Delhi District Court
Md. Asgar vs . Subash & Ors. on 15 January, 2019
Md. Asgar Vs. Subash & Ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
MACT No. 962/17
Unique Case ID No. DLCT-01-013481-2017
Md. Asgar,
S/O Sh. Md. Nasir,
R/o Village Dumari, PS Saghol,
District Bego Sarai, Bihar
............Petitioner
VERSUS
1. Subash,
S/o Sh. Surender Shah,
R/o C-67, DDA Flats,
Mata Sundari Road
Delhi
...........Respondent No.1
(Driver)
2. Upender Kumar, S/o Sh. Jamun Mandal R/o C-581, R-10, Mata Sundari Road, T-Huts, New Delhi ...........Respondent No.2 (Owner)
3. TATA AIG General Insurance Company Ltd.
Preet Vihar, Delhi
...........Respondent No.3
(Insurer) (Owner)
MACT No. 962/17 Page No. 1 of 30
Md. Asgar Vs. Subash & Ors.
Date of filing of DAR : 03.10.2017
Arguments heard on : 03.01.2019
Date of passing of Award : 15.01.2019
Present: Sh. Amit Ranjan, Advocate, counsel for the petitioner Respondent no. 1 and 2 are ex parte Sh. Nishant Sharma, Advocate, counsel for respondent no. 3 FORM- V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 03.03.2017
2. Date of intimation of the accident by 04.03.2017 the Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by 29.03.2017 the Investigating Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Not mentioned in 173 Cr.P.C. before the Metropolitan the DAR Magistrate. (Clause 10)
5. Date of filing of Detailed Accident 03.10.2017 Information Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10)
6. Date of service of DAR on the 03.10.2017 Insurance Company. (Clause 11)
7. Date of service of DAR on the 03.10.2017 claimant(s). (Clause 11) MACT No. 962/17 Page No. 2 of 30 Md. Asgar Vs. Subash & Ors.
8. Whether DAR was complete in all Yes respects? (Clause 16)
9. If not, whether deficiencies in the -
DAR removed later on?
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4)
11. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated 07.11.17 Officer by the Insurance Company. (Clause 20)
13. Name, address and contact number Sh. Pradeep of the Designated Officer of the Sehrawat, Adv. Insurance Company. (Clause 20) Chamber no. 422, Lawyer Chamber, Dawarka Court, Delhi-75 9871773066
14. Whether the Designated Officer of the No Insurance Company submitted his report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company No admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.(Clause 23)
16. Whether there was any delay or deficiency on the part of the N0 Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) to -
the offer of the Insurance Company. (Clause 24)
18. Date of the award 15.01.2019
19. Whether the award was passed with No MACT No. 962/17 Page No. 3 of 30 Md. Asgar Vs. Subash & Ors.
the consent of the parties?(Clause 22)
20. Whether the claimant(s) were directed Yes to open savings bank account(s) near their place of residence? (Clause 18)
21. Date of order by which claimant(s) were directed to open savings bank 04.12.2018 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(s).(Clause 18)
22. Date on which the claimant(s) 12.12.2018 produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card? (Clause 18)
23. Permanent Residential Address of the As mentioned in Claimant(s)(Clause 27) award
24. Details of savings bank account(s) of Md. Asgar the claimant(s) and the address of the Account no. bank with IFSC Code.(Clause 27) 38031466755, SBI Barauni, Bihar IFSC Code:-
SBIN0003589
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?(Clause 27) 26 Whether the claimant(s) were Yes on examined at the time of passing of the 12.12.2018 award to ascertain his/their financial condition? (Clause AWARD:
1. Detail Accident Report (hereinafter referred MACT No. 962/17 Page No. 4 of 30 Md. Asgar Vs. Subash & Ors.
to as DAR) has been filed in respect of an FIR No. 41/17 for the offence punishable under Sections 279/338 IPC, PS Kamla Market, Delhi in relation to grievous injuries caused to claimant Md. Asgar in a motor vehicular accident that took place on 03.03.2017 within the jurisdiction of PS Kamla Market, Delhi.
2. Facts in brief as emerged from the DAR are that on 03.03.2017 claimant was plying his cycle rickshaw. At about 5.45 am he stopped his rickshaw at Minto Road, Near Shivaji Park bus stop to ease himself. As soon as he stopped his rickshaw, offending TSR bearing no. DL-1RP-8258 came from behind at fast speed in a rash and negligence manner and hit in the rear portion of his rickshaw. Consequently, he fell down and sustained injury. He also sustained 34% permanent disability in relation to his right upper limb.
(i) It was alleged that at the time of accident, offending vehicle was being driven by respondent no. 1 and it was registered in the name of respondent no.2 and same was insured with respondent no.3.
(ii) During investigation it was revealed that respondent no. 1 was driving the TSR without license. Accordingly, respondent no. 1 and 2 are also prosecuted under Motor Vehicle Act.
3. DAR is contested by respondent no. 1 and 3 by filing their separate reply.
MACT No. 962/17 Page No. 5 of 30Md. Asgar Vs. Subash & Ors.
(i) Respondent no. 1 took a plea that he has not committed any offence.
(ii) Respondent no. 3 fairly conceded that the TSR was duly insured with it and policy was valid on the date of accident. It was submitted that since respondent no. 1 was driving the TSR without having a valid license, insurance company is not liable to pay any compensation.
(iii) Respondent no. 2 did not file the written statement and he was proceeded exparte vide order dated 03.04.2018.
(iv) Vide order dated 30.08.2018 an interim award of ` 25,000/- was passed in favour of petitioner and against the insurance company, which was deposited by the insurance company on 04.12.2018.
4. Vide order dated 30.08.2018, following issues were framed:-
(i) Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 03.03.2017 within the jurisdiction of PS: Kamla Market, Delhi due to rash and negligent driving of the vehicle bearing registration No. DL-1RP-8258 driven by respondent no. 1?MACT No. 962/17 Page No. 6 of 30
Md. Asgar Vs. Subash & Ors.
(ii) Whether the petitioner is entitled to any compensation? if so, from whom and to what amount ?
(iii) Relief.
(i) Vide order dated 30.08.2018, respondent no. 1 was also proceeded exparte.
5. In support of his case, petitioner examined himself witness as PW1
(i) In rebuttal, respondent No. 3 examined his claim officer Mr. Jarrar Ahmed as R3W1.
6. On completion of evidence led by both the parties, statement of petitioner was recorded on 12.12.2018 in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors. decided by Hon`ble High Court of Delhi on December 15, 2017.
7. I have heard rival submissions advanced by counsel for petitioner and respondent No. 3, perused the record carefully and gave my thoughtful consideration to their contentions.
8. My issue-wise findings are as under:-
MACT No. 962/17 Page No. 7 of 30Md. Asgar Vs. Subash & Ors.
Issue No. 1:
Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 03.03.2017 within the jurisdiction of PS: Kamla Market, Delhi due to rash and negligent driving of the vehicle bearing registration No. DL-1RP-8258 driven by respondent no. 1?
FINDING:-
9. Counsel appearing for the respondents contended that the accident in question had taken place due to the rash or negligence of claimant as he was plying rickshaw after consuming liquor.
(i) Per contra, counsel appearing for petitioner refuted the said contention by arguing that there is nothing on record which may show that he had consumed liquor beyond permissible limit.
(ii) Perusal of the MLC reveals that smell of alcohol was coming from his breath. But since his blood sample was not taken, there is nothing on record which may show that he had consumed liquor beyond permissible limit. Further, PW1 in his cross-examination clarified that he had consumed liquor on the previous day at 4.00 pm. It is pertinent to state that under Motor Vehicle Act a person is permitted to drive a motor vehicle if the quantity of Alcohol is below 30 ML/100 ML blood. Mere fact that smell of alcohol was coming MACT No. 962/17 Page No. 8 of 30 Md. Asgar Vs. Subash & Ors.
from the mouth of petitioner at the time of medical examination is not sufficient to hold that he was under the influence of liquor at the time of accident. Moreover, he was not driving any motor vehicle
(iii) Further from the deposition of PW1 it is clear that he was ahead to the TSR. Since the offending TSR was coming from behind, respondent no. 1 was in a position to see the movement of claimant. He was also supposed to maintain a safe distance from the rickshaw which was going ahead to him. But despite that he hit his TSR in the rear portion of the rickshaw, which shows that he was driving the TSR rashly and negligently. During inquiry no evidence has been led to show that the accident was caused due to the negligence of petitioner. Even no suggestion was given to the claimant that claimant has stopped the rickshaw all of sudden without giving any indication in the middle of the road. In the absence of any such evidence this Tribunal has no reason to disbelieve the testimony of PW1.
(iv) In view of the aforesaid discussion, I am of the considered opinion that testimony of petitioner is sufficient to hold that accident had taken place due to the rash or negligent driving of the respondent no. 1. Accordingly, issue no. 1 is decided in favour of petitioner and against the respondents.
Issue No.2 :
MACT No. 962/17 Page No. 9 of 30Md. Asgar Vs. Subash & Ors.
Whether the petitioner is entitled to any compensation if so, to what amount and from whom?
10. As per medical record petitioner was discharged on the same day. He sustained fracture of mid- shaft right humerus, he remained under treatment till 11.03.2017. As per disability certificate he sustained 34% permanent disability in relation to his right upper limb.
Income of the petitioner:-
(i) Counsel appearing for petitioner fairly conceded that since petitioner failed to adduce any evidence to prove his income, his income is liable to be assessed as per minimum wages applicable to unskilled workers. Since at the relevant time, minimum wages for unskilled workers was ` 9,724/- per month, his income is assessed at ` 9,724/-, per month.
(a). Loss of Income:
(i) Since claimant has sustained fracture of mid-shaft right humerus, it can safely be culled out that petitioner may not be in a position to join his work atleast four months. Considering the facts and circumstances of the case loss, of income for four months @ ` 9,724/-
amounting ` 38,896/- is awarded to him under this head.
MACT No. 962/17 Page No. 10 of 30Md. Asgar Vs. Subash & Ors.
(b) Expenditure on Medical Treatment:
(i) Counsel appearing for petitioner submitted that since petitioner got entire treatment from Govt. hospital.
He has not incurred any expenses on his treatment. Though petitioner has not incurred any amount on his treatment, yet a sum of ` 1,000/- is awarded to him to meet miscellaneous medical expenses.
(c) CONVEYANCE CHARGES: (i) Petitioner used to ply Rickshaw in the area of
Kamla Market and he got treatment from LN Hospital. Considering the distance from his work place to hospital and duration of treatment, a sum of ` 5,000/- is awarded to him towards conveyance charges.
(d) SPECIAL DIET: (i) Though no special diet was prescribed by
the doctor at the time of discharge, but considering the nature of injury, it can safely be culled out that petitioner must have taken some special diet for the purpose of fast recovery. Considering the facts and circumstances of the case, a sum of ` 10,000/- is awarded to him under this head.
(e) NURSING/ATTENDANT CHARGES:
MACT No. 962/17 Page No. 11 of 30Md. Asgar Vs. Subash & Ors.
(i) Since petitioner has sustained fracture of mid-shaft right humerus, it can safely be culled out that even after discharge petitioner must be attended either by a paid attendant or a family member for some period. Considering the facts and circumstances of the case, a sum of ` 10,000/- is awarded to him under this head.
(c) Loss of earning capacity due to disability:
(i) Counsel appearing for petitioner contended that since petitioner has sustained 34% permanent disability in relation to right upper limb, petitioner is not able to pull rickshaw, accordingly petitioner is entitled for 100% loss of earning capacity due to disability.
(ii) Per contra, counsel appearing for insurance company refuted the said contention by arguing that since petitioner has not led any evidence to establish that due to disability he is unable to pull rickshaw, petitioner is not entitled for any loss of earning capacity. It was further contended that assuming that petitioner is facing any difficulty in pulling cycle rickshaw, but since he can do some other works without any difficulty, petitioner is not entitled for any loss of earing capacity.
(iii) Before dealing with the contentions raised by the counsel for both the parties, I deem it appropriate to MACT No. 962/17 Page No. 12 of 30 Md. Asgar Vs. Subash & Ors.
refer the judgment Raj Kumar vs. Ajay Kumar and Another 2011 (1) T.A.C. 785 (S.C) where a question arose before the Apex Court whether the claimant is entitled for loss of earning capacity equal to the loss of disability or the loss of earning capacity shall be calculated on the basis of approximate loss of capacity to the injured due to disability. The relevant paras are reproduced as under:-
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to particular limb. When a disability certificate states that the injured had suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.MACT No. 962/17 Page No. 13 of 30
Md. Asgar Vs. Subash & Ors.
8. 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, 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 the permanently 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 term of money, to arrive at the future loss of earning (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 percentage of loss of MACT No. 962/17 Page No. 14 of 30 Md. Asgar Vs. Subash & Ors.
earning capacity as a result of 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.
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that Tribunal should consider and decide with reference to the evidence: (I) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
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 MACT No. 962/17 Page No. 15 of 30 Md. Asgar Vs. Subash & Ors.
spite of the permanent disability and what he could not do as a result of the permanent ability (sic disability) (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his age. The third step is to find out whether (I) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 %. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be 100%, 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 consequences of losing his hand. Sometimes the injured claimant may be continued in service, MACT No. 962/17 Page No. 16 of 30 Md. Asgar Vs. Subash & Ors.
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 of 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities 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.
(emphasis supplied)
(iv) In the light of the aforesaid case law, I, now proceed to examine the evidence of the case at hand.
(v) In his examination-in-chief petitioner testified that due to disability he is unable to pull rickshaw. In his cross- examination he denied the suggestion that he did not sustain any financial loss due to injury caused to him in the accident. Rather, he clarified that due to disability, he is unable to ply rickshaw.
(vi) During inquiry respondent did not lead any evidence to establish that disability did not cause any loss of earning capacity to the petitioner. As already stated that as per MACT No. 962/17 Page No. 17 of 30 Md. Asgar Vs. Subash & Ors.
disability certificate, petitioner has sustained 34% permanent disability in relation to his right upper limb, thus it is quite feasible that petitioner may not be able to ply rickshaw properly but certainly he is not incapable to do any other job such as vegetable vendor etc. Thus mere fact that petitioner sustained 34% permanent disability in relation to right upper limb is not sufficient to hold that he has sustained 100% loss of earning capacity. Considering the facts of the case, loss of earning capacity is assessed at 20%.
(vi) In case Meer Khan vs. Mehender Kumar Singh & ors. MAC No. 758/2011 decided by Hon`ble High Court of Delhi on 01.11.2017, Hon`ble High Court pleased to add future prospect in the income of claimant in terms of the law laid down in National Insurance Company Ltd. vs. Pranay Sethi & ors. SLP (C ) 25590/14 decided by the Hon`ble Supreme Court on 31.10.2017 before calculating the loss of future earning capacity due to disability. The relevant para is reproduced as under:-
"There is, however need for correction in the calculation of loss of future earning since the element of future prospects was omitted. Following the ruling of the Constitution Bench of the Supreme Court rendered on 31.10.2017 in SLP (C ) National Insurance Company Ltd. vs. Pranay Sethi & ors., future prospects to the extent of 10% will have to be added, this keeping in view the facts that the claimant was a self employed person, his income having being assessed notionally, his age on the relevant date being 54 years."MACT No. 962/17 Page No. 18 of 30
Md. Asgar Vs. Subash & Ors.
(vii) In view of the aforesaid judgment, I am of the considered opinion that petitioner is also entitled for future prospects.
(viii) As per Aadhaar card, date of birth of the petitioner is 01.01.1975. Since the accident had taken place on 03.03.2017, it means that he was 42+ years at the time of accident. Since, petitioner was above 40 years of age at the time of accident, in view of law laid down in Pranay Sethi's case, petitioner is entitled for 25% addition in his income towards future prospects.
(ix) Since petitioner was 42+ years old at the time of accident, in view of law laid down in Sarla Verma case and approved by the Apex Court in Pranay Sethi's case, multiplier of 14 shall be apply to calculate the loss of earning capacity.
(x) Accordingly, loss of earning capacity is quantified as under:
NAME OF HEAD AMOUNT (IN ` )
Annual income (9724 X 12) 1,16,688/-
25% Future prospects 29,172/-
Total 1,45,860/-
Multiplier 14 20,42,040/-
20% of said amount 4,08,408/-
MACT No. 962/17 Page No. 19 of 30
Md. Asgar Vs. Subash & Ors.
(xi) Accordingly, a sum of ` 4,08,408/- is
awarded to him towards loss of earning capacity due to disability.
(f) COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock :-
(i) As already stated that petitioner met with an accident all of sudden when he was plying rickshaw and due to the accident, he not only sustained injury but he also suffered 34% permanent disability in relation to right upper limb. Thus, it can safely be culled out that injured must have suffered acute mental and physical shock not only at the time of accident but even thereafter. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 50,000/- is awarded to him under this head.
Pain and suffering:
(i) From the above, it can also safely be culled out that petitioner must have also suffered acute pain and suffering not only at the time of accident but even thereafter.
Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 30,000/- is awarded to him under this head.
MACT No. 962/17 Page No. 20 of 30Md. Asgar Vs. Subash & Ors.
Loss of inconvenience/hardship/disappointment/mental stress etc:
(i) Since petitioner has suffered 34% permanent disability, in relation to right upper limb, it can safely be culled out that petitioner must have faced inconvenience, hardship and mental stress due to injury caused to him in the accident and also bound to face the same in future also. Though the petitioner has suitably compensated under the head of loss of earning capacity, yet, a sum of ` 25,000/- is awarded to him under this head also.
Loss of amenities of Life:-
(i) Since petitioner has sustained 34% permanent disability in relation to his right upper limb, it can safely be culled out that petitioner must have suffered some loss of amenities of life. Considering the facts and circumstances of the case, a sum of ` 20,000/- is awarded to him under this head.
11. As discussed above, the overall compensation is tabulated as under:-
NAME OF HEAD AMOUNT (In ` )
Loss of income 38,896/-
Medical Expenses 1,000/-
MACT No. 962/17 Page No. 21 of 30
Md. Asgar Vs. Subash & Ors.
Conveyance charges 5,000/-
Special Diet 10,000/-
Attendant Charges 10,000/-
Loss of earning capacity due to disability 4,08,408/-
Mental and physical shock 50,000/-
Pain and suffering 30,000/-
Loss of inconvenience/hardship/ 25,000/-
disappointment/mental stress
Loss of Amenities of life 20,000/-
Total 5,98,304/-
Less Interim award 25,000/-
Total 5,73,304
Round off :- ` 5,74,000/-
(Rupees Five Lac and seventy Four Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the DAR i.e. 03.10.2017 till realization.
12. DISBURSEMENT:-
(i) Petitioner's statement was recorded on 12.12.2018 regarding his financial status, in terms of clause 27 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on MACT No. 962/17 Page No. 22 of 30 Md. Asgar Vs. Subash & Ors.
December 15, 2017, wherein he testified that he needs ` 10,000/- to ` 15,000/- per month for his household expenses.
(ii) In view of the statement of petitioner on realization of award amount, a sum of ` 74,000/- plus entire interest be released to him from his share and the balance amount of ` 5 lac in terms of the directions contained in FAO No. 842/2003 dated December 07,2018, shall be put in 25 monthly fixed deposits in his name in a nationalized bank of equal amount of ` 20,000/- lac each for a period of one month to 25 months. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank near the place of his residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner shall have liberty to seek the release of ` 57,400/- from the bank located within the jurisdiction of this Tribunal itself.
13. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December MACT No. 962/17 Page No. 23 of 30 Md. Asgar Vs. Subash & Ors.
07, 2018, Summary of the Award in the prescribed format- IV B is as under:-
SUMMARY OF AWARD
(i) Date of accident 03.03.2017
(ii) Name of the injured Md. Asgar
(iii) Age of the injured 42+ years
(iv) Occupation of the Rickshaw puller injured
(v) Income of the injured 9,724/- p.m.
(vi) Nature of injury Grievous
(vii) Medical treatment taken Lok Nayak Hospital by the injured
(viii) Period of 03.03.2017 to 03.07.2017 hospitalization
(ix) Whether any permanent Yes 34% in relation to right upper disability? If yes, give details:
limb
10. COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Tribunal (IN `)
11. Pecuniary Loss:
(i) Expenditure on treatment 1,000/-
(ii) Expenditure on conveyance 5,000/-
(iii) Expenditure on special diet 10,000 (iv) Cost of nursing/attendant 10,000 (v) Loss of earning capacity 4,08,408 (vi) Loss of income 38,896/- (vii) Any other loss which may require any NA
special treatment or aid to the injured MACT No. 962/17 Page No. 24 of 30 Md. Asgar Vs. Subash & Ors.
for the rest of his life
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical 50,000 shock
(ii) Pain and suffering 30,000
(iii) Loss of amenities of life 20,000 (iv) Disfiguration 0
(v) Loss of marriage prospects NA
(vi) Loss of earning, inconvenience, 25,000 hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
(vii) Less contributory negligence NA
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and 34% in relation to nature of disability as permanent or right upper limb temporary
(ii) Loss of amenities or loss of NIL expectation of life span on account of disability
(iii) Percentage of loss of earning capacity 20% in relation to disability (iv) Loss of future Income-(Income x% 14 Earning Capacity x Multiplier)
14 Total Compensation (Rounded off) 5,74,000/-
Minus ` 25,000/- interim award
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 66,297/-
01 year 03 months and 12 days
17. Total amount including interest 6,40,297/-
18. Award amount release As mentioned in para no. 12
19. Award amount kept in FDRs As mentioned in para no. 12
20. Mode of disbursement of the award as mentioned in MACT No. 962/17 Page No. 25 of 30 Md. Asgar Vs. Subash & Ors.
amount to the claimants (s) (Clause para No. 1229)
21. Next date for compliance of the award. 18.02.2019 (Clause 31.)
14. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in FAO No. 842/2003 Rajesh Tyagi & ors vs. Jaivir Singh & ors decided on December 07, 2018:-
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit account of the claimant i.e. saving bank account of the claimant shall be individual saving bank account and shall not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
(iii) The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant near the place of his residence.
(iv) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of his residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimant.
However, in case the debit card and/or MACT No. 962/17 Page No. 26 of 30 Md. Asgar Vs. Subash & Ors.
cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimant so that no debit card be issued in respect of the account of claimant from any other branch of the bank.
(vii) The bank shall make an endorsement on the passbook of the claimants 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 the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
LIABILITY TO PAY:-
15. Counsel appearing for insurance company contended that since respondent no. 1 was driving the TSR without driving license, he was also prosecuted by the police under section 3/181 of MV Act. Accordingly, it was urged that insurance company is entitled for recovery rights as there was willful violation of the term and condition of the insurance policy on the part of respondent no. 1 and 2.
(i) Perusal of the charge-sheet reveals that during investigation it was revealed that respondent no. 1 was driving the TSR without valid driving license, accordingly, respondent no. 1 and 2 were also prosecuted for the offence punishable under section 3/181 and 5/180 of MV Act. Even during inquiry respondent no. 1 and 2 did not lead any MACT No. 962/17 Page No. 27 of 30 Md. Asgar Vs. Subash & Ors.
evidence to prove that respondent no. 1 was having DL at the time of accident.
(ii) R3W1 in his examination in chief testified that notice under order 12 rule 8 CPC was issued to respon- dent no.1 and 2 asking them to produce license but they failed to produce the same . Even both the respondents were prosecuted by the police under section 3/181 and 5/180 of MV Act as respondent no.1 was driving the TSR without valid driving license. In the absence of any contrary evidence, this Tribunal does not find any reason to disbelieve the plea of insurance company.
(iii) Being the driver, respondent no. 1 was not supposed to drive the offending vehicle without driving license. Similarly, being the owner, respondent no. 2 was not supposed to allow the respondent no. 1 to drive the vehicle without driving license. But despite that respondent no. 1 was found driving the offending vehicle without driving license. This establishes that there was a willful breach of the term and condition of the insurance policy on the part of the respondent no. 1 and 2.
(iv) In view of the above, I am of considered opinion that insurance company is entitled to recover the award amount from respondent no. 1 and 2 without filing a separate civil suit in execution proceedings but after satisfying the award.
MACT No. 962/17 Page No. 28 of 30Md. Asgar Vs. Subash & Ors.
(v) Since the offending vehicle was being driven by respondent no. 1 and registered in the name of respondent no. 2 and insured with respondent no. 3, all shall be jointly and severally liable to pay compensation to the petitioner. However, after satisfying the award, respondent no. 3 shall have a right to recover the award amount from the respondent no. 1 and 2 without filing a separate civil suit.
(vi) In view of the aforesaid discussion, Issue No. 2 is decided in favour of petitioner and against the respondents.
RELIEF:
16. Since, offending vehicle was insured with respondent no.3, respondent no. 3 (TATA AIG Insurance Co. Ltd.) is directed to deposit a sum of ` 5,74,000/- with interest @ 9 % per annum from the date of filing of DAR i.e. 03.10.2017 till realization with Nazir of this Tribunal within 30 days under intimation to the petitioner failing which respondent No. 3 shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days. However, after satisfying the award, respondent no. 3 shall have a right to recover the award amount from the respondent no. 1 and 2 without filing a separate civil suit.
17. Insurer, driver and owner of the offending vehicle are also directed to place on record the proof of de- posit of the award amount, proof of delivery of notice in respect MACT No. 962/17 Page No. 29 of 30 Md. Asgar Vs. Subash & Ors.
of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days from today. however, insurance company is entitled to recover the award amount from the respondent no. 1 and 2 without filing a separate civil suit in execution proceedings but after satisfying the award.
(i) A copy of this judgment be sent to Respondent No.3 for compliance within the time granted.
(ii) Nazir is directed to place a report on record on 18.02.2019 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(v) File be consigned to Record Room.
Announced in open court
on this 15th of January, 2019 (PAWAN KUMAR JAIN)
Judge, MACT-1 (Central),
THC, Delhi/V
Digitally signed by
PAWAN PAWAN KUMAR JAIN
KUMAR JAIN Date: 2019.01.16
15:44:08 +0530
MACT No. 962/17 Page No. 30 of 30