Delhi District Court
27513 Devender Pal vs Gagan Dhawan Page 1 Of 21 on 28 November, 2018
27513 Devender Pal vs Gagan Dhawan Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 4991516
MACT PETITION No. : 27513
UNIQUE ID No. : DLNW010007472013
Sh. Devender Pal S/o Sh. Bhagwan Singh
R/o H. No. C78, Gali No. 6, Mohan Puri,
Maujpur, New Delhi53
........ Petitioner
Vs.
1. Sh. Gagan Dhawan S/o Sh. B.N. Dhawan
R/o C4/126, Keshavpuram, Delhi.
....... Driver cum owner/R1
2. Bharti AXA General Insurance Co. Ltd.
Himgiri Cars Pvt Ltd.
B99, Wazirpur Indl. Area, Delhi52
..... Insurance co/R2
Other details
DATE OF INSTITUTION : 29.05.2013
DATE OF RESERVING JUDGMENT : 28.11.2018
DATE OF PRONOUNCEMENT : 28.11.2018
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
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1. Date of the accident 26.10.2012
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2. Date of intimation of the accident by the 29.05.2013
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 29.05.2013
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
(Clause 10)
5. Date of filing of Detailed Accident Information 29.05.2013
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 29.05.2013
Company (Clause 11)01.12.2014
7. Date of service of DAR on the claimant (s). 29.05.2013
(Clause 11)
8. Whether DAR was complete in all respects? Yes
(Clause 16)
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents Yes.
filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No.
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 29.05.2013
by the insurance Company. (Clause20)
13. Name, address and contact number of the Sh. V.K. Gupta,
Designated Officer of the Insurance Company. Advocate
(Clause 20)
14. Whether the designated Officer of the Insurance No.
Company submitted his report within 30 days of
the DAR? (Clause 20)
15. Whether the insurance company admitted the No.
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on N/A
the part of the Designated Officer of the
Insurance Company? If so, whether any
action/direction warranted?
27513 Devender Pal vs Gagan Dhawan Page 3 of 21
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17. Date of response of the claimant (s) to the offer No Legal offer given.
of the Insurance Company .(Clause 24)
18. Date of the Award 28.11.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 10.05.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 03.08.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner
claimant(s) and the address of the bank with Devender Palsavings
IFSC Code (Clause 27) bank a/c no.
37769820630 with
State Bank of India,
Ghonda Branch,
Delhi,
IFSC : SBIN0006818
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
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1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 29.05.2013 with reference to FIR No. 304/12 U/s 279/337 IPC PS Keshav Puram in respect of grievous hurt sustained by the petitioner Devender Pal in a road accident on 26.10.12 at about 09:00 am near police booth Chandani Picket, Keshav Puram, Delhi. The ld. Predecessor of this court vide order dated 29.05.2013 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act').
It is pertinent to note that petitioner has also filed a petition u/s 166/140 of M.V. Act on 04.09.2014.
2. Brief facts of the case as mentioned in the DAR/file are that on 26.10.2012 at about 9:00 am, petitioner along with pillion rider namely Vikash Sharma was coming on his motorcycle bearing no. DL4SAG 1507 from Trinagar and going toward Shalimar Bagh. When they reached near police booth, Chandni Picket, Keshavpuram, Delhi, suddenly a car bearing registration no. DL8CAA6006 (hereinafter referred to as "offending vehicle" ) which was being driven by respondent no. 1 at a very fast speed, rashly and negligently manner came and hit the bike of petitioner. Due to said impact, the petitioner sustained grievous injuries. It has been stated that after hitting the vehicle of petitioner, R1 took both the injured person in his car and admitted them in M.G.S. hospital, Punjabi Bagh, Delhi. The FIR no.304/12 PS Keshav Puram was registered u/s 279/337 IPC.
3. Sh.Gagan Dhawan/R1/driver cum owner of the offending vehicle has not filed his written statement and was ultimately proceeded against exparte vide order dated 16.11.2017.
4. Bharti Axa General Insurance Co/R2 has also not filed its written statement, however, the cover note is on record which shows that the offending vehicle was insured with the said insurance co. in the name of Sh. Gagan Dhawan valid from 19.09.2012 to 18.09.2013 i.e. covering the date of accident 26.10.2012.
27513 Devender Pal vs Gagan Dhawan Page 5 of 21 27513 Devender Pal vs Gagan Dhawan Page 6 of 215. From the pleadings of the parties, the issues were framed by learned Predecessor of this court vide order dated 21.01.2016 as under :
1. Whether on 26.10.12 at about 9:00 am, near Police Booth Chandni Picket, Keshavpuram, Delhi, one vehicle bearing registration no. DL8CAA6006, which was being driven rashly and negligently by Gagan Dhawan hit the motorcycle bearing registration no. DL4SAG1507 and caused injuries to Devender Pal?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
The petitioner/injured in support of his case has examined himself as PW1 and Dr. Rajiv Kumar, Assistant Professor, ENT, AIIMS as PW2.
The record would show that respondents have not examined any witness in support of their case.
6. I have heard arguments addressed on behalf of ld counsel for petitioner and ld counsel for R2/Insurance co and have carefully perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
7. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
The petitioner/injured has examined himself as PW1. He has filed his evidence by way of affidavit as Ex. PW1/A. He has proved the certified copy of FIR as Ex. PW1/1, MLC as Ex. PW1/2, disability certificate as Ex. PW1/3, three discharge summaries as Ex. PW1/4 (colly), medical bills as Ex. PW1/5 (colly) and copy of OPD treatment card issued by AIIMS as Ex. PW1/6 (colly).
27513 Devender Pal vs Gagan Dhawan Page 6 of 21 27513 Devender Pal vs Gagan Dhawan Page 7 of 21He deposed in his evidence by way of affidavit Ex. PW1/A that on 26.10.2012 at about 9:00 am, he along with pillion rider namely Vikas Sharma was coming on his motorcycle bearing no. DL4SAG 1507 from Trinagar and were going toward Shalimar Bagh. He deposed that when they reached near police booth, Chandni Picket, Keshavpuram, Delhi, suddenly a car bearing registration no. DL8CAA 6006 ( "offending vehicle" ) which was being driven by respondent no. 1 at a very fast speed, rashly and negligently manner came and hit his bike. He deposed that due to said impact, he sustained grievous injuries. He deposed that after hitting his vehicle, R1 took both the injured person in his car and admitted them in M.G.S. hospital, Punjabi Bagh, Delhi.
PW1 was not cross examined on behalf of R1 and his cross examination by R1 was nil, opportunity given. R1 shall thus be deemed to admit the above said testimony of PW1 to the effect that the case accident was caused by offending vehicle being driven by him in a rash and negligent manner.
PW1 was cross examined on behalf of insurance co/R2 wherein he inter alia deposed that he was driving his motorcycle besides the divider and he had to go towards left side of the road which was about 100 meter away from the spot of accident. He deposed that offending vehicle came from his left side service road and there was no traffic signal on the road from where the offending vehicle came. He denied the suggestions that the accident took place with some other vehicle due to his own rash and negligent driving of his motorcycle or that he was driving his motorcycle in gross violation of traffic rules and regulations or that the offending vehicle has falsely been implicated in this case.
Nothing material has come on record in cross examination of PW1 to shake his version regarding the manner in which the said accident was caused by R1 while driving the above said offending 27513 Devender Pal vs Gagan Dhawan Page 7 of 21 27513 Devender Pal vs Gagan Dhawan Page 8 of 21 vehicle in a rash and negligent manner.
In the facts and circumstances, the copies of FIR and charge sheet u/s 279/337/338 IPC against respondent no. 1 can also be looked into to determine the negligence on the part of respondent no. 1. There is thus nothing on record to suggest even remotely that R1 did not cause the said accident in the manner as deposed on behalf of the petitioner. Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material as placed on record and in view of above discussion, there is no reason to disbelieve the version of the petitioner and hence, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent no.1.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
8. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
Petitioner has filed his evidence by way of affidavit as Ex. PW1/A. He deposed that due to the accident, he sustained dangerous injuries. He deposed that he was admitted in M.G.S hospital, Punjabi Bagh, New Delhi. He deposed that after discharge from MGS hospital, he was treated in AIIMS hospital for left facial palsy and left ear tinnitus from 08.01.2013 to 24.07.2014.
Petitioner has examined Dr. Rajiv Kumar, Assistant Professor, ENT, AIIMS hospital, Delhi as PW2 who has proved the disability certificate of petitioner as Ex. PW1/3. He deposed that as per the disability certificate, the hearing disability of both ears qua the patient was 29.15% and the said disability would be permanent in nature.
27513 Devender Pal vs Gagan Dhawan Page 8 of 21 27513 Devender Pal vs Gagan Dhawan Page 9 of 21To a court question witness deposed that as per WHO guidelines, it was only a moderate hearing loss and the patient could very well continue with his work of maintenance/repair of gold chain making machine with the said disability. He deposed that the patient had 43.33 decibles hearing loss in the right ear and 50 decibles loss in the left ear. He deposed that hearing loss did not impair in any way the sleep of a patient and that the patient may feel some difficulty in communication with other persons. He also replied to a court question that the patient was also suffering from tinnitus and in the said ailment a buzzing sound or a ringing sound may be perceived by the patient. He deposed that tinnitus was not curable, however, they gave the patient some therapies to make him understand that he could continue with his life style despite the ailment and could adjust to it.
He was cross examined only on behalf of insurance co/R2 wherein he interalia deposed that he had not brought the original of the said certificate which was in his MS office and also in the department, however, he had seen the original copy which was also with the patient. He deposed that the disability as mentioned in Ex. PW1/3 could also happen due to other reasons besides the accident and ear disease could also lead to hearing loss. He deposed that he had no evidence to suggest that the accidental trauma lead to the permanent disability of the patient and it could very well be present even before the accident. He deposed that if the patient had continued to follow up his treatment for tinnitus then he could have adjusted his life style so that he may not have any impact on his life style. He deposed that as the disability of the patient was only a moderate hearing loss, hence, the patient could enhance his hearing capacity with the help of hearing aids and the patient can become near to normal if he uses hearing aids.
Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner has proved the medical bills as Ex. PW1/5 (colly) and the total of the same comes to Rs. 2,42,204/. Therefore, Rs. 2,42,204/ is granted under this head.
27513 Devender Pal vs Gagan Dhawan Page 9 of 21 27513 Devender Pal vs Gagan Dhawan Page 10 of 21B. Special Diet and conveyance PW1/petitioner deposed in his evidence by way of affidavit that he had spent Rs. 30,000/ on conveyance and Rs. 70,000/ on special diet. Petitioner suffered grievous/dangerous injuries and the hearing disability of both ears was 29.15%. In view of above said discussion and taking the probable period of treatment for about 8 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
C. Attendant Charges Petitioner suffered grievous injuries and the hearing disability of both ears was 29.15% Due to his said medical condition, it is evident that he must have required the services of an attendant at least during his treatment period. In view of above said discussion and taking the probable period of treatment for about 8 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
D. Loss of future earning capacity due to disability Petitioner suffered the permanent hearing disability of both ears to the tune of 29.15% . PW2 has proved the disability certificate of petitioner as Ex. PW1/3.
The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature 27513 Devender Pal vs Gagan Dhawan Page 10 of 21 27513 Devender Pal vs Gagan Dhawan Page 11 of 21 of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
Petitioner in his affidavit Ex. PW1/A has deposed that he was doing a job work of repairing of gold chain making machine and was earning Rs. 15,000/ per month.
Petitioner/PW1 in his cross examination as conducted on behalf of insurance co/R2 has deposed that he did not have any documentary proof to show that he was employed for gain or that he was earning Rs. 15,000/ per month.
Petitioner has also not proved his any educational certificate. In view of above discussion, petitioner has failed to prove his nature of work as well as monthly income as stated in his affidavit. In view of above he be treated as an unskilled worker.
PW2 Dr. Rajiv Kumar deposed that the patient may feel some difficulty in communication with other person. He also deposed that the patient could continue with his above said work with said disability. The MLC of the petitioner is on record would also show that he suffered injuries on his ear including pinna. It seems that due to the said permanent disability, he can do same work but would not be able to work with same efficiency after the said accident and permanent disability.
In view of above discussion, the injuries suffered by the petitioner and his nature of work, the functional disability of the 27513 Devender Pal vs Gagan Dhawan Page 11 of 21 27513 Devender Pal vs Gagan Dhawan Page 12 of 21 petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 15%. In view of above said discussion, it would be appropriate to assess the income of the claimant on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of an unskilled worker at the relevant time on the date of accident was Rs. 7254/ p.m. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs. 7254/ per month on the date of accident in question. The copy of aadhar card of petitioner is on record which mentions his date of birth as 25.12.1975 which shows that petitioner was aged about 36 years & 10 months at the time of accident.
E. Addition of Future Prospects.
In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:.
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed 27513 Devender Pal vs Gagan Dhawan Page 12 of 21 27513 Devender Pal vs Gagan Dhawan Page 13 of 21 salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 by Hon'ble Delhi High Court.
The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra) after referring to the judgment of the constitution bench of Hon'ble Supreme Court of India in case of National Insurance 27513 Devender Pal vs Gagan Dhawan Page 13 of 21 27513 Devender Pal vs Gagan Dhawan Page 14 of 21 Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
In the case in hand, the petitioner was self employed and thus while determining her income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
The age of the petitioner, as discussed above, in the present case was about 36 years & 10 months and he was self employed. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 40% of the established income as he was below the age of 40 years at the time of his accident.
The monthly income of petitioner is thus calculated as 7254/ +40% of 7254/ which comes to Rs. 7254/+ Rs. 2901 (after rounding of)= Rs. 10,155/.
The age of petitioner at the time of accident was about 36 years & 10 months at the relevant multiplier of "15" is to be adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra). Accordingly, the relevant multiplier would be "15" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
The compensation is accordingly assessed towards loss of earning capacity at Rs. 2,74,185/ [(Rs. 10,155/per month x12 months x 15 (age multiplier) x 15/100(functional disability)].
27513 Devender Pal vs Gagan Dhawan Page 14 of 21 27513 Devender Pal vs Gagan Dhawan Page 15 of 21F. Loss of Amenities of Life.
As discussed above, the petitioner suffered grievous injuries and above mentioned permanent disability. The record would show that emergency exploratory laparotmy with RA sigmoid column with repair of liver with splenic repair with adhesiolysis was done him on 26.10.2012. ORIF with locking plate left ulna with A/E pop slb was done on 12.11.2012. In view of the said discussion, above mentioned injuries suffered by him, a lump sum amount of Rs. 1,00,000/ is granted under the said head.
G. Pain and Suffering As discussed above, the petitioner suffered grievous injuries and above mentioned permanent disability. The record would show that emergency exploratory laparotmy with RA sigmoid column with repair of liver with splenic repair with adhesiolysis was done him on 26.10.2012. ORIF with locking plate left ulna with A/E pop slb was done on 12.11.2012. In view of the said discussion, above mentioned injuries suffered by him, a lump sum amount of Rs. 1,00,000/ is granted under the said head.
H. Loss of Income As discussed above, his monthly income has been taken as Rs. 7254/ p.m at the time of accident. As per record, the probable period of treatment of petitioner was about 8 months. Therefore, loss of income of Rs. 58,032/ (Rs. 7254/x 8 months) is granted for 8 months.
9. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 8,74,421 / which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 1,00,000/ 2 Special diet & Conveyance Rs. 50,000/
3. Attendant Charges Rs 50,000/
4. Medical Expenses Rs. 2,42,204/ 27513 Devender Pal vs Gagan Dhawan Page 15 of 21 27513 Devender Pal vs Gagan Dhawan Page 16 of 21
5. Loss of income Rs. 58,032/
6. Loss of Earning/disability Rs. 2,74,185/
7. Loss of amenities of life Rs. 1,00,000/ Total Rs. 8,74,421/ Rounded of to Rs. 8,75,000/ ( Rupees Eight Lakhs Seventy Five Thousand only) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 29.05.2013 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
10. Liability In the case in hand, the Bharti AXA General Insurance co/R2 has not been able to show anything on record that R1, who was the driver cum owner of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid. Since the offending vehicle was duly insured with the insurance company/R2, hence R2 is liable to pay the entire compensation amount to the petitioner as per law.
Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Bharti AXA General Insurance co/R2 is directed to deposit the awarded amount of Rs. 8,75,000/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R2 to the petitioner and his advocate and to 27513 Devender Pal vs Gagan Dhawan Page 16 of 21 27513 Devender Pal vs Gagan Dhawan Page 17 of 21 show or deposit the receipt of the acknowledgement with the Nazir as per rules. R2 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
11. Statement of petitioner in terms of clause 27 MCTAP was recorded. I have heard the petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: Further, an amount of Rs. 1,00,000/ be released to petitioner in cash in his saving bank a/c no. 37769820630 with State Bank of India, Ghonda branch, Delhi i.e. the branch near his place of residence as mentioned in his statement recorded under clause 27 MCTAP with necessary endorsement regarding no cheque book and debit card in terms of orders of Hon'ble Mr. Justice J.R. Midha in FAO No. 842/2013 dated 15.12.2017 and 18.01.2018 and remaining amount be kept in 48 FDRs of equal amount for a period of one month to 48 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It shall be subject to the following further conditions and directions in terms of order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in case of Sobat Singh vs Ramesh Chandra Gupta and case of Rajesh Tyagi vs Jaibir Singh, MAC.APP . 422/2009 and FAO 842/2003 :
(a) The bank shall not permit any joint name(s) to be added in the 27513 Devender Pal vs Gagan Dhawan Page 17 of 21 27513 Devender Pal vs Gagan Dhawan Page 18 of 21 savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). 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.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
12. Relief Bharti AXA General Insurance co/R2 is directed to deposit the award amount of 8,75,000/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 29.05.2013 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R2/insurance to the petitioner and his advocate failing which the Bharti AXA General Insurance co/R2 shall be liable to pay interest @ 12% per annum from the 27513 Devender Pal vs Gagan Dhawan Page 18 of 21 27513 Devender Pal vs Gagan Dhawan Page 19 of 21 period of delay beyond 30 days.
Bharti AXA General Insurance co/R2 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimant and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to R2 for compliance within the granted time. Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
13. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded wherein he had stated that petitioner was entitled to exemption from deduction of TDS and that he would submit form 15G to the insurance co. so that no TDS is deducted.
14. Form IVB has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. The insurance co./R3 is also directed to obtain the copy of PAN card of the petitioner from the record. Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.11.28 17:05:09 +0530 Announced in open court (AMIT BANSAL) on 28th November, 2018 PO MACT N/W Rohini Courts, Delhi.
27513 Devender Pal vs Gagan Dhawan Page 19 of 21 27513 Devender Pal vs Gagan Dhawan Page 20 of 21FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 26.10.2012
2. Name of injured Devender Pal
3. Age of the injured 36 years
4. Occupation of the injured: Self Employed
5. Income of the injured. 10,155/ per month
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 8 months
8. Period of hospitalization: 7 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 29.15% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 2,42,204/
(ii) Expenditure on conveyance Rs. 25,000/
(iii) Expenditure on special diet Rs. 25,000/
(iv) Cost of nursing/attendant Rs. 50,000/
(v) Loss of earning capacity Rs. 2,74,185/
(vi) Loss of income Rs. 58,032/
(vii) Any other loss which may require any special treatment or aid to the injured for the rest of his life
12. NonPecuniary Loss:
(I) Compensation for mental and physical
shock
(ii) Pain and suffering Rs. 1,00,000/
(iii) Loss of amenities of life Rs. 1,00,000/
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(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 15% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 15% relation of disability
(iv) Loss of future income - (Income X 2,74,185/ %Earning capacity X Multiplier) (7254+40% of 7254x12x15x15%)
14. TOTAL COMPENSATION Rs. 8,75,000/
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 4,26,560/
17. Total amount including interest Rs. 13,01,560/
18. Award amount released Rs. 1,00,000/
19. Award amount kept in FDRs Rs. 12,01,560/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 16.01.2019 (Clause 31) Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.11.28 17:05:23 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
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