Delhi District Court
Surender vs Yogesh Verma on 2 December, 2023
IN THE COURT OF REKHA, PO : MACT01
(SOUTHWEST DISTRICT), DWARKA COURTS: NEW
DELHI
MACT No. : 1267/2016
CNR No.DLSW010011262014
FIR NO. 274/14
P.S. Palam Village
1. Surender S/o Sh. Chhote Lal Rajput
R/o 3304, Rambagh, Kachari Road,
Mainpuri, Uttar Pradesh. ... Petitioner
VERSUS
1. Yogesh Verma (DRiver)
S/o Raj Karan Verma
R/o RZ567/1, Gali No. 21,
Sadh Nagar, Palam, New Delhi.
Also at: Village Gurgaon,
TehsilManika Pur, Manikapur, P.S. Chhapiya,
District Gonda, U.P.
2. Hari Ram Verma (Owner)
S/o Ram Bajjan Verma
R/o 567, Gali no. 21, Sadh NagarII,
Palam, New Delhi.
3. The New India Assurance Co. Ltd. (Insurer)
DC House Kirti Nagar, J129 DC House
Kriti Nagar, Delhi15. ..Respondents
.
FORM V
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 1
COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
TO BE MENTIONED IN THE AWARD
1 Date of the accident 05.06.2014
2 Date of intimation of the accident by Not clear from
the Investigating Officer to the Claims record
Tribunal ( Clause 2)
3 Date of intimation of the accident by Not clear from
the Investigating Officer to the record
Insurance Company (Clause 2)
4 Date of filing of Report under Section Not clear from
173 Cr. PC before the Metropolitan record
Magistrate (Clause 10)
5 Date of filing of Detailed Accident 14.08.2014
Information Report (DAR) by the
Investigating Officer before Claims
Tribunal. (Clause 10)
6 Date of service of DAR on the 14.08.2014
Insurance Company. (Clause 11)
7 Date of service of DAR on the 14.08.2014
claimant (s). (Clause 11)
8 Whether DAR was complete in all Yes,
respects? (Clause 16)
9 If not, whether deficiencies in the N.A
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
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 2
any action / direction warranted?
12 Date of appointment of the Not clear from record
Designated Officer by the Insurance
company ( Clause 20 )
13 Name, address and contact number of Not clear from record
the Designated Officer of the
Insurance Company ( Clause 20 )
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 No
deficiency on the part of the
Designated Officer of the Insurance
Company? If so, whether any action /
directions warranted?
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 3
17 Date of response of the claimant (s) to N.A
the offer of the Insurance Company.
( Clause 24)
18 Date of Award
02.12.2023
19 Whether the award was passed with No
the consent of the parties? ( Clause
22)
20 Whether the claimant (s) were Yes
directed to open savings bank
accounts (s) near their place of
residence ? ( Clause 18)
21 Date of order by which claimant(s) 07.04.2018
were directed to open savings bank
accounts(s) near his place of residence
and produce PAN Card and Adhaar
Card and the direction tot he bank not
issue any cheque book/debit card to
the claimants (s) and make an
endorsement to this effect on the
passbook(s) (Clause 18 )
22 Date on which the claimant(s) 15.12.2021
produced the passbook of their
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 4
savings bank account near the place of
their residence alongwith the
endorsement, PAN Card and Adhaar
Card? (Clause 18 )
23 Permanent Residential Address of the Petitioner/ injured
Claimant(s) (Clause 27 ) Surender R/o 3304,
Rambagh, Kachari
Road, Mainpuri, Uttar
Pradesh.
24. Details of savings bank account(s) of SB Account no. of
the claimant(s) and the address of the petitioner Surender is
605210110015413 at
bank with IFSC Code( Clause 27)
Bank of India,
Branch-Mandir Marg,
New Delhi, IFSC
Code :
BKID0006052.
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
examined at the time of passing of the
award to ascertain his/their financial
condition? ( Clause 27)
27 Account number, MICR number, Account No.
IFSC Code, name and branch of the 37665570911 at SBI
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 5
bank of the Claims Tribunal in which Dwarka, Sector10
the award amount is to be Branch, Delhi(IFSC
deposited/transferred. Code SBIN0011566
an MICR no.
110002483)
MACT No. : 1268/2016
CNR No.DLSW010011272014
FIR NO. 274/14
P.S. Palam Village
1. Devendra Singh
S/o Sh. Chhote Lal
R/o Ward No. 32, New Gadiwan Mohalla,
Agra Road, Mainpuri,
Uttar Pradesh. ... Petitioner
VERSUS
1. Yogesh Verma (DRiver)
S/o Raj Karan Verma
R/o RZ567/1, Gali No. 21,
Sadh Nagar, Palam, New Delhi.
Also at: Village Gurgaon,
TehsilManika Pur, Manikapur, P.S. Chhapiya,
District Gonda, U.P.
2. Hari Ram Verma (Owner)
S/o Ram Bajjan Verma
R/o 567, Gali no. 21, Sadh NagarII,
Palam, New Delhi.
3. The New India Assurance Co. Ltd. (Insurer)
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 6
DC House Kirti Nagar, J129 DC House
Kriti Nagar, Delhi15. ..Respondents
FORM V
COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
TO BE MENTIONED IN THE AWARD
1 Date of the accident 05.06.2014
2 Date of intimation of the accident by Not clear from
the Investigating Officer to the Claims record
Tribunal ( Clause 2)
3 Date of intimation of the accident by Not clear from
the Investigating Officer to the record
Insurance Company (Clause 2)
4 Date of filing of Report under Section Not clear from
173 Cr. PC before the Metropolitan record
Magistrate (Clause 10)
5 Date of filing of Detailed Accident 14.08.2014
Information Report (DAR) by the
Investigating Officer before Claims
Tribunal. (Clause 10)
6 Date of service of DAR on the 14.08.2014
Insurance Company. (Clause 11)
7 Date of service of DAR on the 14.08.2014
claimant (s). (Clause 11)
8 Whether DAR was complete in all Yes,
respects? (Clause 16)
9 If not, whether deficiencies in the N.A
DAR removed later on?
10 Whether the police has verified the Yes
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 7
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 Not clear from record
Designated Officer by the Insurance
company ( Clause 20 )
13 Name, address and contact number of Not clear from record
the Designated Officer of the
Insurance Company ( Clause 20 )
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 No
deficiency on the part of the
Designated Officer of the Insurance
Company? If so, whether any action /
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 8
directions warranted?
17 Date of response of the claimant (s) to N.A
the offer of the Insurance Company.
( Clause 24)
18 Date of Award 02.12.2023
19 Whether the award was passed with No
the consent of the parties? ( Clause
22)
20 Whether the claimant (s) were Yes
directed to open savings bank
accounts (s) near their place of
residence ? ( Clause 18)
21 Date of order by which claimant(s) 07.04.2018
were directed to open savings bank
accounts(s) near his place of residence
and produce PAN Card and Adhaar
Card and the direction tot he bank not
issue any cheque book/debit card to
the claimants (s) and make an
endorsement to this effect on the
passbook(s) (Clause 18 )
22 Date on which the claimant(s) 15.12.2021
produced the passbook of their
savings bank account near the place of
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 9
their residence alongwith the
endorsement, PAN Card and Adhaar
Card? (Clause 18 )
23 Permanent Residential Address of the Ward No. 32, New
Gadiwan Mohalla,
Claimant(s) (Clause 27 ) Agra Road,
Mainpuri,
Uttar Pradesh.
24. Details of savings bank account(s) of
SB Account no. of
the claimant(s) and the address of the
petitionerDevendra
bank with IFSC Code( Clause 27) Singh is
084001000017706
at Indian Overseas
Bank, BranchGole
Market, Bangla
Sahib Marg, New
Delhi, IFSC Code:
IOBA0000840.
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
examined at the time of passing of the
award to ascertain his/their financial
condition? ( Clause 27)
27 Account number, MICR number, Account No.
37665570911 at SBI
IFSC Code, name and branch of the Dwarka, Sector10
Branch, Delhi(IFSC
bank of the Claims Tribunal in which Code SBIN0011566 an
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No.
1268/16, Devender Vs. Yogesh Verma and Ors. 10
the award amount is to be MICR no. 110002483)
deposited/transferred.
Date of institution of MACT No. 1267/2016 - 14.08.2014
Date of institution of MACT No. 1268/2016 - 14.08.2014
Date of pronouncement of judgment - 02.12.223
J U D G M E N T:
1. Vide this common judgment, I shall dispose of two DAR cases bearing MACT No. 1267/16 titled as 'Surender Vs. Yogesh & Others.' and MACP no. 1268/16 titled as 'Devendra Vs. Yogesh & Others' arising out of the same accident, which took place on 05.06.2014.
2. CLAIM:
The first claim petition/ DAR titled as 'Surender Vs. Yogesh & Others.' bearing MACT No. 1267/2016 has been filed on behalf of petitioner for grant of compensation in respect of injury to petitionerSurender caused in the road traffic accident on 05.06.2014.
The connected Petition/DAR titled as 'Devendra Vs. Yogesh & Others' and MACP no. 1268/16 arising out of the same accident has been filed on behalf of petitioner for grant of compensation in respect of injury to petitionerDevendra Singh caused in the same road traffic accident.
The brief facts in narrow compass, relevant and MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 11 necessary for the disposal of the present matter are that on 05.06.2014 at about 3:30 AM, petitioner Surender was sitting in Tata 709 Truck bearing no. DL1LE-9864 (hereinafter referred as offending vehicle) as a capacity of helper along with his brother petitioner-Devender who was also sitting in a capacity of labour. The offending vehicle was being driven by R1-Yogesh Verma at a very high speed, rash and negligent manner, they were going towards Dwarka side from goal market, New Delhi. When the offending vehicle reached at Palam Flyover, suddenly, the respondent No. 1accelerated the speed of the offending vehicle and hit the offending vehicle with great force against the stationary truck bearing no. HR-64-4604 which was standing on the jack and one person replacing the tyre at Palam flyover.
Resultantly, petitioner-Surender and his brother petitioner- Devender sustained grievous injury all over their body. Both were taken to Deen Dayal Upadhyay Hospital by a PCR van, where their MLCs were prepared. Petitioner-Surender was diagnosed with fracture in his left leg ankle and he was operated and discharged on 16.06.2014. Petitioner-Surender was again admitted in DDU Hospital on 10.08.2014 where the concerned doctor diagnosed him fracture B/B left leg non-union and operated ORIF IMILN on 11.08.2014 and discharged on 17.08.2014. Thereafter, petitioner-Surender was continuously OPD patient till dated 21.11.2014. Petitioner-Surender was bed ridden for approx. 10 months and he spent Rs. 10,000/- on the medical treatment and doctor advised him to complete bed rest and take special / rich protein diet and he spent Rs. 1,00,000/- on MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 12 special diet and also spent Rs. 60,000/- on attendant and spent Rs. 30,000/- on the conveyance.
It is also stated that At the time of accident, petitioner-Surender was 29 years old and was unmarried man with sound health physics. At the time of accident petitioner- Surender was working as helper with offending truck and getting salary Rs. 14,000/- per month. Further, he had lost his earning because of the abovesaid accident and suffering from permanent disability because of the above-said accident. Regarding the same disability certificate has been issued to him from DDU Hospital, Hari Nagar.
It is also stated that petitioner-Devendra Singh was bed ridden for approx. 04 months and he had spent Rs. 10,000/- on the medical treatment and doctor advised him to complete bed rest and take special / rich protein diet and he spent Rs. 30,000/- on special diet and also spent Rs. 20,000/- on attendant and spent Rs. 15,000/- on the conveyance.
It is further stated that petitioner/injured-Devender was 43 years at the time of accident and he was working as labourer and was earning Rs.12,000/- per month but after the accident he lost his earning for the said period due to permanent disability.
It is also stated that both the petitioners suffered from great pain, mental agony, loss of expectation of life and financial loss on the attendant and shocked besides financial losses and deformity because of the said accident.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 13
3. DEFENCES:
It is relevant to pen down here that the respondent no. 1 and 2 did not file Written Statement/ Legal Reply in both the DARs.
Written statement/legal reply filed on behalf of respondent no. 3/ insurance company in which allegations leveled have been denied and certain preliminary objection has been taken. Further, it has been admitted that the offending vehicle was insured with answering respondent vide policy no. 31170131130100005575 valid from 20.11.2013 to 19.11.2014 in the name of Hari Ram Verma but it was subject to term and conditions of the policy. It is also stated that both the injured were gratuitous passengers, hence answering respondent is not liable to pay the compensation.
4. ISSUES:
On the basis of the pleadings of the parties, the following issues were framed:
1. Whether Sh. Surender S/o Sh. Chhote Lal sustain grievous injuries and Sh. Devender S/o Sh. Chhote Lal in a motor vehicle accident dt. 05.06.2014 caused due to rash or negligent driving of vehicle no. DL1LE9864 being driven by Respondent no.1 and owned by Respondent no.2 Kataria and insured by Respondent no.3? OPP
2. Whether the petitioners are entitled to claim MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 14 compensation, if so, what amount and from whom?...OPP
3. Relief.
5. PETITIONER EVIDENCE:
To prove their case, the petitionerSurender got examined himself as PW01, who tendered his evidence by way of affidavit Ex. PW1/A. PW1 relied upon the following documents.
S. No. of Details of Document No. Exhibits
1. Ex. PW1/1 Photocopy of discharge summary and OPD (Colly.) cards of petitionerSurender.
2. Ex. PW1/2 Photocopy of medical bills of petitioner Surender.
3. Ex. PW1/3 Photocopy of Aadhar card of petitioner Surender
4. Ex. PW1/4 DAR (Colly.) To prove their case, the petitionerDevender Singh got examined himself as PW02, who tendered his evidence by way of affidavit Ex. PW2/A. PW2 relied upon the following documents.
S. No. of Details of Document No. Exhibits
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 15
1. Ex. PW2/1 Photocopy of OPD card of petitioner (Colly.) Devender.
2. Ex. PW2/2 Photocopy of Aadhar card of petitioner (OSR) Devender.
3. Ex. PW2/3 DAR (Colly.) To prove their case, the petitioner got examined Dr. Aaditya Keerti Mongia, Senior Resident Orthopedic from DDU Hospital, New Delhi as PW03. He relied upon the Ex. W3/A i.e. Disability Certificate of Surender.
6. RESPONDENT EVIDENCE:
It is relevant to pen down here that respondent no. 1 and 2 did not come forward to lead any evidence.
The respondent no. 3 got examined Sh. Pritam as R3W1, who tendered his evidence by way of affidavit Ex. R3W1/1 and relied upon following documents: Sl. No. of Exhibits Details of Documents No. 1 Ex.R3W1/A Copy of notice U/o 12 Rule 8 2 Ex.R3W1/B Postal receipt 3 Ex.R3W1/C Office copy of insurance policy 4 Ex.R3W1/D Letter of Authority.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 16
7. I have heard the arguments and perused the material available on record.
8. The issuewise findings are as under :
ISSUE No. 1Whether Sh. Surender S/o Sh. Chhote Lal sustain grievous injuries and Sh. Devender S/o Sh. Chhote Lal in a motor vehicle accident dt. 05.06.2014 caused due to rash or negligent driving of vehicle no. DL1LE 9864 being driven by Respondent no.1 and owned by Respondent no.2 Kataria and insured by Respondent no.3? OPP The onus to prove this issue in both petitions was conferred upon the petitioners.
In order to discharge their onus, the petitionerSurender Singh examined himself as PW01. As per his testimony, on 05.06.2014 at about 3:30 AM, he was sitting in offending vehicle as a capacity of helper along with his brother Devender which was being driven by R1-Yogesh Verma at a very high speed, rash and negligent manner and they were going towards Dwarka side from goal market, New Delhi. When the offending vehicle reached at Palam Flyover, suddenly, the R1 accelerated the speed of the offending vehicle and hit the offending vehicle with great force against the stationary truck bearing no. HR-64-4604 which was standing on the jack and one person replacing the Puncture tyre at Palam flyover. Resultantly, he and his brother-Devender MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 17 sustained grievous injury all over their body. He along with his brother were taken to Deen Dayal Upadhyay Hospital by a PCR van, where their MLCs were prepared. He was diagnosed with fracture in his left leg ankle and he was operated and discharged on 16.06.2014.
In order to discharge their onus, the petitioner Devender examined himself as PW02. As per his testimony, PW02 has deposed on the same lines of PW01.
It is relevant to mention here that during cross examination by ld. Counsel for R3/insurance company (since the crossexamination on behalf of respondent no. 1 and 2 is nil despite opportunity given), PW01Sh. Surender Singh stated that the offendign vehicle struck against a standing vehicle and the said offending vehicle was standing in the middle of the road. He denied the suggestion that said offending vehicle was parked on the side of the road and parking light was on at that time.
On the other hand PW2Devender Singh stated that the offending vehicle struck against a standing vehicle which was in stationary condition due the puncture. He admitted that said standing vehicle was parked on the side of the road. He also stated that the driver of the said offending vehicle was changing the tyre in the light of a small candle. He admitted that the accident took place due to the fault of driver of their vehicle. Their driver did not lodge any complaint with the police.
In light of above, there is contradictory statement regarding standing vehicle. As per the testimony of PW01Surender Singh, MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 18 the standing vehicle was standing in the middle of the road while as per the PW02Devender Singh, the standing vehicle was parked on the side of the road and there was fault of driver of their vehicle.
I have also perused the ChargeSheet. As per this, the FIR was lodged by Sunil Kumar S/o Sh. Ram Prashad who was allegedly driver of the stationary vehicle No. HR644604.Not only this, the Respondent No. 1 namely Yogesh Verma (accused in the State case) has been charge sheeted for offences punishable U/s 279/337/338 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending vehicle by him. Same would also point out towards rash and negligent driving of offending vehicle bearing Registration No. DL1LE9864 by respondent no. 1.
In light of above, here it is considered view of the Tribunal that there is no reason to disbelieve the investigation carried out by the IO and to ChargeSheet Yogesh Verma as accused.
Further, as per the testimony of PW01Surender Singh, the accident caused due to rash and negligent driving of the driver of offending TATA 709 Truck bearing No. DL1LE 9864.
Here, it is said that in his testimony, PW01 clearly deposed that accident occurred due to the negligent driving of the MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 19 offending vehicle by respondent no. 1 but in the cross examination, he stated otherwise which cannot be trusted.
Further, if the said stationary vehicle was standing in the middle of the road, then what stopped PW01Surender to lodge the FIR against the driver of the said stationary vehicle or to approach the high authority if there was any grievances against the present FIR.
It is also pertinent to mention that the respondent no.1/driver of aforesaid offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box during the course of inquiry/trial. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of Offending vehicle bearing Registration No. DL1LE9864.
Even otherwise, while determining the negligence, reliance can be placed upon the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein the Hon'ble High Court has held that in case the petitioner files the certified copy of the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR in addition to recovery memo and mechanical inspection report of the offending vehicle, these MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 20 documents are sufficient proof to reach at the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, it was held that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident is of secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would make the petition maintainable under section 166 and 140 of the Act.
It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
This aspect has also been considered by the Hon'ble High Court of Delhi in the case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors in MAC App. No. 200/2012 decided on 23/07/2012.
The Hon'ble High Court has held as under: "The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 21 compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 wherein it was held as under:
"In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. In view of abovedecision and considering facts and circumstances of the case, it stands proved that injured Surender and Devender sustained injures in motor accident dated 05.06.2014 due to rash and negligent driving of offending vehicle No. DL1LE9864 which was being driven by respondent no. 1Yogesh Verma, owned by respondent no. 2 Hari Ram Verma and and insured with R3/ The New India Assurance Company Ltd. at the time of accident.
10. In light of above, issue no. 1 is decided in favour of the petitioners and against respondents by holding that Surender and Devender sustained injuries in a vehicular accident due to rash and negligent driving of the bearing No. DL 1LE9864 by respondent no. 1.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 22 11. ISSUE No. 2 Whether the petitioners are entitled to claim compensation, if so, what amount and from whom?...OPP The onus to prove this issue in both petitioners was conferred upon the petitioners.
In order to discharge their onus, the petitioners Surender Singh and Devender Singh examined themselves as PW01 and PW02 respectively. As per their testimony, on 05.06.2014, both the petitioners met with an accident due to rash and negligent driving of the offending vehicle by the respondent no.1 and resultantly they sustained injuries.
In the present case, from the material and evidence on record, it is clear that Surender Singh and Devender Singh received injuries in motor vehicle accident dated 05.06.2014 due to rash and negligent driving of offending vehicle which was being driven by R1Yogesh Verma and as such, the petitioners/injured have become entitled to claim compensation for injury.
Quantum of compensation payable to the petitioner/injuredSurender Singh and Devender Singh is ascertained under the following heads:
INJUREDSURENDER SINGH (IN MACT NO. 1267/16):
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 23
12. NATURE AND EXTENT OF INJURIES It is relevant to pen down here that the petitioner Surender Singh examined himself as PW1. He deposed that he along with his brother were taken to Deen Dayal Upadhyay Hospital, Hari Nagar where their MLCs were prepared and he was diagnosed with fracture in his left leg ankle and got operated and discharged on 16.06.2014. He also deposed that he was again admitted in DDU Hospital on 10.08.2014 where the concerned doctor diagnosed him fracture B/B left leg non-union and operated ORIF IMILN dated 11.08.2014 and discharged on 17.08.2014. Thereafter, he was continuously OPD patient till dated 21.11.2014. He also deposed that he was suffering from permanent disability and disability certificate has been issued by DDU hospital.
It is relevant to pen down here that petitioner got examined PW3Dr. Aaditya Keerti Mongia, Senior Resident Orthopedic at DDU Hospital, New Delhi. She deposed that as per Disability Certificate, petitioner/injured Surender is a case of post traumatic post operative fracture B/B left leg with fracture bimalleolar left with 35% permanent physical disability in relation to left lower limb. The abovesaid disability is permanent in nature and there is no likelihood of any improvement in future. She also relied upon EX. PW3/A i.e. the Disability Certificate of Surender.
Further, as per Certificate No. F.1(1)/DDU/MB/2016/8260 MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 24 dated 28.1.2016 issued by office of Medical Director, Deen Dayal Upadhyay Hospital, New Delhi also, the petitioner/ injured is a case of post traumatic post operative fracture B/B left leg with fracture bimalleolar left with 35% (Thirty Five percent) permanent physical disability in relation to left lower limb.
13. MEDICINES & TREATMENT In the present case, PW01 Surender Singh deposed that he along with his brother were taken to Deen Dayal Upadhyay Hospital, Hari Nagar where their MLCs were prepared.
With regard to the treatment undergone by him, petitioner/injured deposed that he spent a sum of Rs. 10,000/ on his medical treatment and he relied upon Ex. PW1/2 (Colly) i.e. his medical bills.
It is relevant to pen down here that as per Ex. PW1/2, there is only one medical bill for an amount of Rs 112/.
Further, as per the crossexamination, PW01 Surender Singh admitted that he had not placed on record any bill regarding the expenses of Rs. 10,000/ incurred by him towards his treatment.
In light of above, the petitioner is entitled for Rs. 112/ as Medicines and medical treatment and accordingly, the petitioner/injuredSurender Singh is awarded the said amount i.e. ₹112/ towards "medicines and medical treatment".
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 25
14. CONVEYANCE & SPECIAL DIET:
PW01Surender Singh deposed that he has spent Rs. 30,000/ on conveyance and Rs. 1,00,000 on special diet.
In the present case, as per the medical treatment record, petitioner/injuredSurender is a case of post traumatic post operative fracture B/B left leg with fracture bimalleolar left with 35% (Thirty Five percent) permanent physical disability in relation to left lower limb. 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. However no evidence, documentary or otherwise, in this regard has been brought on record on behalf of the petitioner. Further, it is pertinent to note that from the material on record, it is evident that the petitioner/injured is about just 29 years old at the time of accident and has suffered permanent disability due to the injuries sustained in the accident in this case.
Be that as it may, it goes without saying that with this permanent disability, it would have been virtually impossible for the injured to have used public transport for a considerable time. 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 MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 26 and others vs National Insurance Company Limited and other 1 and Kajal vs Jagdish Chand & Ors.2 Hence, in view of the above and in view of the material on record, petitioner/injured is entitled to a sum of ₹15,000/ (Rupees Fifteen Thousand only) towards 'conveyance'. Likewise, in view of the injuries suffered by him, the petitioner/ injured must have needed special diet for a similar period to have a fast and proper recovery. In these circumstances and in view of the material on record, the petitioner/injured is also awarded ₹25,000/ (Rupees Twenty Five Thousand Only) towards expenses for 'special diet'.
15. ATTENDANT CHARGES Petitioner/PW1 deposed that he was bed ridden for near about 10 months due to this accident and he has spent a sum of Rs. 60,000/ on attendant charges..
It is worthwhile to mention here that no document has been proved on record to show that he has spent Rs 60,000/ on attendant charges.
In the instant case, the perusal of the record reveals that petitioner / injured is a case of post traumatic post operative fracture B/B left leg with fracture bimalleolar left with 35% (Thirty Five percent) permanent physical disability in relation to left lower limb and has also remained 1 2 MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 27 hospitalized for about 19 days due to the said injuries sustained by him in the accident. In these circumstances, the petitioner/ injured must have required the services of attendant for about 03 months. It is pertinent to note that the petitioner/injured would have also 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 Transport Corporation and Anr. vs Lalita3, 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.
c. In these circumstances and in view of the material on record, the petitioner/injured shall be entitled to an amount of ₹5,000 X 3 = ₹15,000/ towards 'Attendant Charges'.
16. LOSS OF INCOME DURING TREATMENT PERIOD:
a) In the present case, the petitioner/injured deposed that he was working as a helper on TATA 709 Truck bearing No. DL1LE 9864 and getting salary sum of Rs. 14,000/ per month and he could not attend in his duty till date and he has lost his earning for the said period due to the permanent disability in this accident.
Hence, in the absence of any documentary proof, the minimum wages for during the relevant period (05.06.2014) i.e 3 MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 28 ₹8554/ p.m is taken as criteria for calculating the loss of income to the petitioner/ injured in this case (for unskilled worker, since no evidence of qualifications has been brought on record).
In the instant case, petitioner/injured has suffered grievous injuries on the left lower limb and operated and has remained hospitalized for about 19 days. Further, in view of the material on record, it appears that it might have taken about six months for the petitioner/ injured to recover from the said injuries sustained by him in the accident.
In these circumstances and in view of the material on record, the petitioner shall be entitled to a sum of ₹8554/ X 6 = ₹51,324/ under the head 'Loss of Income'.
17. LOSS OF FUTURE INCOME / PROSPECTS:
In the present case as per medical record, petitioner/injuredSurender has hospitalized for about 19 days and as per the Disability Certificate issued by DDU Hospital, the petitioner / injured is a case of post traumatic post operative fracture B/B left leg with fracture bimalleolar left with 35% (Thirty Five percent) permanent physical disability in relation to left lower limb. The petitioner has failed to furnish documents to show that at the time of the accident, he was earning approx. ₹14,000/ per month. Hence, his income was calculated on the basis of minimum wages at the relevant time @ ₹8554/ per month.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 29 The principles for determining functional disability resulting from permanent physical impairment have been laid down in the case of Raj Kumar vs. Ajay Kumar4. 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. Thus, the functional disability of the petitioner is taken to be at 18%.
Further, in terms of the principles laid down in National Insurance Company Ltd., vs. Pranay Sethi 5, the petitioner is also entitled to future prospects.
Age: As per the Ex. PW1/3 i.e. photocopy of his Aadhar Card, his date of birth was 20.10.1984. Thus, his age is taken as 29 years at the time of the accident. Hence, he will be entitled to future prospects @ 40%. Further, in terms of the principles laid down in the case Sarla Verma vs. DTC6 a multiplier of 17 would be applicable to the present case. Therefore, the loss of future prospects / income is calculated as :
8554/ + 40% of 8554/x 12 x 18 x 17= 4,39,744.03 100 Hence, the petitioner shall be entitled to compensation of ₹4,39,744.03 as compensation under this head.4 5 6
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 30
18. 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.
PW01/injured deposed that he has suffered great mental pain and agony.
In the instant case, in view of the material/evidence on record, there is no element of doubt that the petitioner/injured has suffered grievous injuries and has also remained hospitalized for about 19 days due to the said injuries sustained by him. Petitioner / injured has further suffered permanent physical disability of 35% in relation to left Lower Limb. In these circumstances and in view of the law laid down in the case titled as Rekha Jain vs National Insurance Co. Ltd. 7, 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 the present case and in view of the material on record, a sum of ₹40,000/ (Rupees Forty Thousand only) is awarded to the petitioner towards the head 'pain & sufferings'.
7MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 31
19. LOSS OF ENJOYMENT OF LIFE AND AMENITIES / PHYSICAL AND MENTAL SHOCK The petitioner/injured has deposed that he has suffered loss of enjoyment of life.
The petitioner/injured has suffered suffered permanent physical disability of 35% in relation to Left Lower Limb and was also hospitalized due to the said injuries sustained in the accident. He had to suffer from restricted function of his left lower limb. Needless to say that restricted movement is also likely to affect his overall health. In these circumstances and in view of the law laid down vide judgment of Rekha Jain8, the petitioner/injured shall be entitled to a sum of ₹30,000/ (Rupees Thirty Thousand only) 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 ₹20,000/ (Rupees Twenty Thousand only) as compensation for 'mental and physical shock' suffered by him due to the accident in this case.
20. The breakup of compensation that has been awarded to the petitioner/ injuredSurender Singh is tabulated as below : S.N HEADS AMOUNT (in o. Rupees) 8 Supra.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 32 1 Medicines & Treatment Rs. 112/
2. Conveyance Rs. 15,000/
3. Special Diet Rs. 25,000/
4. Loss of Income during treatment Rs.51,324/
5. Attendant Charges Rs. 15,000/
6. Pain & sufferings Rs. 40,000/
7. Physical and Mental Shock Rs. 20,000/
8. Loss of enjoyment of life and Rs. 30,000/ amenities
9. Loss of future income /prospects Rs. 4,39,744.03 Total Rs. 6,36,180.03 Rounded off to Rs.
6,37,000/ Accordingly, the total compensation comes to ₹ 6,37,000/ (Rs. Six Lakhs and Thirty Seven Thousand only).
21. INTEREST:
In view of abovediscussion 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. Hence, the petitioner/injuredSurender Singh is awarded interest @ 9% per annum on the abovesaid compensation/ award amount i.e ₹6,37,000/ (Rs. Six Lakhs and Thirty Seven Thousand only) from the date of filing of case/petition/DAR i.e. 14.08.2014 till its realization.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 33
22. RELIEF:
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 ₹6,37,000/ (Rs. Six Lakhs and Thirty Seven Thousand only) alongwith interest @ 9% p.a from the date of filing of the DAR/Petition i.e. 14.08.2014 till its realization is passed in favour of the petitioner/injured-Surender Singh and against the respondents.
The abovesaid compensation amount shall be payable to the petitioner/injured.
23. FORMIVB SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
i) Date of accident : 05.06.2014
ii). Name of the injured : Surender Singh
iii). Age of the injured : 29 years ( at the time of accident)
iv). Occupation of the injured: Private Job (not proved
v). Income of the injured : ₹ 8554/ P.M.
vi). Nature of injury : Grievous MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 34
vii). Medical treatment taken : DDU Hospital, Hari Nagar by the injured New Delhi
viii). Period of hospitalization : About 19 days.
ix). Whether any permanent : Yes (permanent
disability? If yes, give physical disability
details of 35% in relation to
Left Lower Limb)
10. Computation of Compensation
S. No. Heads Awarded by the
Tribunal
11. Pecuniary Loss:
(I) Expenditure on treatment ₹ 112/
(ii) Expenditure on conveyance ₹ 15,000/
(iii) Expenditure on special diet ₹ 25,000/
(iv) Loss of earning capacity 18%
(v) Loss of income during treatment ₹ 51,324/
(vi) Attendant Charges ₹ 15,000/
12. Non Pecuniary Loss:
(i) Compensation for mental and ₹20,000/
physical shock
(ii) Pain and suffering ₹40,000/
(iii) Loss of enjoyment of life and ₹30,000/
amenities
(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, inconvenience,
hardships, disappointment,
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 35 frustration, mental stress dejectment and unhappiness in future life etc.,
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 35% permanent nature of disability as permanent or disability in relation temporary to left lower limb and 18% qua whole body
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity 18% qua whole in relation to disability body
(iv) Loss of future income(Income x % ₹ 4,39,744.03 Earning Capacity x Multiplier)
14. Total Compensation Rs. 6,36,180.03 Rounded off to Rs. 6,37,000/
15. INTEREST AWARDED
16. Interest amount up to the date of @ 9% per annum award from the date of filing of Petition i.e. 14.08.2014 till its realization.
17. Total amount including interest ₹ 6,37,000/+ interest @ 9% per annum from the date of filing of the Petition/DAR i.e. 14.08.2014 till its realization.
18. Award amount released As per table given below MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 36
19. Award amount kept in FDRs As per table given below
20. Mode of disbursement of the award By credit in the amount to the claimant(s) (Clause29) SB Account of the petitioner/injured.
21 Next Date for compliance of the 19.01.2024 award. (Clause 31) Further, in view of the said statement of the petitioner/injured and having regard to facts and circumstances of the present case, the award amount shall be distributed as follows:follows: S. Name Status Amount of Release Amount /Period N Award Amount of FDR o.
1. Surender Injured Rs. ₹67,000/ ₹5,70,000/ be Kumar kept in 40 FDRs 6,37,000/ of ₹14,250/ each for the period from one month to 40 months in the name of petitioner/ injured with cumulative interest.
The abovesaid award amount shall be disbursed through Motor Accident Claims Annuity Deposit Scheme (MACAD Scheme) formulated vide Orders dated 01.5.2018 and 07.12.2018 MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 37 passed by the Hon'ble High Court of Delhi in FAO No. 842/2013 (Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors.).
INJUREDDEVENDER (IN MACP NO. 1268/16)
24. NATURE AND EXTENT OF INJURIES PetitionerDevender Singh deposed that he sustained grievous injuries and he was taken to DDU Hospital where his MLC was prepared.
As per the MLC of petitionerDevender pertaining to DDU Hospital, Hari Nagar, New Delhi, petitioner/ injured Devender has suffered "simple injuries".
Further, the perusal of the record reveals that petitioner/injured has not filed on record any document to show that he has suffered any permanent disability due to the injuries sustained by him in the accident in this case.
25. MEDICINES & TREATMENT PWDevender Singh deposed that he was taken to DDU Hospital, Hari Nagar and got treatment.
With regard to the treatment undergone by him, petitioner/injuredDevender Singh deposed that he had incurred Rs. 10,000/ on his medical treatment. However, he did not rely upon any medical bill/medicines.
Further, during crossexamination, he admitted that he had MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 38 not placed on record any bill regarding the expenses of Rs. 10,000/ incurred by him towards his treatment.
In these circumstances and in view of the material on record, the petitioner/injured shall not be entitled towards medicines and treatment.
26. CONVEYANCE & SPECIAL DIET The petitioner testified that he had incurred Rs. 15,000/ on conveyance and Rs. 30,000/ on special diet. However, as per the medical treatment record, petitioner/ injured Devender Singh is a case of simple injuries. 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.
Further, it is pertinent to note that from the material on record, it is evident that the petitioner/injured has not suffered any permanent disability due to the injuries sustained in the accident in this case. However, he must have remained under treatment for at least for some days or must have taken this much time to recover. This is also apparent from the medical documents i.e. Ex. PW2/1 (colly).
In view of the above and in view of the material on record, the petitioner/injured is entitled to a sum of ₹2,500/ towards 'conveyance'.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 39 Further, in view of the injuries suffered by him, the petitioner/ injured must have needed special diet for a similar period to have a fast and proper recovery and must have incurred similar expenses. In these circumstances and in view of the material on record, the petitioner/injured is also awarded ₹5,000/ towards expenses for 'special diet'.
27. LOSS OF INCOME
a) In the present case, the petitioner/injured deposed that he was working as a labourer on TATA 709 Truck bearing No. DL 1LE9864 and getting salary sum of Rs. 12,000/ per month and he could not attend in his duty till date and he has lost his earning for the said period due to the injuries.
It is relevant to pen down here that no document has been proved on record that he was working as a labourer on TATA 709 Truck bearing No. DL1LE9864 and was getting salary sum of Rs. 12,000/ per month and he could not attend in his duty till date and he has lost his earning for the said period due to the injuries.
Hence, in the absence of any documentary proof, the minimum wages for during the relevant period (05.06.2014) i.e ₹8554/ p.m is taken as criteria for calculating the loss of income to the petitioner/ injured in this case (for unskilled worker, since no evidence of qualifications has been brought on record).
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 40 b. In the instant case, petitioner/injured has suffered simple injuries and has not been hospitalized. Further, in view of the material on record, it appears that it might have taken about some days for the petitioner/ injured to recover from the said injuries sustained by him in the accident. However, no document has been produced on record in this regard.
28. ATTENDANT CHARGES In the present case, the petitioner/injured has deposed that he had incurred Rs. 20,000/ on attendant charges. However, he did not rely upon any document regarding the same.
In the instant case, the perusal of the record reveals that petitioner/injuredDevender Singh is a case of simple injuries.
In these circumstances and in view of the material on record, the petitioner/injured shall not be entitled to any amount towards 'Attendant Charges'.
29. 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.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 41 In the instant case, in view of the material/evidence on record, there is no element of doubt that the petitioner/injured is a case of simple injuries sustained by injured due to the said accident. In these circumstances and in view of the law laid down in the case titled as Rekha Jain Vs. National Insurance Co. Ltd., the petitioner/injured is entitled to compensation on account of pain & suffering due to the accident. The pain and sufferings of petitioner/injured can not be adequately compensated in terms of money however, in view of the facts & circumstances of the present case and in view of the material on record, a sum of ₹10,000/ is awarded to the petitioner towards the head 'pain & sufferings'.
30. LOSS OF ENJOYMENT OF LIFE & AMENITIES AND PHYSICAL & MENTAL SHOCK The petitioner/injuredDevender Singh has deposed that he has suffered loss of enjoyment and suffered great mental pain. Since the petitioner has suffered only simple injuries, hence, he shall not be entitled for any compensation under Loss of Enjoyment of Life and Amenities. However, he is entitled to compensation of ₹10,000/ towards 'mental and physical shock' which is awarded accordingly.
31. The breakup of compensation that has been awarded MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 42 to the petitioner/ injured Pradeep is tabulated as below : S.N HEADS AMOUNT (in o. Rupees) 1 Medicines & Treatment Nil
2. Conveyance ₹2,500/
3. Special Diet ₹5,000/
4. Loss of Income Nil
5. Attendant Nil
6. Pain & Sufferings ₹10,000/
7. Loss of Enjoyment of Life and Nil Amenities
8. Compensation for mental and ₹10,000/ physical shock Total ₹27,500/ rounded off to Rs. 28,000/ Accordingly, the total compensation comes to ₹28,000/ (Rupees Twenty Eight thousand Only) and as such, the petitioners shall be entitled to the said amount i.e ₹28,000/ as compensation.
32. 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 MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 43 Express Transport Corporation Ltd.9 Hence, the petitioner is awarded interest @ 9% per annum on the abovesaid compensation/ award amount i.e. Rs. 28,000/ (Rs. Twenty Eight Thousand only) from the date of filing of petition/DAR i.e. 14.08.2014 till its realization.
33. 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 Rs. 28,000/ (Rs. Twenty Eight Thousand only) alongwith interest @ 9% p.a from the date of filing of the petition i.e 14.08.2014 till its realization is passed in favour of the petitioner/injured- Devender Singh and against the respondents.
FORMIVB SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
i) Date of accident : 05.06.2014
ii). Name of the injured : Devender Singh
iii). Age of the injured : 52 years ( at present)
iv). Occupation of the injured : Private Job (Not proved)
v). Income of the injured : NA 9Supra, Note 8.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 44
vi). Nature of injury : Simple injuries
vii). Medical treatment taken : DDU Hospital Hari Nagar,
viii). Period of hospitalization : _____
ix). Whether any permanent : No. If yes, give details
10. Computation of Compensation S. No. Heads Awarded by the Tribunal
11. Pecuniary Loss:
(i) Expenditure on medicines and Nil
treatment.
(ii) Expenditure on conveyance Rs. 2500/
(iii) Expenditure on special diet Rs. 5,000/
(iv) Cost of attendant/physiotherapist Nil
(v) Loss of earning capacity
(vi) 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 physical Rs. 10,000/ shock
(ii) Pain and suffering Rs. 10,000/
(iii) Loss of amenities of life
(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 No disability nature of disability as permanent or temporary MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 45
(ii) Loss of amenities or loss of N.A. expectation of life span on account of disability
(iii) Percentage of loss of earning capacity N.A. in relation to disability
(iv) Loss of future income(Income x % N.A. Earning Capacity x Multiplier) 14 TOTAL COMPENSATION ₹27,500/ rounded off to Rs. 28,000/
15. INTEREST AWARDED
16. Interest amount up to the date of award @ 9% per annum from the date of filing of DAR i.e. 14.08.2014 till its realization.
17. Total amount including interest Rs. 28,000/ + interest @ 9% per annum from the date of filing of the DAR i.e. 14.08.2014 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 amount to the claimant(s) (Clause29) SB Account of the petitioner/injure d.
21 Next Date for compliance of the award. 19.01.2024 ( Clause 31) MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 46 Further, In view of facts and circumstances of the present case, the award amount shall be disbursed as follows: S.N Name Statu Amount of Release Amount /Period of o. s Award Amount FDR
1. Devender Injure Rs. 28,000/ Rs. 28,000/ .......................
Singh d The abovesaid award amount shall be disbursed through Motor Accident Claims Annuity Deposit Scheme (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.).
34. LIABILITY ( In both the cases bearing MACP No. 1267/16 & 1268/16) The offending vehicle was being driven by R1Yogesh Verma, owned by R2Hari Ram Verma and insured by R3 / The New India Assurance Co. Ltd at the time of accident.
It has been submitted on behalf of the R3/ Insurance company that the seating capacity of the offending vehicle was only two i.e. one driver and one helper but driver of the offending vehicle had allowed two gratuitous passengers which is clear violation of the terms and conditions of the insurance policy and as such, R3/Insurance company was not liable to pay MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 47 compensation. It was contended that the said vehicle was being used in contravention of the M.V. Act.
c) In this regard, R3/Insurance company has examined R3W1 Sh. Pritam with the insurance company by way of his affidavit (Ex.R3W1/A), wherein it has been admitted that policy bearing NO. 31170131130100005575 was issued for the vehicle bearing No. DL1LE9864 (TATA 709) for the period from 20.11.2013 to 19.11.2014 in the name of Sh. Hari Ram Verma subject to certain liabilities. He also deposed that the insurance company has issued the said policy wherein giving the risk coverage to one driver and one cleaner but in this case, there are two injured who have been traveling alongwith the driver and it shows that the injured persons were gratuitous passengers and as such, the insurance company is not liable to pay any compensation. It is also deposed that Insurance company has sent a Notice U/o XII Rule 8 CPC to the owner to supply the original insurance policy of the offending vehicle and valid & effective driving license. He relied upon Ex. R3W1/1 i.e. copy of legal notice, Ex. R3W1/2, Postal receipt and Ex. R3W1/3 i.e. Copy of insurance policy.
Perusal of file shows that there is copy of Authorization Certificate of N.P. (Goods) of the offending vehicle i.e. DL1LE 9864 which is part of DAR. As per this, Type of vehicle has been mentioned as "Light Goods Vehicle" and seating capacity has been mentioned as "2" (two).
In light of above, here it is crystally clear that MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 48 seating capacity of the offending vehicle was only two.
Further, it is admitted fact that both injured persons were sitting on the offending vehicle alongwith the driver.
d) The important fact is that the aforesaid witness i.e. R3W1 has not been cross examined on behalf of the respondent no. 1 (driver) and respondent no. 2 (owner) who did not care to appear when evidence of R3W1 was being recorded.
In these circumstances, the abovesaid testimony of the R3W1 has remained uncontroverted and unchallenged qua seating capacity of offending vehicle because respondent no. 1 and respondent no. 2 have chosen not to lead any RE and remained absent during the relevant period. The driver and owner of the offending vehicle are the only ones who could have counter the version of insurance company/R3. The Tribunal, in interpreting the policy conditions, would apply "the rule of main purpose" and the concept of "fundamental breach" as held in National Insurance Company vs Swaran Singh
10. The insurance company in this case has taken all possible measures to prove such breach by alleging that there were three persons in the offending vehicle while seating capacity of the offending vehicle was only two person. Now, these allegations needed to be tested against the version of the driver and owner. This would be possible when there was at least some version before the Tribunal on behalf of respondent no. 1 and 2. However, when no defence has been taken at all, the breach must MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 49 be taken as absolute. Therefore, the insurance company shall be entitled to recover the compensation amount jointly and severally from respondent no. 1 and 2.
In view of the aforesaid, the R3 /New India Assurance Company Ltd. shall be entitled to recover the compensation amount (being payable by R3/Insurance company to petitioners herein) from R1Yogesh Verma (driver) and R2Hari Ram Verma (owner) in accordance with law jointly and severally.
Hence, in view of the above, Issue no. 2 is decided accordingly.
35. In both cases bearing MACT No. 1267/16 & 1268/16, the award amounts shall be deposited /transferred within 30 days by respondent no. 3/The New India Assurance Company Ltd. in the Account No. 37686010911 of 'MACT (SouthWest), Dwarka Courts, New Delhi ' at State Bank of India, District Court Complex, Sector10, Dwarka New Delhi (IFSC Code SBIN0011566 and MICR Code 110002483) by RTGS/NEFT/IMPS under intimation, with proof of notice to the claimant/petitioners and their counsel, to the Nazir of this court.
36. In both cases, it has been stated that Saving Bank Accounts of the petitioners have already been opened at Nationalized bank.
Accordingly, the Manager, SBI, District Courts Complex, Dwarka, Sector10, New Delhi is directed to transfer MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 50 the abovesaid cash amounts to the respective saving bank accounts of the abovesaid petitioners after due verification and as per rules and to keep the remaining amount in the form of abovementioned 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.).
Managers of the bank where the said petitioners are having the respective saving bank accounts (hereinafter referred to as the petitioners' bank) are directed to release the abovesaid cash amount to the abovesaid petitioners, as per rules, as prayed.
At the time of maturity, the fixed deposit amount shall be credited in the aforesaid savings bank accounts of petitioners.
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 petitioners.
Manager of the concerned bank is directed not to permit premature encashment or loan qua the abovesaid FDRs to the petitioners 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 petitioners.
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 51 The abovesaid Petitioners' banks are also directed not to issue any cheque book and/or debit card to the petitioners 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 petitioners.
The abovesaid Petitioners' bank shall permit account holder i.e. the said petitioners to withdraw money from the abovesaid saving bank account by means of a withdrawal form.
Ahlmad is directed to prepare a separate misc. file and put up the same for filing of the compliance report on 19.01.2024.
File be consigned to record room after due compliance.
Digitally signed by REKHA REKHA Date:
(Announced in the open Court 2023.12.02
16:40:30 +0530
on this 2nd day of November, 2023 ( Rekha )
PO, MACT01 (SouthWest District)
Dwarka Courts, New Delhi
MACT NO. 1267/16 Surender Vs. Yogesh Verma & Ors. and MACT No. 1268/16, Devender Vs. Yogesh Verma and Ors. 52