Delhi District Court
Zahida Kausar vs . Sarabjeet Singh on 14 March, 2023
MORE THAN SEVEN YEAR OLD MATTER
IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL, PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
ZAHIDA KAUSAR VS. SARABJEET SINGH
RANA & ORS.
MACP NO. 22/16
Smt. Zahida Kausar
W/o Sh. Manzoor Ahamad Wani,
Waripora Bala P/O & PS Kreeri,
District Baramulla, J & K.
......Petitioner/Injured
Versus
1. Sh. Sarabjeet Singh Rana
(Driver of the offending vehicle)
S/o Sh. Shambhu Singh Rana,
R/o Village Mohukar, Teh. Baijnath,
District Kangra, H.P.
2. M/s Fauji Tours & Travels
(Owner of the offending vehicle)
C-17, Hari Nagar, New Delhi-110064.
3. M/s National Insurance Co. Ltd. (Insurer)
Through its Manager,
4th Floor, Jeevan Bharti Building,
Connaught Place, New Delhi.
.....Respondents
MACP NO. 22/16 Page 1 of 29
Date of filing of claim petition : 09.07.2012 Date of filing of DAR : 27.03.2012 Date of framing of issues : 06.08.2012 Date of concluding arguments : 18.01.2023 Date of decision : 14.03.2023 (due to clarification regarding 96 bills filed on record, two dates were given in between) AWARD/JUDGMENT
1. The claim for compensation in the present claim petition relates to injuries and disability suffered by petitioner in a road accident that took place on 19.02.2012, at about 09.30 pm, near Petrol Pump, Niti Marg, Chanakyapuri, New Delhi, regarding which an FIR bearing no.23/12, under Sections 279/338 IPC was registered at PS Chanakyapuri. The offending vehicle involved in this case is a car bearing registration no. DL-1ZZ-1181, which at the relevant time of accident was being driven by respondent no. 1, owned by respondent no.2 and insured with respondent no. 3.
2. The case of petitioner, briefly stated, is that the petitioner had come to Delhi for a short visit and on the aforesaid date, time and place of accident, the petitioner was walking on the roadside along with her husband and daughter after having the dinner. When they reached near Petrol Pump situated at Niti Marg, the offending vehicle bearing registration No. DL-1ZZ-1181, which was being driven by respondent no. 1 in rash and negligent manner, came from the side of Nehru Park and hit the petitioner due to which the MACP NO. 22/16 Page 2 of 29 petitioner fell down on the road and sustained grievous injuries. It is further stated that the petitioner was removed to AIIMS Trauma Centre
3. It is pertinent to mention that vide order dated 20.05.2013, the application under Order 6 Rule 17 filed on behalf of petitioner was allowed and the amended petition was filed by the petitioner as in the earlier petition, the number of offending vehicle has been wrongly typed as DL-4CG-5128 instead of DL-1ZZ-1181. Thereafter, vide order dated 11.11.2013, the issues were re-framed by the Ld. Predecessor of this tribunal. Further, an application for assessment of disability was filed on behalf of petitioner which was allowed by this tribunal vide order dated 24.11.2015 and thereafter, the disability report of petitioner was received to the effect that the petitioner had suffered 45% temporary physical impairment and advised to undergo operation. Thereafter, the proceedings of the present matter was adjourned sine die with liberty to petitioner to get the proceedings revived as and when the petitioner is declared fit to undergo the test for determination of her permanent disability. Thereafter, the petitioner moved an application for restoration of case along with an application for determination of her permanent disability which were allowed vide order dated 19.02.2020 and the petitioner was directed to approach Dr. RML Hospital for assessment of her permanent disability. The disability report of petitioner was received stating that the petitioner had suffered 10% permanent physical disability in relation to her right lower limb.
4. Perusal of record reveals that respondents no. 1 and 2 were proceeded ex-parte vide order dated 02.03.2015. Written statement was filed on behalf of respondent no. 2 on 27.02.2021 and vide MACP NO. 22/16 Page 3 of 29 order dated 02.03.2021, it was directed that written statement cannot be taken on record.
Respondent no. 3/Insurance Company had filed written reply wherein it is stated that the offending vehicle was duly insured with them in the name of respondent no. 2 w.e.f. 06.07.2011 to 05.07.2012 and the liability of Insurance Company is subject to terms and conditions of the insurance policy. It is further stated that the driving license was valid for driving private vehicle whereas the alleged offending vehicle is commercial passenger vehicle.
5. On 11.11.2013, the following issues were framed by the Ld. Predecessor of this tribunal as :-
1. Whether the petitioner sustained injuries in the accident which occurred on 19.02.2012, at about 09.30 pm, Near Petrol Pump, Niti Marg, Chanakyapuri, New Delhi caused by rash and negligent driving of vehicle No. DL-1ZZ-1181 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
6. The Tribunal heard arguments advanced by Sh. D.S. Mehta, Ld. Counsel for petitioner and Ms. Mamta Mayer, Ld. Counsel for respondent no.3/Insurance Company. The case record has also been perused, including the written final arguments filed on behalf of petitioner and respondent no. 3.
7. The finding on the aforesaid issues is reproduced in succeeding paragraphs hereinafter.
MACP NO. 22/16 Page 4 of 29 ISSUE No. 11. Whether the petitioner sustained injuries in the accident which occurred on 19.02.2012, at about 09.30 pm, Near Petrol Pump, Niti Marg, Chanakyapuri, New Delhi caused by rash and negligent driving of vehicle No. DL-1ZZ-1181 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
The onus to prove this issue was upon the petitioner. In order to prove negligence of respondent no. 1, the petitioner has only examined herself as PW-1 and has filed her evidence by way of affidavit as Ex. PW-1/A wherein she has narrated the mode and manner of accident and relied upon the documents Ex. PW1/1 to Ex. PW1/7. The petitioner has also tendered her evidence by way of additional affidavit Ex. PW1/A1 and relied upon the documents Ex. PW1/8 to Ex. PW1/13.
8. No effective cross examination regarding negligence has been led on behalf of respondents. It can be said that during her cross examination, nothing material could be extracted out from his testimony which can make this tribunal to disbelieve or discard her testimony. The testimony of petitioner is duly corroborated by the DAR filed by the IO. Moreover, it has not been disputed that R1 stands already chargesheeted in the above criminal case for offences punishable under Sections 279/338 IPC for causing injuries on the person of petitioner by his rash and negligent driving of the above said vehicle and the same in itself is a strong circumstance to corroborate the testimony of petitioner on above aspects.
MACP NO. 22/16 Page 5 of 299. Pertinently, Respondent no. 1 himself was the best witness who could have stepped into the witness box to rebut his involvement in the aforesaid accident, which he has failed to do. Therefore, an adverse inference is drawn against the respondent no. 1/driver in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi)
310.
10. It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed :-
"......Strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability."
Reliance has been placed upon the judgment of the Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303 has observed that ".........Filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle negligently and rashly. It has been further observed that even when the accused were to be acquitted in the criminal MACP NO. 22/16 Page 6 of 29 case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."
11. In view of foregoing discussion, this issue is duly substantiated by the ocular evidence of injured as PW1 and documentary evidence in the form of chargesheet and thus, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing no. DL-1ZZ-1181 which was being driven by respondent no. 1 and owned by respondent no. 2. Hence, this issue is decided in favour of the petitioner and against the respondents.
ISSUE NO.2 Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
12. As the issue no.1 has been proved in favour of the petitioner, she has become entitled to be compensated for the injuries suffered by her in the accident, but the computation of compensation and liability to pay the same are required to be decided.
13. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non-pecuniary damages. The Hon'ble Apex Court in case titled as Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343) has MACP NO. 22/16 Page 7 of 29 laid down heads under which compensation is awarded in personal injury cases:-
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
14. Having considered the ratio of aforesaid judgment, the compensation payable to petitioner is assessed hereinafter under the following heads:-
(I) Medical or Treatment Expenses
15. It is the case where the petitioner had visited Delhi for a short period during which the present accident had occurred. The initial treatment soon after the accident had taken place at Delhi hospitals, i.e. AIIMS Trauma Centre and Dr. RML MACP NO. 22/16 Page 8 of 29 Hospital. However, thereafter the petitioner has stated to have returned to her home at Baramulla, J & K and further treatment had taken place there only.
The petitioner in her affidavit Ex. PW1/A has tendered on record her discharge slip and OPD cards as Ex. PW1/2 (colly). As per discharge summary Ex. PW1/2 (colly), the petitioner was admitted in Dr. RML Hospital on 20.02.2012 and was discharged on 09.03.2012. It further reflects that the petitioner had suffered fracture compound grade III both bone right leg and had undergone surgery.
Another discharge summary issued by Florence Hospital, which is part of Ex. PW1/2 (colly), reveals that the petitioner was admitted in the said hospital on 28.04.2012 and was discharged on 30.04.2012 where she was diagnosed with NU Fx tibia (gap with fixator in place) and had undergone operation. As per certificate dated 30.01.2019 Ex. PW1/10 (colly), the petitioner was admitted in Amandeep Hospital, GT Road, Model Town, Amritsar on 13.11.2017 with diagnosis of O/C/O non union pseudoarthrosis right tibia distal third with deformity and had undergone surgery on 15.11.2017 for ORIF + BG + Fibula Osteotomy and was discharged on 23.11.2017.
16. In her affidavits Ex. PW1/A and Ex. PW1/A1, petitioner has also tendered on record her medical bills as Ex. PW1/1 (colly) and Ex. PW1/8 (colly) which are totalling to a sum of Rs. 4,18,719/-. During cross examination, she stated that she was working in J & K, Department of Education and resumed her services in the same Department on 15.06.2012. She MACP NO. 22/16 Page 9 of 29 deposed that she has not received any reimbursement of her medical bills from any forum or organization. No effective cross examination was done on the medical bills except only suggestion regarding denial.
17. Needless to say, the insurance company has not led any evidence to show that the said bills do not relate to the injuries suffered by the petitioner in the aforesaid accident and no verification report regarding medical bills has been filed. Thus, the testimony of PW-1 that she spent the aforesaid amount towards medical expenses remained unrebutted and uncontroverted. In the absence of any plausible evidence produced by respondents on record, there is no reason to disbelieve the testimony of PW-1 that she has spent the aforesaid amount towards medical expenses. Hence, she is held entitled to Rs. 4,18,719/- towards her medical expenses.
(II) Loss of actual earnings
18. The petitioner in her affidavit Ex. PW1/A has claimed that she was doing government service in Department of Education and was getting Rs. 12,372/- per month. During cross examination, she deposed that at the time of accident, she was working in J & K with the Department of Education, Govt. of India. In order to prove the same, the petitioner has tendered on record her salary slip Ex. PW1/7 which reflects that the petitioner was working as Lab Bearer with Govt. Higher Secondary School, Chandilora Tangmarg, Kashmir and was earning Rs. 12,372/- per month and the said salary slip was attested by the Principal of the said school.
MACP NO. 22/16 Page 10 of 2919. Petitioner in her affidavit has further claimed that she could not do her job about one and half year due to the injuries sustained in the accident. During cross examination, she admitted that she remained on leave till 15.06.2012 and resumed her services in the same department. In order to prove the same, she has tendered on record her original leave certificate Ex. PW1/6 which reflects that the petitioner had availed commutation leave w.e.f. 19.02.2012 to 28.02.2012 and 01.03.2012 to 07.04.2012 and further availed leave not due without pay w.e.f. 08.04.2012 to 15.06.2012. Therefore, the petitioner had availed total leaves of 117 days in total which is apparent from the leave record Ex. PW1/6. Therefore, under this head, she is being awarded an amount of Rs. 48,251/- (Rs. 12,372/30 X 117 days).
(III) Loss of future earnings due to disability
20. As per disability certificate dated 26.02.2020 Ex. PW2/A, the petitioner is a case of road traffic accident with united fracture both bone right let with implant in situ and there was partial loss of sensation over the surgical scar mark. There was 3 cm shortening of her right lower limb and her permanent disability is 10% in relation to right lower limb. In order to prove the disability certificate Ex. PW2/A, the petitioner has examined Dr. Vijay Kumar Jain, Associate Professor, Department of Orthopedics, Dr. RML Hospital, New Delhi as PW2. During cross examination, PW2 deposed that the disability of petitioner is permanent in nature. He further deposed that the petitioner would MACP NO. 22/16 Page 11 of 29 have problem in climbing stairs, walking fast or running and she can only walk at normal and slow pace without support. He further deposed that she would not have difficulty in continuing her teaching job.
21. The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it has been held as under :-
"10. 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 ability (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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a MACP NO. 22/16 Page 12 of 29 carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. ............"MACP NO. 22/16 Page 13 of 29
22. Keeping in view the ratio of aforesaid case, the nature of disability suffered by the petitioner in relation to right lower limb as well as the testimony of PW2, the functional disability of the petitioner is taken as 10%, i.e. equivalent to the disability mentioned in the disability certificate Ex. PW2/A.
23. Further, to apply the multiplier, it is necessary to ascertain the age of the petitioner. The petitioner has tendered on record copy of her PAN card as Ex. PW1/4 in which his date of birth is found recorded as 18.03.1983. Hence, going by these documents, his age as on i.e. date of accident was 28 years, 11 months and 1 day. Therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Apex Court in a judgment of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014 decided on 31.10.2017, the multiplier of 17 is applicable for calculating the loss of future earnings of the petitioner arising out of above disability.
The petitioner is also entitled to 50% future prospects in view of the law laid down by the Hon'ble Apex Court in the case of Pranay Sethi & Ors.(Supra) as she was aged below 40 years at the time of accident and her job was permanent in nature. Thus, the loss of future earnings caused to the petitioner due to her permanent disability comes to Rs.3,78,583/- (Rs.12,372/- X 12 X 17 X 10/100 X 150/100).
MACP NO. 22/16 Page 14 of 29(IV) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
24. As stated above, the petitioner had suffered grievous injuries in the accident. However, it is not possible to exactly compensate her for the shock, pain and sufferings etc. which she had actually suffered because of the above injuries and disability, but an effort has to be made to compensate her for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by the petitioner and duration of the treatment taken by her etc., an amount of Rs.50,000/- each is being awarded to her towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.40,000/- is also awarded to her towards the loss of amenities suffered by her during the said period of her treatment. Thus, she is awarded total amount of Rs.1,40,000/- under this head.
(V) Conveyance, Special Diet, Attendant Charges and miscellaneous expenses
25. The petitioner in her affidavit Ex. PW1/A has claimed that she had spent an amount of Rs. 2,00,000/- on special diet, Rs. 2,50,000/- on conveyance and Rs. 3,00,000/- towards attendant charges. The petitioner has tendered on record her conveyance bills/miscellaneous expenses regarding lodging and boarding Ex. PW1/5 (colly) which are totalling to a sum of Rs. 1,27,805/-. In her additional affidavit Ex. PW1/A1, the petitioner has further placed on record conveyance bills/miscellaneous expenses regarding lodging and boarding as Ex. PW1/11 (colly) MACP NO. 22/16 Page 15 of 29 which are totalling to a sum of Rs. 1,53,868/-. The petitioner in her affidavit has further claimed that during the course of her treatment, she was residing in rented accommodation and has also placed on record rent agreement and rent receipts as Ex. PW1/13 (colly) which are totalling to Rs. 1,02,000/-. The above conveyance bills, expenses regarding lodging and boarding as well as expenses of rented accommodation are totalling to a sum of Rs.3,83,673/-. The said amount shall be granted to the petitioner as from the facts and circumstances of the present matter, it is clear that the petitioner/injured is having her permanent residence in remote area of Waripora Bala P/O & PS Kreeri, District Baramulla, J & K and had to travel to far places for her treatment.
26. The petitioner has not placed on record any document in order to substantiate her claim regarding the amount spent towards special diet. Still this tribunal can very well take note of the requirement of special diet for her early recovery from the injuries suffered because of the accident. Hence, considering the prolonged treatment of petitioner, an amount of Rs.1,00,000/- is being awarded to the petitioner towards special diet.
27. The petitioner in her additional affidavit Ex. PW1/A1 has claimed that she had hired an attendant namely Ms. Fatima Majeed and also placed on record salary register showing the salary received by Ms. Fatima Majeed under her signatures along with copy of her Aadhar card as Ex. PW1/12. Perusal of salary register Ex. PW1/12 reflects that the petitioner had hired an attendant w.e.f. April, 2012 till October, 2021, but the MACP NO. 22/16 Page 16 of 29 petitioner cannot be awarded attendant charges for the whole life as the future prospects has already been given. However, treatment record of petitioner shows that the last surgery of petitioner was done on 15.11.2017 in Amandeep Hospital and was discharged from the said hospital on 23.11.2017. Considering the same, the tribunal deems it just and reasonable to award attendant charges w.e.f. April 2012 to November, 2017, i.e. from the time of accident till the time when the last surgery of petitioner was done. Accordingly, the document on record filed by the petitioner are that the payments were made to an attendant Ms Fatima Majeed @ Rs. 8000/- per month w.e.f. April, 2012 to February, 2014, @ Rs. 8,500/- per month w.e.f. March, 2014 to February, 2016 and @ Rs. 9,000/- per month w.e.f. March, 2016 to November, 2017 which are totalling to Rs. 5,86,000/-. Thus, the petitioner is thus entitled to an amount of Rs. 10,69,673/- (Rs.3,83,673/- + Rs. 1,00,000/- + Rs. 5,86,000/-) under the aforesaid heads.
Issue No.3/Relief
28. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.20,55,226/- (Rs. 4,18,719/- + Rs. 48,251/- + Rs. 3,78,583/- + Rs. 1,40,000/- + Rs. 10,69,673/-) (Rupees Twenty Lakhs Fifty Five Thousand Two Hundred Twenty Six only) along with 7.5% interest (as per prevalent rate of interest given by the banks) from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
MACP NO. 22/16 Page 17 of 29RELEASE
29. Out of amount awarded, 50% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 75 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 75 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account bearing No. 39811280715, having IFSC Code SBIN0002447 and PAN Card No. DXOPK9111G, being maintained with State Bank of India, Palhalan, Hyderbeich Pattan, Jammu & Kashmir and the remaining 50% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
The disbursement to the petitioner is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his share.
The bank shall not permit any joint names to be added in the savings bank account or MACAD scheme account of petitioner i.e. the bank account of petitioner shall be individual account and not a joint account.
MACP NO. 22/16 Page 18 of 29The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amount shall be released in account of petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of his residence.
The maturity amount of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of petitioner.
No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. 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.
The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall MACP NO. 22/16 Page 19 of 29 produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
LIABILITY
30. Ld. Counsel for Insurance Company in its written submissions has stated that as per MLC, the driver of the offending vehicle was under the influence of alcohol at the time of accident and the same is violation of terms and conditions of the insurance policy.
A bare perusal of the charge-sheet shows that Section 185 of the M.V. Act was also invoked by the Investigating Officer (IO) against R-1, besides the other sections, as investigation reflected that R-1 was under influence of liquor at the time of accident.
However, perusal of MLC of respondent no. 1 stated that there is smell of alcohol, but no test has been carried out for ascertaining the quantity of consumption of liquor by respondent no. 1 at the time of accident. Hence, this defence is no avail to the Insurance Company.
31. Reliance has also been placed upon the judgment of Hon'ble High Court of Himachal Pradesh reported as 2009 LawSuit(HP)552, Khem Chand Vs Uma Devi and Ors and judgment of Hon'ble High Court of Delhi passed in MAC App 678/2011 titled as Universal Sompo General Insurance MACP NO. 22/16 Page 20 of 29 Company Ltd. Vs Vijay and Vicky and another decided on 09.07.2012, wherein it has been held that such defence is not available to the insurance company under section 149 of Motor Vehicle Act, 1988. Relevant portion of Khem Chand Vs Uma Devi and Ors(supra) is reproduced hereinunder as:-
"4. The law is very well settled that a claim which falls within the purview of an Act policy i.e. a liability falling within the ambit of Section 147 of the Motor Vehicles Act, 1988 (the Act) can only be contested by the Insurance Company on the grounds available to it under Section 149 of the Act. It is not permitted to contest the proceedings on any other grounds. Intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Act. Therefore, the liability, which is statutory under Section 147 of the Act, has to be satisfied by the insurer. It may be clarified that in case the insurer in addition to the liability which it is bound to cover under the Act covers other liability then in case of such extended liability, it may raise the defences available to it as per terms of the policy, but as far as statutory liability is concerned, the insurer has no authority to incorporate any term in the policy which is not contemplated in terms of Section 149 of the Act. Therefore, the Insurance Company could not have been permitted to raise this defence and it could not be permitted to recover the awarded amount from the insured."
32. The ratio of aforesaid judgments is that intoxication of driver is not a ground available to the insurance company under section 149 of Motor Vehicle Act, and therefore, the insurance company has to satisfy the statutory liability. It is well settled that the insurance company cannot travel beyond the ambit of section 149 of Motor Vehicle Act, 1988 which deals with duty of insurance company to satisfy judgments and awards MACP NO. 22/16 Page 21 of 29 against persons insured in respect of third-party risks. Under subsection (2) of said section, the insurance company can defend its liability to pay awarded compensation on the grounds mentioned therein.
33. Further, the Insurance Company has taken another defence that the driving license of respondent no. 1 was valid for driving private vehicle whereas the alleged offending vehicle is commercial passenger vehicle.
In order to prove the same, respondent no.3/Insurance Company has examined one Sh. Gurcharan Singh, Deputy Manager from their office as R3W1 who tendered his evidence by way of affidavit Ex. R3W1/A and relied upon the copy of his ID card as Ex. R3W1/1, copy of notice under Order 12 Rule 8 CPC as Ex. R3W1/2, postal receipt as Ex. R3W1/3 and Ex. R3W1/4, copy of insurance policy as Ex. R3W1/5, copy of driving license of respondent no.1 as Mark A and copy of RC of the offending vehicle as Ex. R3W1/6.
34. Reliance has also been placed upon the law on the point laid down in judgment of the Hon'ble Apex Court in case Mukund Dewangan Vs. Oriental Insurance Co. Ltd., Civil Appeal No. 5826 of 2011, decided on 03.07.2017 wherein it was held as under :-
"....46 (i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, MACP NO. 22/16 Page 22 of 29 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to
(h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle"
continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
35. In view of foregoing discussions, both the defences taken by the Insurance Company are not tenable in law. Therefore, all the respondents are though being held jointly and severally liable to pay the awarded amount of compensation to petitioners, but respondent no. 3. being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of DAR by RTGS/NEFT/IMPS MACP NO. 22/16 Page 23 of 29 in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Respondent no. 3 with a cost of Rs.5,000/-.
36. The respondent no. 3 shall inform the petitioner and his counsel through registered post that the cheques/DDs of the awarded amount is being deposited so as to facilitate him to collect his cheques/DDs.
37. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
38. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
39. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 19.02.2012 MACP NO. 22/16 Page 24 of 29
2. Date of filing of Form I- First Accident NA Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from the NA Driver
5. Date of receipt of Form-IV from the owner NA
6. Date of filing of the Form-V-Interim NA Accident Report (IAR)
7. Date of receipt of Form-VIA and Form NA VIB from the Victim (s)
8. Date of filing of Form-VII-Detailed 27.03.2012 Accident Report (DAR)
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Designated Not given Officer by the Insurance Company.
11. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) of Legal offer not the offer of the Insurance filed Company.
14. Date of the award 14.03.2023
15. Whether the claimant(s) were directed to open savings bank account(s) near their Yes place of residence?MACP NO. 22/16 Page 25 of 29
16. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the 19.02.2020 direction to the bank not issue any cheque book/debit card to the claimant
(s) and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) produced the passbook of their savings bank account near the place of their residence 07.12.2021 along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of the R/o Waripora Claimant(s) Bala PO & PS Kreeri, District Baramulla, J & K.
19. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
20. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
40. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 29.04.2023.
Announced in the open court (Shefali Barnala Tandon) on 14.03.2023 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP NO. 22/16 Page 26 of 29 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 19.02.2012
2. Name of the injured : Zahida Kausar
3. Age of the injured : 28 years, 11 months and 1 day.
4. Occupation of the injured: Govt. Service with Department of Education, J & K.
5. Income of the injured : Rs. 12,372/- per month
6. Nature of injury : Grievous
7. Medical treatment taken by the injured: RML Hospital, Florence Hospital & Amandeep Hospital
8. Period of hospitalization : 20.02.2012 to 09.03.2012 28.04.2012 to 30.04.2012 13.11.2012 to 23.11.2012
9. Whether any permanent disability?: 10% permanent physical impairment
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.4,18,719/-
(ii) Expenditure on conveyance Rs. 3,83,673/-
(iii) Expenditure on special diet Rs. 1,00,000/-
(iv) Cost of nursing/attendant Rs. 5,86,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 48,251/-
(vii) Any other loss which may Nil
require any special treatment
or aid to the injured for the
rest of his life
MACP NO. 22/16 Page 27 of 29
12. Non-pecuniary Loss:
(i) Compensation for mental Rs.50,000/-
and physical shock
(ii) Pain and suffering Rs.50,000/-
(iii) Loss of amenities of life Rs.40,000/-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, Nil
inconvenience,
hardships,disappointment,fru
stration, mental stress,
dejectment and unhappiness
in future life etc.
13. Disability resulting in
loss of earning capacity
(i) Percentage of disability
assessed and nature of 10% permanent
disability as permanent or physical disability temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of 10% functional earning relation to disability disability
(iv) Loss of future income Rs. 3,78,583/-
14. Total Compensation Rs.20,55,226/-
15. Interest Awarded 7.5% pa from date of filing of DAR till the date of deposit within 30 days and 9% thereafter.
16. Interest amount up to the Rs. 5,27,883.39 date of award (interest suspended w.e.f. 06.08.2012 till 18.02.2020 vide order dated 19.02.2020)
17. Total amount including Rs. 25,83,109.39 interest (rounded off to Rs.
MACP NO. 22/16 Page 28 of 2925,83,500/-)
18. Award amount released 50% share
19. Award amount kept in the 50% share FDRs/ Motor Accident Claims Annuity Deposit (MACAD)
20. Mode of disbursement of Through bank the award amount to the claimant (s)
21. Next date for compliance 29.04.2023 of the award (Shefali Barnala Tandon) PO/MACT, New Delhi 14.03.2023 MACP NO. 22/16 Page 29 of 29