Delhi District Court
Smt. Ekta Rani vs Sh. Jahuruddin @ Mehtali on 23 March, 2021
IN THE COURT OF SH. MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE -1 + JUDGE MOTOR ACCIDENT CLAIM
TRIBUNAL (NW) ROHINI COURTS : DELHI
____________________________________________________
UID No./CNR No. DLNW01-000346-2013
MACT No. 449524/16
(old case:- 7 years old)
REMAND BACK MATTER
In Re :
1. Smt. Ekta Rani
W/o Late Manoj Lamba
2. Himansi
D/o Late Sh. Manoj Lamba
3. Jyoti
D/o Late Sh. Manoj Lamba
All R/o H. No. K-822,
Jahagir Puri, Delhi. ....... Petitioners
Versus
1. Sh. Jahuruddin @ Mehtali
S/o Sh. Ramla
R/o Village Naugeral, Distt. Nuh,
Mewat, Haryana
2. RVAG Rockwell Infrastructure Pvt. Ltd.,
D-14, Ashoka road, Adarsh Nagar,
Delhi.
3. Iffco Tokiyo General insurance Co. Ltd.,
R/o 10, Shaheed Jeet Singh Marg,
New Delhi.
....... Respondents
APPEARANCE (s) : Sh. R. K. Jain, Ld. Counsel for the petitioners : None for respondent no. 1 & 2.
: Sh. S. K. Tyagi, Ld. Counsel for the insurance co.
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .1/42
Date of Institution of DAR : 13.09.2013
Date on which remanded back : 16.10.2017
First date before the undersigned : 10.09.2018
Date of Arguments : 08.03.2021
Date of Decision : 23.03.2021
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE (EFFECTIVE W.E.F. 01.01.2019) TO BE MENTIONED IN THE AWARD AS PER FORMAT REFERRED VIDE ORDER DATED 07.12.2018 PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003 RAJESH TYAGI VS. JAIBIR SINGH & ORS.
1. Date of the accident 10.06.2013
2. Date of intimation of the accident by the 12.06.2013 investigating officer to the Claims Tribunal.
3. Date of intimation of the accident by the 24.06.2013 investigating officer to the insurance company.
4. Date of filing of Report under section __ 173 Cr.P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident 13.09.2013 Information Report (DAR) by the investigating Officer before Claims Tribunal.
6. Date of Service of DAR on the Insurance 01.08.2013 Company.
7. Date of service of DAR on the 13.09.2013 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the DAR ___ removed later on?
10. Whether the police has verified the Yes documents filed with DAR?
11. Whether there was any delay or Yes. There was delay but deficiency on the part of the no action was taken Investigating Officer? If so, whether any against IO. action/direction warranted?
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12. Date of appointment of the Designated __ Officer by the insurance Company.
13. Name, address and contact number of Not mentioned the Designated Officer of the Insurance Company.
14. Whether the designated Officer of the Yes Insurance Company submitted his report within 30 days of the DAR?
(Clause 22)
15. Whether the insurance company Yes admitted the liability? If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law.
16. Whether there was any delay or No. No action warranted deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to 21.01.2014 the offer of the Insurance Company.
18. Date of the Award. 23.03.2021
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to Yes open saving bank account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to open saving bank account
(s) near his place of residence and __ produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook.
22. Date on which the claimant (s) produced ___ the passbook of their saving bank account near the place of their residence along with the endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned above. Claimant(s).
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .3/42
24. Details of saving bank account(s) of the claimant(s) and the address of the bank Smt. Ekta rani is having with IFSC Code. her saving bank account bearing no.
456300055719, Punjab
National Bank, Madhuban
chowk, Rohini, Delhi
Petitioners namely
Himanshi & Jyoti are
having their saving bank
accounts bearing nos.
4563000100055728 &
4563000100055719
respectively which they
have been maintaining in
Punjab National Bank,
Madhuban Chown Branch,
Rohini, Delhi.
5. Whether the claimant(s) saving bank Yes
account(s) is near his place of
residence?
26. Whether the claimant(s) were examined Yes
at the time of passing of the award to
ascertain his/their financial condition.
27. Account number, MICR number, IFSC State Bank of India, Rohini Code, name and branch of the bank of Courts, Delhi. IFSC code the Claims Tribunal in which the award no. SBIN0010323. amount is to be deposited/transferred.
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .4/42 PETITION UNDER SECTION 166 & 140 OF MOTOR VEHICLES ACT, 1988 FOR GRANT OF COMPENSATION JUDGMENT / AWARD:-
1. By way of present judgment/award, I shall conscientiously dispose of the remand back matter remanded by the Hon'ble High court of Delhi in MAC Appeal no. 901/17 (with respect to fatality of deceased Manoj Lamba, husband of petitioner Ekta Rani and father of petitioner no. 2 & 3) & 906/17 (with respect to injuries/disability sustained by the petitioner Ekta Rani) vide its order dated 16.10.2017 in appeals preferred by the petitioners on the award passed by Ld. Predecessor dated 31.05.2017. The accident in question pertains to 10.06.2013 thereby taking the life of one Shri Manoj Lamba and causing injuries disability to his wife Ekta Rani (petitioner no. 1 herein). Ld. Predecessor of this court passed a composite award dated 31.05.2017 thereby granting the compensation with respect of death of Shri Manoj Lamba to the petitioners. At the same time, injured Ekta Rani was also given compensation for the injuries sustained by her. The petitioner Ekta Rani in MAC. App. No. 906/17 (hereinafter called the injury case) and other petitioners including herself in MAC. App. No. 901/17 (hereinafter called the fatal case) assailed the aforesaid order before the Hon'ble High Court. The Hon'ble High Court vide its order dated 16.10.2017 passed two separate orders one remanding the case for the purpose of determination on account of extent of functional disability in case of injury to Ekta Rani and second another appeal (i.e. death case) while allowing the withdrawal of the appeal has granted liberty to the appellant (petitioner no. 1 herein) to file review petition before the Tribunal for leading additional evidence in respect of subsequently discovered and gathered facts.
2. The review application U/o XXXXVII Rule 1 read with section 114 CPC filed by the petitioner in terms of the aforesaid order of the Hon'ble High Court was allowed by the Tribunal vide order dated 15.10.2018 and the petitioner was granted opportunity to lead additional evidence only on one aspect of Income Tax Return for the year 2009-10 in the instant case.
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3. The award dated 31.05.2017 was a culmination of inquiry proceedings of the tribunal upon the DAR filed by the investigating agency, in compliance of the MCTAP formulated by the Hon'ble High Court of Delhi in FAO 842/2003 titled 'Rajesh Tyagi V. Jaibir & Ors.', which was converted into a claim petition U/s 166 (4) of M. V. Act, 1988 for grant of compensation.
4. Shorn of unnecessary details, the brief factual matrix relevant to decide the present claim petition is that on 10.06.2013 at about 06:45 AM, petitioner/injured Ekta Rani with her husband Manoj Lamba was going to her native village Tapukara, District Alwar, Rajasthan on motorcycle bearing No. DL-
8S-AZ-4559 which was being driven by her deceased husband Manoj Lamba and when they reached Ring Road, near Petrol Pump (HP) Opp. Pearl Omax building, Netaji Subhash Place. They were hit by the offending Truck (Mixture) bearing registration no. DL-1GB-7197 driven by its driver/respondent no. 1 Jahuruddin @ Mehtali from the back side on account of a rash and negligent driving. As a result, thereof, petitioner/injured Ekta Rani and her husband deceased Manoj Lamba fell down on the road and sustained grievous injuries. They were taken to Bhagwan Mahavir Hospital by the PCR where deceased Manoj Lamba was declared 'brought dead' and his postmortem was conducted at Dr. BSA Hospital, Rohini, Delhi and injured/petitioner Ektra Rani was shifted from Bhagwan Mahavir Hospital to Max Hospital where she remained hospitalized till 27.06.2013.
5. The tribunal in the injury case after considering the functional disability to be 18% passed an award to the tune of Rs. 10,52,371/- (including an amount of Rs. 3,31,063/- under the head loss of earning capacity on account of disability being sustained by the petitioner) in favour of the injured/petitioner Ekta Rani and against the respondents vide order dated 31.05.2017 which was assailed by the petitioner before the Hon'ble High Court. The Hon'ble High Court vide its order dated 16.10.2017 remanded the matter back with the direction to this tribunal for fresh determination of compensation under the head loss of earning capacity on account of disability as the observations given by the Ld. Predecessor of this MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .6/42 Tribunal in paras 48 and 49 of the impugned award dated 31.05.2017 was found to be highly confusing being not given any indication about its views on the extent of functional disability.
6. The tribunal in the fatal case after considering the income of deceased on the basis of minimum wages of skilled person as the deceased was holding a Diploma of repairment of Air Conditioners, to be Rs. 9,386/- per month passed an award to the tune of Rs. 15,02,000/- (including an amount of Rs. 11,26,320/- under the head 'Loss of Dependency') in favour of all the petitioners including injured/petitioner Ekta Rani (wife of deceased) and against the respondents which again was challanged by the petitioner before the Hon'ble High Court. The Hon'ble High Court in an MAC. App. No. 901/17 (filed by the petitioners for seeking enhancement of compensation under the head of loss of dependency on the basis of evidence subsequently discovered and gathered) granted liberty to the appellant (petitioner no. 1 herein) to file review petition before the Tribunal for leading additional evidence.
7. At the time of initial inquiry proceedings before the tribunal, respondent no. 1 & 2 did not file reply to the DAR. Respondent no. 3/Iffco Tokio General Insurance Co. Ltd. had filed its reply where they have admitted that the offending vehicle bearing registration no. DL-1GB-7197 was insured with it vide policy no. 0000000000716010 valid for the period 08.02.2013 to 07.02.2014 in the name of respondent no. 2/owner of the offending vehicle.
7. The following issues were settled by the tribunal on 20.01.2014:-
ISSUES
1. Whether on 10.06.2013 at about 06:45 AM at Ring Road Near Petrol Pump (HP) Opp. Pearl Omax Building NSP Delhi, truck bearing registration no. DL-
1GB-7197 which was being driven rashly and negligently by its driver Jahuruddin hit motorcycle no. DL-8SAZ-4559 which was being driven by Manoj Lamba and Ekta Rani was pillion rider caused injuries to her and death of Manoj Lamba? OPP.
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .7/42
2. Whether petitioners are entitled to compensation, if so, to what amount and from whom?OPP.
3. Relief.
8. To substantiate their claim, the petitioners their examined three witnesses including partitioner Ekta Rani as PW1, PW2 Medical Record Clerk and PW3 Dr. G.C. Verma, Specialist (Orthopedics), Dr. BSA Hospital, Rohini, Delhi. After remand, PW-4 Shri Mridul Mehndiratta, Inspector, Income Tax Office was also examined by the petitioners.
9. In rebuttal, none of the respondents have led any evidence, either in initial stage or after remand.
10. I have heard Ld. Counsel for the parties at length and perused the entire record including the pleadings and the documents. I have given a thoughtful consideration to the same. The issue wise determination (including fresh determinations on aspects of remand) is as under:-
ISSUE No. 1"Whether on 10.06.2013 at about 06:45 AM at Ring Road Near Petrol Pump (HP) Opp. Pearl Omax Building NSP Delhi, truck bearing registration no. DL-1GB-7197 which was being driven rashly and negligently by its driver Jahuruddin hit motorcycle no. DL-8SAZ-4559 which was being driven by Manoj Lamba and Ekta Rani was pillion rider caused injuries to her and death of Manoj Lamba? OPP"
11. The onus to prove, the aforesaid issue is on the petitioners. In order to prove their case petitioner no.1 Ekta Rani has examined herself as PW-1 by way of affidavit Ex. PW1/A and deposed on the lines of averments made in the DAR/Claim petition thereby reiterating the facts and circumstances of the case on oath. She has relied upon the following documents: -
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .8/42 S. No. Description of Documents Remarks 1 Photocopies of Aadhar Cards of petitioner no. 1 Ex. PW1/1 Ekta Rani (wife of deceased), petitioner no. 2 (colly.) Himanshi and petitioner no. 3 Jyoti (both daughters of deceased).
2 Photocopy of Birth Certificate of petitioner no. 3 Mark A Jyoti.
3 Photocopy of Sr. Higher Secondary School Ex. PW1/2 certificate issued by Rajasthan.
4 Photocopy of proficiency certificate issued by Ex. PW1/3 AIMO, Certificate of Merit, Marksheet.
5 Photocopy of Pan Card of deceased Manoj Lamba. Ex. PW1/4 6 Photocopy of Income-tax return for the assessment Ex. PW1/5 year 2006-07, 2008-09.
7 Photocpy of DL of deceased Manoj Kumar Lamba. Ex. PW1/6
12. PW1 Smt. Ekta Rani (injured herself who is also wife of deceased Manoj Lamba) in her testimony has deposed that her husband died in road accident on dated 10.06.2013. She futher deposed that on the date of accident at about 6:45 AM, she alongwith her decesed husband Manoj Lamba was going to their native village Tapukara, Distt. Alwar, Rajasthan on motor-cycle bearing registration no. DL-8S-AZ-4559 being driven by her husband and when they reached Ring Road near Petrol Pumb (HP) Opp. Pearl Omax Building, NSP, Delhi. At the same time, one Truck (Mixture) bearing registration no. DL-1G-B- 7197 which was being driven by its driver (respondent no. 1 herein) in a very high Speed, rashly, negligently without taking necessary precautions, without proper lookouts, overtaking other vehicle, violating the traffic rules and without blowing any horn came from behind and hit their motor-cycle with a great force. As a result, thereof they both fell down and sustained grievous injuries. She further deposed that they were taken to Bhagwan Mahavir hospital by the PCR where MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .9/42 they were medically examined. She further deposed that she has sustained grievous injuries in the accident in question and her husband was declared as 'Brought Dead' whose postmortem was conducted at Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi. She has deposed that she remained hospitalized till 27.06.2013.
13. She was not cross examined by the respondent no. 1 & 2, but was duly cross examined by the Ld. Counsel for the respondent no. 3/insurer on the point of rash and negligent after indulgence of the tribunal U/s 170 of M. V. Act where she deposed that her statement was recorded by the police at Bhagwan Mahavir Hospital. She deposed that her husband was driving the motorcycle at the speed of 30-40 kmph at the time of accident. She deposed that the road was vacant and no other vehicle was running on the said road at the time of accident. She further deposed that she had seen the truck after the accident since it was coming from behind. She has deposed about the speed of offending truck to be 70-80 kmph on the basis of its impact on their motorcycle which she felt. She has denied that her husband was riding the motorcycle on the middle of the road. She voluntarily deposed that her husband was driving the motorcycle on the left side of the road. She has further denied that the accident occurred due to the fault of her husband. She has denied that the respondent no. 1 was not driving the offending vehicle in rash and negligent manner and was driving the vehicle at normal speed.
14. PE was closed during initial inquiry vide order dated 29.01.2016 and after additional evidence of PW- 4 on 18.10.2019.
15. The law regarding tortious liability under the Motor Vehicles Act 1988 in respect of the compensation to the injured/victim by the tort-feaser is well settled by a catena of judgments laid down by the Hon'ble Supreme Court and Hon'ble High Courts of the country. The principle of proof and the yardstick of onus has also been discussed in celebrated cases. MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .10/42
16. The Hon'ble High Court of Delhi in MACA No. 179/2004 titled National Insurance Co. Ltd. Vs. Geeta Bindal & Ors. Vide its judgment dated 12.10.2012 has reiterated the principle of res ipsa loquitur and explained it to mean that the accident speak for itself and it is sufficient for the petitioner to prove the accident and nothing more. The Hon'ble High Court has further held :-
" It has been further laid down that "res ipsa loquitur" is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer".
It has been further appreciated that:-
"the effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident of mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur, therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortious liability"
17. It is further worth-mentioning that the yardstick of proof of rash and negligence by the driver of the offending vehicle is not what is required in a criminal trial but is merely what is expected in a civil one. In Bimla Devi Vs. HRTC (2009) 13 SC 530, Hon'ble Supreme Court has held:
"xxxx It was necessary to be borne in mind that strict proof of accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touch stone of preponderance. The standard of proof beyond reasonable doubt could not have been applied. Xxxxx"
18. It is an undisputed fact that the FIR No.250/13, U/s 279/338/304-A IPC) was registered at PS Netaji Subhash Place at the instance of the petitioner no. 1 Ekta Rani/injured against the driver of the offending vehicle bearing registration no. DL-1GB-7197 and charge sheet u/s 173 Cr.P.C has been filed against the driver of the offending vehicle for which he is facing the trial before the court of Ld. M.M. The site plan (which also forms a part of DAR), the mechanical MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .11/42 inspection reports and the MLC's bearing no. 2211/13 with respect of injured Ekta Rani & 2210/13 with respect of deceased Manoj Lamba and his postmortem report corroborate the testimony of PW-1 that the accident has taken place due to rash and negligent driving of respondent no.1 resulting into fatality of Sh. Manoj Lamba and injuries over the petitioner no. 1 Ekta Rani and her consequent disability vide disability certificate Ex. PW-3/1 during the course of aforesaid accident with the offending vehicle bearing vehicle, Truck bearing no. DL-1GB- 7197. It is respondent no. 1 who could have rebutted the testimony of PW-1 on the point of rash and negligence but neither he has cross examined petitioner's witnesses nor stepped into the witness box, therefore, an adverse inference can also be drawn against him.
19. In view of the aforesaid discussion and the evidence which has come on record, it is held that the offending vehicle bearing registration no. DL-1GB- 7197 being driven by R-1 in a rash and negligent manner, caused injuries to the petitioner No. 1 Ekta Rani and took the life of deceased Manoj Lamba in the alleged accident. Issue no. 1 is decided accordingly.
ISSUE NO. 2"Whether petitioners are entitled to compensation, if so, to what amount and from whom?OPP.."
20. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable.
21. The guiding principles for assessment of "just and reasonable compensation" in injury cases has been laid down by Hon'ble Delhi High Court, in III (2007), ACC 676 titled as Oriental Insurance Co,. Ltd., Vs. Vijay Kumar Mittal & Ors that: -
" The possession of one's own body is the first and most valuable all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .12/42 Bodily injury is to be treated and varies on account of gravity of bodily injury. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages".
22. It has been further held by the Hon'ble High Court that:
"the general principle which should govern the assessment of damages in persons injury cases is that the Court should award to injured persons such a sum as will put him in the same position as he would have been in the same position as he would have been in if he had not sustained injuries".
23. The Hon'ble Apex Court while reiterating the principle of just compensation has held the same to be a challange a warranting sensitive as well as dispassionate exercise holding that neither the sentiments nor emotions may play a role but the fundamental principle of just compensation needs to be inhered. It has been further held that the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance. Reliance is placed on 2012 (8) SLT 676 titled K. Suresh Vs. New India Assurance Co. Ltd. The aforesaid Principle of law has also been reiterated by a full bench judgment of the hon'ble Supreme court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors.
24. The petitioner no.1 Ekta Rani has suffered injuries and consequent disablement to the extent of 35% in relation to spine & right lower limb on account of the alleged accident which has adversely affected not only her day to day avocation but also led to the, loss of general amenities and even long pain and sufferings. As such she is entitled to restituted by way of just and fair compensation. At the same time, the petitioners who are the legal heirs of deceased Manoj Lamba, Petitioner no. 1 being the wife and petitioner no. 2 & 3 MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .13/42 being the children have also suffered a lot mentally as well as monetarily. As such they also are required to be compensated by way of just and reasonable compensation for their loss.
The determination shall have two parts one, compensation to the petitioners on account of death of Sh. Manoj Lamba for which fresh evidence has been led by the petitioners regarding income of the deceased and secondly, in respect of the injuries and consequent disability sustained by petitioner no.1 Ekta Rani which is being limited only on the remanded back extent of functional disability in terms of observations of the Hon'ble High Court vide order dated 16.10.2017.
The determination is accordingly as under:-
A. COMPENSATION ON ACCOUNT OF DEATH OF MANOJ LAMBA LOSS OF DEPENDENCY
25. The petitioners have claimed that the deceased Manoj Lamba was working as Mechanic of Refrigeration and Air conditioning. She has deposed that the deceased has taken due technical training in the trade of Refrigeration and Air Conditioning System from AIMO Industrial Foundation Society National Renewal Centre for Technical training at Jhandewalan, New Delhi and even secured first position in the class. She has proved on record the proficiency certificate issued from the aforesaid Institute, certificate of merit, mark sheet and certificate of marks as Ex. PW1/3. She has further deposed that before the accident, he was earning Rs.15,000/- per month from the aforesaid profession and he was contributing about Rs. 12,000/- per month towards house hold expenses. She has deposed that all the petitioners including herself were dependent upon the income of deceased and the income of deceased was increasing every year. She has filed even on record the Income Tax Returns of the deceased for the assessment year 2006-07 & 2007-08 as Ex. PW1/5. The said ITR's were not considered by the Ld. Predecessor of this Tribunal on the ground that the same pertains uptil 2008 i.e. six year before the date of accident of, as such, the same cannot from basis of considering the income of deceased. Accordingly, while discarding the MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .14/42 ITR's of deceased, the income of the deceased was considered by the Ld. Predecessor as Rs. 9,386/- minimum wages for the skilled worker prevailing as on the date of accident.
26. After review of the award, the petitioners have examined one more witness Shri Mridul Mehndiratta, Inspector, Income Tax Department who has filed on record the income tax returns of deceased for the assessment year 2006-7, 2007-08 and 2009-10. He also filed on record the list of ITR's as Ex. PW4/1. He proved on record the acknowledgement return for the assessment year 2006-07 as Ex. PW4/2 (Colly.). He filed on record the acknowledgement of return for the assessment year 2007-08 as Ex. PW4/3 (Colly.) and acknowledgement of return for the assessment year 2009-10 as Ex. PW4/4.
27. The aforesaid witness was subjected to rigorous cross examination by the Ld. Counsel for the insurance company where he admitted that the key of the computer from which the aforesaid are taken remains with Income Tax Officer. He further admitted that certificate U/s 65(B) of Evidence Act was not brought by him.
He further deposed that the official stamps on the aforesaid ITR's are not affixed. He deposed that the net income of deceased was Rs. 1,01,480/- for the assessment year 2006-07 and similarly the net income of the deceased was Rs. 1,03,915/- for the assessment year 2007-08. He deposed that the net income of the deceased was Rs. 1,48,930/- for the assessment year 2009-10. He has admitted that the deceased had never filed any return for the assessment year 2008-9, 2010-11, 2011-12, 2012-13 and 2013-14.
28. Ld. Counsel for the petitioners Sh. Jain while strongly relying upon on the aforesaid ITR's for the purpose of quantum of compensation has argued that there is a progressive rise on the income of deceased as the income of the deceased was gradually increasing and therefore the tribunal should consider the income of the deceased on the basis of old ITRs. Ld. Counsel for the petitioners in support of his contention has relied on the judgment of Hon'ble High Court of MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .15/42 Delhi delivered in case MAC. APP. 799/2016 Iffco Tokio General Insurance Co. Ltd. V. Manju & Ors. decided 28.07.2017 wherein the Hon'ble High Court while dismissing the appeal of insurer has held that deceased may have committed default in submitting two ITRs for the assessment year 2010-11 and 2011-12 but this would not mean that he would have not continued to be in the same gainful employment from which he had been earning previously, the said income having been declared to the income tax authorities. The aforesaid appeal was preferred by the appellant Insurer of the offending vehicle on the ground that the computation of the loss of dependency on the ground that the ITRs for the assessment years 2010-11 and 2011-12 were withheld and that the Tribunal had indicated at one stage that the average of the incomes for the previous two assessment years could be the basis of calculation and was argued in the said appeal that in the facts and circumstances, the element of future prospects of increase should not have been added. It was further held by the Hon'ble High Court that if something was to be read into such omission, it was for the contesting respondents to have the record summoned to prove facts to the contrary. The Hon'ble High Court has finally held that the continuity of gainful engagement in the same work will have to be assumed and considered aforesaid ITR's of deceased.
29. On the contrary, Ld. Counsel for the insurer has argued that the accident was occurred on 10.06.2013 and the deceased had filed his ITR's for the assessment year 2006-07, 2007-08 & now 2009-10 and as per the said ITR's the income of the deceased has been shown to Rs. 1,01,480/-, 1,03,915/- & 1,48,930/- respectively but the petitioners have failed to file on record the ITR's for the assessment years 2008-09, 2010-11, 2011-12, 2012-13 & 2013-14 and it may be assumed that the petitioners have not filed the ITR's for the aforesaid period as the income of deceased was decreasing or he had no income at all. He further argued that it be noticed that the deceased has filed the ITR's for some time and some time has not filed the same. He further argued that an adverse inference can be drawn in this regard. He has further argued that the petitioners have filed MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .16/42 the ITR's for the assessment year 2006-07, 2007-08 & 2009-10 which are inconsistent. He has further vehemently argued that the minimum wages formula in devised only to deal with such cases like the present where the income of the victim is not decipherable from any records.
30. The tribunal has perused the entire record including the evidence which is come on record more particularly the testimony of the income tax official and the documents Ex. PW-4/1-3 which is income tax record of the deceased for the years referred above. Though, it is clear and has come duly cross examination that these documents have not been either attested by the competent official or are accompanying the requisite certificate U/s 65B of the Indian Evidence Act and therefore, in the contention of the Ld. Counsel for insurer cannot be read in evidence. Further more, the judgment relied upon by the Ld. Counsel for the petitioners in IFFCO Tokio General Insurance (Supra) does not apply to the facts and circumstances of the case perse. Inasmuch as in the aforesaid case, the appeal was preferred by the insurer on the ground that ITRs of 2010-11 & 2011-12 were withheld when the accident has taken place on 01.04.2012.
31. In the instant case, ITRs which have come on record pertains to the assessment year 2006-07, 2007-08 and 2009-10 with the accident having taken place on 10.06.2013 as such there is a gap of almost 4 years for which no ITR has been filed and which has not been explained leading to a reasonable presumption that either the income of the deceased kept on decreasing during the period or has come to a stage where he felt absolute non necessary to continue to file any ITR. The court as such cannot rely upon the ITRs for the year 2009-10 which is also having a gap of 4 assessment years. Even otherwise, if the 3 ITRs filed on record for the assessment year 2006-07, 2007-08 and 2009-10 showing the income of the deceased to be Rs. 1,01,480/-, Rs. 1,03,915/- and Rs. 1,48,930/- respectively are considered, the average income of the deceased comes out to be Rs. 1,18,108/- per annum in the absence of remaining ITRs MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .17/42 which monthly comes out to be Rs. 9842/-which is almost closer to the minimum wages figure of Rs. 9386/-
32. Ld. Counsel for the insurer does not dispute to consider the income of deceased on the basis of minimum wages for skilled worker prevailing at the time of accident. In these facts and circumstances, the tribunal has no yardstick except to consider the income of deceased on the basis of minimum wages prevailing for the skilled person prevailing at the time of accident in question as of Rs. 9,386/- p.m.
33. Thus, considering the entire facts and circumstances and the fact that tribunal is not bound by strict rules of procedure and the fact that the present proceedings are under a beneficial legislation, the tribunal deem it appropriate to consider the minimum wages of skilled worker as the income of the deceased Manoj Lamba to be Rs. 9,386/- prevailing at the time of accident of deceased.
34. The deceased Manoj Lamba was survived by his wife and two children. As such, 3 persons were dependent upon deceased, petitioner no. 1 Smt. Ekta Rani (wife of deceased) and petitioners No. 2 & 3 Himanshi and Jyoti (both daughters of deceased). In these facts and circumstances, it is held that there were only 3 dependents upon deceased at the time of accident. Therefore, the loss of dependency is to be taken as 2/3 rd of the income of the deceased. As such a deduction of 1/3rd is to be made from the income of the deceased accordingly and in terms of 2009 ACJ 1298 SC titled Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors.
35. The age of deceased to be 40 years as on the date of accident is not disputed by any of the parties as the date of birth of deceased is 01.07.1972 as per his School Leaving Certificate. As such he was aged about 40 years as on the date of accident. Therefore, the age of the deceased has been considered as 40 years and the multiplier of 15 would be applicable as per Sarla Verma (Supra) MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .18/42 and Pranay Sethi (Supra).
Further, at the time the Ld. Predecessor of the tribunal passed the award, it was not having the benefit of the full bench judgment of the Hon'ble Supreme Court rendered in Pranay Sethi (Supra) which has granted future prospects in case of fatal accidents. Accordingly, an addition of 25% on the income of deceased for the purpose of the future prospects is also awarded as the deceased was self-employed.
Therefore, the calculation for compensation shall be:-
9,386/- + 25%= 2,346.5p;
9,386+2346.5p = 11,732.5/-.
Monthly Loss of dependency after deductions in terms of Sarla Verma (Supra) shall be 11,732.5pX 2/3 = 7,821.66p.
Thus, the total loss of dependency on account of death of deceased comes to Rs. 7,821.66X12X15= 14,07,898.80p (rounded off or say Rs. 14,08,000/-) (Rupees Fourteen Lacs Eight Thousand) Only, which is awarded as compensation under this head.
COMPENSATION ON ACCOUNT OF NON PECUNIARY LOSSES
36. Apart from above, a sum of Rs. 15,000/- (Rupees Fifteen Thousand Only) is awarded under the head of loss of estate and Rs. 15,000/- (Rupees Fifteen Thousand) is awarded towards funeral expenses. Reliance is placed upon Praney Sethi (Supra). The petitioners shall also be entitled to Rs. 40,000/- each towards loss of spousal/progenial/filial consortium for loss of company, care, help, solace and affection of the deceased. There has been divergence and abashment regarding loss of love and affection in view of the judgment of Hon'ble Apex Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram, 2018 SCC Online SC 1546 which has later been discussed by the Hon'ble High Court in case MAC. APP. 831/2018 titled Badal & Ors. Vs. Iffco Tokio General Insurance Company Ltd. & Ors. decided on 08.04.2019 and also in judgment passed in case MAC. APP. 729/2019 titled Navin Parcha & Ors.
Ors.
decided on 06.09.2019. However, the entire controversy is set at rest by a recent MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .19/42 full bench judgment of the Hon'ble Apex Court in United India Insurance Co. Ltd. Vs. Satinder Kaur, Kaur, 2020 SCC online SC 410 decided on 30.06.2020 where the Hon'ble Apex Court has held that the loss of consortium in itself is a comprehensive term to include loss of love and affection and there is no justification to award compensation towards loss of love and affection as a separate head.
37. Thus, the total compensation is assessed as under :
1. LOSS OF DEPENDENCY Rs. 14,08,000/-
2. COMPENSATION ON Rs.15,000/-
ACCOUNT OF NON- Rs.15,000/-
PECUNIARY LOSS Rs. 1,20,000/-
= Rs. 15,58,000/-
B. COMPENSATION ON ACCOUNT OF INJURIES/DISABILITY OF
PETITIONER EKTA RANI
MEDICAL EXPENSES
38. PW-1 Ekta Rani (petitioner herself) in her testimony has clearly deposed that she had sustained grievous injuries in the accident and was initially got admitted to Bhagwan Mahavir Hospital from where she was shifted to Max Hospital for treatment. She deposed that she had spent a sum of Rs. 9,10,000/-
on her treatment and IO has placed on record all the bills after due verification. Ld. Predecessor of this court vide impugned award has awarded a sum of Rs. 3,10,000/- under the head medical expenses, the remainder of Rs. 6,00,000/- being reimbursed by way of medi-claim policy. This adjunct of head was not touched by the Hon'ble High Court in the appeal. Therefore, this tribunal awards a sum of Rs. 3,10,000/- to the petitioner under the head medical expenses.
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .20/42 LOSS OF INCOME
39. Petitioner namely Ekta Rani (PW1) has categorically deposed in her testimony by way of affidavit (Ex. PW1/B) that at the time of accident she was giving tuition and was earning Rs. 15,000/- per month. To prove the same, she has neither placed on record any receipts nor the statement of account reflecting the amount of tuition fees in her account. Ld. Predecessor of this tribunal vide impugned award dated 31.05.2017 has awarded a sum of Rs. 61,308/- under the head loss of income by considering the income of petitioner to be Rs. 10,218/- per month on the basis of minimum wages of graduate and since the petitioner Ekta Rani sustained multiple fractures, she might have not performed her job for about 6 months. This adjunct of head was also not touched by the Hon'ble High court in the appeal filed by the petitioner. In these facts and circumstances, this tribunal awards a sum of Rs. 61,308/- (10,218/- X 6) to the petitioner under this head.
PAIN AND SUFFERING
40. Hon'ble Delhi High Court in "Vinod Kumar Bitoo Vs. Roshni & Ors." Passed in appeal MAC. APP 517/2010 decided on 05.07.2012, 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".
41. PW-1, petitioner herself has deposed in her testimony by way of affidavit Ex. PW-1/B that she had sustained grievous injuries consequent to disablement due to the accident in question and her ocular testimony is duly corroborated by medical records. Said treatment record would show that she had suffered grievous injuries. Thus, she would have undergone sufficient physical sufferings and mental shock on account of the accident in question. Ld. MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .21/42 Predecessor of this court vide impugned award dated 31.05.2017 has awarded a sum of Rs. 1,50,000/- under the head pain and sufferings and this adjunct was also not touched by the Hon'ble High Court in an appeal preferred by the petitioner. In the facts and circumstances, this tribunal awards a sum of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) Only towards pain and suffering to the petitioner/injured.
SPECIAL DIET/ NUTRITON & CONVEYANCE
42. In the present claim petition, there are sufficient material on record to establish that the petitioner had suffered grievous injuries and consequent disability due to the accident. The petitioner has deposed that she had spent money for special diet and nutrition but has failed to place on record any receipts. The petitioner without doubt needed sufficient nutrition in order to ensure her good health. Though, the petitioner has failed to file any receipt thereto. Further, the petitioner has not specifically mentioned that as to how many times she visited to the hospital for follow up in OPD. Although, she has failed to lead any cogent evidence on record to show that how much amount had she spent on account of conveyance. Ld. Predecessor of this tribunal vide impugned award dated 31.05.2017 on the basis of medical records has awarded a sum of Rs. 25,000/- each under the head special diet and conveyance and this adjunct of head was also not set-aside or touched by the Hon'ble High court in an appeal. Thus, a sum of Rs. 25,000/- (Rupees Twenty-Five Thousand) each is awarded under the head Special diet and Conveyance.
LOSS OF GENERAL AMENITIES OF LIFE
43. As discussed, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries. She is shown to have sustained injuries in spine and right lower limb resulting into a disability to the extent of 35% in relation to spine and right lower limb which has been duly proved by PW-3 Dr. G. C. Verma, Specialist (Orthopedics), Dr. BSA Hospital as Ex. PW3/1. PW-3 has MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .22/42 produced the relevant records with assessment sheet (Ex. PW3/2) and has deposed that the Board has assessed the disability of different parts which is mentioned in the assessment chart and after using combination formula, the Board has come to the conclusion that the patient Ekta Rani is having permanent disability to the extent of 35%. PW-2 was duly cross examined by the Ld. Counsel for the insurer where he deposed that he has not treated the patient/petitioner. The witness has admitted that there is no fracture in the right lower limb of the patient. He voluntarily deposed that the weakness was found in right lower limb due to spinal injuries and the disability sustained by the petitioner is permanent and not likely to improve. He further deposed that there are no guidelines to assess the functional disability in relation to whole body. Thus, the petitioner would not have been able to enjoy general amenities of life after the accident in question and her quality of life has been definitely affected. Ld. Predecessor of this tribunal vide impugned award dated 31.05.2017 has awarded a sum of Rs. 1,50,000/- under the loss of general amenities of life and this adjunct of head was also not set-aside or touched by the Hon'ble High court in an appeal. In view thereof, this tribunal awards Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) only towards loss of general amenities and enjoyment of life to the petitioner.
LOSS OF EARNING CAPACITY ON ACCOUNT OF DISABILITY (This head is decided afresh in terms of the order dated 16.10.2017 passed by the Hon'ble High Court in MAC. App. 901/2017 titled 'Ekta Rani & Ors. V. Jahurudding @ Mehtali @ Ors.').
44. The Hon'ble High Court while reminding the matter back has directed to decide the impugned award dated 31.05.2017 passed by the Ld. Predecessor of this tribunal afresh only on two aspects, one for fresh determination of compensation under the head loss of earning capacity on account of disability as the observations given by the Ld. Predecessor of this Tribunal in paras 48 and 49 of the impugned award dated 31.05.2017 was found to be MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .23/42 highly confusing being not given any indication about its views on the extent of functional disability and for enhancement of compensation, if any under the head of loss of dependency on the basis of evidence subsequently discovered and gathered by the petitioners). The later part has already been decided herein above under the head 'loss of dependency'. Now the determination of compensation under the head loss of earning capacity on account of disability is to be made.
45. As already discussed, the petitioner is shown to have sustained grievous injuries in her spine and right lower limb resulting into a disability to the extent of 35% in relation to her spine and right lower limb as evident from Disability certificate (Ex. PW-3/1) issued by Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi, which is proved by PW-3 Dr. G. C. Verma, Specialist (Orthopedics) Dr. B.S. A. Hospital, Delhi who in his testimony has deposed the Board has assessed the disability of different parts which is mentioned in the assessment chart (Ex. PW3/2) and after using combination formula. The disability board has come to the conclusion that the patient Ekta Rani is having permanent disability to the extent of 35% in relation to spine and right lower limb. PW-2 was duly cross examined by the Ld. Counsel for the insurer where he has admitted that there is no fracture in the right lower limb of the patient. He hasvoluntarily deposed that the weakness was found in right lower limb due to spinal injuries and the disability sustained by the petitioner is permanent and not likely to improve. He further deposed that there are no guidelines to assess the functional disability in relation to whole body.
Ld. Counsel for the petitioner has argued that the functional disability to the whole body be considered as 100% and not the 50% in the light of nature of job of the petitioner as she was imparting tuitions to students besides doing household work who after the accident could not resume her work till now. On the Contrary, Ld. Counsel for the insurer of the offending vehicle has argued that the petitioner may have sustained disability but it has not affected the job/work of petitioner in any manner. He further argued that the discharge summary of MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .24/42 petitioner Ekta proves that she is continuously improving neurologically. Even, she has been attending the hearing of case almost for long time. He has further argued that he has seen her walk and moving properly in the court.
46. It would be trite to take note of judgment dealing with the assessment of loss of future earnings on account of disability suffered as a result of accident, even when the case pertain to those victims who were having their earnings. The said judgment would throw light on the general principles which were laid down for assessing such a loss.
47. In the case of Raj Kumar V. Ajay Kumar & anr. (2011) 1 SCC 343, where the victim suffered 45% disability to left lower limb and permanent functional disability of 25%, the Hon'ble court has held that it is a functional disability which would be the operative criteria for assessing the loss of future earnings and not physical disability. There is a detailed and lucid discussion of assessment of future loss of earning due to permanent disability, covering all possible facets and discussing every nuance of the subject matter. After explaining the meaning of permanent disability and contrasting it with temporary disability and also the manner in which permanent disability of different limbs expressed by Doctors in the Disability Certificate is to be interpreted, The Hon'ble Apex Court has clarified that the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on earning capacity. The manner in which the assessment is to be carried out is contained in the following passages in the said judgment:
"12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .25/42
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
xx xx xx
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .26/42
48. From the reading of the aforesaid judgment, inter alia, following principles can be culled out which would be relevant for deciding the issue of loss of future earning capacity on account of disability sustained by the petitioner: -
(i) The petitioner has claimed that she was imparting tuitions to students besides doing household work who after the accident could not resume again till now.
(ii) The petitioner has sustained permanent disability to the extent of 35% in relation to spine and right lower limb but whether it has affected the job/work of petitioner in any manner. The discharge summary of petitioner Ekta proves that she is improving neurologically. Even, she has been attending the hearing of case almost for long time.
(iii) The petitioner has come to the court on hearing so many times and the tribunal has seen her in the court walking and moving properly without any support.
49. In the light of judgment Raj Kumar (supra) and considering the entire medical records including the testimonies of PW-1 & PW-3 and the disability certificate, this tribunal deem it appropriate to consider the functional disability of the petitioner to be 50% i.e. 17.5 (rounded of or say 18%) to the whole body as the disability sustained by the petitioner has not affected the job of petitioner to the extent of complete loss and more so when her avocation is stated to be of imparting tuitions, which per se does not involve much of physical activity, the disability being in relation to spine and right lower limb.
The date of birth of petitioner is 19.05.1976 as per her Secondary School Certificate, therefore, at the time of accident, she was aged about 37 years. Having regard to the percentage of loss of earning capacity in the light of injuries sustained by the petitioner Ekta which has resulted into disability to the extent of 35% in relation to spine and right lower limb, her functional disability is taken as 18% of the total disability in relation to whole body. Reliance placed on Raj Kumar's case (supra). The monthly income of the petitioner/injured at the MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .27/42 time of the accident was Rs. 10,218/- per month which annually comes to Rs. 1,22,616/-
Thus, the loss of future earning per annum comes to Rs. 22,070.88p (18% of the annual income).
The multiplier applicable with reference to the age of petitioner is 15 as per 'Sarla Verma case' as the petitioner was aged about 37 years at the time of accident.
Thus, the total loss of future earning capacity due to permanent disability is computed as Rs. 3,31,063.20p [ (rounded of or say Rs. 3,31,063/-) (Rs. 22,070.88p/- X 15). Therefore, this tribunal awards a sum of Rs. 3,31,063/- on account of loss of future earning capacity on account of disability.
COMPENSATION TOWARDS FUTURE PROSPECTS (This head is added in the light of judgments SLP (Civil) 25590/2014 'National Insurance Company Limited' V. Pranay Sethi and 'Erudhaya Priya V. State Express Transport Corporation Ltd. 2020 (3) T.A.C. 1 (S.C.)
50. Future prospects were earlier granted only in case of fatal accidents and the Ld. Predecessor of this tribunal was not having advantage of the judgments rendered by Hon'ble Supreme Court of India on this aspect at the time the award was passed. However, law has developed since then and the petitioner shall now be entitled to future prospects in respect of loss of earning capacity in the wake of judgments rendered by the Hon'ble Apex Court in Pranay Sethi (Supra) and 'Erudhaya Priya (Supra) and the tribunal accordingly, decides the same as under:-
51. As already discussed, the petitioner is shown to have sustained grievous injuries in her spine and right lower limb and consequent disability to the extent of 35% in relation to her spine and right lower limb as evident from Disability certificate (Ex. PW-3/1) of Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi, which has been duly proved by PW-3 Dr. G. G. Verma, Specialist MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .28/42 (Orthopedics). The witness has admitted that there is no fracture in the right lower limb of the patient. He voluntarily deposed that the weakness was found in right lower limb due to spinal injuries.
The petitioner was aged about 37 years as on the date of accident as per her Secondary School Examination. The petitioner has claimed an addition of 40% towards future prospects in view of the judgment of Hon'ble Supreme Court of India rendered in SLP (Civil) 25590/2014 National Insurance Company Limited V. Pranay Sethi. On the contrary, Ld. Counsel for the insurer has vehemently argued the aforesaid judgment is not applicable to the facts of the present case as the aforesaid judgment quantify the future prospects in fatal cases and not in the case of disablement. To rebut the arguments of the Ld. Counsel for the insurer, Ld. Counsel for the petitioner has relied upon one more judgment of Hon'ble Supreme Court of India 'Erudhaya Priya V. State Express Transport Corporation Ltd. 2020 (3) T.A.C. 1 (S.C.) where the Hon'ble Apex Court has granted the amount of compensation towards future prospects in the case of disablement also.
Having regard to the loss of future prospects in the light of injuries sustained by the petitioner Ekta Rani which has resulted into disability to the extent of 35% in relation to spine and right lower limb, her loss of future prospects is computed as under:-
As on the day of accident, the petitioner being aged about 37 years, as such, the future prospects shall be 40% in view of the Pranay Sethi Case (supra). Thus, the amount of compensation towards loss of future prospects comes out to be Rs. 1,32,425.20p [(rounded of or say Rs. 1,32,425/-) (3,31,063/-
X 40%)]. Therefore, this tribunal awards a sum of Rs. 1,32,425/- (Rupees One Lakh Thirty-Two Thousand Four Hundred Twenty-Five) Only on account of loss of future prospects on account of disability.
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .29/42
52. Thus, the total compensation qua injured Ekta Rani is assessed as under:-
1. Medical expenses Rs. 3,10,000/-
2. Loss of income Rs. 61,308/-
3. Pain and suffering Rs. 1,50,000/-
4. Loss of general amenities and Rs. 1,50,000/-
enjoyment of life
5. Conveyance and special diet Rs. 25,000/-+ Rs.25,000/-
= Rs.50,000/-
6. Loss of future earning capacity on Rs. 3,31,363/- account of disability
7. Loss of future prospects Rs. 1,32,425/-
Total Rs. 11,85,096/-
Or say (rounded off) Rs. 11,85,100/-
LIABILITY
53. The offending vehicle was admittedly insured at the time of accident with respondent no. 3 i.e. Iffco Tokio General Insurance Co. Ltd. in the name of respondent no. 2 and there is no breach of any of the conditions of the insurance policy. In these circumstances, the insurance company is liable to indemnify the insured U/s 149 (1) of M. V. Act and thus held liable to pay the compensation to the petitioners.
ISSUE NO. 3 RELIEF
54. In view of findings of this tribunal on issues no. 1 and 2, an award for a sum of Rs. 15,58,000/- (Rupees Fifteen Lacs Fifty-Eight Thousand) Only qua deceased Manoj Lamba and for a Rs. 11,85,100/- (Rupees Eleven Lacs Eighty Five Thousand One Hundred) only qua injured Ekta Rani, including MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .30/42 interim awards if any alongwith interest @ 9% per annum (except interest for the period 26.08.2019 till 18.10.2019 as stopped by the tribunal vide its order dated 26.08.2019) is passed in favour of the petitioners in case of death and in favour of petitioner no.1 Ekta Rani respectively and against the respondents w.e.f.
date of filing of the petition/DAR i.e. 13.09.2013 till the date of its realization (Reliance is placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors. Bearing MAC. APP. 165/2011 decided on 22.02.2016.
APPORTIONMENT
55. The statements of petitioners regarding their financial needs in terms of clause 29 MCTAP (earlier clause 26 MCTAP) were recorded by the Ld. Predecessor of this tribunal on 19.09.2016. Having regard to the facts and circumstances of the present claim petition and in view of the statements, it is hereby ordered that apart from her entire compensation qua injuries sustained by her, petitioner Ekta Rani shall also be entitled to 40% out of the award amount as awarded qua deceased Manoj Lamba out of which, a sum of Rs. 1,00,000/- (Rupees One Lakh) Only (including the amount already released, if any) shall be immediately released to the injured/petitioner and Rs. 2,00,000/- (Rupees Two Lakhs) Only (including the amount already released, if any) be released her out of her own compensation as awarded for the injuries sustained by her through her saving bank account bearing no. 456300055719, Punjab National Bank, Madhuban chowk, Rohini, Delhi and remaining amount alongwith interest amount be kept in the form of FDR's in the multiples of Rs. 30,000/- each for a period of three months, six month, nine months, one year, and so on and so forth, having cumulative interest.
It is further ordered that the petitioners namely Himanshi & Jyoti shall be entitled to 30% each out of the award amount awarded qua deceased Sh. Manoj Lamba and out of their respective shares, a sum of Rs. 1,00,000/- (Rupees One Lakh) including the amount already released, if any each be released MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .31/42 immediately to them through their saving bank accounts bearing nos. 4563000100055728 & 4563000100055719 respectively which they have been maintaining in Punjab National Bank, Madhuban Chown Branch, Rohini, Delhi and remaining amount alongwith interest amount be kept in the form of FDR's in the multiples of Rs. 25,000/- each for a period of three months, six month, nine months, one year, and so on and so forth, having cumulative interest.
56. The fixed deposit award be transmitted to the MACAD Accounts of the petitioners in order to get the maximum benefit and till the time such scheme is fully made operational The FDR's to be prepared as per the aforesaid directions, shall be subject to the following directions: -
(a). The bank shall not permit any joint name (s) to be added in the saving bank account or fixed deposit accounts of the victim i.e. the savings bank account (s) of the claimant (s) shall be 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 saving 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 saving bank account of the claimant (s) near the place of their residence.
(e). No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the court.
(f). The concerned bank shall not to issue any cheque book and/or debit card to claimant (s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card (s) freeze the account of the claimant (s) so that no debit card be issued in respect of the account of the claimant (s) from any other branch of the bank.
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .32/42 The bank shall make an endorsement on the passbook of the claimant (s) to the effect, that no cheque book and/or debit card are issued against the aforementioned account of petitioner, if not made earlier and shall not issue the same without the permission of this tribunal.
57. The award amount with interest in terms of the impugned award dated 31.05.2017 passed by the Ld. Predecessor of this tribunal is already stated to have been deposited by the insurer of the offending vehicle with Punjab National Bank, Madhuban Chowk, Rohini, Delhi. Respondent no. 3 i.e. Iffico Tokio General Insurance Co. Ltd. is now directed to deposit the remaining award amount with proportionate interest with the same Bank viz. Punjab National Bank, Madhuban Chowk, Rohini, Delhi. The notice of the deposit of enhanced award amount be sent by R-3 i.e. Iffco Tokio General Insurance Co. Ltd. to the petitioner/injured within aforesaid period of 30 days initially which shall then transmit the amount to the petitioner's bank on receipt of orders of release by the tribunal.
58. R-3 i.e. Iffco Tokio General Insurance Co. Ltd. is directed to deposit the award amount within 30 days after sending notice to the petitioners. Copy of this judgment/award be given to petitioners and counsel for R-3 for compliance. Copy of order be also sent to concerned M.M and DSLSA as per clause 31 and 32 of MCTAP.
File be consigned to record room after due completion. However, separate miscellaneous execution file be prepared for compliance of award which is to be put up by Nazir of the court along-with his report on 22.04.2021.
Announced in open Court on 23.03.2021.
(MUKESH KUMAR GUPTA) ADJ-1+MACT(N/W), Rohini Courts, Delhi MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .33/42 FORM - IV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD OF DECEASED MANOJ LAMBA
1. Date of the accident: - 10.06.2013
2. Name of deceased:- Sh. Manoj Lamba.
3. Age of the injured:- 40 years (at the time of accident)
4. Occupation of the deceased:- Mechanic of refrigeration and AIR conditioning system.
5. Income of the deceased: - Rs. 1,18,108/- per annum.
6. Name, age and relationship of legal representatives of deceased:
S. No. Name Age Relation
(i) Smt. Ekta Rani 37 years Wife
(ii) Ms. Himanshi 16 years Daughter
(iii) Ms. Jyoti 12 years Daughter
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A)
Rs. 9386/-
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .34/42
8. Add-Future Prospects (B) 25%
9. Less-Personal expenses of the 1/3deduction deceased (C)
10. Monthly loss of dependency [(A+B) - C =D]
11. Annual loss of dependency 12 (Dx12) 12. Multiplier (E) 15
13. Total loss of dependency =9,386/- + 25%= 2,346.5p;
(Dx12xE = F =9,386+2346.5p = 11,732.5/-.
Monthly Loss of dependency after deductions in terms of Sarla Verma (Supra) shall be 11,732.5pX 2/3 = 7,821.66p.
Thus, the total loss of dependency on account of death of deceased comes to Rs. 7,821.66X12X15 = 14,07,898.80p (rounded off or say Rs. 14,08,000/-) (Rupees Fourteen Lacs Eight Thousand) Only, which is awarded as compensation under this head.
14. Medical Expenses (G) Nil.
15. Compensation for loss of Rs. 1,20,000/-
consortium & loss of love and affection (H) MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .35/42
16. Compensation for loss of estate(I) Rs. 15,000/-
17. Compensation towards funeral Rs. 15,000/-
expenses (J)
18. TOTAL COMPENSATION Rs. 15,58,000/-
(F+G+H+I+J=K) a. Earlier awarded amount Rs. 15,02,000 b. Enhanced Awarded amount Rs. 15,58,000 Difference amount Rs. 56,000/-
19. RATE OF INTEREST AWARDED 9% P. A. (except interest for the period 26.08.2019 till 18.10.2019 as stopped by the tribunal vide its order dated 26.08.2019)
20. Interest amount up to the date of Rs. 37,215/-
award (L) 21 Total amount including interest Rs.56000+37,215 (K+L) = Rs. 93,215/-
22. Award amount released __
23. Award amount kept in FDRs It is hereby ordered that apart from her entire compensation qua injuries sustained by her, petitioner Ekta Rani shall also be entitled to MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .36/42 40% out of the award amount as awarded qua deceased Manoj Lamba out of which, a sum of Rs. 1,00,000/-
(Rupees One Lakh) Only (including the amount already released, if any) shall be immediately released to the injured/petitioner and Rs. 2,00,000/-
(Rupees Two Lakhs) Only (including the amount already released, if any) be released her out of her own compensation as awarded for the injuries sustained by her through her saving bank account bearing no.
456300055719, Punjab National Bank, Madhuban chowk, Rohini, Delhi and remaining amount alongwith interest amount be kept in the form of FDR's in the multiples of Rs. 30,000/- each for a period of three months, six month, nine months, one year, and so on and so forth, having cumulative interest.
It is further ordered that the petitioners namely Himanshi & Jyoti shall be entitled to 30% each out of the award amount awarded qua deceased Sh. Manoj Lamba and out of their respective shares, a sum of Rs. 1,00,000/- (Rupees One Lakh) MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .37/42 including the amount already released, if any each be released immediately to them through their saving bank accounts bearing nos.
4563000100055728 & 4563000100055719 respectively which they have been maintaining in Punjab National Bank, Madhuban Chown Branch, Rohini, Delhi and remaining amount alongwith interest amount be kept in the form of FDR's in the multiples of Rs. 25,000/- each for a period of three months, six month, nine months, one year, and so on and so forth, having cumulative interest.
24. Mode of disbursement of the Motor Accident Claims Tribunal award amount to the claimant(s).
Annuity Deposit (MACAD) in terms of clause 32 of MCTAP.
25. Next Date for compliance of the 22.04.2021 award.
(MUKESH KUMAR GUPTA) ADJ-01+MACT (NW).
Rohini Courts, Delhi.
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .38/42 FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD OF INJURED EKTA RANI
1. Date of the accident: - 10.06.2013
2. Name of deceased:- Ms. Ekta Rani
3. Age of the injured:- 37 years (at the time of accident)
4. Occupation of the deceased:- Running coaching classes.
5. Income of the injured:- Rs 10,218/- per annum.
6. Nature of injury:- Grievous.
7. Medical treatment taken by the injured:- Petitioner was admitted in Bhagwan Mahavir Hospital, Pitampura, Delhi and then shifted to Max Hospital for further treatment.
8. Period of hospitalization: Not mentioned.
9. Whether any permanent disability? If yes, give details: -
10. Computation of Compensation S. No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 3,10,000/-
(ii) Expenditure on conveyance Rs.25,000/-
(iii) Expenditure on special diet Rs.25,000/-
(iv) Cost of nursing/attendant
(v) Loss of earning capacity
(vi) Loss of income Rs. 61,308/-
(vii) Any other loss which may require any --
special treatment or aid to the injured
for the rest of his life
12. Non-Pecuniary Loss:
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .39/42
(I) Compensation for mental and physical --
shock
(ii) Pain and suffering Rs.1,50,000/-
(iii) Loss of amenities of life --
(iv) Disfiguration --
(v) Loss of marriage prospects --
(vi) Loss of earning, inconvenience,
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 35% permanent disability nature of disability as permanent or in relation to spine and temporary right lower limb.
(ii) Loss of amenities or loss of expectation Rs. 1,50,000/-
of life span on account of disability
(iii) Percentage of loss of earning capacity Rs. 3,31,363/-
in relation of disability
(iv) Loss of future income - (Income X% Rs. 1,32,425/-
Earning capacity X Multiplier)
14. TOTAL COMPENSATION Rs. 11,85,096/-
Earlier awarded amount = 10,52,371 Difference 11,85,096-10,52,371 = 1,32,629 Rs. 1,32,629/-
15. INTEREST AWARDED 9% (except interest for the period 26.08.2019 till MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .40/42 18.10.2019 as stopped by the tribunal vide its order dated 26.08.2019)
16. Interest amount up to the date of award Rs. 88,140/-
17. Total amount including interest Rs. 2,20,769/-
18. Award amount released Rs. 2,00,000/- be released to the petitioner through her saving bank accounts.
19. Award amount kept in FDRs Rs. 2,00,000/- (Rupees Two Lakhs) Only (including the amount already released, if any) be released the petitioner Ekta Rani out of her own compensation as awarded for the injuries sustained by her through her saving bank account bearing no.
456300055719, Punjab
National Bank, Madhuban
chowk, Rohini, Delhi and
remaining amount
alongwith interest amount
be kept in the form of
FDR's in the multiples of
Rs. 30,000/- each for a
period of three months, six
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .41/42
month, nine months, one
year, and so on and so
forth, having cumulative
interest.
20. Mode of disbursement of the award
As per award and in terms
amount to the claimant (s) (Clause29)
of clause 31 of MCTAP
and amount to be kept in
FDR's in terms of Clause
32 of MCTAP
21. Next date for compliance of the award. 22.04.2021
(Clause 31)
(MUKESH KUMAR GUPTA)
ADJ-1+MACT(N/W),
Rohini Courts, Delhi
MACT No. 449524/16 Ekta Rani & Ors. V. Jahuruddin @ Mehtali & Ors. Page No .42/42