Delhi District Court
Vijay vs Sanjay Kumar & Ors on 16 April, 2022
IN THE COURT OF DR. SUMEDH KUMAR SETHI, PO: MACT-01
(SOUTH-WEST DISTRICT), DWARKA COURTS: NEW DELHI
MACP No. 122/17
Vijay vs Sanjay Kumar & Ors
CNR No.-DLSW010012092017
Vijay
S/o Sh. Sukhbir Singh,
R/o Pole no. 94, Phirni Road,
Mundhela Khurd,
New Delhi -110 073. ... Petitioner
(DOB : 15.04.1988 as per Aadhar Card)
PAN : AIIPV3270B
Mobile no. 9911275500
Vs.
1. Sh. Sanjay Kumar (Driver)
S/o Ram Chander
R/o Village Bakkargarh,
Post Office Ujwa,
New Delhi - 110 073.
Mobile no. 9999744111.
2. Sh. Bhupender (Owner)
S/o Ram Chander
R/o Village Bakkargarh,
Post Office Ujwa,
New Delhi - 110 073.
Mobile no. 9210267515.
3. ICICI Lombard General Insurance Company Ltd. (Insurer)
(earlier Bharti AXA General Insurance Company Ltd. )
Mercantile House,
7th Floor, K. G. Marg,
New Delhi -110 001
Policy No. S 8456877
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 1 of 28
Valid upto: 02.02.2016 to 01.02.2017
Nodal Officer : Ankit Mishra.
Mobile No. 8828186716
Email ID: [email protected]
... Respondents
Date of institution of the case- 06.02.2017
Date on which, judgment have been reserved-01.02.2022
Date of pronouncement of judgment-16.04.2022
JUDGMENT:
1. The present claim petition u/s 166 & 140 of Motor Vehicle Act, 1988 for grant of compensation qua the injuries sustained by him in road traffic accident has been filed on behalf of petitioner/injured - Vijay against respondents- Sanjay & Ors.
2. CLAIM
a) Brief facts as made out from the above-said petition are that on 10.07.2016 at about 08.45 pm, the petitioner was going on foot and when he reached in front of gali no. 11, Main Road, Dabar Enclave, PS J. P. Kalan, New Delhi, a Santro Car bearing registration no. DL-4C- ND-7498, driven by its driver/respondent no. 1 at a very high speed and in a very rash and negligent manner, in violation the traffic rules and in process firstly hit one motorcyclist and dragged the motorcyclist for about 50 feet and thereafter hit/ struck with the petitioner /injured who was on foot. Due to huge impact, he fell down on the road and sustained multiple grievous injuries in his head and all over his body.
b) It is stated that after the accident, petitioner/injured was taken to Rao Tula Ram Hospital, Jaffarpur Kalan, New Delhi, where his MLC bearing no. 3763 was prepared by the doctor where they kept the result as "pending". Thereafter, he was taken to Sri Balaji Action Medical Institute, Paschim Vihar, New Delhi, where he remained admitted from 10.07.2016 to 27.08.2016. Then he was again admitted MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 2 of 28 to different hospitals, including Ch. Brahm Prakash Ayurved Charak Sansthan, on following dates:
18.10.2016 to 22.10.2016, 04.04.2017 to 16.04.2017 09.05.2017 to 13.05.2017 07.06.2017 to 10.06.2017 23.07.2017 to 26.07.2017 24.08.2017 to 29.08.2017 26.07.2018 to 28.07.2018 03.12.2018 to 06.12.2018 16.07.2019 to 25.07.2019 24.09.2019 to 09.10.2019 13.11.2019 to 21.11.2019 28.02.2020 to 07.03.2020
c) It is further stated that petitioner was also treated in Sunflag Global Hospital, Near Shiela Bye Pass, Sonipat Road, Rohtak, Haryana and was hospitalized there from 24.08.2017 to 29.08.2017 (included above).
d) It is also stated that the accident was caused due to rash and negligent driving of respondent no.1 and a case in this regard was registered vide FIR No. 132/2016 u/s 279/338 IPC at PS J. P. Kalan, Delhi. DAR in the said case was also filed on 22.11.2016. The same was clubbed with the present petition vide order dated 13.02.2017.
e) It has been stated that at the time of accident, petitioner/injured Vijay was 27 years of age and was doing permanent job as Primary Teacher in MCD School, B-3, Raghubir Nagar-II, New Delhi and was getting salary of ₹38,025/- per month.
f) Further, it has been prayed that an award of ₹1,00,00,000/- may be passed in favour of the petitioner/injured and against the respondents.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 3 of 28
3. DEFENCES
a) The perusal of the record reveals that no WS / reply has been filed on behalf of driver /R1 Sh. Sanjay and owner / respondent no.2 Sh. Bhupender in this case.
b) WS was filed on behalf of R3 / Bharti AXA General Insurance Co. Ltd.
c) It was averred that liability of respondent/ insurance company, if any, was subject to terms and conditions of the policy and provisions of MV Act.
d) The insurer would not be liable if the driver was not having valid driving license at the time of the accident.
e) It was admitted by R3 that the above-said offending vehicle no. DL- 4C-ND-7498 (Santro Car) was insured with the respondent- insurance company vide Policy No. S 8456877 for the period from 02.02.2016 to 01.02.2017 in the name of respondent no.2 Owner Sh. Bhupender which covers the date of accident i.e. 10.07.2016 under the terms and conditions of the insurance policy.
f) The insurance company had given an initial offer of ₹68,704/- to the injured.
4. In the present case, on the basis of the pleadings of the parties, the following issues were framed in the above-said cases/petition vide order dated 07.05.2018:
ISSUES:
1. Whether Vijay & Vijender* sustained injuries in a motor vehicle accident dt. 10.07.2016 due to rash or negligent driving of vehicle no. DL-4C-ND-7498 being driven by respondent no. 1 Sanjay, owned by respondent no. 2 Bhupender and insured by respondent no. 3 Bharti AXA General Insurance Co.
Ltd.? ...OPP
2. Whether the petitioner in the above mentioned cases is entitled to claim compensation, if so, what amount and from whom? ...OPP MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 4 of 28
3. Relief.
* Vijender is the other injured in the present accident. However, the present petition is only in respect of injured Vijay.
5. PETITIONER EVIDENCE In support of their case, petitioners have examined:
a) Petitioner being bed ridden could not examined himself. Therefore, on his behalf, he has examined his father Sh. Sukhbir Singh as PW-1, the representative of his employer (SDMC) Sh. Neeraj Pant as PW-2, his physiotherapist Punit as PW3, Sh. Anoop Kumar, Speech Therapist as PW-4, Sh.
Anil Kumar Gupta, Sh. Dhiraj and Sh. Nagender Singh i.e. the petitioner's attendants as PW-5, PW-9 and PW-10 respectively, Dr. Harshanand Popalwar as PW-6, Dr. Anita as PW-7, Smt. Preeti, wife of petitioner as PW-8 and Sh. Sunil Yadav, physiotherapist as PW-11.
b) Thereafter, PE was closed on behalf of petitioners.
6. RESPONDENT EVIDENCE No RE was lead on behalf of respondents despite opportunity. Thereafter, RE was closed.
7. Arguments have been heard. Material on record perused. Submissions considered. The tribunal has also carefully perused written submissions filed on behalf of the petitioners and respondents.
8. It is pertinent to mention here that arguments have not been addressed on behalf of R-1 Sanjay (driver) and R-2 Sh. Bhupender (owner) of offending vehicle), despite opportunity being given.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 5 of 28
9. The issue-wise findings are as under:
10. ISSUE No. 1Whether Vijay sustained grievous injuries in a motor vehicle accident dt. 10.07.2016 due to rash or negligent driving of vehicle (Santro Car) no. DL-4C-ND-7498 being driven by respondent no. 1 Sanjay, owned by respondent no. 2 Bhupender and insured by respondent no. 3 Bharti AXA General Insurance Co. Ltd.? ...OPP
a) The onus to prove this issue was upon the petitioner/ injured and in order to discharge the said onus, Sh. Sukhbir Singh, father of petitioner/injured has examined himself as PW-1 and has filed his evidence by way of affidavit (Ex. PW-
1/A), wherein it has been stated that his son met with an accident on 10.07.2016 at about 08.45 pm, with a Santro Car bearing registration no. DL-4C- ND-7498. However, he was not an eye witness to the accident.
b) PW-8, Preeti i.e. the wife of the injured was also examined as an eye witness to the accident. She categorically deposed that the offending car was being driven by its driver/respondent no. 1 at a very high speed and in a very rash and negligent manner, in violation the traffic rules and in process firstly hit one motorcyclist and dragged the motorcyclist for about 50 feet and thereafter hit/ struck with the petitioner /injured who was on foot. Due to huge impact, he fell down on the road and sustained multiple grievous injuries in his head and all over his body. The witness stated that she was on the opposite side of the place of accident when the same took place.
c) The purported eye witness was not cross examined on behalf of the driver of the offending car who could have shed light on the circumstances in which the accident took place. She was cross examined on behalf of the insurance company to the limited extent that it was suggested to her that the accident took place due to the negligence of the injured. She clearly denied this. Thus, the version MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 6 of 28 of the eye witness is the only version on record regarding the manner in which the accident took place. There is no reason to disbelieve the same. In these circumstances, nothing material has come on record which could shake the credibility of this witness qua her deposition regarding the manner in which the accident was caused in this case.
d) Hence, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, it is evident that petitioner/ injured- Vijay sustained injuries in motor vehicle accident due to rash and negligent driving of offending vehicle no. DL-4C ND-7498 which was being driven by R-1 Sanjay, owned by R-2 Bhupender Kumar and insured with R-3 / Bharti AXA General Insurance Company Ltd. at the time of accident.
e) Accordingly, issue no.1 is decided in favour of the petitioner/ injured and against the respondents.
11. ISSUE No. 2Whether the petitioners in the above-mentioned cases are entitled to claim compensation, if so, what amount and from whom? ...OPP
a) In support of his case, the petitioner examined his father Sukhbir Singh as PW1 who led his evidence by way of affidavit Ex. PW-1/A and additional affidavit as Ex. PW1/S. He deposed that after the accident, his son was immediately removed to RTRM Hospital, Jafarpur Kalan, Delhi, where his MLC (no. 3763) was prepared by the doctor. Thereafter, he was taken to Sri Balaji Action Medical Institute, Paschim Vihar, Delhi and also got treatment from Sunflag Global Hospital, Near Shiela Bye Pass, Sonipat Road, Rohtak, Haryana. In all, petitioner has remained hospitalized for about 141 days (argued to be as per record) and still undergoing treatment.
b) In his affidavit, PW-1 deposed that he has spent ₹30,00,000/- on his treatment, ₹2,00,000/- on special diet and ₹50,000/- on conveyance and ₹700/- per MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 7 of 28 day till date on attendant charges. It is further stated by PW1 that he took a loan of ₹20,00,000/- from his son in law namely Jitender, Sister Sumitra and one relative Ashu for the treatment of his son. It is stated that because of this accident his son has suffered 87% disability and is now totally dependent on others. An attendant is required to look after him for 24 hours.
c) PW1 further relied upon documents i.e. Ex. PW1/1 to Ex. PW1/19. Further, PW1 has also relied upon additional documents i.e. Ex. PW1/A to Ex. PW1/D.
d) Petitioner has also examined PW-6 Dr. Harshanand Paopalwar, Specialist Grade-III, Safdarjung Hospital and PW-7 Dr. Anita Sharma, Consultant Ophthalmology Safdarjung Hospital. Both doctors were members of Board constituted for determining the permanent disability of petitioner. They both have admitted that the permanent disability of petitioner is assessed at 87% including locomotor disability and visual disability.
e) In his cross examination by Ld counsel for R-3/ insurance company, PW-1 denied the suggestion that he had not spent more than ₹30 Lacs towards medicine, treatment, attendant etc. and further stated that he had taken a loan of ₹20,00,000/-from his relatives for the treatment. PW1 further admitted that some of the expenses incurred on his treatment were reimbursed through Department of Education where his injured son was working.
f) PW-2 Neeraj Pant deposed that at the time of accident petitioner Vijay was a permanent employee in MCD School, Delhi and has produced the salary certificate of petitioner for the month of April, 2016. It is also stated that a total sum of ₹16,14,622/- have been reimbursed till 10.04.2018 and that petitioner is without pay since May 2016. He later deposed that the petitioner was given half pay from 11.07.2016 till 09.08.2016 and after 09.08.2016, he was not paid any salary. Though he stated that the injured was still on probation when the accident took place, in the salary slip Ex.PW2/A it is mentioned that the petitioner is a permanent employee (teacher) in the SDMC School. He further MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 8 of 28 deposed that the petitioner was entitled to stay on leave for 5 years and after that his services were liable to be terminated. PW2 proved the documents PW2/A to PW2/D (colly).
g) PW-3 Punit and PW11 Sunil Yadav are physiotherapists and PW-4 Anoop Kumar Singh, Speech Therapist who have proved the bills Ex. PW1/12 (colly), Ex. PW11/A (colly) and Ex. PW1/13(colly).
h) PW- 5 Anil Kumar Gupta was purportedly working as attendant and has proved his salary receipt as Ex. PW1/14 (page 9 to16) for ₹20,000/- per month. PW-9 Dhiraj proved receipts @₹30,000/- per month (page 17 to 43). PW10 Nagender Singh, was also purportedly working as caretaker of petitioner and relied upon receipts (page 24 to 28 in Ex.PW1/14) to claim that he was getting ₹1,000/- per day.
i) PW-8 Preeti, W/o Sh. Vijay(petitioner) was examined as eye witness to the accident.
j) PW-1, upon examination regarding needs and liabilities of his son, stated that he has spent ₹55,00,000/- on the treatment of his son and the said expenses were borne from his own funds and by taking loan from relatives.
k) Hence in view of the above and in view of the material and evidence on record, it is clear that petitioner/ injured- Vijay sustained injuries in motor vehicle accident dated 10.07.2016 due to rash and negligent driving of offending vehicle no. DL-4CND-7498, which was being driven by R-1 Sanjay Kumar and owned by R-2 Bhupender and insured by Bharti AXA General Insurance Company at the time of accident and as such, the petitioner/ injured - Vijay has become entitled to claim compensation for the injuries sustained by him in the above-said accident.
l) Accordingly, quantum of compensation payable to petitioner/ injured - Vijay is ascertained under the following heads:
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 9 of 28
12. NATURE AND EXTENT OF INJURIES
a) As per the medical treatment record pertaining to petitioner/ injured-
Vijay has sustained grievous injuries due to the accident in this case. Nature of injuries: As per diagnosis by doctors of Sri Balaji Action Medical Institute, petitioner/ injured Vijay is diagnosed as "RTA with HEAD injury with bilateral Basifrontal Contusion with Left Occipital EDH with Mass Effect"
and other injuries.
b) Period of hospitalization:
The petitioner/injured was first removed to Sri Balaji Action Medical Institute, Paschim Vihar, New Delhi and then to other hospitals where he remained admitted from:
10.07.2016 to 27.08.2016 18.10.2016 to 22.10.2016, 04.04.2017 to 16.04.2017 09.05.2017 to 13.05.2017 07.06.2017 to 10.06.2017 23.07.2017 to 26.07.2017 24.08.2017 to 29.08.2017 26.07.2018 to 28.07.2018 03.12.2018 to 06.12.2018 16.07.2019 to 25.07.2019 24.09.2019 to 09.10.2019 13.11.2019 to 21.11.2019 28.02.2020 to 07.03.2020.
c) It also includes the hospitalization in Sunflag Global Hospital Near Shiela Bye Pass, Sonipat Road, Rohtak, Haryana. Further, by way of affidavit PW1 Sukhbir Singh has also placed on record discharge summaries of Ch. Braham Prakash Ayurved Charak Sansthan, Khera Dabar, Najafgarh, Delhi. Hence, the petitioner / injured Vijay was admitted in various hospitals for a total period of MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 10 of 28 more than 100 days cumulatively, but was under treatment intermittently for about 3 years and 8 months. It is the case of the petitioner that his treatment is still going on.
13. MEDICINES & TREATMENT
a) In the present case, as per record, the petitioner/injured- Vijay has undergone treatment at Sri Balaji Action Medical Institute, Delhi. Thereafter, he had also undergone treatment at Sunflag Global Hospital, Rohtak, Haryana, M. M. Eyetech Institute, Khanna Eye Centre, Drishti Eye Laser Center and in Ch. Braham Prakash Ayurved Charak Sansthan, Khera Dabar, Najafgarh, Delhi.
b) Further, in regard to the treatment undergone by him, petitioner/injured Vijay has placed on record the original medical bills / receipts amounting to ₹3,70,426/-. There is no reason to doubt the said bills/receipts. These are bills which are apart from whatever has been reimbursed by the employer of the injured. The same is apparent from the fact that the original bills are on record.
c) In these circumstances and in view of the material on record, the petitioner/ injured shall be entitled to a sum of ₹3,70,426/- and accordingly, the petitioner/ injured- Vijay is awarded the said amount i.e. ₹3,70,426/- towards 'medicines and medical treatment'.
14. CONVEYANCE & SPECIAL DIET
a) In the present case, as per the medical treatment record, petitioner/ injured Vijay is diagnosed as "RTA with HEAD injury with bilateral Basifrontal Contusion with Left Occipital EDH with Mass Effect". In these circumstances, the petitioner/injured must have visited the hospital/doctors for his treatment and would also have required special diet for certain period to recover from the injuries sustained in the accident.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 11 of 28
b) It is being submitted on behalf of the petitioner/injured Vijay in his written submission that he has spent ₹5,00,000/- on special diet and he has sought ₹2,00,000/- for conveyance. No evidence, documentary or otherwise, in regard of conveyance has been brought on record on behalf of the petitioner.
c) The petitioner was admitted in hospital for more than 100 days intermittently. He had also undergone many surgeries and treatments over the course of many years. It goes without saying that he would not have used public transport for quite some time. It is also noteworthy that the petitioner was diagnosed with 87% permanent disability, including visual and locomotory disability. The petitioner could not even examine himself as a witness purportedly on account of his disability and as per submissions made on his behalf, he is bedridden and completely dependent upon his family. There is nothing that the respondents have brought on record to counter these submissions.
d) Assuming that the injured used or would use car or cabs about 10 times a month and each time he incurred an average expenditure of ₹500/-, then his conveyance expenses would come to ₹5000/- per month. It goes without saying that the petitioner would not have been able to use public transport atleast for the time for which he was undergoing treatment. As a matter of fact, he will not be able to use public transport for the rest of his life on account of his locomotor and visual disability.
e) Hence, not only would he have required to spend extra on conveyance for a few years but would require extra expenses for conveyance for life as he would never be able to even walk normally again. It is a matter of common sense and logic that a person with diminished ability to move and see cannot be expected to travel like any normal person all by himself.
f) Thus, as an exceptional case, the Tribunal is constrained to innovate and invoke the multiplier method for the petitioner in this case for calculating expenses for conveyance. Resorting to the Multiplier method makes sense, as after reaching a certain age, every old person requires personalized and assisted MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 12 of 28 conveyance. Hence, the petitioner only ought to be compensated for the period before he enters old age, which can be equated to the age he would reduce/ stop working. Therefore, as the petitioner was aged 28 years at the time of the accident, in terms of the principles laid down in the case Sarla Verma vs. DTC1 a multiplier of 17 would be applicable to the present case. The amount would come out to be 5000 X 12 X 17= 10,20,000/-. This is without even factoring inflation which may result in rise of conveyance expenses over the years. This is more than what has been claimed by the petitioner under this head. However, it is also settled law that compensation to be awarded by the MACT must be just compensation and can also be more than the amount claimed. The proposition draws support from the decision of the Hon'ble Supreme Court of India in case of Ramla and others vs National Insurance Company Limited and other2 and Kajal vs Jagdish Chand & Ors.3
g) In these circumstances, the petitioner is awarded ₹10,20,000/- (@ ₹5000/- per month) towards expenses for 'conveyance'.
h) Likewise, in view of the injuries suffered by him, the petitioner/ injured must have needed special diet to have a fast and proper recovery.
i) It can be discerned from the circumstances of the case that on account of his grave and permanent physical disability, not only would he have required special diet after the accident till he was undergoing treatment (it is argued that treatment is continuing) but would require special diet for life as he would constantly need to supplement his health through diet on account of his diminished ability to move. It is a matter of common sense and logic that a person with diminished ability to move cannot be expected to eat normal food and would 1 AIR 2009 SC 3104.
2CIVIL APPEAL NO.11495 OF 2018 (Arising from Special Leave to Appeal (C) No.22334/2017) decided on 30.11.2018.
3CIVIL APPEAL NO. 735 OF 2020 (Arising out of Special Leave Petition (C) No.15504 OF 2019) decided on 05.02.2020.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 13 of 28 require special diet suitable for him which may also be required to be supplemented in order to overcome any resultant deficiencies.
j) It can be estimated that his charges for special diet would come out to be approximately ₹5000/- per month over above the usual food expenses.
k) Thus, as an exceptional case, the Tribunal is constrained to innovate and invoke the multiplier method for the petitioner in this case for calculating expenses for special diet. Resorting to the Multiplier method makes sense, as after reaching a certain age, every old person requires a special diet. Hence, the petitioner only ought to be compensated for the period before he enters old age, which can be equated to the age he would reduce/ stop working. Therefore, as the petitioner was aged 28 years at the time of the accident, in terms of the principles laid down in the case Sarla Verma vs DTC4 a multiplier of 17 would be applicable to the present case. The amount would come out to be 5000 X 12 X 17= 10,20,000/-. This is without even factoring inflation which may result in rise of food prices over the years. This is more than what has been claimed by the petitioner under this head. However, it is also settled law that compensation to be awarded by the MACT must be just compensation and can also be more than the amount claimed. The proposition draws support from the decision of the Hon'ble Supreme Court of India in case of Ramla and others vs National Insurance Company Limited and other5 and Kajal vs Jagdish Chand & Ors.6
l) In these circumstances, the petitioner is awarded ₹10,20,000/- (@ ₹5000/- per month) towards expenses for 'special diet'.
4Supra, Note 1.
5Supra, Note 2.
6Supra, Note 3.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 14 of 28
15. LOSS OF INCOME
a) In the present case, as per Aadhar card of petitioner / injured Vijay, he is permanent resident of Delhi. In the present case, it was stated on behalf of the petitioner/injured that at the time of the accident, he was working as a teacher in MCD School at Delhi and was earning about ₹38,025/- p.m. Further, PW2 Neeraj Pant, SSA Education Department has also proved his salary slip for the month of April & May 2016. Now it is noteworthy that the witness has categorically deposed that the injured was given half pay from 11.07.2016 till 09.08.2016 and after 09.08.2016, he was not paid any salary. While this Tribunal is constrained to wonder why the MCD stopped paying salary for a permanent employee after his accident, the fact remains that such salary remains unpaid till date and there is nothing brought on record on behalf respondents to counter these submissions (The explanation comes forth in the form of the leave record of the injured Ex.PW2/D which shows that the inured was on extraordinary leave without pay from 10.08.2016 to 15.04.2019. There is nothing on record to show that he joined service even after that). His income immediately before the accident in May 2016 was ₹38,025/- p.m. Out of the same, ₹3600/- was travel allowance which ought to be deducted. The remaining amount i.e. ₹34,425/- is taken as criteria for calculating the loss of income to the petitioner/ injured in this case.
b) In these circumstances and in view of the material on record, the petitioner / injured shall be entitled to a sum of ₹34,425 x 68 (w.e.f September 2016 to April, 2022) = ₹23,40,900/- + ₹22,508/- (salary for the remainder of August, 2016 calculated for 17 remaining working days out of total 26 working days after 09.08.2016) = ₹23,63,408/- under the head 'Loss of Income'.
16. ATTENDANT CHARGES
a) In the present case, the father of petitioner/injured Vijay has deposed that he has spent a sum of ₹700/- per day on attendant till date as the petitioner is MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 15 of 28 87% disabled and totally dependent on others for his daily chores. Moreover, petitioner has examined PW- 5 Anil Kumar Gupta who worked as attendant for the injured from 25th August 2016 to April 2017 and received ₹1,44,666/- (₹ 4666+1,40,000/-) for which the receipts have been produced and proven on record, PW-9 Dhiraj who worked as attendant for the injured from May 2017 to October 2017 and received ₹2,10,000/- (₹30,000/- per month) for which the receipts have been produced and proven on record and PW10 Nagender Singh who worked as attendant for the injured from September 2018 to February 2019 and received ₹1,53,000/- for which the receipts have been produced and proven on record. These are attendants of petitioner who have proved their salary receipts as Ex. PW1/14 (colly). The said attendants have been examined as well as their salary receipts are also proved by them to prove the payment being made to the above-said attendants in this case. There are receipts pertaining to one more attendant namely Santhosh Kumar who was not examined in evidence. Hence, the same are not being considered.
b) In the instant case, the perusal of the record reveals that petitioner/injured - Vijay is a case of RTA (Road Traffic Accident) with HEAD injury with bilateral Basifrontal Contusion with Left Occipital EDH (Epidural Hematoma) with Mass Effect and other grievous injuries.
c) Further, his father has placed on record documents regarding his hospitalization. It is further stated that, due to the accidental injuries, the petitioner was unable to earn money for good as he suffered 87% permanent disability due to this accident. In these circumstances, the petitioner/ injured Vijay must have required the services of attendant and the salary receipts of attendants are there from after the accident upto February 2019 in which the total amount comes to ₹5,07,666/- It is pertinent to note that the petitioner/injured would have needed an attendant to look after him, even if the gratuitous services were rendered by the some or the other of his family members. In the case titled as Delhi MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 16 of 28 Transport Corporation and Anr. vs Lalita7 it has been held by the Hon'ble High Court of Delhi that a victim cannot be deprived of compensation towards gratuitous services rendered by some of the family members.
d) Nothing material has come forth in the cross examination of these attendants. They have executed proper receipts in respect of the services rendered by them complete with revenue stamps. In these circumstances and in view of the material on record, the petitioner/injured shall be entitled to an amount of ₹5,07,666/- towards 'Attendant Charges'.
17. PAIN & SUFFERINGS As per the settled law, for assessing the pain & sufferings, the following factors have to be taken into account:-
(a) Nature of injury
(b) Parts of body where injuries occurred
(c) Surgeries, if any
(d) Confinement in hospital
(e) Duration of the treatment.
In the instant case, in view of the material/evidence on record, there is no element of doubt that the petitioner/injured has suffered HEAD injury with bilateral Basifrontal Contusion with Left Occipital EDH with Mass Effect and other grievous injuries and has remained hospitalized for more than 100 days due to the said injuries sustained by him and has been undergoing treatment even after that for so many years. In these circumstances and in view of the law laid down in the case titled as Rekha Jain vs. National Insurance Co. Ltd.8, the petitioner/injured is entitled to compensation on account of pain & suffering due to the accident. The pain and sufferings of petitioner/injured cannot be adequately compensated in terms of money. However, in view of the facts & circumstances of 7 AIR 1981 Delhi 558 8 arising out of SLP (C) Nos. 5649-51 of 2012 MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 17 of 28 the present case and in view of the material on record, a sum of ₹1,00,000/- is awarded to the petitioner towards the head 'pain & sufferings'.
18. LOSS OF ENJOYMENT OF LIFE AND AMENITIES It is claimed on behalf of the petitioner that he has suffered loss of enjoyment of life and other amenities on account of the accident. The petitioner/injured was about 28 years of age (as per Aadhar Card, DOB of injured Vijay is 15.04.1988) at the time of accident and has suffered HEAD injury with bilateral Basifrontal Contusion with Left Occipital EDH with Mass Effect and other grievous injuries. Due to this accident, injured Vijay has suffered 87% permanent disability. His permanent disability would hinder his daily activities as well as his enjoyment of life. Loss of ability to indulge in physical activity is also likely to adversely affect his overall health. Even his vision stands compromised. In these circumstances and in view of the law laid down vide judgment of Rekha Jain9, the petitioner/injured shall be entitled to a sum of ₹1,00,000/- as compensation towards 'loss of enjoyment of life and amenities'. In addition to this, the petitioner/ injured shall also be entitled to a sum of ₹50,000/- as compensation for 'mental and physical shock' suffered by him due to the accident in this case.
19. LOSS OF FUTURE INCOME / PROSPECTS
a) In the present case as per medical record, petitioner/injured- Vijay is a case of HEAD injury with bilateral Basifrontal Contusion with Left Occipital EDH with Mass Effect and other grievous injuries and has remained hospitalized for more than 100 days as well as received treatment over the course of many years. As per the Disability Certificate (Ex.PW-1/16) issued by VMMC & Safdarjung Hospital, New Delhi dated 05.10.2018, the petitioner/injured-Vijay is a 9 Ibid.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 18 of 28 case of permanent physical disability of 87% in relation to both upper and Lower Limb and in both eyes and that this disability is permanent in nature.
b) The principles for determining functional disability resulting from permanent physical impairment have been laid down in the case of Raj Kumar vs. Ajay Kumar10. It is noteworthy that extent of physical impairment cannot automatically be taken to be the loss of earning capacity. The nature of avocation in which the petitioner was involved has to be considered. The record shows that petitioner was employed as teacher in MCD in Delhi. This could require the petitioner to move around and walk extensively. More than that, the petitioner would be required to read and write a lot. As a result of accident, it is stated that injured Vijay has suffered paralysis, is unable to walk without support and both his eyes have suffered loss of vision too. Hence, he could not resume his duties since the date of accident till now.
c) However, it is noteworthy that the petitioner is a teacher in a MCD school and Section 20 of The Rights of Persons With Disabilities Act, 2016 provides as follows:
20. Non-discrimination in employment.--(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.
(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability.10
(2011) 1 SCC 343.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 19 of 28 (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:
Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities.
(Emphasis supplied)
d) Thus, ideally, the petitioner ought not to face any discrimination in terms of pay or promotion once he rejoins service. As a matter of fact, it is with great anguish that the Tribunal is constrained to observe that despite the petitioner being a Govt. Servant, he has been constrained to remain on leave without pay, despite the specific provisions mentioned above protecting him from termination and imposing an obligation on the Govt. to make sure that he receives not only his salary but is also protected on the prospect of promotion. Thus, while the Tribunal has awarded compensation for loss of income already incurred on account of leave without pay, it is clarified that the SDMC shall forthwith comply with the provision mentioned above to safeguard the future pay of the injured with immediate effect. This shall also include his expected career progression and promotion that he would have otherwise been entitled to.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 20 of 28
20. PHYSIOTHERAPY AND SPEECH THERAPY EXPENSES
a) The petitioner examined PW3 Punit to prove the receipts issued in respect of physiotherapy services provided to the petitioner by Sports Injuries and Physiotherapy Centre, Jai Vihar, Najafgarh. The said receipts (Ex.PW1/12) are for a total amount of ₹2,33,400/-.
b) Likewise, the petitioner examined PW4 Anoop Kumar Singh to prove the receipts issued in respect of speech therapy services provided to the petitioner by Dr. Nasir Physiotherapy and Rehabilitation Centre, Vikas Puri. The said receipts (Ex.PW1/13) are for a total amount of ₹40,000/-.
c) The petitioner examined PW11 Sunil Yadav to prove the receipts issued in respect of physiotherapy services provided to the petitioner by Hare Krishna Physiotherapy Centre, Main Chowk, Rawata Mor, Dabar Enclave, J. P.Kalan, Delhi. The said receipts (Ex.PW11/A) are for a total amount of ₹42,000/- (8800/- + 11,600/- + 11,200/- +10,400/-).
d) Nothing material has come forth in the cross examination of these service providers. They have executed proper receipts in respect of the services rendered by them. No fruitful purpose would be served by revisiting this calculation. There is no investigation on part of the insurance company to discredit these witnesses. Hence, the petitioner shall be entitled to total compensation of ₹3,15,400/- as compensation under this head.
21. The breakup of compensation that has been awarded to the petitioner/ injured- Vijay is tabulated as below:-
S.No. HEADS AMOUNT (in Rupees)
1 Medicines &Treatment ₹3,70,426/-
2. Conveyance ₹10,20,000/-
3. Special Diet ₹10,20,000/-
4. Loss of Income ₹23,63,408/-
5. Attendant Charges ₹5,07,666/-
6. Pain &sufferings ₹1,00,000/-
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 21 of 28
7. Loss of Enjoyment of Life and Amenities. ₹1,00,000/-
8. Compensation for mental and physical shock ₹50,000/-
9. Loss of future income /prospects To be safeguarded by the
employer i.e. SDMC.
10. Physiotherapy and speech therapy expenses ₹3,15,400/-
Total ₹58,46,900/-
rounded of as
₹ 58,47,000/-
Accordingly, a sum of ₹58,47,000/- (Rupees Fifty Eight Lacs Forty Seven Thousand only) is awarded as compensation to the petitioner Vijay in the present case.
22. INTEREST In the instant case, there is nothing on record, which could justify the withholding of interest on the award amount. In these circumstances and having regard to the fact and circumstances of the present case, it will be just and proper to award interest @ 9% per annum on the award amount in this case, in view of the law laid down in Erudhaya Priya vs State Express Transport Corporation Ltd.11 Hence, the petitioner/injured is awarded interest @ 9% per annum on the abovesaid compensation/ award amount i.e. ₹58,47,000/- from the date of filing of case/petition i.e. 06.02.2017 till realization.
23. LIABILITY The offending vehicle was being driven by R-1 Sanjay (driver) and R- 2 Sh. Bhupender (owner) of offending vehicle and was insured with respondent no. 3 Bharti AXA General Insurance Co. Ltd. at the time of accident. Further, in the instant case, it is pertinent to note that no evidence has been brought on record by R1/ driver, R-2/ Owner and R-3/Insurance company to rebut the genuineness or 11 2020 SCC OnLine SC 601.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 22 of 28 validity of the above-said documents. As submitted by Ld. counsel for the insurance company, Bharti AXA General Insurance Co. Ltd. now stands merged with ICICI Lombard General Insurance Company.12 These are MACT proceedings. The same are more in the nature of inquiry rather than trial. Strict rules of evidence or procedure do not apply. In these circumstances, respondent no. 3/ ICICI Lombard General Insurance Co. (earlier Bharti AXA General Insurance Co. Ltd.) shall be liable to pay the awarded amount to the petitioner/injured.
Hence, issue no.2 is decided accordingly.
24. RELIEF Thus, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, an award for a sum of ₹58,47,000/- alongwith interest @ 9% p.a. from the date of filing of the petition i.e 06.02.2017 till realization is passed in favour of the petitioner/injured-Vijay. The above-said compensation amount shall be payable by the respondent no.3/ICICI Lombard General Insurance Company Ltd. (earlier Bharti AXA General Insurance Co. Ltd) to the petitioner/injured.
25. FORM-IVB SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
i) Date of accident : 10.07.2016
ii). Name of the injured : Vijay
iii). Age of the injured : 28 years (at the time of accident)
iv). Occupation of the injured: Primary Teacher in MCD School, (at the time of accident) 12 It is apparent from the website of ICICI General Insurance Company Ltd. itself that the merger came into effect on 08.09.2021. See <https://www.icicilombard.com/bharti-axa-icici-lombard- merger>.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 23 of 28 v). Income of the injured : ₹34,425/- p.m. (after deducting TA) vi). Nature of injury : Grievous vii). Medical treatment taken : I) Sri Balaji Action Hospital, J. P. Kalan. II) Sunflag Hospital, Sonepat Road, Rohtak III) M.M. Eyetech Institute, IV) Khanna Eye Centre. V) Drishti Eye Laser Centre. VI) Ch. Brahm Prakash Ayurved Charak Sansthan viii). Period of hospitalization : more than 100 days ix). Whether any permanent : Yes (87% permanent disability) disability? If yes, give details 10. Computation of Compensation S. No. Heads Awarded by the Tribunal 11. Pecuniary Loss: (i) Expenditure on treatment ₹3,70,426/- (ii) Expenditure on conveyance ₹10,20,000/- (iii) Expenditure on special diet ₹10,20,000/- (iv) Cost of attendant ₹5,07,666/- (v) Loss of earning capacity - (vi) Loss of income ₹23,63,408/- (vii) Expenditure on Physiotherapy ₹3,15,400/- (vii) Any other loss which may require - any special treatment or aid to the injured for the rest of his life 12. Non- Pecuniary Loss: (i) Compensation for mental and ₹50,000/- physical shock MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 24 of 28 (ii) Pain and suffering ₹1,00,000/- (iii) Loss of amenities of life ₹1,00,000/- (iv) Disfiguration - (v) Loss of marriage prospects - (vi) Loss of earning, 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 assessed and -N.A-
nature of disability as permanent or
temporary
(ii) Loss of amenities or loss of -
expectation of life span on account
of disability
(iii) Percentage of loss of earning -
capacity in relation to disability
(iv) Loss of future income-(Income x % To be safeguarded by the
Earning Capacity x Multiplier) employer of the injured
i.e. SDMC
14. Total Compensation ₹58,46,900/- rounded of
to ₹58,47,000/-
15. INTEREST AWARDED
16. Interest amount up to the date of @ 9% per annum from
award the date of filing of
petition i.e. 06.02.2017 till
realization.
17. Total amount including interest ₹58,47,000/- + interest @
9% per annum from the
date of filing of the
petition i.e. 06.02.2017 till
realization.
18. Award amount released As per table given below
19. Award amount kept in FDRs As per table given below
20. Mode of disbursement of the award By credit in the SB amount to the claimant(s) (Clause29) Account of the petitioner/injured.
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 25 of 28 21 Next Date for compliance of the 16.07.2022.
award. (Clause 31)
26. In the instant case, the award amount shall be deposited /transferred by respondent no. 3 / ICICI Lombard General Insurance Co. Ltd (Earlier Bharti AXA Insurance Co. Ltd) in the Account No. 37665510911 of 'MACT (South- West), Dwarka Courts, New Delhi ' at State Bank of India, District Court Complex, Sector-10, Dwarka New Delhi, (IFSC Code SBIN00115663) by RTGS/NEFT/IMPS under intimation, with proof of notice to the claimant/petitioner and his counsel, to the Nazir of this court .
Further, as the petitioner is stated to be totally bed ridden, therefore, statement of Sh. Sukhbir Singh, father of petitioner/injured on behalf of petitioner regarding financial status, needs and liabilities of petitioner has been recorded in this case. In view of the said statement and having regard to facts and circumstances of the present case, the award amount be distributed as follows:-
S. Name Status Amount of Release Amount /Period of FDR No. Award Amount
1. Vijay S/o Injured ₹58,47,000/- ₹4,47,000/- ₹54,00,000/- be kept in 108 Sh. FDRs of ₹50,000/- each for Sukhbir the period from one month Singh to 108 months in the name of petitioner/ injured with cumulative interest.
27. PW1 Sh. Sukhbir Singh has produced the pass-book of his son Vijay / petitioner's SB Account No. 39950141623 at State Bank of India, Jafar Pur Kalan Branch, Delhi (IFSC Code: SBIN0014419), PAN: AIIPV3270B wherein it has been endorsed that "No ATM & No Cheque Book allowed". It is being requested on behalf of the petitioner/injured that the above-said cash amount may be transferred to his aforesaid SB Account at State Bank of India, J. P. Kalan, New Delhi.
Accordingly, the Manager, SBI, District Courts Complex, Dwarka, Sector-10, New Delhi is directed to transfer the above-said cash amount to the above-
MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 26 of 28 said saving banks account of the said petitioner and to keep the remaining amount in the form of above mentioned FDRs in terms of Motor Accident Claims Tribunal Annuity Deposit (MACAD) Scheme formulated vide orders dated 01.5.2018 and 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO No. 842/2013 (Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors.).
Manager of the bank where the said petitioner is having the aforesaid saving bank account (Herein after referred to as the petitioner's bank) is directed to release the above-said cash amount to the said petitioner, as per rules, as prayed.
At the time of maturity, the fixed deposit amount shall be credited in the aforesaid savings bank account of petitioner.
All the original FDRs shall be retained by the concerned bank, however, the statement containing FDR number, amount, date of maturity and maturity amount shall be provided to petitioner.
Manager of the concerned bank is directed not to permit premature encashment or loan qua the above-said FDRs to the petitioner without the prior permission of this court.
Further, the interest on the said FDRs shall be paid monthly by automatic credit /transfer of interest amount in the aforesaid SB Account of the said petitioner.
The above-said Petitioner's bank is also directed not to issue any cheque book and/or debit card to the petitioner and if the same have already been issued, the said bank is directed to cancel the same and make an endorsement on the pass book that no cheque book or debit card shall be issued to petitioner.
The above-said Petitioner's bank shall permit account holder i.e. the said petitioner to withdraw money from the above-said saving bank account by means of a withdrawal form.
28. The respondent insurance company shall inform the petitioner(s) as well as counsel through registered post that the award amount is being transferred/ MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 27 of 28 deposited so as to facilitate the petitioner(s) to know about the deposit in the account.
Copy of this award be sent through e-mail to Sh. Rajan Singh, Assistant General Manager (Nodal Officer), State Bank of India at his e-mail -ID :
[email protected] in terms of Order dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO No.842/2003. Certified copy of the award be also sent to the manager of the concerned bank(s) where the petitioner(s) is/are having respective savings bank account(s).
Certified copy of this award be given ''Dasti'' to the petitioner(s) as well as counsel and respondents as well as counsel.
Certified copy of this award be also sent to the concerned Ld. Metropolitan Magistrate and Delhi State Legal Services Authority.
Copy of the award be also transmitted to the employer of the injured i.e. SDMC for immediate compliance of Section 20 of The Rights of Persons With Disabilities Act, 2016. Let compliance report be filed by SDMC regarding this statutory obligation immediately upon receipt of this order towards the petitioner being paid future pay (for all times to come) to which he would be entitled to as on the date of this award, if he had not suffered the disability that he was diagnosed with alongwith career progression and promotion that he would otherwise be entitled to.
Ahlmad is directed to prepare a separate misc. file and put up the same for filing of the compliance report on 16.07.2022.
File be consigned to the record room.Digitally signed by
(Announced in the open Court SUMEDH SUMEDH KUMAR SETHI KUMAR SETHI Date: 2022.04.17 on this 16th day of April, 2022) 13:29:47 +05'30' (Dr. Sumedh Kumar Sethi) PO, MACT -01 (South-West District) Dwarka Courts, New Delhi 16.04.2022 MACP No. 122/17 Vijay vs. Sanjay Kumar & Ors. Page no. 28 of 28