Delhi District Court
Kuldeepak Srivastava vs Amit Nehra on 6 May, 2024
:1:
IN THE COURT OF MS. CHARU GUPTA
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS
TRIBUNAL-01 (SE), SAKET COURTS : NEW DELHI
MACT No.: 1011/17
Kuldeepak Srivastava v. Amit Nehra
CNR No.: DLSE01-00-9550-2017
1. Kuldeepak Srivastava
S/o Sh. Sharda Prasad Srivastava
R/o 2311,Vevek Nagar,
Sultanpur, U.P.228001.
.....Petitioner
Versus
1. Amit Nehra
S/o Maha Singh Nehra
R/o 1135,G.F. Sector-29,
Faridabad, Haryana.
............Driver/Respondent no.1
2. Mahasingh Nehra R/o 895, Sector-29, Faridabad, Haryana.
............Owner/Respondent no.2
3. SBI General Insurance Co. Ltd.
2nd Floor, DDA Building Vardhman Trade Center Nehru Place, New Delhi-110019.
......Insurance Company/Respondent no.3 Date of accident : 09.04.2017 Date of filing of Petition : 20.12.2017 MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 1 Of 28 BK :2: Date of Decision : 06.05.2024 AWARD
1. The present claim petition arises out of road accident that occurred on 09.04.2017, in which the petitioner allegedly suffered grievous injury.
2. The brief facts of the case are that on 09.04.2017, at about 11 PM, petitioner alongwith two other passengers was going from Batkal Mor to Old Faridabad, Haryana in an auto-rickshaw bearing registration no. HR-38T-7858. The auto-rickshaw was being driven by the driver at a normal speed with due care and obeying traffic rules. As the auto-rickshaw in which petitioner was travelling proceeded to its destination, all of a sudden, offending vehicle i.e. an SUV (TATA Safari) bearing registration no. HR-51A-H-7086 came in a rash and negligent manner at a very high speed and collided with auto-rickshaw leading to death of the auto driver and grievous injuries to the passengers including the petitioner. Thereafter, petitioner was removed to Sarvodya hospital at Old Faridabad where his MLC was prepared. Further, Medical Board of Pt. Madan Mohan Malviya hospital assessed disability of the petitioner noticing physical impairment of 82% in relation to his both lower limbs.
3. An FIR no.182/2017 dated 10.04.2017 was registered u/s 279/337/304A of IPC at PS Sector-31, Old Faridabad, Haryana and the matter was investigated. After investigation a charge sheet was filed before concerned Ld. MM in which Section 338 IPC was also inserted.
4. Respondent no.1 is driver, Respondent no.2 is owner of the MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 2 Of 28 BK :3: offending vehicle and Respondent no.3 is the insurance company with which such offending vehicle was insured.
5. In response to the claim petition, Respondent no.1 and 2 filed their reply denying allegations made in the claim petition. Though the accident has not been denied, it has been refuted that the accident occurred due to rash and negligent driving by the Respondent no.1. It is pleaded that it is the auto-rickshaw HR- 38T-7858 which was being driven in a rash and negligent manner due to which its passengers including the petitioner suffered injury and its driver died. It is pleaded that the claim of the petitioner is also exaggerated.
6. In its reply filed by Respondent no.3, occurrence of the accident as well as rash or negligent driving by Respondent no.1 has been denied. It is pleaded that the auto-rickshaw in which petitioner was travelling was in fact being driven in rash and negligent manner at a high speed and it is owing to the sole negligence of driver of such auto-rickshaw that the accident occurred. It is pleaded that such auto-rickshaw was being driven without its driver holding a valid driving licence. It is also pleaded that the petition is bad for non-joinder of the owner of the auto-rickshaw and its insurer. Respondent no.2 has assailed the territorial jurisdiction of this Tribunal on the ground that neither the accident occurred in Delhi nor does the petitioner or Respondent no.1 or 2 reside in Delhi. It is submitted that even Respondent no.3 has only its branch office at Delhi. However, there is no denial that the offending vehicle was insured with Respondent no.3 vide policy no. 0000000004335376 issued for the period from 13.04.2016 to 12.04.2017.
MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 3 Of 28 BK :4:
7. After completion of pleadings, following issues were framed on 16.04.2018.
1. Whether injured Kuldeep Srivastav suffered injuries in a road accident dated 09.04.2017 involving vehicle no.HR-51AH-7086 driven by R-1,owned by R-2 and insured with R-3 due to rash and negligent driving of R-1? OPP.
2. Whether this court has territorial jurisdiction to try and entertain the present case? OPP.
3. Whether claimant is entitled to any compensation, if so, to what extent and from whom? OPP.
4. Relief.
8. Thereafter, evidence was led by the petitioner by examining himself as PW-1 and one Harpal Singh (from the office of employer) as PW-2.
PW-1/petitioner Sh. Kuldeepak Srivastava led his evidence by way of affidavit Ex.PW1/A wherein he reiterated the factum of accident and stated that due to the impact of the accident, he sustained multiple grievous injuries such as RTI with Grade-5 liver injury, right adrenal hematoma, right patellar comminuted, B/B both lower limb etc. as detailed in MLC and treatment record of Sarvodya hospital, Faridabad. He stated that he then shifted to JPN Apex Trauma Center, Delhi due to his serious condition while the driver of the auto was declared dead. He deposed that FIR no.182/17 was got registered by a close relative of the deceased auto driver. He deposed that Respondent no.1 was driving the offending vehicle at a high speed, in a rash and negligent manner. He testified that he had spent more than Rs.6 lacs on his treatment and transportation, Rs.3,50,000/- on special MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 4 Of 28 BK :5: diet and Rs.4 lac approximately on dressing suggested by doctors. He has stated that he was completely bed ridden and therefore had to hire an attendant at a salary of Rs.10,000/- per month from date of accident till date for carrying out his routine works. It is submitted that due to severe leg injury, he had to arrange for a flat at ground floor and has paid Rs.6 lac since April, 2017 till March, 2021. PW-1 deposed that he was working as a Assistant Manager in Quality Assurance department of Poly Medicure Ltd., Ballabhgarh, Faridabad since 2004 on a monthly salary of Rs.39,218/- p.m. at the time of accident. He stated to have received 60% disability in relation to non-union of both bones of his right leg.
He has further relied upon his Aadhar card, PAN Card and Academic documents as Ex.PW-1/1(colly), employment proof including salary slip, bank account statement, increment letters issued by employer as Ex.PW-1/2(colly), MLC and treatment record as Ex.PW-1/3(colly), disability certificate issued by Chief Medical Officer, Sultanpur dated 01.02.2021, noticing 60% disability in relation to non-union of both bones of his right leg as Ex.PW-1/4, original medical bills as Ex.PW-1/5, copy of room and receipts Mark-A, FIR Ex.PW-1/6, driving licence of driver of offending vehicle as Ex.PW-1/7, RC of offending vehicle as Ex.PW-1/8, insurance policy as Ex.PW-1/9, site plan Ex.PW- 1/10, statement of petitioner as Ex.PW-1/11 and chargesheet as Ex.PW-1/12. PW-1 was duly cross examined by Ld. Counsel for Respondent no.3 and adopted by Ld. Counsel for Respondent no.1&2.
Subsequent, PW-1 also tendered his additional evidence MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 5 Of 28 BK :6: by way of affidavit Ex.PW-1/B wherein he relied upon documents i.e. Notice issued to him by State Bank of India as Ex.PW-1/13, TDS/Form 26AS as Ex.PW-1/14, Medical bills as Ex.PW-1/17,Disability certificate issued on 18.04.2023 by Pt. Madan Mohan Malviya hospital, noticing 82% physical disability in relation to his both lower limbs as Ex.PW-1/18 and medical document regarding implant, Knee replacement etc. as Mark-A and estimated bill of wheel chair (Hero) as Mark-B. He was cross-examined by Ld. Counsel for Respondent No.3/insurance company.
Sh. Harpal Singh Rawat was examined as PW-2. He relied upon authority letter as Ex.PW-2/A, arrested copy of salary slips for the month of April and May, 2017 as Ex.PW-2/B(colly), photocopy of increment letters w.e.f. 12.05.2005 to 05.07.2017 as Ex.PW-2/C(colly), salary statement and Employee information, attested copy of the same is Ex.PW-2/D(colly). He deposed that injured Kuldeepak was working in their office since 01.06.2004 as Assistant Manager in Quality Assurance Department and for checking quality products, he had to visit Faridabad, Haridwar, Jaipur etc. He lastly worked on 09.04.2017 and his last drawn salary was Rs.39,218/-. He further deposed that increment was done annually @8-10% and sometimes depending upon the performance. He was duly cross- examined by Ld. Counsel for Respondent no.3/Insurance company.
9. No evidence was led on behalf of Respondents.
10. Final arguments in details were addressed by all the parties. On the basis of pleadings of the parties, evidence adduced and arguments addressed, issue wise findings are as MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 6 Of 28 BK :7: under:
Issue No. 1Whether injured Kuldeep Srivastav suffered injuries in a road accident dated 09.04.2017 involving vehicle no.HR-51AH-7086 driven by R-1,owned by R-2 and insured with R-3 due to rash and negligent driving of R-1? OPP.
11. Before proceeding to decide the above issue, it is apposite to note that as a settled principle of law, proceedings under The Motor Vehicle Act are not considered akin to the proceedings in a civil suit and hence strict rules of evidence are not applicable. Reliance is placed upon decision in Bimla Devi & ors. vs. Himachal Road Transport Corporation & ors. (2009) 13 SC 535, in Parmeshwari vs. Amir Chand & ors., 2011 (1) SCR 1096 and National Insurance Company Ltd. vs. Pushpa Rana, 2009 ACJ 287, wherein it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view has to be taken.
12. In the present case, petitioner/injured has been examined as PW-1 wherein he has deposed that on 09.04.2017at about 11 PM, he was going from Badkhal More to Old Faridabad in an auto-rickshaw bearing registration no. HR-38T-7858 alongwith other co-passengers. Suddenly, offending vehicle bearing no. HR-51A-H-7086 hit auto-rickshaw from front side. He sustained multiple grievous injuries. He was shifted to JPN Apex Trauma Center. Driver of said auto-rickshaw was also brought there but he was declared dead.
In cross-examination of PW-1, nothing could be brought on record by the Respondents to discredit such witness regarding MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 7 Of 28 BK :8: the factum of accident or the manner of accident or that the accident did not take place due to rash and negligent driving by Respondent no.1. The fact that the accident was head-on collision is res ipsa loquitor to the negligence of Respondent no.1 keeping in view that as per the site plan, the auto in which the victim was travelling was plying in the direction of the traffic. The plea raised by Respondent no.3 that the driver of auto-rickshaw did not hold a valid driving licence would thus not inculpate the driver of such auto-rickshaw of contributory negligence especially where the offending vehicle came from the opposite direction and hit the auto-rickshaw. The plea of non-joinder of the legal heirs of the driver of such auto-rickshaw in which victim was travelling or the owner and insurer of such auto- rickshaw is consequently of no relevance.
In the present case, police after investigation had filed charge sheet against Respondent no.1 under Section 279,337,338,304A of IPC which is also suggestive of negligence of respondent in causing the accident. The IO has filed Detailed Accident Report before this Tribunal. In National Insurance Co. vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of charge sheet are sufficient proof of negligence of the driver of the offending vehicle.
13. Neither the driver nor the owner of the offending vehicle have entered into the witness box or raised any defence.
14. It may further be noted that in Cholamandlam insurance company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310, it was held that if driver of offending vehicle does not enter the witness box, MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 8 Of 28 BK :9: an adverse inference can be drawn against him. In the present case also, driver did not enter into the witness box to controvert the claim of petitioner or even to explain circumstances of accident.
15. On perusal of examination-in-chief by way of affidavit of PW-1, it is noted that PW-1/Petitioner deposed on the lines of petitioner's original stand as already noted above. It was further deposed that due to rash and negligent driving of the R-1, the accident in question took place. Further, even the medical documents support the claimant that injuries were caused in road accident.
16. In totality of circumstances, this Tribunal is of the opinion that the claimant have been able to prove at the scales of preponement of probabilities that the accident in question, took place due to rash and negligent driving of the offending vehicle bearing no. HR-51AH-7086 by its driver/respondent no.1 on the date and time of accident. Accordingly, issue no.1 is decided in favour of petitioner/ claimant/applicant and against the respondents.
Issue no. 2 Whether this court has territorial jurisdiction to try and entertain the present case? OPP.
17. Learned counsel for R-3/Insurance company has argued that the present claim petition is not maintainable for territorial jurisdiction. As per memo of parties, one of the branch offices of Respondent no.3 is situated at Nehru Place, New Delhi. Hon'ble Supreme Court of India has held in 'Malati Sardar v. National Insurance Co. Ltd.'2016(1) SCALE 133 that there is no bar to a MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 9 Of 28 BK : 10 : claim petition being filed at a place where the insurance company which is the main contesting parties in such cases, has its business. The Hon'ble Apex Court has also cautioned against MACT No.5011/16 Tanveer Hussain & Anr. v. Anzar & Ors. Page No.6/18 adopting hyper technical approach in interpreting a benevolent provision for the victims of accidents of negligent driving and said that the provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated, the Bench said. In view of guidelines passed by the Hon'ble Apex Court in Malati Sardar's Case (supra), it is held that this Tribunal has territorial jurisdiction to try and entertain the present claim petition.
Issue No.3.
Whether claimant is entitled to any compensation, if so, to what extent and from whom? OPP.
18. Respondent no.3 has not taken any statutory defence or denied that the offending vehicle was insured. No violation of Permit or Fitness or Registration Certificate has been pleaded and as such, Respondent no.3 is liable to compensate the victim.
As regards the quantum of compensation, this court is governed by the law laid down by Hon'le Supreme Court in Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 Supreme Court cases 343, Sarla Verma & Ors. v. Delhi Transport Corporation & Ors. (2003) 6SCC 121 and National Insurance Company Limited v. Pranay Sethi & Ors.(2017) 16 SCC 680. The gist of the law is that the object of awarding damages is to MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 10 Of 28 BK : 11 : make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
19. Further it can be noted that the heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, 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 damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 11 Of 28 BK : 12 :
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
19.1. In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). 19.2. It is only in serious cases of injury, where there is 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.
19.3. Assessment of pecuniary damages under Item (i) and under Item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence.
19.4. Award under the head of future medical expenses--Item
(iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof.
19.5. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of Hon'ble SC and Hon'ble High Courts contain necessary guidelines for award under these heads, if necessary. 19.6. It was observed by Hon'ble Sc in such case of Raj MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 12 Of 28 BK : 13 : Kumar (supra) that what usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii) (a).
20. In the present case, petitioner has claimed permanent disability on account of the injuries suffered in the accident. In order to ascertain the extent of disability, it is relevant to note that the initial most document regarding disability is Ex. PW-1/4 which has been issued by Chief Medical Officer, Sultanpur on 01.02.2021 i.e. after almost four years after accident. This document certifies permanent physical disability of 60% in relation to non-union of both bones of right leg. It is pertinent to note that this document nowhere suggests that the disability suffered by the petitioner was subject to reassessment or capable of being increased during the course of years. The document finally and permanently assesses such disability.
21. It is subsequently by way of leading additional evidence that the petitioner filed another disability certificate issued by Pt. Madan Mohan Malviya hospital on 18.04.2023 i.e. after six years of the accident. This document Ex.PW-1/18 shows an increment in the disability to 82% in relation to "Both lower limbs". This observation of disability runs contrary to the MLC of the injured prepared at Jai Prakash Narayan Apex Trauma Center on 22.05.2017 noticing injury "only in the right lower limb"
(Fracture in both bones of lower limb). There is nothing in the MLC to show that the injured suffered any injury in the left limb/leg or underwent any operative procedures in relation to 'both' his legs. Thus, it is possible that the second disability certificate may have been on account of an injury subsequent MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 13 Of 28 BK : 14 : and unrelated to the accident in question. Thus, the disability noted by Ex.PW-1/18 cannot be relied upon by this court for fixing compensation. Disability of 60% noted in Ex.PW-1/4 (though not contemporary to the accident) may be relied upon as co-relating to the MLC. This court, thus, holds disability certificate Ex.PW-1/4 noticing disability of 60% in relation to non-union of both bone of right leg to be relevant for the purpose of fixing compensation in the present case.
22. Now, whether such disability functionally disabled the injured has to be assessed from the facts relating to the employment of such injured and the salary he drew before the accident and subsequent thereto. For proving his employment and income, injured has examined Sh. Harpal Sigh Rawat as PW-
2. PW-2 has deposed that the injured was posted as Assistant Manager in Quality Assurance Department of their company since 01.06.2004 till 09.04.2017. He categorically deposed that the injured did not join the office thereafter. He also deposed that the last drawn salary of the injured was Rs.39,218/- and that, had injured continued to work had he not met with an accident, his salary would have been Rs.60-65,000/- p.m. PW-2 also filed employment proof, salary slip, Bank statement and increment letter issued by employer as Ex.PW-1/2(colly). Contrary to such deposition of PW-2 that the injured did not attend the office post 09.04.2017, he has filed a letter/document issued by the employer which is dated 05.07.2017. This letter is addressed to the injured and is reproduced as under:
MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 14 Of 28 BK : 15 : "
Date 05th July,2017 CONFIDENTIAL Name: KULDEEP SRIVASTAVA Designation: ASSISTANT MANAGER Department: QUALITY ASSURANCE Dear Mr. KULDEEPAK SRIVASTAVA, On reviewing your performance for the year 2016-17, we are increasing your salary and your revised new gross salary is Rs.39,218/- p.m. w.e.f. 01.04.2017.
The year ahead is going to pose several challenges henceforth exceptional performance is expected to lead the company to greater heights. We are confident that you will rise to this challenge and pool in your energies, competencies and commitment to achieve further heights. We expect you to keep up your performance in the years to come and grow with the organization. Please be advised that the salary and perks of an employee is a confidential matter between the company and the employee. We hope you will maintain this confidentiality.
Wishing you best of years ahead with POLYMED.
Rishi Baid Executive Director" (emphasis supplied)
23. The above letter, part of Ex.PW-2/C(Colly)(OSR), strongly suggests that not only injured had been working post his accident but had also received increment for his performance for the entire year of 2016-17. In fact Ex.PW-2/D(colly) (Yearly Income Statement w.e.f. 01.04.2017 till 31.03.2018) issued by Polymedicure Ltd. manifests period of employment of the injured MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 15 Of 28 BK : 16 : in such office at least till 31.03.2018. Page no.2 of Ex.PW-2/D is another statement issued by such employer showing joining date of petitioner as 01.06.2004 while his date of leaving is shown as 01.10.2021 with no reason for leaving the job. This fortifies the fact that the injured continued to work in the same company for four continuous years with remarkable performance. It is pertinent to note that even the petitioner, during his evidence as PW-1 relied upon a certificate issued by Polymedicure Ltd. Ex.PW-1/2, dated 08.07.2017 revealing his total gross income as Rs.39,218/-, while his bank account statement filed in subsequent pages shows receipt of salary for the month of February, 2017 as 19,064/-, of March, 2017 as Rs.31,247/- and that of April, 2017 as Rs.34,019/-. None of these salaries shown in the account statement correspond to the certificate relied upon by the petitioner as PW-1 or by PW-2. Version of PW-2 qua period of employment is clearly belied by the documents filed on record while there is starke contradiction in the alleged certificate of salary and the account statement of PW-1 reflecting receipt of a lesser salary than claimed. Hence, the salary shown in the bank account statement for month of April as Rs.34,019/- has to be taken as the actual salary of the petitioner as on the date of accident.
24. Since as per the documents relied upon by the petitioner showing regular increase in the salary and his continuation to work in the same office without any decrement or reduction in his salary proves that the petitioner in fact, suffered no future loss on account of the injury sustained in the accident. The factum of increase in the salary and increment on account of MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 16 Of 28 BK : 17 : better performance in the job further proves that the injured has suffered no functional disability. Even during cross-examination, PW-1 has admitted that he has not filed any documentary proof showing being advised by any doctor for knee replacement. He has admitted that he has not filed continuous treatment record or even any document showing that the doctor has advised him requirement of a wheel chair. As such, despite physical disability of 60% in relation to non-union of both bones of right leg, petitioner has suffered 0% functional disability.
25. PW-1 had also led additional evidence regarding his part time work in Naswiz Holiday Pvt. Ltd., however, no certificate of employment specifying the period of employment, timings or duration of the work, nature of work or the salary drawn has been filed to prove the same. Petitioner has only relied upon TDS Traces which show TDS deduction on credit amount of Rs.2000/- in January, 2017, Rs.8500/- , Rs.4000/- in the March, 2017 and Rs.3000/- in February,2017. No transaction is shown in the subsequent months which proves that petitioner was not working in such company since March, 2017 i.e. even before the accident. Hence, his past income, if any which did not continue till the accident, has no bearing on the claim of compensation. Further, it is also doubtful as to why the fact of part time employment, if any, was not brought on record at the time of leading of evidence initially. As such, no additional income from claimed part time employment can be granted.
26. As regards assumed loss of income on account of the injury suffered in the accident (though the account statement does not show any deduction in the salary of the petitioner during MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 17 Of 28 BK : 18 : the period when he remained hospitalized), the MLC reveals date of admission of the injured as 10.04.2017 and date of discharge (after being operated on 17.05.2017) as 22.05.2017. Hence, petitioner remained hospitalized for about one month 12 days.
27. As discussed above, monthly income of the injured as on the date of accident is held to be Rs.34,019/-. He has proved to have remained hospitalized for one month 12 days, however, no actual loss of income on account of hospitalization has been proved.
28. Even as regards the bills of treatment filed by petitioner, bill no. 37121 purportedly issued by Bhagwati Hospital and Trauma Center appears forged in as much as there is apparent addition of '300' on it in a different hand writing while the total amount is also written as (300+300) without actually totallig the same. Similarly, another bill No. 37213 drawn on Bhagwati Hospital is found to be showing entry of different amounts in different handwriting in different inks on the same document without actually totalling it. The same is apparently fabricated. Also, two bills of Rs.30,000/- each drawn on Advance Ortho Center appears to be forged and fabricated in as much as it does not correspond to any treatment or consultation or reason of generation of such bill. Further, bill pertaining to year Ratan Medical Store is only an estimate and not the actually paid one. Bill pertaining to Anandam Eye Hospital pertains to year 2020 and not even to the injury suffered in the accident. Bill No. 9854 has been duplicated, so only one is payable/reimbursable to the petitioner.
29. Having regard to the law as also discussed above regarding MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 18 Of 28 BK : 19 : compensation, in the present case award amount is calculated as under:
30. In this background of material and evidence on record, in the present case having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
Sl. Pecuniary loss : - Quantum no.
1. (I) Expenditure on treatment : having Rs.1,78,774/-
regard to material on record including documents as discussed above.
(ii) Expenditure on Conveyance : AS Rs.14,500/- per bills filed by petitioner pertaining to D.S. Ambulance service.
(iii) Expenditure on special diet : There Rs.10,000/- is no prescription for special diet. The nature of injuries as discussed above, by guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even Rs.20,000/- in the absence of documentary proof, compensation for attendant's charges may be awarded for services rendered by family members.
(v) Loss of income : Nil
Compensation towards loss of income, as
discussed above.
(vi) Cost of artificial limbs (if NA
applicable) :
(vii)Any other loss/expenditure : Nil
Expenditure towards Knee
replacement.(No proof filed)
(viii) Expenditure on Wheelchair(no Nil
proof filed)
MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 19 Of 28 BK
: 20 :
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.5,000/-
physical shock :
(ii) Pain and suffering : Compensation Rs.5,000/-
for pain and suffering is to be awarded
keeping in mind the nature of injuries
suffered by the petitioner.
(iii) Loss of amenities of life : As per Rs.20,000/-
MLC, petitioner was advised bed rest for
five days, restricted activities for two weeks, advised to avoid contact activities with risk of physical impact for six months and as such, compensation under this head is granted by guess work.
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed The petitioner and nature of disability as permanent has suffered or temporary 60% permanent disability in relation to non-
union of both bones of right leg.
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability :
(iii) Percentage of loss of earning Nil capacity in relation to disability: As already discuss above.
(iv) Loss of future Income: Nil
Total Compensation Rs.2,53,274/-
Deduction, if any, Nil
MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 20 Of 28 BK
: 21 :
Total Compensation after deduction Rs.2,53,274/-
Interest : Simple interest
@9% p.a. from
the date of filing
of till actual
realization of
Award
amount/compens
ation
31. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
32. The total compensation payable to the claimant would be Rs.2,53,274/-with simple interest at the rate of 9% p.a. from the date of filing of petition till its actual realization.
LIABILITY
33. As already discussed, principal award amount/ compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of petition till actual realization, with recovery rights to the insurance company to recover the same from the owner and driver of the offending vehicle.
Directions Regarding Deposit of Award Amount in Bank:
MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 21 Of 28 BK : 22 :
34. In compliance of directions issued vide order dated 16.11.2021 by Hon'ble Supreme Court of India in Writ Petition Civil No.534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India the award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT SAVING ACCOUNT No. 00000042706875094, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir in the prescribed format i.e. MCOP Number on the file of (Claims Tribunal Name) Date of award, Compensation Amount, Income Tax Deduction at Source, Bank Transaction Reference No./Unique Transaction Reference (UTR) Number. In turn, the State Bank of India, Saket Courts Branch shall receive the deposited sum and capture the above information and furnish a statement of account on a daily basis to the Nazir of this Tribunal to reconcile the deposits of compensation and the respective MCOPs towards which such deposits are made. On such deposits being made, the insurance company shall submit a letter to the Nazir of this Tribunal enclosing a copy of the said bank advice, in prescribed format as above, as per which the deposit made to the bank account of this Tribunal, to enable this Tribunal to keep tab on the deposits made and the MCOPs for which they were made. The Payment advice for remittance of compensation is as under:
PAYMENT ADVICE FOR REMITTANCE OF
COMPENSATION :
............ Bank ...................
To:
............... Court ........................
MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 22 Of 28 BK : 23 : We confirm remittance of compensation as follows on instructions of ................................... (insurance company):-
MCOP Number On the file of (Claims Tribunal Name), Place Date of award Amount Deposited, Income Tax Deduction at Source, if any Unique Transaction Reference (UTR) Number. Insurance company of offending vehicle, on deposit, shall also send a copy of the payment advice in above format to this Tribunal and serve a copy of the same on the claimants or their counsel as the case may be.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
35. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
36. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
37. At this stage, it is relevant to the refer to the judgment of MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 23 Of 28 BK : 24 : A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos.
(i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 24 Of 28 BK : 25 : indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 25 Of 28 BK : 26 : routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice..."
38. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, whole of Award amount is released to the petitioner/injured, alongwith simple interest @ 9% p.a. from the date of filing of DAR till its actual realization, in his bank account near his place of residence as per rule/ directions.
39. In accordance with the orders dated 08.02.2019 passed by MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 26 Of 28 BK : 27 : the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022-22741336/9414048606 and e-mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 09.04.2017 2 Name of injured Kuldeepak Srivastava 3 Age of the injured 33 years 4 Occupation of the Assistant Manager injured 5 Income of the injured 34,019/-
6 Nature injury Grievous/Disability MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 27 Of 28 BK : 28 : 7 Medical treatment taken AIIMS by the injured:
8 Period of Hospitalization 10.04.2017 to 22.05.2017
9 Whether any permanent 60% in relation to non-union
disability? of both bones of right leg.
40. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate concerned.
41. List for compliance on 08.07.2024.
Announced in open Court On 06th May, 2024 (Charu Gupta) PO-MACT-01(South-East) Saket Court/ New Delhi MACT NO: 1011/17 Kuldeepak Srivastava v. Amit Nehra & Ors P.No. 28 Of 28 BK