Delhi District Court
Meena Devi vs K. Rahul on 26 September, 2024
IN THE COURT OF MS. VRINDA KUMARI
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
MEENA DEVI VS. K. RAHUL & ORS.
MACP No. 605/16
Smt. Meena Devi
W/o Sh. Mahesh Kumar,
R/o WZ-161, WZ Block,
Dasghara Village, Delhi-110012. ......Petitioner/Injured
Versus
1. Sh. K. Rahul (Driver)
S/o Sh. P. Kathirvelu,
R/o 34 Staff Quarter,
North Avenue, Near RML Hospital,
Delhi.
2. Sh. A. Krishana Moorthy (Owner)
S/o Sh. P. Arumugham
R/o 103 & 206, Asia House Complex,
Kasturba Gandhi Marg, New Delhi-110001.
3. United India Insurance Co. Ltd. (Insurer)
Registered office at 5 & 6 Appasamy Towers,
2nd Floor, Thiayagaraya Road, T Nagar, Chennai,
Tamil Nadu-600017.
.........Respondents
Date of filing of claim petition : 21.12.2016 Date of filing of DAR : 24.09.2016 Date of framing of issues : 21.12.2016 Date of concluding arguments : 29.08.2024 Date of decision : 26.09.2024 MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 1/30 AWARD/JUDGMENT
1. The present claim petition for compensation relates to grievous injury and permanent disability suffered by the petitioner Smt. Meena Devi in a road accident that took place on 04.02.2016 at about 04:00 pm, Kachha Rasta Todapur Village, New Delhi, regarding which FIR No. 22/2016, U/s 279/338 IPC was registered at PS Inderpuri. The vehicle involved in this case is a motorcycle bearing registration No. DL-10SR-7316, which at the relevant time of accident was being driven by respondent no.1 (R1) Sh. K. Rahul, owned by respondent no.2 (R2) Sh. A. Krishana Moorthy and insured with respondent no. 3 (R3) United India Insurance Co. Ltd.
2. It is the case of the petitioner that on 04.02.2016 at about 4 pm, the petitioner was walking on the road and when she reached at Dasghara Kachha Rasta, the offending vehicle bearing registration No. DL-10SR-7316, which was being driven by respondent no. 1 at high speed and in rash and negligent manner, came and hit her due to which she sustained grievous injuries. It is further stated that the petitioner was removed to BEHL Hospital, Naraina, Delhi for treatment.
3. Respondent no. 1 and 2 did not file their reply/written statement either to the DAR or to the claim petition. It is pertinent to mention that respondent no. 2 was proceeded against ex-parte vide Order dated 06.12.2023.
4. Respondent no. 3/Insurance Company filed its reply MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 2/30 cum written statement wherein it is stated that the respondent no. 1 was not holding a valid and effective driving license at the time of accident. It is further stated that the alleged offending vehicle was duly insured with them in the name of respondent no. 2 w.e.f. 08.12.2015 to 07.12.2016 subject to terms and conditions of the insurance policy.
5. On 21.12.2016, the following issues were framed by this tribunal as:-
1. Whether the injured sustained grievous injuries in the accident which occurred on 04.02.2016 at about 04:00 pm, Kachha Rasta Todapur Village, New Delhi caused by rash and negligent driving of vehicle No. DL-10SR-7316 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
2. Whether the injured is entitled for compensation? If so, to what amount and from whom? OPP.
3. Relief.
6. In support of her claim, the petitioner has examined herself as PW2. Her evidence by way of affidavit is Ex. PW2/A. She relied upon certain documents. Copy of her voter ID card is Ex. PW2/1 (OSR). Her medical treatment record is Ex. PW2/2 (colly). Her medical bills are Ex. PW2/3 (colly). DAR filed by the IO is Ex. PW2/4 (colly). Copy of her disability certificate is Ex. PW1/A. Attendant salary slips are Mark Z (colly). Bills dated 08.02.2016 and 03.04.2016 filed along with the petition are Ex. PW2/6 and Ex.
MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 3/30PW2/7 respectively.
7. The petitioner has examined Dr. Vijay Kumar Jain, M.S. (Ortho), Associate Professor, Department of Orthopedics from Dr. RML Hospital as PW1 who has proved the disability certificate of petitioner as Ex. PW1/A.
8. The petitioner has also examined one Smt. Muniya, W/o Sh. Raj Kapoor, R/o WZ-33B, Dasghara Village, Delhi-110012 as PW3. Her evidence by way of affidavit is Ex. PW3/A. She relied upon the copy of her Aadhaar card as Ex. PW3/1 (OSR).
9. Respondent no. 1 has examined himself as R1W1. His evidence by way of affidavit is Ex. R1W1/A. He relied upon copy of his Aadhaar card as Ex. R1W1/1 (OSR), copy of his father's Aadhaar card as Ex. R1W1/2 (OSR) and attested copy of family card with english translation of Oath Commissioner as Ex. R1W1/3 (OSR).
10. Respondent no. 3/Insurance Company has examined one Sh. Satya Pal Singh, Assistant Manager from their Company as R3W1. His evidence by way of affidavit is Ex. R3W1/A. He relied upon certain documents. Attested copy of insurance policy as Ex. R3W1/1. Notice under Order 12 Rule 8 CPC is Ex. R3W1/2. Postal receipts are Ex. R3W1/3 and Ex. R3W1/4. He has also relied upon the copy of DAR filed by the IO already Ex. PW2/4 (colly).
11. The Tribunal heard the arguments advanced by Sh. Mahender Kumar, Ld. Counsel for petitioner and Sh. A.K. MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 4/30 Vashistha, Ld. Counsel for R-3/Insurance Company and has carefully perused the entire case record along with written submissions filed on behalf of petitioner and R-1. The findings on the aforementioned issues are rendered hereinafter in the succeeding paragraphs.
12. ISSUE NO. 11. Whether the injured sustained grievous injuries in the accident which occurred on 04.02.2016 at about 04:00 pm, Kachha Rasta Todapur Village, New Delhi caused by rash and negligent driving of vehicle No. DL-10SR-7316 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 ? OPP.
13. Onus to prove this issue was upon the petitioner. The first question that needs to be decided is whether the accident was caused by the vehicle bearing registration No. DL-10SR-7316.
14. In order to prove the same, the petitioner has examined herself as PW2. In her affidavit in evidence (Ex. PW2/A), PW2/petitioner narrated the incident as follows :-
"2. That on 04.02.2016 at about 4:00 PM the injured came out from the house for walking purpose and when I reached at Dasghara Kachha Rasta, in the meantime a motorcycle bearing No. DL-10SR-7316 through Rajender Nagar who was coming in a very high speed and rash and negligent manner and hit the injured (Meena Devi), due to which the petitioner got grievous injuries on her head and her leg, and the driver of the offending motorcycle namely Rahul S/o P Kathirvela R/o 34, Staff Quarters, North Avenue, Near RML MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 5/30 Hospital also fell down on the road and he also got injured, the family members of the petitioner brought her and admitted in the Behl Hospital, Naraina Vihar, Delhi and the PCR officers brought the driver of offending vehicle (Rahul) in RML Hospital, the petitioner had identified the said driver of the offending vehicle, legal action may kindly be taken against the driver of the said offending vehicle bearing No. DL-10SR- 7316.
15. During her cross examination, she deposed that the incident is of Village Dasgarha Near Todapur when she was alone and standing on a kucha rasta. She also deposed that she had gone out for purpose of evening walk. She further deposed that the motorcycle, black in colour, was being driven at a high speed, but she could not tell the exact speed. She denied the suggestion that she got confused in the middle of the road and moved forward and backward resulting in confusion and accident.
16. It is explicit from the testimony of PW-1 that occurrence of accident has not been disputed and the testimony of the witness in this regard has gone unrebutted. Nothing material could be elicited from the cross-examination of PW-2 to disbelieve or discard her testimony. The testimony of PW-2 has been duly corroborated with the DAR filed by the IO as Ex. PW2/4 (colly). Moreover, it has not been disputed that respondent no. 1 has been charge-sheeted in the aforesaid FIR for offences punishable under Sections 279/338 IPC for rash and negligent driving of the offending vehicle.
MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 6/3017. In cases National Insurance Company Ltd. Vs. Pushpa Rana, 2009 ACJ 287 and United India Insurance Co. Ltd. Vs. Deepak Goel and Ors., 2014 (2) TAC 846 (Del.) decided by the Coordinate Bench of the Hon'ble Delhi High Court, it was held that "......where the petitioners filed either the certified copies of the criminal record or the criminal record showing the completion of investigation by police or issuance of charge sheet under Section 279/304A IPC or the certified copy of FIR or the recovery of the mechanical inspection report of the offending vehicle, then these documents are sufficient proof to reach to a conclusion that the driver was negligent particularly when there is no defence available from the side of driver."
18. Reliance is being placed upon the judgment of Hon'ble Delhi High Court in case Bajaj Allianz General Insurance Co. Ltd. Vs. Meera Devi & ors., 2021 LawSuit (Del) 2021 wherein it was held that "......in view of Delhi Motor Accident Claim Tribunal Rules, 2008, contents of DAR has to be presumed to be correct and read in evidence without formal proof of the same unless proof to the contrary was produced."
19. 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 rashly and negligently. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 7/30 cases by the Tribunal.
20. 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 that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the petitioners and the petitioners were merely to establish their case on the touchstone of preponderance of probability.
21. In view of foregoing discussion, it stands proved on preponderance of probability that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing registration no. DL-10SR-7316 and the said vehicle at that time was driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3. Hence, this issue is decided in favour of the petitioner and against the respondents.
22. ISSUE NO.2
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
23. As the issue No.1 has been proved in favour of the MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 8/30 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.
24. In terms of Section 168 of the Motor Vehicle Act, 1988, the compensation which is to be awarded by this Tribunal is required to be 'just'. In injury cases, a petitioner is entitled to two different kinds of compensation i.e. pecuniary as well as non- pecuniary damages. The Hon'ble Apex Court in Raj Kumar Vs. Ajay Kumar reported in (2011) 1 SCC 343, has laid down heads under which compensation is awarded in personal injury cases as:-
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.MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 9/30
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
25. Having considered the ratio of aforesaid judgment, the compensation payable to petitioner is assessed hereinafter under the following heads as:-
(i) Medical or Treatment Expenses
26. The petitioner in her affidavit Ex. PW2/A has tendered on record her medical treatment record as Ex. PW2/2 (colly), as per which the petitioner was admitted in BEHL Hospital, Naraina Vihar, New Delhi on 04.02.2016 and discharged on 08.02.2016 and was diagnosed with compound fracture right leg and plating under SA was done on 05.02.2016. The petitioner again admitted in the said hospital on 02.04.2016 and was discharged on 03.04.2016. The petitioner also got admitted in Vardhman Trauma & Lapsroscopy Centre Pvt. Ltd., Muzaffarnagar, UP. firstly on 12.10.2016 and discharged on 16.10.2016, secondly on 09.11.2016 to 13.11.2016, thirdly on 20.02.2017 to 22.02.2017, fourthly on 10.08.2017 to 13.08.2017 and lastly on 20.06.2018 to 24.06.2018.
27. The petitioner has tendered on record his original medical bills as Ex. PW2/3 (colly) along with medical bills dated 08.02.2016 and 03.04.2016 as Ex. PW2/6 and Ex. PW2/7 as well as medical bills summary as Mark Z (colly) which are totalling to a sum of Rs.7,20,666/-. However, the respondents have failed to lead MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 10/30 any evidence to show that the said medical bills do not relate to the injuries suffered by the petitioner in the aforesaid accident. Thus, the testimony of PW-2 that she had 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-2 that she had spent the aforesaid amount towards medical expenses. Hence, she is held entitled to Rs.7,20,666/- towards her medical expenses.
(ii) Loss of earnings
28. The petitioner in her affidavit Ex. PW2/A has claimed that she is a housewife and used to perform household works.
29. Ld. Counsel for petitioner has relied upon Judgments of Hon'ble High Court of Delhi in cases titled as (i) Saliya Begum @ Sarla Vs. Dhiyan Singh & Ors., MAC Appeal No. 964/2016, decided on 14.05.2024 ; (ii) The New India Assurance Co. Ltd. Vs. Vinod Kumar & Ors., MAC Appeal No. 410/2013, decided on 23.04.2024 and (iii) Royal Sundram Alliance Insurance Co. Ltd. Vs. Master Manmeet Singh & Ors., MAC Appeal No. 590/2011, decided on 30.01.2012. I have considered these Judgments carefully.
30. In Royal Sundaram Alliance Ins. Co. Ltd. (supra), the Hon'ble High Court of Delhi has laid down methodology regarding assessment of compensation in case of housewife as:-
MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 11/30"34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of a Matriculate where she is a Matriculate.
(iii) Minimum salary of a non-Matriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband‟s re-
marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and living expenses.
(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto Rs. 25,000/- (on present scale of the money value) towards loss of love and affection and MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 12/30 Rs. 10,000/- towards loss of consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate.
31. Reliance has been placed upon the judgment of Hon'ble Supreme Court of India in case titled as Kirti & Anr. Vs. Oriental Insurance Co. Ltd., Civil Appeal No. 1920 of 2021 (arising out of SLP (C) Nos. 1872829 of 2018), decided on 05.01.2021 wherein it has been held as under :-
"26. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers and the grant of future prospects with respect to them, for the purposes of grant of compensation which can be summarized as follows:
a. Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law.
b. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all.
c. Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.
d. The Court should ensure while choosing MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 13/30 the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.
e. The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation."
32. In view of the above, the minimum wages of non matriculates in Delhi, which at the relevant time of accident were Rs. 10,140/- per month, would be considered to be the monthly income of petitioner. Keeping in view the nature of injuries and duration of her treatment, this tribunal feels it just and reasonable to compensate her for loss of earning equivalent to a period of six months. Therefore, under this head, she is being awarded an amount of Rs.60,840/- (Rs.10,140/- X 6 months).
(iii) Loss of future earnings
33. As per disability certificate issued by Dr. RML Hospital, the claimant is the case of compound fracture both bones right leg and her permanent physical impairment is 40% in relation to right lower limb.
34. 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 :-
MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 14/30"4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
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 MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 15/30 physical or functional disablement may be assessed around 60%. If the claimant was a driver or a 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............."
35. In order to prove the same, the petitioner has examined Dr. Vijay Kumar, M.S. Ortho, Associate Professor, Department of Orthopaedics, Dr. RML Hospital, New Delhi as PW1 who has proved the disability certificate of petitioner as Ex. PW1/A. He deposed that she has difficulty in walking on slop, climbing stairs, MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 16/30 standing on affected leg, squatting sitting cross leg and kneeling.
36. Considering the legal position discussed above coupled with the testimony of petitioner and aforesaid discussions, the functional disability of petitioner is, therefore, taken as 20% in relation to whole body.
37. To apply the multiplier, it is necessary to ascertain the age of the petitioner. The petitioner has tendered on record copy of her voter ID card as Ex. PW2/1 (OSR) in which the age of petitioner is found recorded as 37 years as on 01.01.2008. Hence, going by this document, the age of petitioner comes out to be 45 years, 1 month and 4 days at the time of accident. 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 dated 31.10.2017 and further in view of law laid by the Hon'ble High Court of Delhi in case titled as Sheeba @ Shiva Vs. TATA AIG General Insurance Co. Ltd., MAC Appeal No. 229/2021, decided on 20.07.2023, the multiplier of '14' is applicable for calculating the loss of future earnings of the claimant arising out of above disability.
38. Further, since the petitioner was around 45 years old at the time of accident, she is held entitled to addition of 25% towards future prospects in view of the law laid down by the Hon'ble Apex MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 17/30 Court in Pranay Sethi & Ors.(Supra) as well as law laid down by the Hon'ble High Court of Delhi in cases Saliya Begum @ Sarla (supra) and Vinod Kumar (Supra). Thus, the loss of future earnings caused to the claimant due to her permanent disability comes to Rs.4,25,880/- (Rs.10,140/- X 12 X 20/100 X 14 X 125/100).
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities
39. As stated above, the petitioner had suffered grievous injuries and permanent disability in the accident. Though, 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, 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.70,000/- each is being awarded to her towards (i) mental and physical shock and (ii) for pain and sufferings respectively. Further, an amount of Rs.30,000/- is also awarded to her towards the loss of amenities suffered by her during said period of her treatment. Thus, she is awarded total amount of Rs.1,70,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges
40. The petitioner in his affidavit has claimed that he had spent an amount of Rs. 1,00,000/- on conveyance and Rs.1,50,000/- towards special diet. However, she has not placed on record any MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 18/30 document in order to substantiate the above claims. Still this Tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with her treatment and special diet for her early recovery from the injuries suffered because of the accident. Considering the facts and circumstances of the present case, an amount of Rs.50,000/- each is being awarded to the petitioner towards conveyance and special diet.
41. In order to prove the attendant charges, the petitioner has examined one Smt. Muniya, W/o Sh. Raj Kapoor as PW3. During cross examination, PW3 deposed that she was paid Rs.4,000/- by son of injured, who used to take her signatures against receipt. The petitioner has tendered on record receipts showing payment of Rs.4,000/- made to Smt. Muniya as Ex. PW2/5 (colly) which are totalling to a sum of Rs. 92,000/-. Keeping in view the nature of injuries and disability suffered by the petitioner, she would have required assistance of some family member/attendant for doing his daily routine work. Therefore, the aforesaid amount of Rs.92,000/- is also being awarded to the petitioner towards attendant charges. The petitioner is thus entitled to an amount of Rs.1,92,000/- (Rs.50,000/- + Rs. 50,000/- + Rs. 92,000/-) under this head.
ISSUE No. 3/Relief
42. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.15,69,386/- (Rupees Fifteen Lakh Sixty Nine Thousand Three Hundred Eighty Six only) (Rs.7,20,666/- + MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 19/30 Rs.60,840/- + Rs.4,25,880/- + Rs. 1,70,000/- + Rs.1,92,000/-) along with 7.5% interest 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.
RELEASE
43. Out of the awarded amount, 90% 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 125 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 125 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 his saving/MACT Claims SB Account opened/to be opened near the place of her residence, as directed vide Order dated 21.03.2018 and the remaining 10% amount is also directed to be released into her above said account, which can be withdrawn through withdrawal form and utilized by her.
44. 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 MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 20/30 interim award, if any, to/from his share.
45. 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.
46. The 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.
47. The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the petitioner near the place of his residence.
48. 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.
49. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
50. The concerned bank shall not issue any cheque book and/or debit card to petitioner(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 MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 21/30 debit card(s) freeze the account of the petitioner(s) so that no debit card be issued in respect of the account of the petitioner(s) from any other branch of the bank.
51. The bank shall make an endorsement on the passbook of the petitioner(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 petitioner(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
52. 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 petitioner(s) is sufficient compliance of clause above.
LIABILITY
53. During the course of final arguments, Ld. Counsel for Insurance Company has argued that the respondent no. 1 was not holding a valid and driving license at the time of accident.
54. In order to prove the same, the Insurance Company has examined Sh. Satya Pal Singh, Assistant Manager from their Company as R3W1 who deposed that the respondent no. 1 was not holding a valid and effective driving license and despite knowing that fact, the respondent no. 2/owner permitted respondent no. 1 to drive the offending vehicle, which is clear violation of terms and conditions of the insurance policy. He further deposed that the respondent no. 1 has not produced his driving license despite service MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 22/30 of notice under Order 12 Rule 8 CPC.
55. Respondent no. 1 has examined himself as R1W1 who deposed that he had obtained the learner's license as he was 20 years at the time of accident. During cross examination, he admitted that he has not placed on record copy of his learning driving license. He further admitted that he was driving the motorcycle alone at the time of accident. The contention of R-1 is that the injured's husband took his driving license from him but did not return. There is no cogent evidence in support of this contention. The Tribunal has no option but to hold that R-1 did not have a valid driving license even learner's license at the time of accident in question. In his affidavit in evidence Ex. R1W1/A, R-1 has deposed that on 04.02.2016, he had requested R-2 to lend his motorcycle bearing registration No. DL-10SR-7316 to drop a friend. R-2 lent him the motorcycle. There is nothing on record to show that R-2 bothered to see if R-1 had a valid driving license with him and if R-1 had a learner's license whether any adult with valid driving license was accompanying him. R-2 did not enter the witness box to show that he had exercised reasonable caution before lending the motorcycle to R-1. These circumstances call for grant of recovery rights to R-3/Insurance Company against R-2/registered owner.
56. 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 first directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 23/30 from the date of filing of DAR by RTGS/NEFT/IMPS 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 Lal 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of respondent no. 3 with a cost of Rs.5,000/-.
57. The respondent no. 3 shall inform the petitioner and her counsel through registered post that the awarded amount has been deposited so as to facilitate her to collect the same.
58. A copy of this award be given to the parties free of cost or be sent to them by email. Ahlmad is directed to send a 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.
59. 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.
60. 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 above case on 08.01.2021, are as under:
MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 24/301. Date of the accident 04.02.2016
2. Date of filing of Form I- First NA Accident 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 NA the owner
6. Date of filing of the Form-V- NA Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and NA Form VIB from the Victim (s)
8. Date of filing of Form-VII-Detailed 24.09.2016 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 Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No the 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?MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 25/30
13. Date of response of the Legal offer not filed.
petitioner(s) of the offer of the Insurance Company.
14. Date of the Award 26.09.2024
15. Whether the petitioner(s) were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which petitioner(s) 21.03.2018 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the petitioner (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the petitioner(s) Yet to furnish produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of As mentioned above the petitioner(s)
19. Whether the petitioner(s) savings Yes bank account(s) is near his place of residence?
20. Whether the petitioner(s) were Yes examined at the time of passing of the award to ascertain his/their financial condition?
MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 26/3061. File be consigned to record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 08.01.2025.
Digitally signedVRINDA by VRINDA KUMARI KUMARI 16:54:09 Date: 2024.09.26 +0530 Announced in the open court. (Vrinda Kumari) on 26.09.2024 PO/MACT, New Delhi Encl: The summary of computation in the prescribed format MACP No. 605/16 Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 27/30 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 21.03.2018
2. Name of the injured : Smt. Meena Devi
3. Age of the injured : Around 45 years
4. Occupation of the injured : Housewife
5. Income of the injured : Minimum wages of non matriculate in Delhi.
6. Nature of injury : Grievous
7. Medical treatment taken by : As mentioned above the injured
8. Period of hospitalization : As mentioned above
9. Whether any permanent : 40% permanent physical disability? disability, but functional disability taken as 20%.
10. Computation of Compensation Sr.No. Heads
11. Pecuniary Loss
(i) Expenditure on treatment : Rs.7,20,666/-
(ii) Expenditure on conveyance : Rs.50,000/-
(iii) Expenditure on special diet : Rs.50,000/-
(iv) Cost of nursing/attendant : Rs.92,000/-
(v) Loss of earning capacity : Nil
(vi) Loss of Income : Rs.60,840/-
(vii) Any other loss which may : Nil
require any special
treatment or aid to the
injured for the rest of his life
(future treatment)
12. Non-pecuniary Loss:
(i) Compensation for mental : Rs.70,000/-
MACP No. 605/16
Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 28/30
and physical shock
(ii) Pain and suffering : Rs.70,000/-
(iii) Loss of amenities of life : Rs.30,000/-
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
(vi) Loss of earning, : Nil
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 : 40% permanent physical
assessed and nature of disability
disability as permanent or
temporary
(ii) Loss of amenities or loss of : Nil
expectation of life span on
account of disability.
(iii) Percentage of loss of : 20% functional disability
earning relation to disability
(iv) Loss of future income : Rs.4,25,880/-
14. Total Compensation Rs.15,69,386/-
15. Interest Awarded : 7.5% pa from date of
filing of claim petition
till the date of award to
be deposited in 30 days
and 9% thereafter.
16. Interest amount up to the : Rs.3,25,647/- (interest
date of award suspended w.e.f.
21.12.2016 to
15.03.2022)
17. Total amount including : Rs.18,95,033/- (rounded
MACP No. 605/16
Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 29/30
interest off to Rs.18,95,100/-)
18. Award amount released : 10% share
19. Award amount kept in the : 90% share
FDRs/ Motor Accident
Claims Annuity Deposit
(MACAD)
20. Mode of disbursement of : Through Bank
the award amount to the
petitioner (s)
21. Next date for compliance : 08.01.2025
of the award
Digitally signed
by VRINDA
VRINDA KUMARI
KUMARI Date:
2024.09.26
16:54:19 +0530
(Vrinda Kumari)
PO/MACT, New Delhi
26.09.2024
MACP No. 605/16
Meena Devi Vs. K. Rahul & Ors. 26.09.2024 Page 30/30