Delhi District Court
Sh. V.C. Gautam vs Sh. Tushar Karanwal on 16 March, 2021
DLCT010067602017
Presented on : 02-05-2017
Registered on : 02-05-2017
Decided on : 16-03-2021
Duration : 3 Years 10 Months
IN THE COURT OF
PRESIDING OFFICER-MACT-02, CENTRAL, TIS HAZARI COURTS
DELHI PRESIDED OVER BY Sh. LOVLEEN
MACT NO.: 561/17
SH. V.C. GAUTAM
S/o Sh. Dharampal
R/o VPO Salon, Teh-Nawah Sahar
Village, Jalandhar, Punjab.
.......Petitioner
VERSUS
1. SH. TUSHAR KARANWAL
S/o Sh. Ajay Karanwal
R/o 1800-1803, Chandrawal Road,
Malkaganj, Delhi(driver).
2. SH. DEERAJ TAHANGURIYA
S/o Sh. Rajender Singh,
R/o H. No. 102, TDI Kingsbury,
Kundali, Sonipat, Haryana(owner).
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 1/29
Digitally signed
by LOVLEEN
Date:
LOVLEEN 2021.03.16
17:22:43
+0530
3. BHARATI AXA GENERAL INSURANCE CO. LTD.
At 2nd Floor, Bigios Tower, A/8, Netaji Subhash Place,
Pitampura, Delhi(Insurer). ......Respondents
JUDGMENT CUM AWARD COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 24/12/2016
2. Date of intimation of the accident by the 02/01/2017 Investigation Officer to the Claims Tribunal.
3. Date of Intimation of the accident by the 01/06/2017 Investigating Officer to the Insurance Company.
4. Date of filing of Report under Section 173 NA Cr. P.C. before the Metropolitan Magistrate.
5. Date of filing of Detailed Accident 02/05/2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6. Date of service of DAR on the Insurance 02/05/2017 Company.
7. Date of service of DAR on the claimant (s). 02/05/2017
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR NA removed later on?
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2021.03.16 17:22:55 +053010. Whether the police has verified the Yes documents filed with DAR?
11. Whether there was any delay or deficiency No on the part of the Investigating Officer ? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated Not Mentioned Officer by the Insurance Company
13. Name, address and contact number of the Not Mentioned Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
15. Whether the Insurance Company admitted No 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 deficiency Yes 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 the NA offer of the Insurance Company.
18. Date of the award 16/03/2021
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant (s) were directed to Yes MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 3/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:23:05 +0530 open savings bank account (s) near their place of residence?
21. Date of order by which claimant (s) were 11/02/2020 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 claimant(s) and make an endorsement to this effect on the passbook.
22. Date on which the claimant(s) produced the 12/03/2020 passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the VPO Salon, Teh-
Nawah Sahar, Village Claimant(s).
Jalandhar, Punjab.
24. Details of savings bank account(s) of the A/c No. claimant(s) and the address of the bank with 20780110035474 IFSC Code. maintained with UCO Bank, Branch :
Karkardooma Court,
Delhi
IFSC Code :
UCBA0002078
25. Whether the claimant(s) savings bank Yes
account (s) in near his place of residence?
26. Whether the claimant (s) were examined at Yes the time of passing of the award to ascertain MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 4/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:23:12 +0530 his/their financial condition?
27. Account number, MICR number, IFSC Code, SBI, Tis Hazari name and branch of the bank of the Claims Courts, Delhi. Tribunal in which the award amount is to be deposited/transfered.
AWARD/JUDGMENT FACTUAL POSITION AND PLEADINGS
1. A DAR was filed on 02.05.2017 by Investigation Officer (IO) before my Ld. Predecessor in the presence of all the parties of this case. The DAR was prepared by IO in respect of a motor vehicular accident which occurred on 24.12.2016 at about 11:15 pm near MCD office, Rajpur Road, Civil Lines, Delhi in which the petitioner sustained grievous injuries. As per DAR, the petitioner was travelling in a WagonR Car bearing registration no. DL-3CAY-1051 alongwith certain other occupants when a Creta Car bearing registration no. HR-10Z-5421 (hereinafter referred to as "offending vehicle") came from the opposite direction in a high speed and struck against the car in which the petitioner was travelling. The direction of the offending vehicle changed due to sudden collision and which then struck against another car bearing registration No. DL- 12CH-3652, which car was overtaken by the offending vehicle just before the above accident. Multiple persons riding in different vehicles (i.e. WagonR car bearing registration no. DL-3CAY-1051 and car bearing registration no. DL-12CH-3652) sustained injuries in the said accident. The offending vehicle was stated to be driven in a rash and negligent manner by its driver at the relevant time. An FIR no. 346/2016 PS Civil Lines was registered at the instance of the driver namely Sh. Paras Jain MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 5/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:23:20 +0530 of car bearing registration no. DL-12CH-3652. R-1 is the stated to be driver of the offending vehicle. R-2 is stated to be the owner of the offending vehicle and R-3 is stated to be the insurer of the offending vehicle. My Ld. Predecessor directed the R-3/insurance company to file a legal offer/reasoned decision in response to the said DAR. R-1 and R-2 were also directed to file their Written Statements. Petitioner was also directed to file statement of facts in the prescribed Form G.
2. A joint written statement was filed by R-1 and R-2 wherein they took objections to the effect that no accident as alleged in the DAR ever took place; that R-1 as well as offending vehicle have been falsely implicated in a false FIR by the IO; that the DAR has been filed to facilitate unlawful claim of compensation; that at the time of alleged accident R-1 was having a valid and effective driving licence. However they admitted that the offending vehicle was duly covered by an insurance policy as on the date of accident.
3. R-3/Insurance Company filed reasoned decision/ reply wherein it offered a sum of Rs. 76,244/- + medical expenses to the petitioner as compensation. R-3 admitted that the offending vehicle was covered by an insurance policy issued by itself at the time of accident.
ISSUES
4. From the pleadings of the parties, following issues were framed for consideration on 18/01/2018:-
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 6/29 Digitally signed by LOVLEENLOVLEEN Date:2021.03.16 17:23:29 +0530
1. Whether the petitioner Sh. V.C. Gautam suffered injuries in an accident that took place on 24.12.2016 at about 11:15 pm involving CAR bearing registration No. HR-10Z-5421 driven by the Respondent no. 1 rashly & negligently, owned by the 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.
EVIDENCE
5. The petitioner examined himself as PW-1 in support of his claim. The petitioner filed an affidavit Ex PW1/A wherein he described the occurrence of incident in line with the facts mentioned in Para 1 of this award. He stated to have sustained grievous injuries at the relevant time. He further stated :-
(i) that he was hospitalized in St. Stephen's Hospital, Sushruta Trauma Centre and Aruna Asaf Ali Hospital;
(ii) that he spent a sum of Rs. 1,24,810/- on his medical treatment;
(iii) that he has spent a sum of Rs. 20,000/- each towards special diet and conveyance;
(iv) that he was earning Rs. 50,000/- per month from his practice in the legal profession;
(v) that he is unable to resume his legal profession after the accident and has also suffered loss of income and career apart from the loss of enjoyment of life due to pain and agony suffered in the accident;
Petitioner has relied upon the following documents viz:-
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 7/29 Digitally signed by LOVLEENLOVLEEN Date:2021.03.16 17:23:36 +0530
"Copy of Aadhar Card of the petitioner as Ex. PW1/1(OSR);
Treatment record as Ex. PW1/2(colly); Medical bills as Ex. PW1/3(colly); and DAR as Ex. PW1/4."
5.1 Petitioner was cross-examined in brief on behalf of R- 3/Insurance Company only. R-1 and R-2 did not cross examine the petitioner.
5.2 Petitioner also examined Dr. B. Kanhar, from Aruna Asaf Ali, Hospital, Delhi as PW-2. PW-2 proved the disability certificate issued in favour of petitioner as Ex PW2/1. As per disability certificate of the petitioner Ex. PW2/1, the petitioner has suffered "Head Injury - Facial injury, # Scapula-L, #Ribs 4th & 6th - L, Deformity of both hands." As per said certificate, petitioner was found to have sustained 71% permanent disability with respect to his both upper limbs which is not likely to improve. Said witness was cross-examined in brief on behalf of R-3 only. R-1 and R- 2 did not cross-examine the said witness despite opportunity.
6. PE was then closed by the Ld. Counsel for petitioner on 17.07.2019.
7. Ld. Counsel for R-3/Insurance Company closed its evidence on 17.07.2019. RE of R-1 and R-2 was closed by the Ld. Predecessor of this Tribunal on 13.01.2020.
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 8/29Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:23:46 +0530 ARGUMENTS AND FINDINGS
8. Oral submissions were advanced by Sh. Mukesh Chauhan, Ld. Counsel for petitioner as well as Sh. Vikas Shokeen, Ld. Counsel for respondent no. 3. None come forward on behalf of R-1 and R-2 to address oral final arguments.
9. I have perused the record and my issue wise findings is as under:-
ISSUE NO.1 "1. Whether the petitioner Sh. V.C. Gautam suffered injuries in an accident that took place on 24.12.2016 at about 11:15 pm involving CAR bearing registration No. HR-10Z-5421 driven by the Respondent no. 1 rashly & negligently, owned by the Respondent No. 2 and insured with Respondent No. 3?OPP"
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 by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 9/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:23:53 +0530 criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
11. As already discussed above, the petitioner examined himself as PW-1 in order to prove the factual averments regarding the occurrence of accident. PW-1 has clearly and categorically stated that the offending vehicle, being driven at a high speed and in a rash & negligent manner by R-1, came from the opposite direction and struck against the car in which he (petitioner) was travelling alongwith his colleagues at the date, time and place of accident mentioned in para 1 of this award. It may be noted that R-1 and R-2 have not cross-examined the petitioner in this regard and accordingly, the claim of the petitioner has gone unchallenged and unrebutted qua R-1 and R-2. Although R-3 has cross-examined the petitioner, but the petitioner did not yield anything favourable to R-3 during his cross-examination. R-3 has merely given suggestions to the effect that the accident occurred on account of the negligence of the driver of the car in which the petitioner was travelling, but the said suggestions were promptly denied by the petitioner. In totality, there is nothing on record which could be held sufficient to disbelieve and discard the oral testimony MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 10/29 Digitally signed by LOVLEEN Date: LOVLEEN 2021.03.16 17:24:01 +0530 of petitioner with respect to the facts and circumstances surrounding the occurrence of accident.
12. The very fact that R-1 has already been chargesheeted for the offences punishable under Sections 279/338 IPC in the above criminal case/FIR in itself is a strong circumstance to support the above oral testimony of PW1 and the case of petitioners on this issue. The copies of FIR, Chargesheet, Site plan, Mechanical inspection reports of offending vehicle as well as other vehicles involved in the accident, MLC, Seizure Memos and Arrest Memo of R-1 also corroborate the oral testimony of PW1.
13. Besides the above, R-1 himself was the best witness who could have stepped into the witness box to challenge the depositions being made by PW1 regarding the above accident and its manner etc., but he has not done so. Therefore, an adverse inference on this aspect is also required to be drawn against the respondents in view of the law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
14. Having ruled so, this Tribunal now proceeds to assess the wrongful act, neglect or default of R-1, if any, in driving the offending vehicle at the relevant time. Admittedly, R-1 has not explained the circumstances under which his vehicle (i.e. the offending vehicle) struck the car coming from opposite direction in which the petitioner was travelling at the relevant time. In the absence of any averment or evidence regarding any mechanical defect in the offending vehicle or any MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 11/29 Digitally signed by LOVLEEN LOVLEEN Date: 2021.03.16 17:24:10 +0530 material depicting any negligent/sudden act or omission on the part of the vehicle in which the petitioner was travelling at the relevant time, the only inference possible in the given facts and circumstances is that of neglect and default on the part of R-1 in driving the offending vehicle at the relevant time. In view of the above discussion, this tribunal is constrained to hold R-1 guilty of gross neglect and default in driving the offending vehicle at the relevant time leading to grievous injuries to the petitioner in the above accident.
15. In view of the medical treatment documents placed on record by the petitioner, no dispute is left regarding the nature of injuries sustained by him in the above accident.
16. In view of the above discussion, this Tribunal holds that the petitioner suffered grievous injuries on his person on account of neglect and default of R-1 while driving the offending vehicle at the relevant time. This issue thus stands decided against the respondents and in favour of the petitioner.
ISSUE NO. 2"Whether the petitioner is entitled for compensation? If so, to what amount and from whom?"
17. As the issue no.1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 12/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:24:19 +0530 the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are required to be decided.
18. 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 the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 13/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:24:40 +0530equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995 SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.
19. In light of the above legal propositions, the amount of compensation which could be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses
20. As stated above, the petitioner has placed on record his medical treatment record as well as medical bills as Ex. PW1/2(colly) and Ex. PW1/3(colly) respectively. As per said documents, the petitioner remained hospitalized in St. Stephen Hospital from 25.12.2016 to 26.12.2016 and in Sushruta Trauma Center from 27.12.2016 to 04.01.2017. The petitioner has filed medical bills to the tune of Rs. 69,702/-.
21. In the absence of any contest to the said documents (placed on record by the petitioner), the petitioner is held entitled to an amount of Rs. 69,702/- under this head.
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 14/29 Digitally signed by LOVLEENLOVLEEN Date:
2021.03.16 17:24:48 +0530(ii) Loss of actual earnings
22. In his affidavit Ex. PW1/A, the petitioner stated that he was practicing as an Advocate before the accident and was earning Rs. 50,000/- per month. However, the petitioner has not placed on record any document viz. Bank statement, ITR etc. etc. to substantiate his claim as to his monthly earnings. In fact, during final arguments it has been admitted by the petitioner that he does not file any Income Tax Return. Ld. counsel for the petitioner has orally submitted that the income of the petitioner may be assessed as per the minimum wages payable to a skilled person as the petitioner is a practicing Advocate. In view of above submissions, this Tribunal finds it appropriate to assess the monthly income of petitioner on the basis of minimum wages applicable in Delhi at the time of accident (i.e. 24.12.2016). The minimum wages payable at the relevant time were Rs. 11,830/- per month for a skilled person.
23. As per medical record Ex. PW1/2(colly) and medical bills Ex. PW1/3(colly), the petitioner remained admitted in St. Stephen Hospital from 25.12.2016 to 26.12.2016 and in Sushruta Trauma Center from 27.12.2016 to 04.01.2017. Considering the above and the severity of injuries as mentioned in the disability certificate Ex. PW2/1, it would not be inappropriate to assume that the petitioner would not have been unable to resume his work for a period of 03 months at least.
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24. As such, the petitioner is entitled to be granted a sum of Rs.
35,490/- (Rs. 11,830/- X 3) towards loss of actual earnings. This amount is granted to the petitioner under this head.
(iii) Loss of future earnings due to disability
25. In his affidavit Ex. PW1/A, the petitioner stated that he has suffered a loss of earnings on account of physical disability suffered in the said accident. However, as observed above, petitioner has failed to substantiate his above claim as to his monthly salary and accordingly, his monthly income has been computed as per minimum wages payable to a skilled person in Delhi at the relevant time @ Rs. 11,830/- per month.
26. As per the medical record Ex. PW1/2(colly) and medical bills Ex. PW1/3(colly), petitioner remained admitted in St. Stephen's Hospital from 25.12.2016 to 26.12.2016 and in Sushruta Trauma Center from 27.12.2016 to 04.01.2017. As per oral testimony of PW2, who issued the disability certificate Ex. PW2/1, the petitioner was diagnosed as a "Head Injury - Facial injury, # Scapula-L, #Ribs 4 th & 6th - L, Deformity of both hands" and his physical disability was assessed as 71% with respect to his both upper limbs. PW-2 further deposed that the petitioner could not do normal activities with respect to upper limbs. In this background, it has been argued on behalf of the petitioner that the petitioner is unable to work efficiently and which is affecting his livelihood. Accordingly, it has been prayed that the petitioner may be treated as a case of 100% physical disability and the loss of earning capacity may also be treated as 100%. R-3/ Insurance company contests this prayer by MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 16/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:25:08 +0530 stating that the physical disability of petitioner has not affected the working capacity of the petitioner. Having considered the rival submissions, this Tribunal is of the considered opinion that the submission of R-3/ Insurance Company is liable to be rejected. Reason being the fact that PW-2, who issued the disability certificate Ex. PW2/1, has categorically deposed that the petitioner is not able to do normal activities with his upper limbs. Being an advocate, the petitioner is supposed to utilize his upper limbs for reading, noting, drafting of cases and for carrying his briefs, journals etc. As such, it is difficult to presume that the working capacity of the petitioner has not deteriorated at all despite the nature and extent of physical disability sustained by him in the said accident. In the considered opinion of this Tribunal, it would not be inappropriate to assume that the working capacity of the petitioner has decreased considerably. In the facts and circumstances, this Tribunal holds that the working capacity of the petitioner has undergone a reduction of 35.5% at least (i.e. half of the actual disability). The functional disability of petitioner is hereby assessed @ 35.5%.
27. Admittedly, the petitioner's monthly income has been assessed as Rs. 11,830/-. As far as the age of petitioner at the time of accident is concerned, the petitioner has placed on record a copy of his Aadhar Card as Ex. PW1/1 which reflects the date of birth of petitioner as 08.02.1964. As per the said document, the age of petitioner at the time of accident (i.e. 24.12.2016) would be 52 years. 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 Supreme Court in a recent judgment dated 31.10.2017 given in the case of National Insurance MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 17/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:25:17 +0530 Company Ltd. vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, the multiplier of '11' is held applicable for calculating the loss of future earnings of petitioner arising out of his above disability. The petitioner is also entitled to future prospects as per the obnservations made by a Three Judge Bench of Hon'ble Supreme Court in Erudhaya Priya Vs. State Express Transport Corporation Ltd., MANU/SC/0545/2020 [please see para 7 (b)]. As per National Insurance Company Ltd. Vs. Pranay Sethi & Ors., the petitioner is entitled to grant of 10% of his established income towards loss of future prospects. Thus, the loss of future earnings of petitioner due to his above injury and permanent disability comes to Rs. 6,09,789/- (rounded off) (Rs. 11,830/- X 35.5/100 X 110/100 X 12 X 11) and the same is being awarded to him under this head.
(iv) Mental and Physical Shock, Pain and Suffering & Loss of Amenities.
28. As discussed above, the petitioner suffered grievous injuries in the above accident resulting into 71% permanent physical disability in relation to his both lower limbs and his functional disability has been taken by this tribunal to be 35.5%. He remained hospitalized in St. Stephen Hospital from 25.12.2016 to 26.12.2016 and in Sushruta Trauma Centre from 27.12.2016 to 04.01.2017. It is not possible to quantify the compensation admissible to petitioner for the shock, pain and sufferings etc. which he actually suffered because of the above injuries and disability, but as stated above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 18/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:25:26 +0530treatment taken by him etc., an amount of Rs. 35,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs. 35,000/- is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs. 1,50,000/- under this heads.
(iv) Conveyance and Special Diet
29. Under these heads, the petitioner has claimed a sum of Rs. 20,000/- each in his affidavit Ex. PW1/A. However, no corroborative material is available on record which supports the above claim. On the other hand, R-3/ Insurance Company has offered a sum of Rs. 8,000/- each under these heads. In the entire facts and circumstances, the petitioner is granted a sum of Rs. 15,000/- each towards conveyance and special diet.
Issue No.3/Relief
30. The petitioner is held entitled to recover an amount of Rs. 8,49,981/- (Rupees Eight Lakhs Fourty Nine Thousand Nine Hundred Eighty One) (Rs. 69,702/- + Rs. 35,490/- + Rs. 6,09,789/- + Rs. 35,000/- + Rs. 35,000/- + Rs. 35,000/- + Rs. 15,000/- + Rs. 15,000/-) only along with interest @ 6% from the date of filing of DAR i.e 02.05.2017 from the respondents. 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 above amount and calculations of compensation.
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 19/29 Digitally signed by LOVLEEN Date:LOVLEEN 2021.03.16 17:25:38 +0530 RELEASE 31 On 12/03/2020, statement of petitioner qua financial needs and requirements was recorded in terms of Clause 27 of Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors., FAO No. 842/2003 decided by Hon'ble High Court of Delhi on December 15, 2017. As per his statement his household expenditure is Rs. 30,000/- per month. Photocopy of the passbook of the bank account of the petitioner maintained with UCO Bank, Branch Karkardooma Court, Delhi was also placed on record at that time. Photocopies of Aadhar Cards and PAN Cards were also placed on record by the petitioner, apart from two coloured photographs of the petitioner.
31.1 Out of the awarded amount, Rs. 8,70,000/- (Rupees Eight Lakhs Seventy Thousand Only) amountis directed to be kept with State Bank of India, Branch Tis Hazari Courts, New Delhi in MACAD in the form of 29 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 29 months in succession, as per the 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 passed in the said case. The amount of FDRs on maturity would be released in his savings/MACT Claims SB Account bearing No. 20780110035474 maintained with UCO Bank, Branch : Karkardooma Court, Delhi IFSC Code : UCBA0002078. The remaining amount of Rs. 1,75,477/- (Rs. One Lakh Seventy Five Thousand Four Hundred Seventy Seven Only) (i.e. 10% of the awarded amount plus amount of medical bills) is also directed MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 20/29 Digitally signed by LOVLEEN LOVLEEN Date:
2021.03.16 17:25:48 +0530 to be released into his above said account, which can be withdrawn and utilized by the petitioner. However, the concerned bank (s) shall permit the petitioner to withdraw money from his above savings bank account by means of withdrawal forms or biometric authentication. The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his above share. The bank shall not permit any joint name (s) to be added in the savings bank account or MACAD scheme account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
31.2 The original fixed deposits be retained by the SBI, Branch Tis Hazari Courts, Delhi.
31.3 The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner. No loan, advance or withdrawal or pre-mature discharge be allowed on MACAD without permission of the Court.
LIABILITY
32. As already stated above, R-1 being the driver and principal tortfeasor and R-2 being owner of the said vehicle, and also being vicariously liable for the acts of R-1, are jointly and severally liable to pay the awarded amount of compensation to petitioners. However, since the offending vehicle was insured with R-3 at the time of accident, therefore, R-3 is liable to indemnify the R-2 in respect of above liability. As such R-3 is directed to MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 21/29 Digitally signed by LOVLEEN LOVLEEN Date: 2021.03.16 17:25:57 +0530 deposit the above award amount with SBI Branch Tis Hazari Courts along with interest @ 6% per annum, by way of crossed cheques/DDs in name of the petitioner within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. R-3 shall inform the petitioners and his counsel through registered posts that the cheques of the awarded amount are being deposited.
33. A 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. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 16/04/2021.
Digitally signed by LOVLEEN Date:LOVLEEN 2021.03.16 17:26:04 +0530 Announced in the open court (LOVLEEN) on this 16th March, 2021 PO: MACT-02 (CENTRAL):
DELHI / 16.03.2021 Encl: SUMMARY OF COMPUTATION OF AWARD AMOUNT IN FORM IV-
B MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 22/29 SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASE
1. Date of accident : 24.12.2016
2. Name of the injured : Sh. V.C. Gautam
3. Age of the injured : 52 years
4. Occupation of the injured : Advocate
5. Income of the injured : Rs. 11,830/- per month
6. Nature of injury : Grievous
7. Medical treatment taken : St. Stephen Hospital and Sushruta Trauma Center
8. Period of Hospitalization : w.e.f. 25.12.2016 to 26.12.2016 & from 27.12.2016 to 04.01.2017
9. Whether any permanent disability ? If yes, give details : Disability certificate with 71% permanent disability MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 23/29 Digitally signed by LOVLEEN LOVLEEN Date:2021.03.16 17:26:18 +0530
10. Computation of Compensation S. Heads Awarded by the Tribunal No.
11. Pecuniary Loss (I) Expenditure on Rs. 69,702/-
treatment
(ii) Expenditure on Rs. 15,000/-
conveyance
(iii) Expenditure on special Rs. 15,000/-
diet
(iv) Cost of NIL
nursing/attendant
(v) Loss of earning NIL
capacity
(vi) Loss of Income Rs. 35,490/-
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 24/29
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(vii) Any other loss which NIL
may require any special
treatment or aid to the
injured for the rest of
his life
12. Non-Pecunicary Loss:
(i) Compensation for Rs. 35,000/-
mental and physical
shock
(ii) Pain and suffering Rs. 35,000/-
(iii) Loss of amenities of life Rs. 35,000/-
(iv) Disfiguration NIL
(v) Loss of marriage NIL
prospects
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(vi) Loss of earning, N.A.
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 71%
assessed and nature of
disability as permanent
or temporary
(ii) Loss of amenities or N.A
loss of expectation of
life span on account of
disability
35.5%
(iii) Percentage of loss of
earning capacity in
relation to disability
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(iv) Loss of future income - Rs. 6,09,789/-
(Income x% Earning
Capacity x Multiplier)
14. TOTAL Rs. 8,49,981/-
COMPENSATION
15. INTEREST AWARDED 6% per annum
16. Interest amount up to Rs. 1,95,496/- (rounded off)
the date of award
17. Total amount including Rs. 10,45,477/-
interest
18. Award amount released Rs. 1,75,477/- (medical bills + 10% of
the awarded amount)
19. Award amount kept in Rs. 8,70,000/-
FDRs
MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 27/29
20. Mode of disbursement Mentioned in the award
of the award amount to
the claimant (s).
21. Next date for 16/04/2021
compliance of the
award.
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Digitally
signed by
LOVLEEN
LOVLEEN Date:
2021.03.16
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MACT NO. 561/2017
16.03.2021
Present: Sh. Mukesh Chauhan, Ld. Counsel for the petitioner.
Sh. Vikas Shokeen, Ld. Counsel for respondent no. 3/ Insurance Co. None for R-1 and R-2.
Oral arguments have been advanced by Ld. Counsel for the parties. Digitally signed by LOVLEEN LOVLEEN Date:
Put up for orders at 4 pm. 2021.03.16
17:27:08
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(LOVLEEN)
P.O. MACT (Central - 02)
Delhi/16/03/2021
At 4:00 pm.
Present : None.
Vide separate detailed award of even date today, the matter stands disposed off.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir Digitally signed and put up the same on 16/04/2021. LOVLEEN by LOVLEEN Date:
2021.03.16 17:27:14 +0530 (LOVLEEN) P.O. MACT (Central - 02) Delhi/16/03/2021 MACT No. 561-17 V.C. Gautam vs. Tushal Karanwal & Ors Page No. 29/29