Delhi District Court
Bibek Sundas vs . Abhay Singh & Ors. on 29 April, 2019
IN THE COURT OF SH. M. K. NAGPAL:
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL:
PATIALA HOUSE COURTS, NEW DELHI
MACP No. 53/15
Bibek Sundas Vs. Abhay Singh & Ors.
Bibek Sundas
S/o. Sh. Bijoy Kumar Sundas,
R/o. H. No.11, Mile Top Khana,
Shahi Patri, P.S. Kalingpur,
District Darjeeling, West Bengal.
Also at :-
House No.6/2, S.S. Complex, Nausena Bagh-1,
Chankaya Puri, New Delhi-21.
Presently At:-
House No.143/9, Gaushala Road,
Kishan Garh, New Delhi.
......Claimant/injured/petitioner
Versus
1. Sh. Abhay Singh
S/o. Sh. Ram Kumar Yadav,
R/o. Village Godli, Tehsil Vansur,
District Alwar, Rajasthan.
2. Delhi Transport Corporation
Through its Manager/Chairman
Central Workshop-I, BB Marg, North West Delhi-110009.
3. M/s. United India Insurance Co. Ltd.
8th Floor, Kanchanjunga Building,
K.G. Marg, Connaught Place,
New Delhi.
.....Respondents
MACP No.53/15 Page no.1 of 26
Date of filing of DAR : 13.05.2015
Date of filing of claim petition : 13.05.2015
Date of framing of issues : 29.07.2015
Date of concluding arguments : 24.04.2019
Date of decision : 29.04.2019
AWARD/JUDGMENT
1. The claim for compensation raised in the present petition relates to the injuries suffered by petitioner in an accident that took place on 19.02.2015 at about 11pm at Africa Avenue Road, Sector-2 Red Light, R.K. Puram, New Delhi, regarding which one FIR No.136/15 under Sections 279/337 IPC was registered at PS R.K. Puram. The offending vehicle involved in this case is a DTC bus bearing registration no. DL-1PC-8608, which at the relevant time of accident was driven by R-1, owned by R-2 and insured with R-3.
2. The case of petitioner, in brief, is that he is a permanent resident of West Bengal and was working with Indian Navy and posted in Delhi at the relevant time of accident. On the above day and time of accident, he was on way back to his residence in Village Kishangarh, New Delhi, from his duties on his motorcycle bearing registration no. DL-3SCH-5113 and he had stopped his motorcycle at the above red light, when suddenly the offending bus came and had hit his motorcycle from behind. The driver of bus, i.e. R-1, came out of the bus and picked him up from the road. In the meanwhile, someone informed the PCR and the petitioner was taken to AIIMS Trauma Centre, where his MLC was prepared. It is alleged that the above accident took place due to rash and negligent driving of the said bus by R-1 and on the day of MACP No.53/15 Page no.2 of 26 accident, it was owned by R-2 and insured with R-3.
3. A Detailed Accident Report (DAR) bearing no. D-166/15 about the said accident as well as this petition were both filed before this tribunal on 13.05.2015 and on the same day, the DAR file was directed to be clubbed with the petition for further proceedings.
4. R-1 & R-2 had both filed their joint reply to the petition and DAR, in which they had not denied the above accident and had admitted the impounding of their bus in the above criminal case. However, it was their submission that the above case is false and frivolous and the bus was duly insured with R-3.
5. R-3/Insurance Co. had given a legal offer of Rs.1,39,000/- for settlement of claim of the petitioner, besides the amount of medical bills or furnishing of a certificate regarding no reimbursement thereof from the employer of petitioner. However, this offer was not accepted by the petitioner.
6. From pleadings of the parties, the following issues were framed by this tribunal on 29.07.2015 for disposal of the present claim petition:-
1. Whether the injured/petitioner sustained injuries in the accident which occurred on 19.02.2015 at about 23.00 hrs at Africa Avenue Road, Sector2 Light, R.K. Puram, New Delhi caused by rash and negligent driving of vehicle No. DL1PC8608 driven by respondent no.1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the injured/petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. I have heard the arguments advanced by Ms. Kanta MACP No.53/15 Page no.3 of 26 Chaudhary, Ld. Counsel for the petitioner, Sh. Pradeep Kumar Singh, Ld. Counsel for R-1 & R-2 and Sh. Vikas Sharma, Ld. Counsel for R-3 and have also carefully perused the entire material available on record. My issue-wise findings are as under:-
8. ISSUE NO.1 It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the M.V. Act, this burden is infact even lesser than that in a civil case.
9. Reference in this regard can be made to the prepositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
10. The petitioner in support of his case has, though, examined on record total five witnesses, including himself, but it is observed that it is only his testimony which is relevant for determination of the alleged rashness and negligence on the part of R-1 as driver of the above bus because the other four witnesses examined by him are all the witnesses MACP No.53/15 Page no.4 of 26 of record only and none of them is an eye-witness of the above accident.
11. The petitioner is found to have tendered on record his examination in chief by way of his affidavit Ex.PW1/A and in the said affidavit, he has not only deposed about the factum of accident, but its manner also. He has specifically stated therein that he was driving his motorcycle at the relevant time as per the traffic rules and regulations, at a normal speed, on proper way and correct side of the road and also by abiding all the rules. He has further stated in the said affidavit specifically that he stopped his motorcycle due to red signal at the above red light, when all of sudden the above offending bus came at high speed and being driven by R-1 in a rash and negligent manner, in contravention of traffic rules, at fast speed, without blowing horn, without giving any indication and even without caring for the public life and it had hit his motorcycle from behind at a great force. He then deposed therein about his fall on the road alongwith motorcycle, the injuries suffered by him, its nature and the treatment taken etc.
12. It has been observed that this witness has not been cross examined on behalf of R-1 & R-2 despite giving a number of opportunities and even during the course of his cross-examination conducted by Ld. Counsel for R-3, he specifically denied the suggestions given to him by Ld. Counsel that the said accident occurred due to his sole negligence or that the above affidavit filed by him on record was false. In view of the above, the entire depositions made by the petitioner on record regarding the manner of accident have almost gone unchallenged, uncontroverted and unrebutted and there is no MACP No.53/15 Page no.5 of 26 reason or ground for discarding or doubting the same.
13. Moreover, besides the other documents, the petitioner has also tendered in evidence and relied upon the DAR and other documents filed with the same as Ex.PW1/7 (colly), which consist of record of the above criminal case and include not only copies of the FIR and charge-sheet of the said case, but also copies of the site plan, arrest memo of R-1, seizure memos and mechanical inspection reports of the two vehicles involved in the accident, as well as a copy of MLC of the petitioner etc. These documents clearly show the nature of injuries suffered by the petitioner in above accident was declared as grievous and R-1 has already been charge-sheeted in the above criminal case for offences punishable under Sections 279/338 IPC for causing grievous hurt on the person of petitioner by his rash and negligent driving of the said bus and thus the same also duly corroborate the testimony of petitioner on the above aspects.
14. Moreover, R-1 was the best witness who could have challenged or controverted the testimony of this witness by deposing on record about the manner of the said accident to substantiate his defence, but for the reasons best known to him he has chosen not to do so. Hence, an adverse inference can also be drawn against the respondents on this aspect, in view of the law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
15. Therefore, in view of above, it is held that the oral evidence led on record by the petitioner on this issue is duly substantiated by the documentary evidence and it stands proved that the above accident MACP No.53/15 Page no.6 of 26 resulting into injuries on the person of petitioner took place due to the rash and negligent driving of the above offending bus bearing no. DL- 1PC-8608, which was being driven by R-1, owned by R-2 and insured with R-3 at the relevant time of accident. Hence, this issue is accordingly decided in favour of the petitioner and against the respondents.
16. ISSUE NO.2 As the issue no.1 has been proved in affirmative and in favour of the petitioner, he has become entitled to be compensated for the injuries suffered in the above accident, but the computation of compensation and liability to pay the same are still required to be decided.
In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, MACP No.53/15 Page no.7 of 26 conveyance, cost of nursing/attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/ claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made some of important judgments on the subject like the judgment in the case of R.D.Hattangadi Vs. Pest Control(India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.
17. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the present case opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses MACP No.53/15 Page no.8 of 26
In his affidavit Ex.PW1/A, the petitioner has claimed that he was working in the Indian Navy (INS India) as L/MUS and was posted at Dalhousie Road, New Delhi at the time of accident. Though, he has also claimed in his affidavit that he had been under treatment till date and had spent all his deposits on his treatment, but he has not quantified the expenses borne by him from his own pocket in connection with the treatment taken by him for the injuries suffered in above accident. During the course of his cross-examination, he has though admitted that he was having medical benefits through his department, but he has also stated that he has not received any reimbursement from his office regarding his medical expenses.
He is also found to have tendered on record, inter-alia, some medical bills and payment receipts in respect of his treatment expenses as Ex.PW1/3 (colly) totaling for a sum of Rs.25,158.60, which include three bills/payment receipts issued by the Health Vista India Pvt. Ltd. totaling for a sum of Rs.6,100/- on account of physiotherapy charges. Though, no record has been summoned in evidence from the said physiotherapy center/hospital, but it is observed that the discharge summary Ex.PW1/2 of the petitioner issued by the AIIMS Trauma Centre specifically mentions that the petitioner was advised regular physiotherapy at the time of his discharge. Moreover, all the above bills/ payment receipts Ex.PW1/3 (colly) are found to be in consonance with the treatment record of petitioner.
In view of the above, under this head, the petitioner is being held entitled to only to an amount of Rs.25,160/- (rounded off) towards the medical expenses incurred by him on his treatment for the injuries MACP No.53/15 Page no.9 of 26 suffered in the above accident.
(ii) Loss of actual earnings The accident in this case took place on 19.02.2015 and as per his discharge summary Ex.PW1/2, the petitioner had suffered "APC Type II pelvis fracture with anterior column fracture left/IST metatarsophalangeal joint dislocation left". He remained hospitalized in AIIMS Trauma Centre for a period of more than one month, i.e. from 20.02.2015 to 24.03.2015, and then in Army Base Hospital from 24.03.2015 to 26.03.2015. During the course of his treatment in AIIMS Trauma Centre, he had undergone some surgeries for fixation of the above fracture injuries with implants.
Though, in his affidavit Ex.PW1/A tendered in evidence on 16.09.2015, i.e. after a period of around 7 months from the date of accident, the petitioner claims that he has not been able to join his duties till date, but during his cross-examination he is found to have specifically admitted that he had taken 28 days sick leaves and 12 days casual leaves only after the accident. This fact is even corroborated from the depositions made by PW2 Sh. Gopal Krishna, who is a witness from his office, and also the leave record of the petitioner brought by PW2 and exhibited as Ex.PW2/2.
Hence, under this head the claim of petitioner for compensation on account of loss of his actual earnings is held maintainable only for the above period of 40 days. The depositions made by the petitioner in his cross-examination that he was paid salary for the above leave period do not affect his this claim in any way, in view of the judgment of the Hon'ble Delhi High Court in case of Sandeep MACP No.53/15 Page no.10 of 26 Mishra Vs. Ajay Kumar Yadav & Ors., MAC Appeal No. 215/2010, as per which the petitioner is entitled to be compensated even for paid leaves as he could have availed of or enjoyed his leaves subsequently as per his own convenience.
Now, coming to the salary of petitioner at the relevant time of accident, it is found that in his above affidavit Ex.PW1/A, the petitioner claims that he was drawing a salary of around Rs.40,000/- pm at the time of accident. However, no salary certificate or record by the petitioner has been produced in evidence, which is nearest to the date of accident as one salary certificate produced by the petitioner himself on record as part of the documents Ex.PW1/3 (colly) pertains to the month of June, 2014 and one other salary certificate produced by PW2 as Ex.PW2/1 pertains to the month of August, 2015. As per the first salary certificate of the petitioner, his gross salary in the month of June, 2014 was Rs.33,528/- and as per the second certificate for the month of August, 2015, his gross salary in the said month was Rs.36,874/-. Hence, the salary of the petitioner at the time of accident, for the purposes of calculations in the present case, is being taken as Rs.35,000/- pm approximately.
In view of the above, under this head the petitioner is held entitled to an amount of Rs.47,000/- (rounded off) (Rs.35,000/- / 30 days X 40 days) as loss of the actual earnings caused to him due to above accident.
(iii) Loss of future earnings and prospects In the above affidavit Ex.PW1/A filed on record by way of his examination in chief, though the petitioner claimed that he had suffered MACP No.53/15 Page no.11 of 26 disability because of the injuries and he was not able to walk or stand properly, as a result thereof, but during his cross-examination, he admitted that he did not file on record any disability certificate in respect of the same.
Out of the other witnesses examined by him on record, PW3, PW4 & PW5 also deposed about some medical disability of the petitioner. PW3 Sh. Harendra Kumar was a witness from the office/unit of the petitioner and on being authorized vide letter Ex.PW3/1, he tendered in evidence the record of medical board proceedings of the petitioner as Ex.PW3/2 (colly). However, he being a non medical person was not in a position to comment on the said records/documents. However, PW4 Surgeon Commander Telkatwar Mohan Ramrao was president of the medical board, which examined the petitioner for determination of this disability and placed him in the low medical category. It will be useful to reproduce the relevant depositions made by this witness hereinunder for determining the just compensation for petitioner and almost his entire examination in chief is found to be relevant and is being reproduced herein below:-
"I was President of the board which examined injured/petitioner Sh.Bibek Sundas and thereafter issued the medical board proceedings on AFMSF-15 (Ver-2006) which is now exhibited as Ex.PW4/1 (colly) which bears my signatures at point A. The petitioner has been placed in low medical category S2A2(A) permanent w.e.f. 05.4.20016 as per the guidelines issued from the Director General Medical Services for conduct of medical boards. The petitioner has disability of pelvis fracture (APC type-2) with anterior column fracture left which he had sustained post RTA on 19.2.2015. As of now he is having implant for public diathesis in SITU. Because of these fractures involving joints has caused functional disability to the individual such as everyday passing stools in which a normal person can do the act by sitting in normal squatting position in a normal Indian toilet. Because of this disability squatting and passing stool the individual is having difficulty whereby MACP No.53/15 Page no.12 of 26 leading to sense of insecuredness wherever he is being deployed for duties and normal day to day functioning. He is also experiencing pain in supra pubic region whenever applying normal buckles of his trouser and feels sense of apprehension whenever this act is being performed or carried out. Because of this disability the petitioner is not able to perform the normal physical efficiency test which are mandatory for a soldier and can be performed by a healthy person. Because of this disability the petitioner will not be detailed for promotional courses thereby loosing his promotional opportunities in future and accordingly it will effect his further service period and pay & allowances."
It is necessary to mention here that the record/proceedings Ex.PW4/1 (colly) produced by this witness is another copy of the record/proceedings which were produced by PW3 earlier.
PW5 Chief Petty Officer Lecho Ram Swargiary is another summoned witness from the office of petitioner and on being authorized to depose before this tribunal vide letter Ex.PW5/1, he also stated on record that due to the above injury and disability suffered by the petitioner, the tenure of his service has now been reduced to fifteen years only instead of upto the age of sixty years. He further stated that the petitioner has also suffered certain loss of promotion and some other benefits and he will not be able to take any appointment as ex- serviceman in any armed forces under Home Ministry. However, he could not produce any document to substantiate the same.
When the matter was initially fixed for final arguments and the above evidence led on record was considered by this tribunal, it was felt that some further/additional evidence of the petitioner was required to bring on record the exact effects of the above injuries and disability on his service tenure or promotion etc. and hence, the petitioner was permitted to lead on record his further/additional evidence in this regard. However, despite being given sufficient time, the petitioner did not MACP No.53/15 Page no.13 of 26 summon any further evidence from his office and rather, he expressed his unwillingness to do it on the ground that their service records are being maintained at Mumbai and it will be not possible for him to locate or summon the same. However, in the meanwhile, it was stated by him that he has also been informed by his office that he was to be released from his services w.e.f. 30.09.2019, i.e. on completion of 15 years of service.
He even examined himself on record for proving the above fact and tendered on record another affidavit as Ex.PW1/B and in this affidavit, he specifically deposed about the above fact and also tendered on record, one letter/document dated 10.09.2018 titled as 'No Objection Certificate for Civil Employment', which he claims was received by him from his unit/office/headquarters at Mumbai. As per this letter, the petitioner was enrolled in Indian Navy on 24.09.2004 and he was due to be released from his services on 30.09.2019. Though, the petitioner was extensively cross examined by Ld. Counsel for R-3 during his further examination before this tribunal on 13.03.2019 on this aspect, but even during his cross-examination he stood to his above version and denied the suggestions given to him by Ld. Counsel that his release from Indian Navy on the above date was in routine and as per the initial bond of 15 years signed by him as Ex.PW1/8 and not due to his medical disability. From the depositions made by the petitioner on the above date, the depositions made by PW4 & PW5 and record of medical board proceedings of the petitioner Ex.PW4/1 (colly), which is also exhibited as Ex.PW3/2 (colly), when read in entirety and with the help of above documents, this court has no hesitation in holding that the petitioner is MACP No.53/15 Page no.14 of 26 being made to retire on 30.09.2019 only due to the above disability suffered by him in the above accident. Hence, under this head, he is required to be compensated for all the loss of earnings caused to him due to his premature release/retirement because of suffering of above permanent disability. This tribunal is of the considered opinion that he has to be compensated with reference to point of time at which he is forced to retire from this job due to the above injuries and disability and the evidence suggests that he has suffered a loss of service and earnings therefrom for a period of around 26 years.
As discussed above, the petitioner requires to be compensated for the loss of future earnings caused to him due to his premature release/retirement because of the above disability and it has to be with reference to the date or time when he has been so released/ retired. However, since no current salary certificate of the petitioner was on record, he was directed to file on record the same and accordingly, the petitioner has filed on record a copy of his salary certificate for the month of February, 2019 and same was marked as Mark-X, as Ld. Counsels for the respondents were not available on that day. Ld. Counsel for R-3 has subsequently stated that he cannot admit the said salary certificate and the same be considered by this tribunal as per law. However, Ld. Counsel for R-1 & R-2 has not appeared. The above copy of salary certificate is claimed to have been downloaded by the petitioner from the official web-site of his office and hence, this tribunal has no reason or ground to doubt the genuineness thereof.
As per this certificate, gross salary of the petitioner for the month of February, 2019 was Rs.51,857/-. The above premature MACP No.53/15 Page no.15 of 26 release/retirement of the petitioner from service is at the end of September, 2019 and by that time, petitioner shall also be entitled to one more increment and increase in dearness allowance (DA) to be announced w.e.f. July, 2019. Again, increase in DA from January, 2019 may also not be a part of this salary as the increase in DA w.e.f. January is generally announced by the end of March or in the month of April only. Hence, the tentative salary of the petitioner is being taken as Rs.54,000/- in the month of September, 2019.
In driving licence of the petitioner Ex.PW1/6, his date of birth is mentioned as 15.05.1986 and going by this document, the age of petitioner at the time of his premature release/retirement, i.e. 30.09.2019, comes to 33 years and around 4½ months and thus, the multiplier of '16' is held applicable for the purposes of calculation of loss of his future earnings.
It has been stated that the disability pension of an army official is 50% of the amount of his last drawn salary and hence, it can be said that the future monthly loss of earnings suffered by the petitioner due to the above injury/disability and premature retirement caused thereby is only 50% of the above salary amount of Rs.54,000/-, i.e. Rs.27,000/- and thus, the annual loss of earnings of the petitioner comes to Rs.3,24,000/- (Rs.27,000/- X 12). In view of the settled law on subject, only the tax liability of the petitioner, if any, is to be reduced from his above annual earnings as his 'income' means the actual income less than the tax paid, as was also approved in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017. As per the income tax slab MACP No.53/15 Page no.16 of 26 during the current financial year, i.e. at the time of his premature discharge, no income tax is required to be deduced from above amount of Rs.3,24,000/- and hence, the net annual loss of earnings of the petitioner will remain the same.
Further, the petitioner is also held entitled to 50% future prospectus in view of the law laid down by the Hon'ble Supreme Court in case of Rajesh & Ors. Vs Rajbir Singh & Ors. 2013(6) Scale 563 and by the Hon'ble Delhi High Court in the cases of Bajaj Alliance Gen. Insurance Co. Ltd. Vs. Rajeshwar Prasad & Ors., MACA 858/15 decided on 19.07.2017 and Faiyaz Ahmad Khan Vs. Chandra Pal Singh & Ors., MACA No.351/17 decided on 08.08.2017 as well as in the Constitution Bench Decision of the Hon'ble Supreme Court in case of Pranay Sethi (Supra) and as he was below the age of 40 years at the time of his premature discharge/release.
Thus, the loss of future earnings and prospects caused to the petitioner due to his above injury and premature discharge from service comes to Rs.77,76,000/- (Rs.3,24,000/- X 150/100 X 16) and the same is being awarded to him under this head.
(iv) Mental & Physical Shock, Pain & Sufferings and Loss of Amenities.
The nature of injuries and disability suffered by the petitioner and the treatment taken by him have already been discussed in detail. The disability suffered by the petitioner due to the above injuries is permanent in nature and the nature of disability and depositions made by PW4, as already reflected above, make it clear that the petitioner will have to suffer the said disability throughout his remaining life and will MACP No.53/15 Page no.17 of 26 never be able to do squatting or use the Indian toilets for his entire remaining life. This disability of squatting or sitting in normal position will even affect his day to day working. The pain and sufferings, physical as well as mental, which the petitioner might have suffered and will have to suffer in future also due to the above said injuries and disability can though not be compensated strictly in terms of money, but an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, this tribunal is of the considered opinion that the petitioner deserves to be awarded an amount of Rs.50,000/- each towards mental & physical shock and pain & sufferings and besides this, an amount of Rs.20,000/- is also awarded to him towards the loss of amenities suffered during the said period of his immobility. Thus, he is awarded a total amount of Rs.1,20,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges In his above affidavit Ex.PW1/A, the petitioner has though not quantified the amounts claimed towards the travel or conveyance expenses borne in connection with his treatment or the expenses borne on special diet during the said period, but this tribunal can still take note of both these requirements of frequent visits of the petitioner to the doctors and also of special and nutritious diet for early recovery from the said injuries. Hence, the petitioner is also being awarded an amount of Rs.20,000/- each towards special diet and conveyance. In addition, he is also being awarded another amount of Rs.50,000/- towards the gratuitous services which might have been rendered by some of his family members in taking care of him during the period of his immobility. Thus, he is being awarded a total amount of Rs.90,000/- under this MACP No.53/15 Page no.18 of 26 head.
ISSUE NO.3/RELIEF
18. The petitioner is thus awarded a sum of Rs.80,58,160/- (Rupees Eighty Lacs Fifty Eight Thousand and One Hundred Sixty only) including interest @ 9% per annum from the date of filing of DAR, i.e. 13.05.2015, till notice of deposit is given to the petitioner, alongwith a copy thereof to his counsel. The award amount shall also include the amount of interim award, if any, already passed in his favour and shall exclude the amount of interest for suspended period, if any.
19. RELEASE Out of the awarded amount, 80% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 400 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in the savings/MACT Claims SB Account bearing no. 26020100020606 being maintained at Bank of Baroda, Dr. RML Hospital, New Delhi, having IFSC No. BARB0RAMDEL and remaining 20% amount is directed to be released into his above said account. To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier.
MACP No.53/15 Page no.19 of 26 The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his above share.
The bank shall not permit any joint name (s) to be added in the savings bank account or MACAD scheme account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner near the place of his residence.
No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
It is directed that the concerned bank (s) shall not issue any cheque book and/ or debit card to the claimant in future also. However, the concerned bank (s) shall permit the petitioner to withdraw money from his savings bank account by means of withdrawal forms or biometric authentication. The Bank Manager (s) shall also ensure that all the terms and conditions contained in Form-VIII of the Modified Claims Tribunal Agreed Procedure, as amended and implemented vide the above order dated 07.12.2018 of the Hon'ble High Court passed in the above said matter, are complied with.
MACP No.53/15 Page no.20 of 26 20. LIABILITY
Though, all the respondents are jointly and severally liable to pay the amount of compensation, but since R-3 has not proved any violation of the terms and conditions of insurance policy and further that R-3 being insurer of the offending vehicle, R-3 is directed to deposit the above awarded amount, alongwith upto date interest @ 9% per annum, by way of crossed cheque/DD in name of the petitioner with the UCO Bank, Patiala House Court Branch, New Delhi, within 30 days from today failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the petitioner and his counsel through registered posts that the cheque/DD of the awarded amount is being deposited so as to facilitate him to collect his cheque/DD.
21. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
22. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above MACP No.53/15 Page no.21 of 26 case on 15.12.2017.
23. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 19.02.2015
2. Date of intimation of the accident by Not given I.O. to the Claims Tribunal.
3. Date of intimation of the accident by Not given I.O. to the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC Not given before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by IO before Claims 13.05.2015 Tribunal.
6. Date of service of DAR on Insurance 13.05.2015 Company
7. Date of service of DAR on 13.05.2015 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR ---
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency on the part of the DAR has been filed after around 2 Investigating Officer? If so, whether months of the accident any action/direction warranted?
12. Date of appointment of Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his No report within 30 days of the DAR?
15. Whether the Insurance Company Legal offer given but not acceptable to admitted the liability? If so, whether the petitioner MACP No.53/15 Page no.22 of 26 the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the Insurance Delay in filing reply Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Legal offer given but not acceptable to the offer of the Insurance Company. the petitioner
18. Date of the award 29.04.2019
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to 17.01.2019 the bank not issue any cheque book/ debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the passbook of their 12.09.2018 savings bank account near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the R/o. H. No.11, Mile Top Khana, Shahi Claimant(s) Patri, P.S. Kalingpur, District Darjeeling, West Bengal.
Also at :-
House No.6/2, S.S. Complex,
Nausena Bagh-1, Chankaya Puri, New
Delhi-21.
Presently At:-
House No.143/9, Gaushala Road,
Kishan Garh, New Delhi.
24. Details of savings bank account (s) of A/c No. 26020100020606 being the claimant(s) and the address of the maintained at Bank of Baroda, Dr. MACP No.53/15 Page no.23 of 26 bank with IFSC Code. RML Hospital, New Delhi, having IFSC Code No. BARB0RAMDEL.
25. Whether the claimant(s) savings bank account(s) is near his/her place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
24. File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on .
Digitally signed
08.08.2019. MANOJ
by MANOJ
KUMAR
NAGPAL
KUMAR Date:
NAGPAL 2019.05.04
14:41:12
+0530
Announced in the open court. (M.K.Nagpal)
on 29.04.2019 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP No.53/15 Page no.24 of 26 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB
1. Date of accident : 19.02.2015
2. Name of the injured : Bibek Sundas
3. Age of the injured : Around 29 years
4. Occupation of the injured : L/MUS in Indian Navy
5. Income of the injured : Rs.35,000/- and Rs.54,000/-
6. Nature of injury : Grievous
7. Medical treatment taken by the injured :
AIIMS Trauma Centre & Army Base Hospital
8. Period of hospitalization : 20.2.15 to 24.3.15 & 24.3.15 to 26.3.15
9. Whether any permanent disability? : Placed in low medical category by the Indian Navy and is to be discharged prematurely w.e.f. 30.09.19
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 25,160.00
(ii) Expenditure on conveyance Rs. 20,000.00
(iii) Expenditure on special diet Rs. 20,000.00
(iv) Cost of nursing/attendant Rs. 50,000.00
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.47,000.00
(vii) Any other loss which may require Nil any special treatment or aid to the injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs. 50,000.00 physical shock
(ii) Pain and suffering Rs. 50,000.00
(iii) Loss of amenities of life Rs. 20,000.00
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil MACP No.53/15 Page no.25 of 26 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 Nil and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of earning 50%
relation to disability
(iv) Loss of future income Rs.77,76,000.00
14. Total Compensation Rs.80,58,160.00
15. Interest Awarded 9% p.a. from date of filing of
DAR i.e. 13.05.2015, till
deposit within 30 days and
12% p.a. thereafter.
16. Interest amount up to the date of Rs.28,75,107.33
award
17. Total amount including interest Rs.1,09,33,267.33
18. Award amount released 20% of the amount
19. Award amount kept in the FDRs/ 80% of the amount
Motor Accident Claims Annuity
Deposit (MACAD)
20. Mode of disbursement of the award Through bank
amount to the claimant (s)
21. Next date for compliance of the 08.08.2019
award
Digitally signed
by MANOJ
MANOJ KUMAR
KUMAR NAGPAL
Date:
NAGPAL 2019.05.04
14:41:27 +0530
(M.K.Nagpal)
PO/MACT, New Delhi
29.04.2019
MACP No.53/15 Page no.26 of 26