevan Hospital, has proved on record entire treatment record as Pitampura, Delhi. Ex.PW8/C (Colly) and medical bills & receipts amounting to Rs.2,20,520/- as Ex.PW8/D (Colly).
(iv) In cross-examination of PW-1 by insurance company, only formal suggestions were given to the effect that PW-1 had not incurred an amount of Rs.5,00,000/- on his medical treatment. Besides this, there is nothing on behalf of respondent(s) to question the authenticity of medical treatment and bills produced on record by claimant/injured/PW-1 as also by PW-4 and PW-8. In view of the testimonies of aforesaid witnesses and the documents/medical bills proved by them on record [i.e Ex.PW1/10 (Colly) + Ex.PW4/4 (Colly) + Ex.PW8/D (Colly)], a sum of Rs.4,53,376/- is awarded to claimant/injured Ram Chander for the medical expenses incurred by him towards treatment of his injuries suffered by him in the accident in question.
LOSS OF INCOME
43. It is matter of record that immediately, after the accident in question, injured/PW-1 was removed to SRHC Hospital, where he was opined to have suffered "grievous injury" vide MLC Ex.PW1/4. It is further a matter of record that owing to the nature of injuries suffered by him, on 19.07.2015 itself PW-1 was referred/taken to Max Hospital, Shalimar Bagh, Delhi where he remained lying Date of Decision: 20.09.2022 || Page 43 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) admitted till 21.07.2015. Thereafter, on 21.07.2015 he was admitted in Navjeevan Hospital, Pitampura, Delhi and he remained lying admitted therein till 03.08.2015. The grievous injuries suffered by him is clearly evident from medical treatment record(s) Ex.PW1/9 (Colly), Ex.PW4/3 (Colly) and Ex.PW8/C (Colly), which clearly reflects that his treatment continued for a considerable period of time. Even the relevant part of the testimony of PW-1 regarding the nature of his injuries suffered by him has gone unchallenged and uncontroverted from the side of respondents. Considering the nature of injuries sustained by injured/claimant/PW-1 and in view of the treatment record brought on record, it is presumed that he would not have been able to work at atleast for a period twelve months or so.
44. PW-1/Ram Chander in his evidence by way of affidavit (Ex.PW1/A) has categorically deposed that he was assisting his deceased son in the Hair Dresser Shop and earning Rs.10,000/- per month on the date of accident. However, during the course of arguments, it was fairly conceded by learned counsel for the injured/ claimant that for want of cogent evidence with regard to the exact avocation of monthly income of injured/petitioner Ram Chander, his income has to be assessed while taking the income of an unskilled worker under Minimum Wages Act, applicable in the state of Delhi during the relevant period. The accident in question took place on 19.07.2015 and the minimum wages of an unskilled worker in the state of Delhi during the relevant period was Rs.9,048/-. Accordingly, the monthly income of petitioner/injured at the time of accident is taken Rs.9,048/- per month. Thus, a sum of Rs.1,08,576/- (Rs.9,048/- x 12 months) is awarded in favour of petitioner/injured and against the respondents under this head.
Date of Decision: 20.09.2022 || Page 44 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) PAIN AND SUFFERING
45. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under:-
" It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
46. The medical treatment record [Ex.PW1/9 (Colly), Ex.PW4/3 (Colly) and Ex.PW8/C (Colly)] of injured/PW-1 clearly reflects that he had sustained grievous injuries, which are already mentioned in detail in preceding paragraph No.42. Apart from this, injured/PW-1 is also shown to have sustained 86% permanent disability in relation to his right lower limb as per Disability Certificate Ex.PW6/3 and as per the deposition of PW-6 Dr.Ashutosh Gupta, Specialist Orthopaedics, SRHC Hospital, same was not likely to improve in future and thus, his re-assessment was not recommended. Furthermore, the case of petitioner/injured was that of comminuted fracture right femur with comminuted fracture both bone leg with multiple vertebral fractures with fracture both bones forearm of right side. From the aforesaid injuries, it is clearly evident that he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner Date of Decision: 20.09.2022 || Page 45 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) available on record and the nature of injuries suffered by him, I hereby award a sum of Rs.2,00,000/- towards pain and sufferings to the petitioner/PW-1.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
47. As already mentioned above, there is sufficient evidence on record to establish that the petitioner/PW-1 had sustained grievous injuries. Apart from this, he is also shown to have sustained 86% permanent disability in relation to his right lower limb as per Disability Certificate Ex.PW6/3 and as per the deposition of PW-6 Dr.Ashutosh Gupta, Specialist Orthopaedics, SRHC Hospital, same was not likely to improve in future and thus, his re-assessment was not recommended. Thus, from the injuries sustained by PW-1, it is clearly evident that he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. Keeping in view the seriousness of the injuries suffered by the petitioner/injured in the accident and the mandate of Hon'ble Supreme Court, as observed in case of "Ankur Kapoor V/s Oriental Insurance Company Limited" [2017 XI AD (SC) 485], I award a notional sum of Rs.1,00,000/- towards loss of general amenities and enjoyment of life to the petitioner/PW-1.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
48. During the course of arguments, learned counsel for injured/claimant/PW-1 has very vehemently argued that he/his family members had considerable amount on the special diet, conveyance and attendant charges for him. Though, PW-1 has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid head, however, as discussed in the preceding paragraph(s), injured had remained admitted in different hospitals from the date of Date of Decision: 20.09.2022 || Page 46 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) accident (19.07.2015) till his discharge from Navjeevan Hospital, Pitampura. The period of hospitalization of injured/claimant/PW-1 has not at all been disputed by the insurance company. Considering the serious nature of injuries suffered by PW-1 vis-à-vis period of hospitalization, it is clearly evident that he would have taken special rich protein diet for his speedy recovery and petitioners would have also incurred considerable amount towards conveyance charges while commuting for his regular check up & follow up during the period of his medical treatment. Furthermore, the injured would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In case reported as, AIR 1981 Delhi 558, titled as, "DTC V/s Lalit", Hon'ble High Court of Delhi has been pleased to hold that victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services. In these facts and circumstances, I hereby award a notional sum of Rs.30,000/- for conveyance charges and a sum of Rs.40,000/- for special diet and Rs.60,000/- for attendant charges to the injured/PW-1.
LOSS OF FUTURE INCOME
49. (i) The petitioner/injured is shown to have sustained 86% permanent disability in relation to his right lower limb as per Disability Certificate Ex.PW6/3 and as per the deposition of PW-6 Dr.Ashutosh Gupta, Specialist Orthopaedics, SRHC Hospital, same was not likely to improve in future and thus, his re-assessment was not recommended. Furthermore, the case of petitioner/injured was that of comminuted fracture right femur with comminuted fracture both bone leg with multiple vertebral fractures with fracture both bones forearm of right side. PW-6/Dr.Ashutosh Gupta further deposed that injured/PW-1 would Date of Decision: 20.09.2022 || Page 47 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) have severe difficulty in climbing stairs, standing on affected leg, in squatting, in cross-leg sitting and kneeling. PW-6 further deposed that injured/claimant would also have moderate to severe difficulty in walking on plain surface, walking on slope and in taking turns.
(ii) Learned counsel for the petitioner/injured has prayed for taking the functional disability of PW-1 as 86% with relation to his whole body. In support of his aforesaid contention, learned counsel has relied upon judgments titled as, "Arjun & Ors. Vs. IFFCO Tokio General Insurance Co. Ltd." MAC Appeal No. 223/16, decided on 04.01.2018; "Reliance General Insurance Co. Ltd. V/s Malti Devi & Ors.", in MAC. APP. 572/2012, decided on 20.05.2015; "Bajaj Allianz General Insurance Co. Ltd. Vs. Shamim Akhtar & Anr." in MAC. APP. 616/2018 & C.Ms. 26742/2018, decided on 26.09.2018; and "Bajaj Allianz General Insurance Co. Ltd. Vs. Nasruddin & Ors.", in MAC. APP. 585/2012, decided on 28.05.2015, passed by Hon'ble High Court of Delhi. In the aforementioned judgments, Hon' ble High Court has taken the same percentage of permanent disability as functional disability of the petitioner in relation to whole body.
(iii) Per contra, learned counsel for Insurance Company has very vehemently argued that on account of his old age, petitioner/PW-1 is not entitled to any amount of loss of earning either present or future.
50. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner/PW-1 and the judgments relied by the learned counsel for petitioner, his functional disability is taken as 86% with regard to whole body. I am further supported in my aforesaid view on account of the findings rendered in judgment titled as, "U.P. State Road Trans. Corporation V/s Vibhor Fialok & Anr", passed by Hon'ble High Court of Delhi in Date of Decision: 20.09.2022 || Page 48 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) MAC Appeal Nos. 976 of 2017 and 585 of 2018, decided on 14.08.2018, the paragraph 11 in respect of functional disability taken by the Hon'ble High Court is reproduced as under:-
xxxxx " The assessment of permanent disability of the injured is on the basis of the disability certificate Exh. PW3/A, which has been duly proved on record by Dr. Lalit. PW3 and as per this disability certificate, the permanent disability suffered by the injured is 48 per cent in relation to right lower limb. The evidence of Dr. Lalit, PW3, who proved the disability certificate, Exh. PW3/A, remains unchallenged. In view thereof, there is no basis to re-assess the permanent disability of the injured. However, the Tribunal has assessed the functional disability of the injured while noting that the injured faces difficulty in walking and doing other routing work. Since the permanent disability of the injure is in relation to the right lower limb, therefore, the functional disability ought to be assessed at 48 per cent and not less"
xxxxx
51. PW-1/injured has proved on record copy of his Voter I-Card as Ex.PW1/1 (OSR), wherein his Date of Birth (DOB) is shown as 60 years as on 01.01.2008. Even in his cross-examination, PW-1 has stated that he was born in the year 1947. The date of accident in the matter is 19.07.2015. Even if the year of birth of PW-1/petitioner is taken 1947, it means that he was aged about more than 68 years on the date and time of accident. Hence, the appropriate multiplier would be "5" in view of judgment passed in case titled as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The monthly income of petitioner/PW-1 has been taken as Rs.9,078/- per month as discussed above. Thus, the loss of monthly future income would be Rs.7,781.28 paise (Rs.9,048/- x 86/100 ). The total loss of future income would be Rs.4,66,876.80 paise (Rs.7,781.28 x 12 x 5) (no future prospects added as aged about 68 years at the time of accident). Thus, a sum of Rs.4,67,000/-(rounded Date of Decision: 20.09.2022 || Page 49 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) off) is awarded in favour of petitioner/PW-1 under this head.
COST OF FUTURE MEDICAL TREATMENT/REMOVAL OF IMPLANT
52. (i) PW-7, Dr.R.K Sunkaria, MS (Ortho), Navjeevan Hospital, Pitampura, Delhi, who had treated the petitioner/injured in his evidence has categorically stated petitioner/PW-1 had suffered fracture supra condylar femur right and fracture both bone leg right with fracture lower end of radius with sub-dural hemorrhage. He further stated that patient was operated for fracture supra condylar femur with orif with dynamic condylar screw and orif with tibia interlocking nail for fracture both bone leg right lower limb. He further stated that patient would require removal of implant which would cost around Rs.80,000/- or so.
(ii) The learned counsel for respondent No.2/insurance company very vehemently argued that petitioner/injured has till date neither approached the hospital authorities for removal of said implants nor he has complained any problem in the implants and as such, no cost of future medical treatment on this account should be awarded to the petitioner/injured. I am afraid this argument is of no help to the insurance company. There is no guarantee that medical equipments will function rightly till the whole life. Even if the petitioner/injured has so far not approached the hospital authorities for removal of said implants, but that does not mean in the time to come he will not face any problem in the implants. It may happen that he becomes quite fit and does not feel necessity for said implants and go for their removal in future. As such, I do not find any substance in the submissions of learned counsel for respondent No.2/insurance company on this account. This Tribunal can take judicial notice of the cost of said implants also. PW-7/Dr.A.K Sunkaria has categorically stated the estimate/cost of removal of said implant to be Date of Decision: 20.09.2022 || Page 50 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) Rs.80,000/-. There is no dispute qua the cost to be incurred on removal of said implants. Accordingly, based upon the evidence of PW-7/Dr.A.K Sunkaria, a sum of Rs.80,000/- is awarded to the petitioner/injured under the said head for removal of implant.
53. Thus, the total compensation (in MACP No.6032/2016/Old No.14/2016) is assessed as under:
S.No. Head Amount (Rs.)
(1) Expenditure on medical expenses 4,53,376.00
(2) Loss of Income (Rs.9,048/- x 12 months) 1,08,576.00
(3) Pain & Suffering 2,00,000.00
(4) Loss of General Amenities & Enjoyment of 1,00,000.00
life
(5) Conveyance, Special Diet & Attendant 1,30,000.00
Charges (@Rs.30,000/-+Rs.40,000/-
+Rs.60,000)
(6) Loss of future income 4,67,000.00
(7) Cost of future medical treatment/removal of 80,000.00
implants
T O TAL 15,38,952/-
Rounded Off to:
15,39,000.00
Compensation in MACP No.6031/2016 (Old No.15/2016) Issue No.(2) MEDICAL EXPENSES
54. (i) Injured/petitioner Shri Devender Kumar, who donned the witness box as PW-2 in the matter stated that after the accident on 19.07.2015, he was Date of Decision: 20.09.2022 || Page 51 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) immediately removed to SRHC Hospital, where he was opined to have suffered "grievous injury" vide MLC Ex.PW2/4. Owing to the nature of injuries suffered by him, on 20.07.2015, he/PW-2 was referred/taken to Max Hospital, Shalimar Bagh, Delhi where he remained lying admitted till 21.07.2015. PW-1/injured Devender Kumar further stated that on 21.07.2015 he was admitted in Navjeevan Hospital, Pitampura, Delhi and remained lying admitted therein till 03.08.2015. It has been the case of claimant/injured Devender Kumar that he had incurred/spent more than Rs.5,00,000/- on his medical treatment, medicines, purchase of surgical equipments, x-ray, doctor's prescription, regular visits etc. He has proved on record copies of his medical treatment record as Ex.PW2/9 (Colly) and medical bills as Ex.PW2/10 (Colly). As per medical treatment record, PW-2/Devender Kumar had suffered the following injuries:
(a) Fracture Comm. Shaft Femur (right) - treated with ORIF;
(b) Fracture right clavicle;
(c) Basi Cervical Fracture neck of femur right;
(d) Fracture of C5 C6, sub-arachoid haemorrhage;
(e) Fracture of cervicotro-chantric;
(f) Abrasions and blunt injuries all over the body
(ii) Furthermore, the following witnesses have also proved the medical
treatment record, period of hospitalization and medical bills raised by them in respect of injured/claimant Devender Kumar:
(a) PW-4, Shri Ajay Singh This witness testified that injured/claimant Rawat, Medical Record Devender Kumar was admitted in the said Technician, Max Hospital, hospital on 20.07.2015 and discharged on Shalimar Bagh 21.07.2015. He has proved on record attested true Date of Decision: 20.09.2022 || Page 52 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr.
MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) copy of entire medical treatment record of said patient as Ex.PW4/5 (Colly) and duplicate computerized medical bills and receipts as Ex.PW4/6 (Colly), amounting to Rs.61,629.60 paise.
(b) PW-8, Shri Ashok Kumar, This witness stated that injured/claimant Ram Receptionist/X-Ray Chander was admitted in the said hospital on Technician, 21.07.2015 and discharged on 03.08.2015. He Navjeevan Hospital, has proved on record entire treatment record as Pitampura, Delhi. Ex.PW8/B (Colly). He further stated that entire payment of bill amounting to Rs.2,04,390/- was paid in cash.
(iv) In cross-examination of PW-1 by insurance company, only formal suggestions were given to the effect that PW-2 had not incurred an amount of Rs.5,00,000/- on his medical treatment. Besides this, there is nothing on behalf of respondent(s) to question the authenticity of medical treatment and bills produced on record by claimant/injured/PW-2 as also by PW-4 and PW-8. In view of the testimonies of aforesaid witnesses and the documents/medical bills proved by them on record [i.e Ex.PW2/10 (Colly) + Ex.PW4/6 (Colly)], a sum of Rs.3,67,069.27 paise (rounded off to: Rs.3,68,000/-) is awarded to claimant/injured Devender Kumar for the medical expenses incurred by him towards treatment of his injuries suffered by him in the accident in question.
LOSS OF INCOME
55. It is matter of record that immediately, after the accident in question, injured/PW-2 was removed to SRHC Hospital, where he was opined to have Date of Decision: 20.09.2022 || Page 53 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) suffered "grievous injury" vide MLC Ex.PW2/4. It is further a matter of record that owing to the nature of injuries suffered by him, on 20.07.2015 PW-2 was referred/taken to Max Hospital, Shalimar Bagh, Delhi where he remained lying admitted till 21.07.2015. Thereafter, on 21.07.2015 he was admitted in Navjeevan Hospital, Pitampura, Delhi and he remained lying admitted therein till 03.08.2015. The grievous injuries suffered by him is clearly evident from medical treatment record(s) Ex.PW2/9 (Colly), Ex.PW4/5 (Colly) and Ex.PW8/B (Colly), which clearly reflects that his treatment continued for a considerable period of time. Even the relevant part of the testimony of PW-2 regarding the nature of his injuries suffered by him has gone unchallenged and uncontroverted from the side of respondents. Considering the nature of injuries sustained by injured/claimant/PW-2 and in view of the treatment record brought on record, it is presumed that he would not have been able to work at atleast for a period twelve months or so.
56. PW-2/Devender Kumar in his evidence by way of affidavit (Ex.PW2/A) has categorically deposed that he was doing job of pest control and earning about Rs.25,000/- to Rs.30,000/- per month. However, no documentary evidence in this regard has been proved on record on behalf of PW-2/injured. Be that as it may, during the course of arguments, while submitting Form XIV (V-B) on behalf of injured/PW-2, learned counsel has also placed on record copies of his 10 th, 12th class passout marksheets as also copy of Diploma Certificate, which signifies that PW-2 had passed "Diploma in Medical Lab Technology" from "Vinayaka Missions University", Salem, Tamil Nadu (through distance education) with "first class" in the year 2012, i.e three years prior to the date of accident in the matter. This Tribunal can very well take judicial notice of the said documents, considering the fact that Motor Vehicles Act is a beneficial piece of legislation. In view of the Date of Decision: 20.09.2022 || Page 54 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) above, the income of PW-2 has to be assessed while taking the income of "skilled worker" under Minimum Wages Act, applicable in the state of Delhi during the relevant period. The accident in question took place on 19.07.2015 and the minimum wages of a skilled worker in the state of Delhi during the relevant period was Rs.10,998/-. Accordingly, the monthly income of petitioner/injured at the time of accident is taken Rs.10,998/- per month. Thus, a sum of Rs.1,31,976/- (Rs.10,998/- x 12 months) is awarded in favour of petitioner/injured and against the respondents under this head.
PAIN AND SUFFERING
57. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under:-
"It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
58. The medical treatment record [Ex.PW2/9 (Colly), Ex.PW4/5 (Colly) and Ex.PW8/B (Colly)] of injured/PW-2 clearly reflects that he had sustained grievous injuries, which are already mentioned in detail in preceding paragraph(s). Apart from this, injured/PW-2 is also shown to have sustained 41% permanent Date of Decision: 20.09.2022 || Page 55 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) disability in relation to his right lower limb as per Disability Certificate Ex.PW6/1 and as per the deposition of PW-6 Dr.Ashutosh Gupta, Specialist Orthopaedics, SRHC Hospital, same was not likely to improve in future and thus, his re-assessment was not recommended. Furthermore, the case of petitioner/PW-2 was found to be of fracture shaft femur right side with fracture clavicle right side. From the aforesaid injuries, it is clearly evident that he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner/PW-2 available on record and the nature of injuries suffered by him, I hereby award a sum of Rs.2,00,000/- towards pain and sufferings to the petitioner/PW-2.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
59. As already mentioned above, there is sufficient evidence on record to establish that the petitioner/PW-2 had sustained grievous injuries. Apart from this, he is also shown to have sustained 41% permanent disability in relation to his right lower limb as per Disability Certificate Ex.PW6/1 and as per the deposition of PW-6 Dr.Ashutosh Gupta, Specialist Orthopaedics, SRHC Hospital, same was not likely to improve in future and thus, his re-assessment was not recommended. Furthermore, the case of petitioner/PW-2 was found to be of fracture shaft femur right side with fracture clavicle right side. Thus, from the injuries sustained by PW-2, it is clearly evident that he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. Keeping in view the seriousness of the injuries suffered by the petitioner/injured in the accident and the mandate of Hon'ble Supreme Court, as observed in case of "Ankur Kapoor V/s Oriental Insurance Company Limited" [2017 XI AD (SC) 485], I award a notional sum of Date of Decision: 20.09.2022 || Page 56 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) Rs.1,00,000/- towards loss of general amenities and enjoyment of life to the petitioner/PW-2.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
60. During the course of arguments, learned counsel for injured/claimant/PW-2 has very vehemently argued that he/his family members had considerable amount on the special diet, conveyance and attendant charges for him. Though, PW-2 has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid head, however, as discussed in the preceding paragraph(s), injured had remained admitted in different hospitals from the date of accident (19.07.2015) till his discharge from Navjeevan Hospital, Pitampura. The period of hospitalization of injured/claimant/PW-2 has not at all been disputed by the insurance company. Considering the serious nature of injuries suffered by PW-2 vis-à-vis period of hospitalization, it is clearly evident that he would have taken special rich protein diet for his speedy recovery and petitioner would have also incurred considerable amount towards conveyance charges while commuting for his regular check up & follow up during the period of his medical treatment. Furthermore, the injured would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In case reported as, AIR 1981 Delhi 558, titled as, "DTC V/s Lalit", Hon'ble High Court of Delhi has been pleased to hold that victim is entitled to compensation even if no attendant is hired as some family member renders gratuitous services. In these facts and circumstances, I hereby award a notional sum of Rs.30,000/- for conveyance charges and a sum of Rs.40,000/- for special diet and Rs.60,000/- for attendant charges to the injured/PW-2.
Date of Decision: 20.09.2022 || Page 57 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) LOSS OF FUTURE INCOME
61. (i) The petitioner/injured is shown to have sustained 41% permanent disability in relation to his right lower limb as per Disability Certificate Ex.PW6/1 and as per the deposition of PW-6 Dr.Ashutosh Gupta, Specialist Orthopaedics, SRHC Hospital, same was not likely to improve in future and thus, his re-assessment was not recommended. Furthermore, the case of petitioner/PW-2 was found to be of fracture shaft femur right side with fracture clavicle right side. PW-6/Dr.Ashutosh Gupta further deposed that injured/PW-2 would have mild difficulty in walking on plain surface and on slope, in standing on both legs, in cross-leg sitting, in kneeling and turnings. He/PW-2 further would have moderate difficulty in climbing stairs and standing on affected leg and severe difficulty in squatting.
(ii) Learned counsel for the petitioner/injured has prayed for taking the functional disability of PW-1 as 41% with relation to his whole body. In support of his aforesaid contention, learned counsel has relied upon judgments titled as, "Arjun & Ors. Vs. IFFCO Tokio General Insurance Co. Ltd." MAC Appeal No. 223/16, decided on 04.01.2018; "Reliance General Insurance Co. Ltd. V/s Malti Devi & Ors.", in MAC. APP. 572/2012, decided on 20.05.2015; "Bajaj Allianz General Insurance Co. Ltd. Vs. Shamim Akhtar & Anr." in MAC. APP. 616/2018 & C.Ms. 26742/2018, decided on 26.09.2018; and "Bajaj Allianz General Insurance Co. Ltd. Vs. Nasruddin & Ors.", in MAC. APP. 585/2012, decided on 28.05.2015, passed by Hon'ble High Court of Delhi. In the aforementioned judgments, Hon' ble High Court has taken the same percentage of permanent disability as functional disability of the petitioner in relation to whole body.
Date of Decision: 20.09.2022 || Page 58 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(iii) Per contra, learned counsel for Insurance Company has very vehemently argued that on account of the injuries suffered by PW-2, his disability may be taken as ½ in relation to the whole body.
62. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner/PW-2 and the judgments relied by the learned counsel for petitioner, his functional disability is taken as 41% with regard to whole body. I am further supported in my aforesaid view on account of the findings rendered in judgment titled as, "U.P. State Road Trans. Corporation V/s Vibhor Fialok & Anr", passed by Hon'ble High Court of Delhi in MAC Appeal Nos. 976 of 2017 and 585 of 2018, decided on 14.08.2018, the paragraph 11 in respect of functional disability taken by the Hon'ble High Court is reproduced as under:-
xxxxx " The assessment of permanent disability of the injured is on the basis of the disability certificate Exh. PW3/A, which has been duly proved on record by Dr. Lalit. PW3 and as per this disability certificate, the permanent disability suffered by the injured is 48 per cent in relation to right lower limb. The evidence of Dr. Lalit, PW3, who proved the disability certificate, Exh. PW3/A, remains unchallenged. In view thereof, there is no basis to re-assess the permanent disability of the injured. However, the Tribunal has assessed the functional disability of the injured while noting that the injured faces difficulty in walking and doing other routing work. Since the permanent disability of the injure is in relation to the right lower limb, therefore, the functional disability ought to be assessed at 48 per cent and not less"
xxxxx Date of Decision: 20.09.2022 || Page 59 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
63. The Date of Birth (DOB) of injured/PW-2, as reflected in copy 10th class/matriculation certificate (copy of which was annexed with Form-XIV (VI-B)) is 10.07.1987. The date of accident in the matter is 19.07.2015. Therefore, injured/PW-2 was aged about 28 years as on the date and time of accident. Hence, the appropriate multiplier would be "17" in view of judgment passed in case titled as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The monthly income of petitioner/PW-2 has been taken as Rs.10,998/- per month as discussed above. Thus, the loss of monthly future income would be Rs.4,509.18 paise (Rs.10,998/- x 41/100). The total loss of future income would be Rs.12,87,821.18 paise (Rs.4,509.18/- x 140/100 x 12 x 17). Thus, a sum of Rs.12,88,000/- (rounded off) is awarded in favour of petitioner/PW-2 under this head.
COST OF FUTURE MEDICAL TREATMENT/REMOVAL OF IMPLANT
64. (i) PW-7, Dr.R.K Sunkaria, MS (Ortho), Navjeevan Hospital, Pitampura, Delhi, in his evidence has categorically stated petitioner/PW-2 had sustained injury with fracture shaft of femur right with fracture neck of femur. Furthermore, as per document/estimate (Ex.PW2/15) for removal of implant, which was prepared by PW-7 himself and bearing his signatures at point A, a sum of Rs.60,000/- would be required for removal of implant from inured/PW-
2.
(ii) The learned counsel for respondent No.2/insurance company very vehemently argued that petitioner/injured has till date neither approached the hospital authorities for removal of said implant(s) nor he has complained any problem in the implants and as such, no cost of future medical treatment on this account should be awarded to the petitioner/injured. I am afraid this argument is of no help to the insurance company. There is no guarantee that medical equipments Date of Decision: 20.09.2022 || Page 60 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) will function rightly till the whole life. Even if the petitioner/injured has so far not approached the hospital authorities for removal of said implants, but that does not mean in the time to come he will not face any problem in the implants. It may happen that he becomes quite fit and does not feel necessity for said implants and go for their removal in future. As such, I do not find any substance in the submissions of learned counsel for respondent No.2/insurance company on this account. This Tribunal can take judicial notice of the cost of said implant also. There is no dispute qua the cost to be incurred on removal of said implant. Accordingly, based upon the evidence of PW-7/Dr.A.K Sunkaria, a sum of Rs.60,000/- is awarded to the petitioner/injured/PW-2 under the said head for removal of implant.
65. Thus, the total compensation (in MACP No.6031/2016/Old No.15/2016) is assessed as under:
S.No. Head Amount (Rs.)
(1) Expenditure on medical expenses 3,68,000.00
(2) Loss of Income (Rs.10,998/- x 12 months) 1,31,976.00
(3) Pain & Suffering 2,00,000.00
(4) Loss of General Amenities & Enjoyment of 1,00,000.00
life
(5) Conveyance, Special Diet & Attendant 1,30,000.00
Charges (@Rs.30,000/-+Rs.40,000/-
+Rs.60,000)
(6) Loss of future income 12,88,000.00
(7) Cost of future medical treatment/removal of 60,000.00
implants
T O TAL 22,77,976.00
Rounded Off to:
22,78,000.00
Date of Decision: 20.09.2022 || Page 61 of 68
MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
66. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. It is a matter of record that offending vehicle, i.e car (Hyundai i10 Magna) bearing registration No.DL- 2CAM-2228 was found lying insured with respondent No.2/Bajaj Allianz General Insurance Company Limited vide Policy No.OG-15-1146-1801- 00000871 for the period from 04.02.2015 to 03.02.2016. It is nowhere the case of insurance company that any term or condition of the insurance policy was breached/violated by the insured. Keeping in view the existence of valid insurance policy and valid Driving Licence of respondent No.1 as on the date and time of accident, respondent No.2/insurance company is liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue No.2 in all the aforesaid three petitions is decided accordingly.
ISSUE No.3: RELIEF
67. In view of my findings on issues No.1 & 2 (in all the three aforesaid petitions), I hereby award the compensation as under:
(i) In MACP No.6036/2016 (Old No.23/2016); I award compensation of Rs.56,28,100/- (including Interim Award, if any) alongwith interest @ 9% per annum in favour of petitioners/LRs of deceased Narender Kumar @ Anil and against the respondents w.e.f the date of filing of the petition, i.e. 07.01.2016 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
(ii) In MACP No.6032/2016 (Old No.14/2016); I award compensation of Rs.15,39,000/- (including Interim Award, if any) alongwith interest @ 9% per annum in favour of injured/petitioner Shri Ram Chander and against the Date of Decision: 20.09.2022 || Page 62 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) respondents w.e.f the date of filing of the petition, i.e. 07.01.2016 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
(iii) In MACP No.6031/2016 (Old No.15/2016); I award compensation of Rs.22,78,000/- (including Interim Award, if any) alongwith interest @ 9% per annum in favour of injured/petitioner Devender Kumar and against the respondents w.e.f the date of filing of the petition, i.e. 07.01.2016 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016).
APPORTIONMENT In MACP No.6036/2016 (Old No.23/2016)
68. The statements of L.Rs of deceased/petitioners in terms of Clause 29 MCTAP was recorded on 31.05.2022. Having regard to the facts and circumstances of the case, it is hereby ordered that out of total compensation amount, the petitioner No.1/Smt.Kamlesh shall be entitled to share amount of Rs.30,28,100/- (Rupees Thirty Lakhs Twenty Eight Thousand One Hundred Only) alongwith proportionate interest; petitioners No.2 and 3 namely Shri Ishu and Ms.Riya (son and daughter of deceased respectively, who both have now attained the age of majority) shall be entitled to share amount of Rs.8,00,000/- (Rupees Eight Lakhs Only) each alongwith proportionate interest; petitioner No.4 and 5 namely Shri Ram Chander and Smt.Santosh Devi (father and mother respectively of deceased) shall be entitled to share amount of Rs.5,00,000/- (Rupees Five Lakhs Only) each alongwith proportionate interest.
Date of Decision: 20.09.2022 || Page 63 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
69. Out of share amount of petitioner No.1/Smt.Kamlesh, a sum of Rs.8,28,100/- (Rupees Eight Lakhs Twenty Eight Thousand One Hundred Only) shall be immediately released to her in her MACT Saving Bank Account No.40583098923, State Bank of India, Alipur Branch, having IFSC Code SBIN0017884 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.50,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
70. Out of share amount of petitioner No.2/Shri Ishu, a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) shall be immediately released to him in his MACT Saving Bank Account No.40583098593, State Bank of India, Alipur Branch, having IFSC Code SBIN0017884 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.20,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
71. Out of share amount of petitioner No.3/Ms.Riya, a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) shall be immediately released to her in her MACT Saving Bank Account No.40583089941, State Bank of India, Alipur Branch, having IFSC Code SBIN0017884 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.20,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
72. Out of share amount of petitioner No.4/Shri Ram Chander, a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) shall be immediately released to him in Date of Decision: 20.09.2022 || Page 64 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) his MACT Saving Bank Account No.40583089260, State Bank of India, Alipur Branch, having IFSC Code SBIN0017884 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.20,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
73. Out of share amount of petitioner No.5/Smt.Santosh Devi, a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) shall be immediately released to her in her MACT Saving Bank Account No.40882502543, State Bank of India, Alipur Branch, having IFSC Code SBIN0017884 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.20,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
In MACP No.6032/2016 (Old No.14/2016)
74. The statement injured/petitioner Ram Chander in terms of Clause 29 MCTAP was recorded on 31.05.2022. Having regard to the facts and circumstances of the case, it is hereby ordered that out of total compensation amount, a sum of Rs.5,00,000/- (Rupees Five Lakhs Only) shall be immediately released to him in his MACT Saving Bank Account No.40583089260, State Bank of India, Alipur Branch, having IFSC Code SBIN0017884 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.20,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
Date of Decision: 20.09.2022 || Page 65 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) In MACP No.6031/2016 (Old No.15/2016)
75. The statement injured/petitioner Devender Kumar in terms of Clause 29 MCTAP was recorded on 31.05.2022. Having regard to the facts and circumstances of the case, it is hereby ordered that out of total compensation amount, a sum of Rs.8,78,000/- (Rupees Eight Lakhs Seventy Eight Thousand Only) shall be immediately released to him in his MACT Saving Bank Account No.40583099201, State Bank of India, Alipur Branch, having IFSC Code SBIN0017884 and the remaining amount alongwith interest is directed to be kept in the form of FDRs in the multiples of Rs.50,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
76. All the FDRs to be prepared as per aforesaid directions, shall be subject to the 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 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 pre-mature discharge be allowed on the fixed deposits without permission of the Court.
Date of Decision: 20.09.2022 || Page 66 of 68MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur)
(f) The concerned bank shall not 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.
(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 alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
77. Respondent No.2/Bajaj Allianz General Insurance Company Limited, being insurer of offending vehicle, is directed to deposit the award amount aforesaid with State Bank of India (SBI), Rohini Courts Branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective amounts in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date Date of Decision: 20.09.2022 || Page 67 of 68 MACP No.6036/2016 (Old No.23/2016): Smt.Kamlesh & Ors. V/s Satbir Singh & Anr. MACP No.6032/2016 (Old No.14/2016): Ram Chander V/s Satbir Singh & Anr. MACP No.6031/2016 (Old No.15/2016): Devender Kumar V/s Satbir Singh & Anr.
(FIR No.639/2015: PS Alipur) of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XV, XVI & XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award be placed on the judicial record of MAC Petition No.6036/2016 (Old No.23/2016); MAC Petition No.6032/2016 (Old No.14/2016); and MAC Petition No.6031/2016 (Old No.15/2016), as per rules.
Announced in the open Court on 20.09.2022 (VINOD YADAV) Judge MACT-2 (North) Rohini Courts, Delhi Certified that above award contains 68 pages and each page is signed by me.
(VINOD YADAV) Judge MACT-2 (North) Rohini Courts, Delhi Date of Decision: 20.09.2022 || Page 68 of 68