Delhi District Court
Suresh Chand vs Sh. Abhishek Chaudhry on 31 August, 2020
Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors
IN THE COURT OF SH. ATUL KUMAR GARG : PRESIDING OFFICER :
MACT : SOUTH DISTRICT : SAKET COURT: NEW DELHI
Petition No. : 270/18 and 309/18
FIR No. 553/2017 PS Saket
1. Suresh Chand
S/o Sh. Gangasaran
R/o H.No. 893, Gali No. 19,
Indian Gas Agency,
Shani Bazar, Sangam Vihar,
New Delhi .....injured
2. Dinesh Kumar
S/o Sh. Mahaveer
R/o F222, Khanpur,
New Delhi .....injured
3. Ganga Saran
S/o Late Attar Singh
R/o H.No. 893, LBlock,
Gali no. 19, Sangam Vihar .....LR of injured Narendra
4. Vidya Devi
W/o Sh. Ganga Saran
R/o BlockL, House no. 893,
Gali No. 19, Sangam Vihar, Sani Bazar,
Deoli, Delhi ....LR of injured Narendra
Petition No. : 309/18
5. Ganesh Sharma
S/o Sh. Raghuvir Mistri
R/o 126, Jamuara, Jamuyara,
Petition No. :270/18 and 309/2018 Page No.1/33
Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors
Town/VillJamuara,
AnchalTikari,
Distt. Gaya. .....injured
..... Petitioners
Versus
1. Sh. Abhishek Chaudhry
S/o Sh. Karan Singh
R/o H.No. D23, Khanpur, Delhi ..... Driver
2. Sh. Karan Singh
S/o Sh. Kishan Chand
R/o H.No. D23, Khanpur, Delhi ...... Owner
3. Bajaj Allianz Insurance Company Ltd.
New Delhi .... Insurance company
.......Respondents
Date of Institution : 03.08.2018
Date of reserving of judgment/order : 22.08.2020
Date of pronouncement : 31.08.2020
JUDGMENT:
1. By this order I shall dispose off the Detailed Accident Report (DAR) filed by SHO, PS Saket (FIR No. 553/17 PS Saket) as well as claim petition bearing no. 309/18 filed by the petitioners and LR of the deceased for claiming compensation for the injuries sustained to Suresh Chand, Dinesh, Ganesh and fatal injuries sustained to Narender in a road accident on 03.11.2017 at about 9.30 a.m near Khokha Market, Sector1, Pushp Vihar, New Delhi due to rash and negligent driving of vehicle bearing no. DL3CAS5279 being driven by Abhishek Chaudhary, owned by Karan Singh and insured with Bajaj Allianz Ins.
Petition No. :270/18 and 309/2018 Page No.2/33Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors Co. Ltd. Both, the DAR (MACT/270/2018) as well as claim petition (MACT/309/2018) are taken up together for disposal because the facts are the same.
2. Pursuant to the issuance of notice, all the respondents appeared.
3. The respondent no.(s) 1 and 2 filed joint written statement. In their written statement, they stated that the vehicle was being driven by Abhishek Chaudhary S/o Sh. Karan Singh and hence the petition is bad for nonjoinder of necessary party and thus is liable to be dismissed. All other averments of the plaint are denied by the respondents.
4. The respondent no. 3 stated in its written statement that as per the insurance policy bearing no. OG181103180100004660 dated 24.10.2017 the said vehicle was insured for the period from 17.10.2017 to 16.10.2018.
5. For just adjudication of the case, following issues were framed vide order dated 17.12.2018. Now, for deciding the same, they are jointly written as follows :
1. Whether injured Dinesh, Suresh Chand and Ganesh and deceased Narender succumbed to the injuries sustained in a road accident on 03.11.2017 at about 9.30 a.m near Khokha Market, Sector1, Pushp Vihar, New Delhi due to rash and negligent driving of vehicle bearing no. DL3CAS5279 being driven by Abhsishek Chaudhary, owned by Karan Singh and insured with Bajaj Alianz Ins. Co. Ltd.Petition No. :270/18 and 309/2018 Page No.3/33
Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors
2. To what amount of compensation the petitioners are entitled and from whom?
3. Relief.
6. In DAR no. 270/2018 the petitioners examined four witnesses. Sh. Dinesh Kumar (injured) was examined as PW1 who tendered his affidavit of evidence Ex.PW1/A and also tendered the documents as follows: • Copy of aadhar card of petitioner Ex.PW1/1 • Copy of MLC of petitioner Ex.Pw1/2 • Copy of discharge summary and OPD card Ex.PW1/3 (colly) (OSR) • Original medical bills Ex.PW1/4 (colly) • DAR Ex.PW1/5 (colly)
7. Sh. Ganesh Sharma was examined as PW2 who tendered his affidavit of evidence Ex.PW2/A and relied upon the following documents : • Medical documents of AAIMS Trauma Center Ex.PW2/1 • Medical documents of Verma Hospital Ex.PW2/2 • FIR Ex.PW2/3
8. Sh. Suresh Chand was examined as PW3 who tendered his affidavit of evidence Ex.PW3/A and relied upon the following documents: • Copy of MLC of Suresh Chand Ex.PW3/1 • Salary slip of Sh. Suresh Chand for the month of October 2017 Ex.PW3/2 • Copy of medical bills and prescriptions of Sh. Suresh Chand Ex.PW3/3 (OSR) • Driving licence of Sh. Suresh Chand Ex.PW3/4 (OSR).
9. Sh. Ganga Saran was examined as PW4 who tendered his affidavit of evidence Ex.PW4/A and relied upon the following documents: Petition No. :270/18 and 309/2018 Page No.4/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors • Dead body receipt of deceased dated 03.11.2017 Ex.PW4/1. • Receipt dated 04.11.2017 issued by Kausar Ali Lakdi Ki Tal, near Shamshan Ghat, Sangam Vihar, New Delhi Ex.PW4/2. • Death certificate of deceased Ex.PW4/3 (OSR). • Copy of marksheet of M.Com course of deceased Ex.PW4/4. • Copy of degree of deceased issued by the Delhi University dated 30.05.2015 Ex.PW4/5.
• Provisional and character certificate of deceased issued by Sh.
Aurbindo College and marksheet of B.Com are Ex.PW4/6 (colly) (OSR) • Salary slip of deceased Ex.PW4/7 • Appreciation and increment certificate of deceased issued by design symposium Ex.PW4/8 (OSR) • Driving licence of deceased Ex.PW4/9.
10. The respondents did not examine any witness.
11. I have heard the arguments as advanced by Ld. Counsel for the parties and perused the record. My issuewise finding is as under :
I S S U E No. 112. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicalities because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though it is an admitted legal position that the negligence on the part of driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New Petition No. :270/18 and 309/2018 Page No.5/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III(2015) ACC 435 Delhi.
13. In DAR (MACT/270/18) PW1 Sh. Dinesh Kumar deposed that on 03.11.2017 at about 9.30 AM he was on foot and going to his work place at Saket from his residence and when he reached at NBCC Plaza road towards Khokha Market, Sec1, Pushp Vihar, then all of sudden a Scorpio Car bearing no. DL 3CAS5279 which was being driven by Abhishek Chaudhary in a rash and negligent manner even without following the rules of traffic, came from behind and hit him as well as some other persons. Due to said, he fell down on the road and sustained grievous injuries in his both legs, right hand, back and other injuries on all over his body. He was immediately taken to JPN Trauma Centre, AIIMS where the doctors of the said hospital have declared injuries as "# Shaft Femur Right with # Shaft Ulna right with B/L # SIPR, Zone 2 #Sacrum left with # Transverse process L3/L4 with Grade 2 Splenic injury" and other injuries on all over his body. He deposed that he is still under observation by the doctors. This witness further deposed that he was working as Labourer at South Delhi and was earning more than Rs.15000/ per month. He was hale and healthy and active person but due to the said accident he is not only unable to do his duty/work till date but was unable to daily routines works without helps of others for about six months.
In his crossexamination, he stated that he remained conscious for about 1015 minutes after the accident whereafter he became unconscious. He stated in his crossexamination that he noted the number of the offending vehicle as 5279 only and after noting down the number, he did not write it on any paper but I Petition No. :270/18 and 309/2018 Page No.6/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors just remembered it and after coming back from the hospital, he wrote it on some paper.
14. In DAR (MACT/270/18) PW2 Sh. Ganesh Sharma deposed that on 03.11.2017 at about 9.30 a.m, he alongwith his friend Sh. Dinesh was walking. When he reached towards Sector 1 Road coming from Asian Market one white colour Scorpio driven by the respondent no. 1 in a rash and negligent manner hit them from back due to which they fell down and received grievous injuries. The said car also hit one motorcycle after hitting them. Due to the impact of the said accident left Tibia of this witness was fractured. Due to nonavailability of bed, he could not be operated in Trauma Centre. He further deposed that he was shifted to Verma Hospital, Devli, New Delhi. The said injuries have caused permanent disability to the petitioner which has crippled the petitioner. The life of the petitioner has been permanently ruined. The petitioner has been forced to lead a miserable life with support from other person.
In his crossexamination, he stated that Dinesh was with him and he had seen the offending vehicle. Dinesh also received injuries.
15. In DAR (MACT/270/18) PW3 Sh. Suresh Chand deposed that on 03.11.2017 he and his deceased brother Narender Kumar were going to their office on a motorcycle bearing no. DL3SCR8375 and when they reached on the road from NBCC Plaza to Khokha Market, one white coloured Scorpio vehicle bring driven by its driver rashly and negligently hit the motorcycle and he and his brother received several injuries. He stated that his brother being a pillion rider and he were wearing helmets he was riding the motorcycle moderately on Petition No. :270/18 and 309/2018 Page No.7/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors the road. He deposed that his younger brother Narender fell on the road and received severe injuries and he ultimately died on 03.11.2017 itself in JPNA Trauma Centre, AIIMS, Raj Nagar, New Delhi. This witness further deposed that he received several injuries on his right arm, forearm, right hand, right thigh and lower leg (copy of MLC of Jail Prakash Naryan Apex Trauma Centre Ex.PW3/1). This witness further deposed that he was working as Accountant at Kuber Enterprises and earning a sum of Rs.21,500/ per month (copy of salary slip for the month of October, 2017 Ex.PW3/2). This witness states that he continued to take treatment of the injuries caused in the aforesaid incident for about one month and during the said period, he could not able to pursue to daily routine works properly and suffered loss of his studies. This witness further deposed that his brother Narender was having a valid driving license issued by the Transport Department, Government of Delhi valid upto 17.03.2033 and he was also having a valid driving license valid upto 31.12.2027 (copy of DL Ex.PW3/4).
In his crossexamination, he stated that he is an eye witness of the accident. He stated that his vehicle was at the speed of 40 kmph at the time of accident. He could not see the offending vehicle just before the accident as he hit him from behind.
16. In DAR (MACT/270/18) PW4 Sh. Ganga Saran deposed that he is the father of deceased Narender Kumar and Suresh Chand. On 03.11.2017 his both the sons were going to their office on a motorcycle bearing no. DL3SCR8375 and when they reached on the road from NBCC Plaza to Khokha Market, one white coloured Scorpio vehicle being driven by its driver rashly and negligently Petition No. :270/18 and 309/2018 Page No.8/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors hit the motorcycle and his both the sons received several injuries. He further deposed that his younger son Narender fell on the road and received severe injuries and he ultimately died on 03.11.2017 itself in JPNA Trauma Centre, AIIMS, Raj Nagar, New Delhi. He stated that he has received the dead body of his son Narender after postmortem on 03.11.2017 (receipt dead body dated 03.11.2017 Ex.PW4/1). He stated that his son Narender joined on the post of Accounts Executive on 03.11.2016 in the company known as Design Symposium, New Delhi having Emp. Code : DS 73. He stated and submit that monthly gross salary of his son was Rs.18000/ per month including all allowances and benefits such as P.F., ESI etc. In his crossexamination, he stated he did not see the accident. He is not doing any work.
17. In the present case, the petitioners, in petition no. 270/2018, have placed on record copy of FIR, site plan, mechanical inspection reports etc. Site plan and mechanical inspection reports also corroborates the version of the petitioners. Therefore, there is nothing to disbelieve the version of the petitioners that on 03.11.2017 at about 9.30 am near Khokha Market, Sector 1, Pushp Vihar, New Delhi, the injuries sustained to Suresh Chand, Dinesh, Ganesh and fatal injuries sustained to Narendra due to rash and negligent driving of vehicle bearing no. DL3CAS5279 being driven by Abhishek Chaudhary owned by Karan Singh and insured with Bajaj Allianz Ins. Co. Ltd.
18. Hence, issue no.1 is decided in favour of the petitioners and against the respondents.
Petition No. :270/18 and 309/2018 Page No.9/33Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors I S S U E No. 2
19. In the petition no. 309/2018, the injured Ganesh Sharma has filed separate claim petition which was tagged with the DAR (MACT/270/18). The petitioners i.e. injured Dinesh, injured Suresh Chand, LRs of deceased Narender i.e. Sh. Ganga Saran (father) and Smt. Vidya Devi ( mother) had claimed the compensation.
Injury case of Suresh Chand
20. In the present case, petitioner Suresh Chand had claimed that he had been employed as Accountant at Kuber Enterprises and earning Rs.21,500/ per month. He placed on record salary slip of October 2017 where the salary of the Suresh Chand shows as Rs.21,500/ p.m. As per the MLC of AIIMS Trauma Center Ex.PW3/1, the petitioner has received injuries on right arm, forearm, right hand, right thigh and lower leg. PW3/ Suresh Chand stated in his cross examination that he has joined his office in the middle of December 2017. So, he must have remained out of work at least for 45 days. Thus, the loss of income comes to Rs.32,250.00. I award Rs. 32,250/ to the injured Suresh Chand towards the total loss of income.
I award him Rs.75,000/ towards pain and sufferings and enjoyment of life.
The petitioner Suresh Chand has placed on record photocopies of medical bill of Rs.3,335/. I therefore, award Rs.3,335/ to the petitioner Suresh Chand towards medical expenses.
Petition No. :270/18 and 309/2018 Page No.10/33Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors IN THE CASE OF DINESH KUMAR MEDICAL EXPENSES :
21. In the present case the petitioner has filed original medical bill of Rs.32,143/. Therefore, I award Rs.32,143/ to the petitioner towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
22. As per the discharge summary, the petitioner was diagnosed with #SHAFT Femur right with # shaft ulna right with B/L # SIPR, Zone 2. He remained hospitalised in AIIMS for eleven days i.e. 03.11.2017 and discharged on 13.11.2017. As per the MLC, the injuries on the petitioner were grievous in nature. As per the disability certificate the injured has suffered 51% permanent physical impairment in relation to right lower limb. Having regard to the injuries, treatment and disability of the petitioner, I award him Rs.1,50,000/ towards pain and sufferings and enjoyment of life SPECIAL DIET, ATTENDANT AND CONVEYANCE CHARGES :
23. In the present case the petitioner has not placed on record any document with regard to special diet, conveyance and attendant charges. However, the injuries on his person were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant.
Therefore, looking into all the facts, I award Rs.100,000/ to the petitioner towards special diet, conveyance and attendant charges.
Petition No. :270/18 and 309/2018 Page No.11/33Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors LOSS OF INCOME / FUTURE INCOME :
24. The petitioner further stated that he is not able to work from the date of accident till date. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" : "In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cyclerickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cyclerickshawpuller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cyclerickshawpuller.
The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and Petition No. :270/18 and 309/2018 Page No.12/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors another, (2008) 8 SCC 518. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289, in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.
In a more recent decision in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations:
Petition No. :270/18 and 309/2018 Page No.13/33Suresh & Ors. v. Abhishek Choudhary & Ors. Ganesh Sharma v. Abhishek Choudhary & Ors Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage Petition No. :270/18 and 309/2018 Page No.14/33 Suresh & Ors. v. Abhishek Choudhary & Ors. Ganesh Sharma v. Abhishek Choudhary & Ors of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.
25. Here in the present case, the petitioner has stated that at the time of accident he was working as Labourer at South Delhi and getting a salary of Rs.15000/ per month. However, he has not placed on record any document to show how much he was earning at the time of accident or where he was working.
Therefore, minimum wages of an 'unskilled person' is taken for calculating the loss of income, which on the date of accident were Rs.13,350/ p.m. The injuries on the person of the petitioner were such that he must have remained out of work at least for six months. Thus, the loss of income comes to Rs.80,100.00 (Rs.13,350 x 6).
In a very recent judgment announced by the Supreme Court of India in case title Sri Anthony alias Anthony Swamy v. The Manging Director, K.S.R.T.C. on 10.06.2020. Hon'ble Supreme Court of India has reiterated the principles set out for grant of compensation in cases of permanent physical functional disability in case title Rajkumar v. Ajay Kumar & Anrs., 2011(1) SCC 343 : "Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all Petition No. :270/18 and 309/2018 Page No.15/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity and consequently, if the evidence produced show 45% as the permanent disability will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.
26. Here in the present case, as per the disability certificate the petitioner has suffered 51% permanent disability in relation to his Right Lower Limb. As per the Aadhar Card of the petitioner, the date of birth is 01.01.1984, the accident took place on 03.11.2017. Therefore, he was 33 years of age at the time of accident. This disability would definitely affect his future working/prospects as well as his day to day movement. As a matter of rule the half of the functional disability of anyone of the limb has to be taken off for the purpose of calculation or future prospects. However, looking into the age of the petitioner and the disability I take him functional disability as 30%. Taking a multiplier of '16', the future loss of income comes to Rs.13,350 x 12 x 16 x 30% = Rs.7,68,960/. I Petition No. :270/18 and 309/2018 Page No.16/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors therefore, award Rs.7,68,960/ to the petitioner towards Future Loss of Income on account of permanent disability.
Loss of Amenities :
27. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an effect his social and married life. I therefore, award Rs.50,000/ to the petitioner towards loss of amenities and married life.
28. The total compensation in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 32,143/
PAIN & SUFFERINGS & ENJOYMENT
OF LIFE : Rs. 1,50,000/
SPEICAL DIET, CONVEYANCE &
ATTENDANT : Rs. 1,00,000/
LOSS of INCOME : Rs. 80,100/
LOSS OF DISABILITY : Rs. 7,68,960/
LOSS OF AMENITIES : Rs. 50,000/
============
TOTAL : Rs.11,81,203/
============
IN CASE OF GANESH
MEDICAL EXPENSES :
29. In the present case the petitioner has filed original medical bill of Rs.50,454. Therefore, I award Rs.50,454 to the petitioner towards medical expenses.
Petition No. :270/18 and 309/2018 Page No.17/33Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
30. Sh. Ganesh Sharma/ injured stated that PCR took us to AIIMS Trauma Center and due to nonavailability of bed, he could not be operated in Trauma Centre. Thereafter, injured Ganesh Sharma went to Verma Hospital, Devli, New Delhi and on 15.11.2017 he was operated and Anatomical distal Tibia Locking Plates were placed on the left leg. Having regard to the injuries and treatment, I award him Rs.100,000/ towards pain and sufferings and enjoyment of life.
SPECIAL DIET, ATTENDANT AND CONVEYANCE CHARGES :
31. In the present case the petitioner has not placed on record any document with regard to special diet, conveyance and attendant charges. However, the injuries on his person were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant.
Therefore, looking into all the facts, I award Rs.20,000/ to the petitioner towards special diet, conveyance and attendant charges.
32. The total compensation in favour of the petitioner is assessed as under :
MEDICAL EXPENSES : Rs. 50,454/ PAIN & SUFFERINGS & ENJOYMENT OF LIFE : Rs. 1,00,000/ SPEICAL DIET, CONVEYANCE & ATTENDANT : Rs. 20,000/ ============ TOTAL : Rs. 1,70,454/ ============ Petition No. :270/18 and 309/2018 Page No.18/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors IN THE CASE OF NARENDRA KUMAR
33. Admittedly, Narendra Kumar died because of the injuries suffered by him in the accident. Hence, the LRs of the deceased are entitled for compensation for the financial loss suffered by them on account of the death of the deceased. The petitioners, being the legal representatives of the deceased, shall be entitled for the following reliefs as per law as discussed in National Insurance Co. Ltd.
vs. Pranay Sethi & Ors. decided in Special Leave Petition Civil no. 25590 of 2014 wherein the extent of the claim under different heads was discussed in detail and it was held that following amounts shall be considered as just and reasonable award under the following heads : S. No. Head Amount (in Rs.)
1. Loss of Love and Affection 1,00,000/ [50,000x2 being the dependent upon the deceased] 2 Funeral Expenses 15,000/ 3 Loss of Estate 15,500/
34. As far as the head of Loss of Dependency is concerned, same is to be calculated as per the multiplier method which has been adopted as a thumb rule in Sarla Verma vs. DTC [2009 (6) Scale 129] and various other judgments, unless there are exceptional circumstances which make it necessary to depart from the said rule. Further, in the judgment titled as National Insurance Co.
Ltd. vs. Pranay Sethi & Ors. (Supra) it has been concluded by the Hon'ble Petition No. :270/18 and 309/2018 Page No.19/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors Supreme Court that in determination of the multiplicand the deduction for personal and living expenses the Tribunals shall be guided by the law as laid in Sarla Verma's case. The deceased was unmarried. As per the aadhar card, the date of year of the deceased was 1992 and the accident took place on 03.11.2017. However, the petitioners have not placed on record any proof of age of the deceased, so, the age of the deceased is taken as 25 years as mentioned in the petition as well as affidavit of evidence at the time of accident and the applicable multiplier would be '18'.
35. PW4 stated that the deceased was his son. At the time of accident, the deceased was on the post of Accounts Executive in the company known as Design Symposium, New Delhi. It is also stated by PW1 that deceased was earning Rs. 18000/ per month and was supporting the petitioner and their family members. He has placed on record salary slip of the deceased Ex.PW4/7. Thus, the salary of the deceased comes to Rs.18000/ p.m.
36. Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi & Ors. (supra) has held that future prospects have to be considered for calculating the loss of income. The deceased was about 25 years of age at the time of accident. After adding future prospects, the income of the deceased comes to Rs.25,200/ (18000 + 18000 x 40/100). Admittedly, the deceased was un married. Therefore, onehalf is to be deducted towards personal and living expenses of the deceased. After deduction, the income of the deceased comes to Rs.12,600/. Thus, the annual income comes to Rs.1,51,200/ p.a. Thus, the loss of dependency comes to Rs.1,51,200/ (Rs.1,51,200 x 18). I therefore, award Petition No. :270/18 and 309/2018 Page No.20/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors Rs.27,21,600/ to the petitioners towards loss of dependency.
37. In view of the decision on above mentioned issues, the total compensation in favour of the petitioner is calculated as under : LOSS OF DEPENDENCY = Rs. 27,21,600/ LOSS OF LOVE AND AFFECTION= Rs. 1,00,000/ FUNERAL EXPENSES = Rs. 15,000/ LOSS OF ESTATE = Rs. 15,000/ ============ TOTAL = Rs. 28,51,600/ ============ LIABILITY
38. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioners is of respondent no. 1. Since the vehicle was owned by respondent no.2, he becomes vicariously liable to compensate the petitioners. It is an admitted position on record that the vehicle was insured with respondent no. 3, therefore, respondent no. 3 becomes contractually liable to compensate the petitioners for the above mentioned amount.
39. Issue No. 2 is accordingly decided in favour of the petitioners and against the respondents.
RELIEF
40. In view of my findings on the issues, I award a sum of Rs.1,10,585/ (Rupees One Lac Ten Thousand Five Hundred Eighty Five only) to petitioner /injured Suresh Chand, Rs.11,81,203/ (Rupees Eleven Lacs Petition No. :270/18 and 309/2018 Page No.21/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors Eighty One Thousand Two Hundred Three only) to the petitioner/injured Dinesh Kumar, Rs.1,70,454/ (Rupees One Lac Seventy Thousand Four Hundred Fifty Four only) to the petitioner/injured Ganesh Sharma (in his claim petition 309/2018) and Rs. 28,51,600/ (Rupees Twenty Eight Lacs Fifty One Thousand Six Hundred only) to the legal heirs of the deceased Narendra Kumar as compensation alongwith interest @ 8% per annum from the date of filing the claim petition till its realization.
Release of Award Amount in the share of petitioner no.(s)1 and 5 i.e. Suresh Chand and Ganesh Sharma
41. In the injury cases of Suresh Chand and Ganesh Sharma, the entire award amount be released to them.
(Release of Award Amount in the share of Petitioner no. 2 i.e. Dinesh Kumar)
42. A sum of Rs.11,81,203/ alongwith the proportionate interest is awarded to the petitioner no.2 being the injured.
Out of this amount, an amount of Rs.10,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs.1,00,000/ for a period of 01 year.
2. Rs.1,00,000/ for a period of 02 years.
3. Rs.1,00,000/ for a period of 03 years.
4. Rs.1,00,000/ for a period of 04 years.
5. Rs.1,00,000/ for a period of 05 years.
6. Rs.1,00,000/ for a period of 06 years.Petition No. :270/18 and 309/2018 Page No.22/33
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Ganesh Sharma v. Abhishek Choudhary & Ors
7. Rs.1,00,000/ for a period of 07 years.
8. Rs.1,00,000/ for a period of 08 years.
9. Rs.1,00,000/ for a period of 09 years.
10. Rs.1,00,000/ for a period of 10 years.
RELEASE OF AWARD AMOUNT IN THE DEATH CASE OF NARENDRA KUMAR (In the share of Petitioner no.3 i.e. Sh. Ganga Saran, father of the deceased)
43. A sum of Rs.10,51,600/ alongwith the proportionate interest is awarded to the petitioner no.3 being father of the deceased.
Out of this amount, an amount of Rs.10,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs.2,00,000/ for a period of 01 year.
2. Rs.2,00,000/ for a period of 02 years.
3. Rs.2,00,000/ for a period of 03 years.
4. Rs.2,00,000/ for a period of 04 years.
5. Rs.2,00,000/ for a period of 05 years.
(In the share of Petitioner no. 4 i.e. Vidya Devi (mother of the deceased)
44. A sum of Rs.18,00,000/ alongwith the proportionate interest is awarded to the petitioner no.4 being mother of the deceased. An amount of Rs.18,00,000/ is directed to be kept in the form of fixed deposit in the following phased manner :
1. Rs.2,00,000/ for a period of 01 year.
2. Rs.2,00,000/ for a period of 02 years.
3. Rs.2,00,000/ for a period of 03 years.
4. Rs.2,00,000/ for a period of 04 years.
5. Rs.2,00,000/ for a period of 05 years.
6. Rs.2,00,000/ for a period of 06 years.Petition No. :270/18 and 309/2018 Page No.23/33
Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors
7. Rs.2,00,000/ for a period of 07 years.
8. Rs.2,00,000/ for a period of 08 years.
9. Rs.2,00,000/ for a period of 09 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
45. In consonance to the idea conceptualized and formulated in various land mark judgments of our own Hon'ble High Court, by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, the respondent no.3 are directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioners within a period of 30 days from today, failing which the respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
46. The respondent no.3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the ld. counsel for the insurance company.
47. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING A/c 35195787436 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
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Ganesh Sharma v. Abhishek Choudhary & Ors
48. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP)
49. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
1. The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to claimants / petitioners without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants/petitioners alongwith the photocopy of the FDRs.
5. The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimants at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondent no. 3 in an FDR in the name of the bank till the FDRs are prepared in the name of the claimants, so that the benefit of better interest may be given Petition No. :270/18 and 309/2018 Page No.25/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors to the claimants for the said period.
12. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioners from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/ NEFT directly in the personal bank account of the petitioners of the bank nearest to their place of residence.
DIRECTIONS FOR THE RESPONDENT NO. 31. The respondent no. 3 is directed to file compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
2. The respondent no. 3 shall intimate the claimants / petitioners about their having deposited the amount in favor of the petitioners in terms of the award, at the address of the petitioners mentioned at the title of the award, so as to facilitate them to withdraw the same.
3. Copy of this award / judgment be given to the parties for compliance.
4. The case is now fixed for compliance by the respondent no. 3 for 01.10.2020.
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Ganesh Sharma v. Abhishek Choudhary & Ors FORM IVB SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASE OF SURESH CHAND
1) Date of accident : 03.11.2017
2) Name of the injured : Suresh Chand
3) Age of the injured: 29 years
4) Occupation of the injured : Accountant
5) Income of the injured : Rs.21500/
6) Nature of injury : Simple
7) Period of hospitalisation :
8) Whether any permanent disability? : No Computation of Compensation S. Heads Awarded by the No. Claims Tribunal 1 Pecuniary Loss :
i Expenditure on treatment 3335/
ii Expenditure on special diet, conveyance and
attendant
iii Loss of income 32,250/
iv Loss of Leaves
v Any other loss which may require any special
treatment or aid to the injured for the rest of his life.
2 NonPecuniary Loss :
i Compensation for mental and physical shock ii Pain and suffering Rs.75000/ iii Loss of amenities iv Disfiguration and marriage prospects v Loss of marriage prospects Petition No. :270/18 and 309/2018 Page No.27/33 Suresh & Ors. v. Abhishek Choudhary & Ors. Ganesh Sharma v. Abhishek Choudhary & Ors vi Compensation towards disability
3 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature of disability as permanent or temporary
(iii) Percentage of loss of earning capacity in relation to disability
4 TOTAL COMPENSATION Rs.1,10,585/ 5 INTEREST AWARDED 8% 6 Total amount of interest Rs.18,627/ 7 Total amount including interest Rs.1,29,212/ 8 Award amount released Entire amount is directed to be released.
9 Award amount kept in FDRs 10 Next date for compliance of the award. 01.10.2020 FORM IVB SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASE OF DINESH
1. Date of accident : 03.11.2017
2. Name of the injured : Dinesh
3. Age of the injured : 33 years (at the time of accident)
4. Occupation of the injured : Labourer
5. Income of the injured : Rs.13350 (minimum wages)
6. Nature of injury : Grievous
7. Medical treatment # Shaft Femur Right with # Shaft Ulna taken by the injured right with B/L
8. Period of hospitalisation : 11 days
9. Whether any permanent disability? : 51% Petition No. :270/18 and 309/2018 Page No.28/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors Computation of Compensation S. Heads Awarded by the No. Claims Tribunal 1 Pecuniary Loss :
i Expenditure on treatment Rs.32143/
ii Expenditure on special diet, conveyance and Rs.1,00,000/
attendant
iii Loss of income Rs.80,100/
iv Loss of Leaves
v Any other loss which may require any special
treatment or aid to the injured for the rest of his life.
2 NonPecuniary Loss :
i Compensation for mental and physical shock ii Pain and suffering Rs.1,50,000/ iii Loss of amenities Rs. 50,000/ iv Disfiguration and marriage prospects v Loss of marriage prospects vi Compensation towards disability Rs.7,68,960/
3 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature 51% of disability as permanent or temporary
(iii) Percentage of loss of earning capacity in 30% relation to disability
4 TOTAL COMPENSATION Rs.11,81,203 5 INTEREST AWARDED 8% 6 Total amount of interest Rs.1,98,967/ 7 Total amount including interest Rs.13,80,170/ Petition No. :270/18 and 309/2018 Page No.29/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors 8 Award amount released Some amount be kept in FDR and some amount be released to the injured 9 Award amount kept in FDRs Rs.10,00,000/ 10 Next date for compliance of the award. 01.10.2020 FORM IVB SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASE OF GANESH SHARMA
1. Date of accident : 03.11.2017
2. Name of the injured : Ganesh Sharma
3. Age of the injured : 45 years (at the time of accident)
4. Occupation of the injured : Not provided
5. Income of the injured : Not provided any proof
6. Nature of injury : Left tibia (leg) Shaft Fracture
7. Period of hospitalisation :
8. Whether any permanent disability? : No Computation of Compensation S. Heads Awarded by the No. Claims Tribunal 1 Pecuniary Loss :
i Expenditure on treatment Rs.50,454/
ii Expenditure on special diet, conveyance and Rs.20,000/
attendant
iii Loss of income
iv Loss of Leaves
v Any other loss which may require any special
treatment or aid to the injured for the rest of his life.
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Ganesh Sharma v. Abhishek Choudhary & Ors 2 NonPecuniary Loss :
i Compensation for mental and physical shock ii Pain and suffering Rs.100,000/ iii Loss of amenities iv Disfiguration and marriage prospects v Loss of marriage prospects vi Compensation towards disability
3 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature of disability as permanent or temporary
(iii) Percentage of loss of earning capacity in relation to disability
4 TOTAL COMPENSATION Rs.1,70,454/ 5 INTEREST AWARDED 8% 6 Total amount of interest Rs.28,712/ 7 Total amount including interest Rs.1,99,166/ 8 Award amount released Entire amount is directed to be released.
9 Award amount kept in FDRs 10 Next date for compliance of the award. 01.10.2020 FORM IVA SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASE OF NARENDRA KUMAR TO BE INCORPORATED IN THE AWARD
1) Date of accident : 03.11.2017
2) Name of the deceased : Narendra Kumar
3) Age of the deceased : 25 years Petition No. :270/18 and 309/2018 Page No.31/33 Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors
4) Occupation of the deceased : Accounts Executive
5) Income of the deceased : Rs.18000/
6) Name, age and relationship of legal representatives of deceased :
S. Name Age Relation
No.
1 Sh. Ganga Saran 61 years Father
2 Smt. Vidya Devi 54 years Mother
Computation of Compensation
S. Heads Awarded by the Claims
No. Tribunal
1 Income of the deceased (A) Rs.18000/
2 Add Future Prospects (B) Rs.7200/
3 Less Personal expenses of the Rs.12,600/
deceased (C)
4 Monthly loss of dependency Rs.12,600/
[(A+B)C = D]
5 Annual loss of dependency (Dx12) Rs.1,51,200/
6 Multiplier (E) 18
7 Total loss of dependency Rs.27,21,600/
(Dx12xE=F)
8 Medical Expenses (G) Nil
9 Compensation for loss of Love and Rs.100,000/
Affection (H)
10 Compensation for loss of
consortium (I)
11 Compensation for loss of estate (J) Rs.15000/
12 Compensation towards funeral Rs.15000/
expenses (K)
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Suresh & Ors. v. Abhishek Choudhary & Ors.
Ganesh Sharma v. Abhishek Choudhary & Ors 13 TOTAL COMPENSATION Rs. 28,51,600/ (F+G+H+I+J+K = L) 14 RATE OF INTEREST AWARDED 8% 15 Interest amount upto the date of Rs.4,80,336/ award (M) 16 Total amount including interest Rs.33,31,936/ (K+M) 17 Award amount released Rs.5,31,936/ 18 Award amount kept in FDRs Rs.28,00,000/ 19 Mode of disbursement of the award Some amount be kept in FDR amount to the claimant (s). and some amount be released to the injured 20 Next date for compliance of the 01.10.2020 award Announced through Cisco Webex Video Conferencing on 31.08.2020 (ATUL KUMAR GARG) Presiding Officer : MACT South Distt. : Saket Courts New Delhi Petition No. :270/18 and 309/2018 Page No.33/33