Delhi District Court
Also R/O: vs Pawan Gupta (Driver/ Owner) on 29 July, 2021
IN THE COURT OF Dr. KAMINI LAU : PO (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 982/2019
CNR No. DLCT010171132019
Sh. Sachin Kumar @ Sachin (Injured)
S/o Late Sh. Santosh,
R/o H. No. 1/730B, Street No.4,
Shastri Nagar, Chhawani Road, Koli,
Aligarh, Uttar Pradesh202 001.
Also R/o:
H. No.29/7, Gali No.8,
Kutub Vihar, Delhi.
......Petitioner
Versus
1. Pawan Gupta (Driver/ Owner)
S/o Ramesh Chand Gupta,
R/o 2, Shanker Vihar, Vikas Marg, Delhi.
2. HDFC Ergo General Insurance Co. Ltd. (Insurance)
Eros Corporate Tower,
Ground Floor, Nehru Place,
New Delhi110019.
......Respondents
Date of filing of DAR: 21.12.2019
Arguments concluded on: 08.07.2021
Date of Award: 29.07.2021
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 1 of 26
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.07.29 17:02:05
+0530
A W A R D:
(1) The present Detail Accident Report (DAR) has been filed on
21.12.2019 and has been registered as Motor Accident Claim Petition
in respect of an accident which took place on 27.11.2018 at about 2.10
PM at DDU Marg, Near Kali Mata Mandir, Police Station Kamla
Market, New Delhi in which the petitioner Sachin had sustained
Grievous Injuries.
BRIEF FACTS:
(2) Facts in brief as emerged from the DAR are that the petitioner Sachin was working as an Electrician in Surya Roshni Limited and on 27.11.2018, he was working at DDU Marg Near Kali Mata Mandir and was repairing bulb of Pole with the help of Boom Lift of Crane bearing No. DL1M8885. In the meantime, the offending car bearing registration No. DL5CH9865 came which was driven by the respondent no.1 Pawan Gupta in a rash and negligent manner and hit the crane Tower Vegan bearing No. DL1M8885 due to which the petitioner fell down from the lift and had suffered grievous injuries i.e. fractures in his right hand between shoulder and elbow, back bone fracture, hip fracture and also sustained injuries in his head and wrist of left hand and other parts of body due to said accident. Thereafter, the petitioner was taken to LNJP Hospital where he received treatment and thereafter he received treatment from Maharaja Agarsen Hospital and also from other hospital. According to the petitioner, he had spent Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 2 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:02:13 +0530 Rs.5,00,000/ on his medical treatment; Rs.50,000/ towards conveyance; Rs.50,000/ on special diet and he has to spend Rs.2,00,000/ for his future treatment. The petitioner is claiming a total compensation of Rs.20,00,000/.
(3) Perusal of the record shows that the respondent no.1 Pawan Gupta had stopped appearing nor filed any written statement and hence, vide order dated 24.02.2020 the respondent no.1 Pawan Gupta was proceeded exparte.
(4) In so far as the Respondent No.2 i.e. HDFC Ergo General Insurance Co. Ltd. is concerned, a legal offer has been filed by the Designated Officer according to which the Insurance Company had offered Rs.99,596/. However, the petitioner had refused to accept the offer of the Insurance Company.
ISSUES FRAMED:
(5) On the basis of the pleading of the parties, vide order dated 20.08.2020, this court has settled the following issues which are as under: i. Whether the petitioner Sachin had received grievous injuries in a Road Traffic Accident which took place on 27.11.2018 at 2.10 PM at DDU Marg, Near Kali Mata Mandir, P.S. Kamla Market, New Delhi due to rash and negligent driving of Car bearing No. DL 5CH9865 by the respondent no.1 Pawan Gupta?
(OPP) Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 3 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:02:21 +0530 ii. Whether the petitioner is entitled to any compensation? If yes, to what extent and from whom?
(OPP) iii. Relief.
EVIDENCE:
(6) In order to prove his case, the petitioner Sachin Kumar has examined himself as PW1 as his sole witness. On the other hand the respondent no.2 Insurance Company has not examined any witness. (7) For the sake of convenience the testimony of Sachin Kumar (PW1) is put in a tabulated form as under:
S. Witness Deposition
No.
1. Sh. Sachin Kumar PW1 Sh. Sachin Kumar @ Sachin is the petitioner /
@ Sachin (PW1) injured in the present case who in his examinationin
chief by way of affidavit which is Ex.PW1/A has corroborated the version of police in the DAR. He has placed his reliance upon the following documents:
1. Discharge summary dated 02.12.2018 which is Ex.PW1/1.
2. Treatment papers which are Ex.PW1/2A to Ex.PW1/2I.
3. DAR containing FIR, site plan and other documents which are Ex.PW1/3 (Colly, running into 58 pages).
4. Bills regarding medical expenses and conveyance (traveling) which are Ex.PW1/4 (Colly, running into 41 pages).
5. Copy of Aadhar Card which is Ex.PW1/5 (OSR).
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 4 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:02:28 +0530 In his cross examination by the Ld. Counsel for the respondent no.2, the witness has deposed as under: That he has not brought any document with regard to his education.
That at the time of accident, he was employed with M/s. Surya Roshni Ltd.
That at the relevant time, when the accident took place, he was already in service for 7 to 8 years.
That at the time when he was appointed in M/s. Surya Roshni Ltd., he was given an appointment latter which he has not brought and has voluntarily explained that he has brought his salary slip.
That at the time of accident, his salary was directly deposited in his account maintained at ICICI Bank, Aligarh Branch bearing account No.097101000212.
That the said account was opened / made operational in the year 20092010.
That as on date, he is still employed with M/s. Surya Roshni Ltd and his salary is same i.e. Rs.40,000/ per month.
That his company provides for medical reimbursement.
That when he was admitted in the hospital, he was issued a receipt.
That his company did not reimburse any amount to him.
That he also did not get any reimbursement from M/s. Cigna TTK Health Insurance Company Ltd.
That after the accident he remained on leave from his office.
That during the said period, he got the salary from his employer.
That at the time of accident he was repairing the bulb of the pole after elevation on the elevator.
That his team was with him and they had tried to put the warning on the road for stopping the traffic around the pole.
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 5 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:02:34 +0530
That there were two or three persons at the spot but he cannot give their names but they were from BSES Department.
That no other person received injuries.
That he cannot produce any document which shows that the doctor had advised him further operation wherein Rs.2,00,000/ are likely to be incurred.
FINDINGS & OBSERVATIONS:
(8) I have heard the arguments advanced before me by the Ld. Counsels for the petitioner and the respondent no.2. I have also gone through the written memorandum of arguments filed by the parties and also given my thoughtful consideration to their contentions. My findings on the various issues are under:
Issue No.1: Whether the petitioner Sachin had received grievous injuries in a Road Traffic Accident which took place on 27.11.2018 at 2.10 PM at DDU Marg, Near Kali Mata Mandir, P.S. Kamla Market, New Delhi due to rash and negligent driving of Car bearing No. DL5CH9865 by the respondent no.1 Pawan Gupta? (OPP) (9) Onus of proving this issue was upon the petitioner Sachin. The case of the petitioner is that he was working as an Electrician in Surya Roshni Limited and on 27.11.2018, he was working at DDU Marg Near Kali Mata Mandir and was repairing bulb of Pole with the help of Boom Lift of Crane bearing No. DL1M8885. In the meantime, the offending car bearing registration No. DL5CH9865 came which was driven by the respondent no.1 Pawan Gupta in a rash and negligent manner and hit Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 6 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:02:40 +0530 the crane Tower Vegan bearing No. DL1M8885 due to which the petitioner fell down from the lift and had suffered grievous injuries i.e. fractures in his right hand between shoulder and elbow, back bone fracture, hip fracture and also sustained injuries in his head and wrist of left hand and other parts of body due to said accident. Thereafter, the petitioner was taken to LNJP Hospital where he received treatment and thereafter he received treatment from Maharaja Agarsen Hospital and also from other hospital.
(10) In order to prove his case the petitioner Sachin Kumar has examined himself as his sole witness as PW1. (11) I have considered the arguments advanced before me and perused the record including the DAR and the documents attached along with the same. Coming first to the identity of the respondent no.1 Pawan Gupta as the driver of the offending vehicle, I may note that the respondent no.1 Pawan Gupta did not appear before this Court nor filed any written statement and was therefore, proceeded exparte vide order dated 24.02.2020. In so far as the respondent no.2 HDFC Ergo General Insurance Co. Ltd. is concerned they have not disputed the accident. I may note pursuant to the accident an FIR No. 310/2018 under Section 279/338 IPC was registered at Police Station Kamla Market wherein the respondent no.1 Pawan Gupta, being the driver and owner of the offending car bearing No. DL5CH9865, was arrested and then released on bail. Perusal of the record shows that when the Investigating Officer, reached the spot on receiving the information Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 7 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:02:46 +0530 regarding accident, the offending car bearing No. DL5CH9865 was found at the spot and the respondent no.1 Pawan Gupta was apprehended at the spot itself. Therefore, I hold that the identity of the respondent no.1 Pawan Gupta as the Driver & Owner of Ritz Car bearing No. DL5CH9865 stands established. (12) In so far as the aspect of Injuries caused to the petitioner Sachin Kumar, I may note that the photocopy of the MLC of the injured/ petitioner Sachin Kumar has been placed on record along with the DAR which shows that the injured was brought to Lok Nayak Hospital on 27.11.2018 at 2:31 PM with alleged history of RTA followed by fall from height near Kali Mandir. The Discharge Summary of the injured/ petitioner which is Ex.PW1/1 shows that he had suffered comminuted Fracture Humerus (Compound) with Fracture Olecranon right with Fracture Radius Neck Right; Fracture D11, Edema D10 Vertebra, which injuries were opined to be Grievous in Nature. Therefore, it stands established that the petitioner Sachin Kumar had sustained Grievous Injuries in the accident in question. (13) Now coming to the aspect of rashness and negligence so attributed to the respondent no.1 Pawan Gupta. I may note that the present case has been registered on the basis of statement of the injured/ petitioner Sachin Kumar who had alleged that on 27.11.2018 at DDU Marg Near Kali Mata Mandir he was repairing bulb of Pole with the help of Boom Lift of Crane bearing No. DL1M8885 and in the meantime, the offending car bearing registration No. DL5CH9865 Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 8 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:02:55 +0530 came which was driven by the respondent no.1 Pawan Gupta in a rash and negligent manner and hit the crane Tower Vegan bearing No. DL 1M8885 due to which the petitioner fell down from the lift and had suffered grievous injuries.
(14) I may observe that as a general rule, the petitioner is required to prove negligence but in certain cases where the injured is only able to prove the accident but is unable to prove the origin of negligence, then under the given circumstances the principle of res ipsa loquitur if found applicable, can always be considered. Sir William Erle in the case of Scott vs. London & St. Katherine Docks Co. reported in (1865) 3 HC 596 applied the said principle and observed as under:
".....Where the thing is shown is under the management of the defendant or his servants and the accident is such, as in the ordinary course of things does not happened, if those who have the management use proper care. Then in the absence of any explanation by the defendant, it can be presumed that the accident arose for want of care. In such cases mere happening of the accident affords a reasonable evidence in the absence of any explanation by the defendant that it was due to the negligence of the defendant......"
(15) This doctrine of res ipsa loquitur squarely applies to the facts of the present case as no evidence to the contrary has come on record. I have perused the copies of Mechanical Inspection Reports of both the vehicles i.e. the accidental vehicle (Boom Crane) and the offending vehicle, which form a part of the DAR. The Mechanical Inspection Report of vehicle bearing No. DL1M8885 (SML 6 Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 9 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:03:01 +0530 wheeler fitted with electric pole repair hoist crane) shows that there were following fresh damages:
1. Left side rear down safety pipe (yellow/ white colour dent/ scratched)
2. Left side Read Back light damage.
3. Left side rear angle iron back light protector angle iron frame dented/ pressed.
(16) Further, the Mechanical Inspection Report of the offending vehicle bearing No. DL5CH9865 (Maruti Ritz Vxi) shows that there were following fresh damages:
1. Front bumper/ 2 front grills/ right headlight damage.
2. Right side front bonnet/ dented/ pressed.
3. Right side front fender pressed/ damaged.
4. Right side front wind screen glass damaged.
5. Right side water bottle damaged.
6. Right side front suspension assembly damaged.
(17) The above Mechanical Inspection Reports confirms and corroborates the testimony of the petitioner/ injured that the offending vehicle i.e. Maruti Ritz bearing No. DL5CH9865 had hit from its right side to the Boom Crane bearing No. DL1M8885 on its back side while the Boom Crane was standing.
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 10 of 26
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.07.29 17:03:09
+0530
(18) Even otherwise, the entire testimony of the petitioner in this
regard has gone unrebutted and uncorroborated since the respondent no.1 Pawan Gupta did not appear before the Court and was proceeded exparte.
(19) In view of the above coupled with the fact that the respondent no.1 Pawan Kumar has been made an accused in FIR No. 310/2018, PS Kamla Market under Section 279/338 IPC and has also been charge sheeted in the case, I hereby hold that the petitioner Sachin Kumar had received grievous injuries in a Road Traffic Accident which took place on 27.11.2018 at 2.10 PM at DDU Marg, Near Kali Mata Mandir, P.S. Kamla Market, New Delhi due to rash and negligent driving of Car bearing No. DL5CH9865 by the respondent no.1 Pawan Gupta. (20) Issue is accordingly decided in favour of the petitioner and against the respondents.
Issue no.2: Whether the petitioner is entitled to any compensation? If yes, to what extent and from whom?
(21) Onus of proving this issue was upon the petitioner/ injured Sachin Kumar. The case of the petitioner is that he had spent Rs.5,00,000/ on his medical treatment; Rs.50,000/ towards conveyance; Rs.50,000/ on special diet and he has to spend Rs.2,00,000/ for his future treatment. In his affidavit of evidence Ex.PW1/A the petitioner is claiming a total compensation to the tune of Rs.20,00,000/ whereas in his written memorandum of arguments he is claiming a total compensation of Rs.15,25,000/. On the other hand, the Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 11 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:03:15 +0530 Insurance Company has offered a compensation to the tune of Rs.98,300/.
(22) I have considered the arguments advanced before me and the evidence on record.
(23) Coming first to the medical expenses incurred by the petitioner. It stands established that the petitioner had sustained Grievous Injuries in the accident. The petitioner has placed on record the various original medical bills which are collectively Ex.PW1/4 (Page no. 1 to 40), details of which are put in a tabulated form as under:
S. No. Particulars Date Amount in Rs.
1. Bill issued by Maharaja 02.12.2018 1,78,753/
Agrasen Hospital
2. Bill of Naurang Hospital, 25.02.2019 400/
Aligarh
3. Bill of Physio Step 12.02.2019 to 1,600/
Physiotheraphy & Health 28.02.2019
Care Centre
4. Dr. V.K. Sahni 11.03.2019 1,600/
consultation fee
5. Bill of Harsh Medical 18.03.2019 540/
Store
6. Bill of Physio Step 01.03.2019 to 3,800/
Physiotheraphy & Health 07.04.2019
Care Centre
7. Dr. V.K. Sahni 08.04.2019 1,500/
consultation fee & Xray
Charges
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 12 of 26
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.07.29 17:03:23 +0530
8. Bill of Harsh Medical 15.04.2019 500/
Store
9. Tax Invoice of Pharmacy 02.12.2018 210/
a unit of Sitra Biotech
10. Bill of Harsh Medical 04.12.2018 3,104/
Store
11. Bill of Harsh Medical 15.12.2018 590/
Store
12. Dr. V.K. Sahni 15.12.2018 1,800/
consultation fee & Xray
Charges
13. Cash Memo of A.R. 17.12.2018 2,200/
Surgical
14. Bill of Harsh Medical 28.12.2018 495/
Store
15. Dr. V.K. Sahni 10.01.2019 1,600/
consultation fee & Xray
Charges
16. Bill of Harsh Medical 14.01.2019 630/
Store
17. Bill of Harsh Medical 08.02.2019 540/
Store
18. Dr. V.K. Sahni 09.02.2019 1,600/
consultation fee & Xray
Charges
Total 2,01,462/
(24) The case of the respondent no.2 HDFC Ergo General Insurance
Company is that the injured/ petitioner was having a separate Health Insurance Policy with Cigna TTK Heath Insurance Company Limited with Cashless Facility and the medical bill of Rs.1,78,753/ has already Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 13 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:03:29 +0530 been reimbursed to him.
(25) I have gone through the documents placed on record. I may observe that as per the bill issued by Maharaja Agrasen Hospital (Ex.PW1/4 page no.26 to 34) the injured/ petitioner was admitted in the hospital on 28.11.2018 and was discharged on 02.12.2018 and was having a Panel of Cigna TTK Heath Insurance Company Limited. However, there is no evidence on record to show that the injured/ petitioner Sachin Kumar had received any amount from the said Health Insurance Company towards the above bill of Rs.1,78,753/ or that he had availed the Cashless Facility. Rather, the medical bill issued by Maharaja Agrasen Hospital collectively Ex.PW1/4 (page no. 34) shows that the hospital had received a sum of Rs.1,78,753/ as Advance for the patient Sachin Kumar on different dates i.e. Rs.20,000/ on 28.11.2018 vide RC No. 627887; Rs.1,30,000/ on 01.12.2018 vide RC No. 628761 and Rs.28,753/ on 02.12.2018 vide RC No. 629116 and two such Advance Receipts bearing No. 628761 and 629116 also form a part of Ex.PW1/1. I may also note that the injured/ petitioner Sachin Kumar (PW1) has specifically deposed in his crossexamination that he did not get any reimbursement from M/s. Cigna TTK Health Insurance Company Ltd. The Insurance Company has not led any evidence to rebut the testimony of the petitioner.
(26) This being the background, I hereby hold that the petitioner is entitled to compensation for a sum of Rs.2,01,462/ towards medical expenses. It is hereby clarified that in case if ultimately it is found that Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 14 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:03:35 +0530 M/s. Cigna TTK Heath Insurance Company Limited was liable to pay the amount towards medical expenses, the respondent no.2 Insurance Company shall be at liberty to recover the said amount from M/s. Cigna TTK Heath Insurance Company Limited in accordance with law. (27) In so far as the Conveyance Charges are concerned, the petitioner has placed on record the original bills (Collectively Ex.PW1/4) details of which are as under:
S. No. Particulars Date Amount in Rs.
1. Balaji Tour & Travels 07.02.2019 2,800/
2. Life Ambulance 02.12.2018 5,000/
Emergency Service
3. Life Ambulance 10.01.2019 7,500/
Emergency Service
4. Life Ambulance 15.12.2018 8,000/
Emergency Service
Total 23,300/
(28) The said bills have not been rebutted by the respondents nor
any evidence to the contrary has come on record. Hence, I hold that the petitioner is entitled to compensation of Rs.23,300/ towards Expenditure on Conveyance.
(29) In so far as the Special Diet expenses and Attendant charges are concerned, I may note that the petitioner has not placed on record any document showing any expenses incurred towards the Special Diet and Attendant Charges.
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 15 of 26
Digitally signed by KAMINI LAU
KAMINI LAU Date: 2021.07.29 17:03:41
+0530
(30) Now coming to the aspect of Income of the petitioner/ injured,
the documents on record show that the Salary Slips of the petitioner Sachin Kumar for the period November 2018 to February 2019 have been placed on record along with the DAR according to which the petitioner was working with Surya Roshni Limited as Sr. Executive (Q&CC) and was drawing a Net Salary of Rs.28,595/. However, the petitioner Sachin Kumar has specifically admitted in his cross examination that after the accident he remained on leave from his office and had also received salary from his employer. Hence, I hold that the petitioner shall not be entitled to any compensation towards loss of income.
(31) Now coming to the aspect of Disability of the petitioner. It is evident from the record that the petitioner Sachin Kumar had not suffered any kind of disability either temporary or permanent. Here, I may note that the petitioner has claimed that Rs.2,00,000/ are required for his future treatment but he has specifically admitted in his cross examination that he cannot produce any document which shows that doctor had advised him further operation wherein Rs.2,00,000/ are likely to be incurred. Therefore, I hold that the petitioner is not entitled to any amount towards future treatment.
(32) Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principals and guidelines governing the injury cases like the present one, the compensation is being derived in the present case as under:
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 16 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:03:48 +0530 NAME OF HEAD AMOUNT (in Rupees) Expenditure on treatment 2,01,462/ Expenditure on Conveyance 23,300/ Expenditure on Special Diet 15,000/ Expenditure on Nursing Attendant 15,000/ Mental & Physical Shock, Pain & 30,000/ Sufferings Total Rs.2,84,762/ (33) I may note that interest @ 9% per annum was awarded by the Hon'ble Apex Court in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy reported in 2012 ACJ 48 (SC). In the interest of justice, it is held that claimant shall be entitled to interest @ 6% per annum from the date of filing of DAR i.e. from 21.12.2019 till realization.
Disbursement:
(34) The Financial Statement of the petitioner Sachin Kumar was recorded on 22.02.2021 according to which his monthly expenses are about Rs.35,000/.
(35) This being the background and keeping in view the financial statement of the petitioner, I hereby direct that on realization of the award amount, a sum of Rs.84,762/ plus entire interest amount be released to the petitioner and the balance amount of Rs.2,00,000/ Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 17 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:03:55 +0530 (Rupees Two Lacs) shall be put in Twenty Monthly fixed deposits in his name in MACAD account in equal amount of Rs.10,000/ each for a period of 01 month to 20 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 and 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
However, the petitioner Sachin Kumar shall have the liberty to seek the release of Rs.84,762/ plus entire interest amount from the bank located within the jurisdiction of this Tribunal itself. (36) The above FDRs shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors. decided on December 07, 2018 & 08.01.2021:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 18 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:02 +0530 FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
(37) In compliance of the directions given by Hon'ble High court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed FormatXVI is as under: SUMMARY OF AWARD:
1. Date of Accident: 27.11.2018
2. Name of the Injured: Sachin Kumar Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 19 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:09 +0530
3. Age of the Injured: 31 Years
4. Occupation of the Injured: Electrician
5. Income of the Injured: Rs.28,595/
6. Nature of Injury: Grievous
7. Medical Treatment taken by LNJP & Maharaja Agrasen the injured: Hospital, Delhi
8. Period of Hospitalization: 28.11.2018 to 02.12.2018
9. Whether any permanent No disability? If yes, give details:
10. COMPUTATION OF COMPENSATION Sr. Heads Awarded by the No. Claims Tribunal
11. Pecuniary Loss:
(i) Expenditure on Treatment (as per 2,01,462/ medical bills)
(ii) Expenditure on Conveyance (as per 23,300/ bills)
(iii) Expenditure on Special Diet (no 15,000/ document)
(iv) Cost of Nursing/ attendant (no 15,000/ document)
(v) Loss of earning capacity Nil
(vi) Loss of income Nil
(vii) Any other loss which may require any Nil special treatment or aid to the injured for the rest of his life Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 20 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:17 +0530
12. Non Pecuniary Loss
(i) Compensation for mental and physical 30,000/ shock
(ii) Pain and Sufferings
(iii) Loss of amenities of life Nil
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil 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 Nil nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation Nil of life span on account of disability
(iii) Percentage of loss of earning capacity in Nil relation to disability
(iv) Loss of future income - (income x % Nil earning capacity x Multiplier)
14. TOTAL COMPENSATION Rs.2,84,762/
15. INTEREST AWARDED 6%
16. Interest amount upto the date of award 27,430/ (1 year, 7 months & 8 days)
17. Total amount including interest 3,12,192/
18. Award amount released As mentioned in para No. 35 Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 21 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:25 +0530
19. Award amount kept in FDRs As mentioned in para No. 35
20. Mode of disbursement of the award As mentioned in amount of the claimant(s) para No. 35
21. Next date for compliance of the award 03.09.2021 Liability:
(38) In so far as the liability to pay the award amount is concerned, since the offending vehicle bearing No. DL5CH9865 was being driven by respondent no.1 Pawan Gupta who is also its registered owner and the offending vehicle was insured with respondent no.2 HDFC Ergo General Insurance Co. Ltd. therefore both shall be jointly and severally liable to pay compensation to the petitioner but since the vehicle was duly insured with respondent no.2 i.e. HDFC Ergo General Insurance Co. Ltd. as on the day of accident, it is respondent no.2 HDFC Ergo General Insurance Co. Ltd. who is ultimately held liable to indemnify the insurance and to pay the compensation amount to the petitioner under the statutory liability. (39) Issue is accordingly decided in favour of the petitioner and against the respondents.
RELIEF:
(40) Since the offending vehicle was insured with the respondent no.2 HDFC Ergo General Insurance Co. Ltd. therefore, the respondent no.2 is directed to deposit a sum of Rs.2,84,762/ (Rupees Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 22 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:30 +0530 Two Lacs, Eighty Four Thousand, Seven Hundred Sixty Two only) with interest @ 6% per annum from the date of filing of DAR i.e. 21.12.2019 till realization with the Civil Nazir of this Tribunal within 30 days under intimation to the petitioners failing which insurance company shall be liable to pay interest @ 12% per annum for the period of delay beyond 30 days.
(41) The Insurer of the offending vehicle is also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days. (42) A copy of this judgment be sent to the respondent No.2 i.e. HDFC Ergo General Insurance Co. Ltd. for compliance within the time granted. Respondent No.2 HDFC Ergo General Insurance Co. Ltd. is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with upto date interest with a copy to the counsel for the claimant namely Ms. Babita Tyagi Advocate, Chamber No. 197, Civil Wing, Tis Hazari Courts, Delhi 110054, Mob. No. 9811396345.
(43) Civil Nazir is directed to place a report on record on 03.09.2021 in the event of nonreceipt/deposit of the compensation amount within the time granted.
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 23 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:37 +0530 (44) A copy of this award be sent to the concerned court of Ld.
Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(45) File be consigned to Record Room. Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:45 +0530 Announced in the open court (Dr. KAMINI LAU) Dated: 29.07.2021 PO, MACT01 (Central), Tis Hazari Courts, Delhi Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 24 of 26 FORM - XVII
COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 27.11.2018 2 Date of filing of FormI - First Accident Not Applicable being an old Report (FAR) case 3 Date of delivery of FormII to the victim(s) Not Applicable being an old case 4 Date of receipt of FormIII from the Driver Not Applicable being an old case 5 Date of receipt of FormIV from the Owner Not Applicable being an old case 6 Date of filing of the FormV - Interim Not Applicable being an old Accident Report (IAR) case 7 Date of receipt of FormVIA and Form VIB Not Applicable being an old from the Victim(s) case 8 Date of filing of FormVIII - Detail Accident 21.12.2019 Report (DAR) 9 Whether there was any delay or deficiency on the part of the Investigating Officer? If so, No whether any action/direction warranted? 10 Date of appointment of the Designated Officer by the Insurance Company 15.02.2020 11 Whether the Designated Officer of the Yes Insurance Company admitted his report within 30 days of the DAR?
12 Whether there was any delay or deficiency on No the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13 Date of response of the claimant(s) to the offer 20.08.2020 of the Insurance Company.
14 Date of award 29.07.2021 Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 25 of 26 Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:51 +0530 15 Whether the claimant(s) were directed to open Yes
savings bank account(s) near their place of residence?
16 Date of order by which claimant(s) were directed to open Savings Bank Account(s) near 21.12.2019 his place of residence and produce PAN card and Aadhaar Card and the direction to the bank not to issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s).
17 Date on which the claimant(s) produced the passbook of their savings bank account(s) near 22.02.2021 the place of their residence alongwith the endorsement, PAN card and Aadhaar Card?
18 Permanent residential address of the As per Award claimant(s).
19 Whether the claimant(s) savings bank Yes account(s) is near their place of residence? 20 Whether the Claimant(s) were examined at the Yes. Financial Statement f the time of passing of the Award to ascertain petitioner was recorded.
his/their financial condition?
Digitally signed by KAMINI LAU KAMINI LAU Date: 2021.07.29 17:04:58
+0530
(Dr. KAMINI LAU)
PO, MACT01 (Central),
Tis Hazari Courts, Delhi/ 29.07.2021
Sachin Vs. Pawan Gupta & Anr., MACT No. 982/2019, Award dated 29.07.2021 Page No. 26 of 26