Delhi District Court
Manjeet Rathi vs Ajay Kumar Page 1 Of 25 on 14 May, 2019
Manjeet Rathi vs Ajay Kumar Page 1 of 25
IN THE COURT OF SH. AMIT BANSAL, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No.59817
UNIQUE ID No. : DLNW010074292017
1.Smt. Devendri Rathi W/o Late Sh. Manjeet Rathi
(injured Manjeet Rathi has since expired on 19.09.2016)
2. Ms. Ritu Rathi (daughter of injured/deceased Manjeet Rathi)
3. Sh. Paramjeet Singh Rathi (Son of injured/deceased)
All R/o 1/260, Dhirpur, Shiv Mandir Wali Gali, near Gurudwara, Delhi.
........ Petitioner/claimant
Vs.
1. Sh. Ajay Kumar S/o Sh. Meha Chand
R/o H. No. 249, Village Baprola, Delhi.
.....(Driver/R1 )
2. Sh. Onkar Singh
R/o Oberoi Maidens Hotel, Sham Nath Marg, Delhi.
....(Owner/R2 )
3.United India Insurance Company Ltd.
D2, 1st Floor, Kamla Nagar Chowk, Delhi.
....(Insurance co/R3)
..... Respondents
Other details
DATE OF INSTITUTION : 10.02.2011
DATE OF RESERVING JUDGMENT : 01.05.2019
DATE OF PRONOUNCEMENT : 14.05.2019
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 THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
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1. Date of the accident 18.11.2010
2. Date of intimation of the accident by the 10.02.2011
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 10.02.2011
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 10.02.2011
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 10.02.2011
Company (Clause 11)20.11.2012
7. Date of service of DAR on the claimant (s). 10.02.2011
(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 N/A
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 10.02.2011
by the insurance Company. (Clause20)
13. Name, address and contact number of the Sh. R.P. Mathur,
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
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Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer Legal offer not filed
of the Insurance Company .(Clause 24)
18. Date of the Award 14.05.2019
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 19.09.2018
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 28.11.2018
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 Smt.
claimant(s) and the address of the bank with Devinderi savings
IFSC Code (Clause 27) bank a/c No.
50432122010948,
Ms. Ritu savings bank
a/c 50432122010924
& Sh. Paramjeet
Singh savings bank
a/c no.
50432122010931
with Oriental Bank of
Commerce, Sant
Nirankari Colony
branch, Delhi
IFSC : ORBC0105043
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 to ascertain
his/their financial condition. (Clause 27)
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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
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 10.02.2011 with reference to FIR No.411/10 U/s 279/337 IPC PS Mukherjee Nagar and subsequent charge sheet u/s 279/337/338/304A IPC r/w Section 185 M.V. Act which was filed in respect of injuries sustained by the petitioner/ Sh. Manjeet Rathi. The ld. Predecessor of this court vide order dated 10.02.2011 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/ Manjeet Rathi has since expired during the course of proceedings on 19.09.2016 and vide order dated 04.05.2018 his LR's were taken on record.
2. The facts mentioned in the DAR/file are that on 18.11.2010 at about 10:50 pm, Sh. Manjeet Rathi (hereinafter referred to as "injured/petitioner) was going towards Village Dhirpur from his work place at BBM Depot on scooter bearing no. DL8SL7067 along with his two colleagues namely Jagdish Sisodia (deceased in connected file of MACT NO. 49977/16) and Sh. Raghav Singh {injured in connected file of MACT No. 599/17}. The said scooter was being driven by Sh. Jagdish Sisodia. When they reached at main road in front of BBM Depot, then one Tavera bearing registration no. DL1YB 1091 (hereinafter referred to as "offending vehicle) which was being driven by its driver/R1 at a high speed, rashly and negligently came from Mukherjee Nagar side and hit the scooter on which petitioner was a pillion rider. Due to the said accident, petitioner sustained grievous injuries. Petitioner was admitted in Sushruta Trauma Centre hospital, Delhi where his MLC was prepared by the doctors.
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3. R1/ Ajay Kumar and R2/ Sh. Onkar Singh who were the driver and owner respectively of the offending vehicle have filed a joint written statement (lying in connected case file of LR's of Jagdish Sisodia vs Ajay Kumar, MACT No. 4997716) wherein they have submitted that the accident was not caused due to the fault and negligence of R1. It was stated that R1 was having a valid driving licence and the offending vehicle was duly insured with R3. It was submitted that in order to extort money, the claimants have falsely implicated R1 and the accident had never taken place due to the fault of negligent driving of R1. It was further submitted that there was triple riding on the scooter, deceased Jagdish Sisodia was driving the scooter in a zig zag manner, Jagdish Sisodia was drunk and suddenly rammed the vehicle in the offending vehicle.
As per record, R1 and R2 were ultimately proceeded against exparte vide order dated 04.05.2018.
4. R3/ United India Insurance Co. Ltd has filed its written statement wherein it was stated that deceased Jagdish Sisodia was driving the scooter with two other pillion riders in violation of M.V. Act. It was further mentioned that there was a divider on the road where the accident had taken place, there was no cut in that divider in front of DTC BBM Depot and the deceased driver of the scooter after coming out from the depot with the said two pillion rider turned the scooter on right hand side instead of left side for going on the other side of the road. It was submitted that the driver of the scooter chose the wrong side of the road and R1 was driving the offending vehicle on the correct side of the road. It was submitted that the accident took place only due to sole rash and negligent driving of the deceased driver of two wheeler scooter and that there was no negligence on the part of R1. It was submitted that there is a cut in divider after some distance in left of the gate of the DTC depot BBM for taking Uturn for the other side of the road but the deceased chose wrong side of the road. It was submitted that the offending vehicle was insured with it at the relevant time i.e. 18.11.2010 vide policy no. 0404023110P001059667 valid from 20.09.2010 to 19.09.2011 in the name of R2.
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5. From the pleadings of the parties, the following issues were framed by the ld. Predecessor of this court vide order dated 06.10.2012 (in connected case file of LR's of Jagdish Sisodia vs Ajay Kumar, MACT No. 49977
16): (1) Whether on 18.11.2010 at about 10:15 pm, at Banda Bahadur Marg, BBM Depot, main road, Delhi, one Tavera bearing registration no. DL1YB1091 which was being driven rashly and negligently by Ajay Kumar/R1 hit the Scooter No. DL8SL7067 being driven by Jagdish Sisodia and caused his death and injuries to Manjeet Rathi (petitioner) and Raghav Singh i.e. pillion riders on the scooter ?
(2). Whether petitioners are entitled to compensation, if so, to what amount and from whom?
(3). Relief.
It is pertinent to note that there are three connected matters relating to the same accident titled as LR's of Jagdish Sisodia vs Ajay Kumar MACT No. 4997716, Manjeet Rathi vs Ajay Kumar, MACT No. 598/17 (present file) and Raghav Singh vs Ajay Kumar MACT No. 59917 . Vide order dated 04.05.2018, all the said three connected files were consolidated for the purpose of evidence with LR's of Jagdish Sisodia's file being the main file. It was also directed that the evidence would be read in all the files. It is pertinent to note that the testimony of Raghav Singh and Manjeet Rathi who were the injured eye witnesses were recorded in files MACT no. 59917 & 59817 (present file) respectively and said testimonies can also be read in all files. It was further an admitted position that the documents of all the files can also be read in any file as they arise out of the same accident.
6. Petitioner/Sh. Manjeet Rathi has been examined as PW2.
The record would show that respondents have not examined any Manjeet Rathi vs Ajay Kumar Page 6 of25 Manjeet Rathi vs Ajay Kumar Page 7 of 25 witness in support of their case.
7. I have heard the arguments addressed on behalf of ld counsel for petitioners and ld counsel for insurance co/R3. Now, I proceed to discuss the issues in the succeeding paragraphs.
8. Issue wise findings are as under: ISSUES NO. 1 The onus to prove this issue beyond preponderance of probabilities is upon the petitioner.
Sh. Manjit Singh @ Manjeet Rathi has been examined as PW2. PW2 has filed and proved his evidence by way of affidavit as Ex. PW2/1. The OPD card has been proved as Ex. PW2/2, his discharge slip has been proved as Ex. PW2/3, his aadhar card as Ex. PW2/4, his salary certificate has been proved as Ex. PW2/5, his disability certificate as Mark A and retirement letter as Mark B. Vide order dated 04.05.2018 in the connected file MACT No. 4997716, it was mentioned that the record would show that inadvertently the witness namely Manjeet Singh @ Manjeet Rathi has been examined as PW2 instead of PW3 and he be read as PW3.
PW3/petitioner Manjeet Rathi deposed that on 18.11.2010 at about 10:15 pm, he along with Rahav Singh (injured, ) were sitting on the pillion seat of a two wheeler scooter bearing no. DL8SL7061 which was being driven by Sh. Jagdish Sisodia (since deceased) at a normal speed and on the correct portion of the road. He deposed that he along with them were going towards residence after finishing their duty at BBM, Depot1, Mukherjee Nagar, Delhi. He deposed when they reached at Banda Bahadur Marg opposite BBM depotII then suddenly the offending vehicle which was coming from Mukherjee Nagar side and was being driven by its driver/R1 at a very high speed, rashly, negligently and without giving any horn hit the scooter due to which he sustained grievous injuries all over his body after falling down with the scooter on the road. He deposed that he was admitted to Sushruta Manjeet Rathi vs Ajay Kumar Page 7 of25 Manjeet Rathi vs Ajay Kumar Page 8 of 25 Trauma Centre, Delhi where his MLC was prepared by the doctors.
PW3 was not cross examined by R1 and R2 despite opportunity given and his cross examination by R1 and R2 was nil, opportunity given. In the said circumstances, R1 shall be deemed to admit the above said testimony of PW3 to the effect that the case accident was caused on the above said date, time and place due to the rash and negligent driving of the offending vehicle by R1 whereby he sustained injuries.
In cross examination by ld counsel for R3/insurance co., PW3 admitted that on the day of accident, they were three persons riding on the scooter and that as per law only one person can sit with driver on the scooter. He admitted that the vehicles are used to left side road driving in India. He deposed that only he and the deceased Jagidsh were wearing the helmets. He admitted that the offending vehicle was coming on its left side of the road on its correct side. He denied the suggestion that the said accident took place as Jagdish had lost his control due to shortage of sitting space on the scooter while driving the same.
Mr. Raghav Singh, another injured, was also examined as PW4 in the connected case of MACT no. 59917.
PW4 Raghav Singh who is also an eye witness in this case has deposed on the lines of PW3 Manjeet Singh regarding the happening of case accident. He was also not cross examined by ld counsel for R1 and R2 and his cross examination by them was also nil, opportunity given.
PW4 was cross examined by ld counsel for R3/Insurance co. wherein he admitted that at the time of accident, he along with two other persons were travelling on a two wheeler scooter and that the deceased Sh. Jagdish Sisodia was driving the said scooter. He admitted that they took a right turn while coming out of the depot. He denied the suggestions that there was a divider on the road where the accident had taken place or that there was no cut on the road for going on the other side of the road or that deceased Jagdish Sisodia was driving the two wheeler scooter on the wrong side of the road or that the case accident occurred due to negligence or fault Manjeet Rathi vs Ajay Kumar Page 8 of25 Manjeet Rathi vs Ajay Kumar Page 9 of 25 of the deceased. He admitted that the offending vehicle was being driven in the right (correct) direction. He admitted that they were triple riding on the two wheeler scooter at the time of accident. He admitted that they were on the side of the Depot only at the time of accident. He denied the suggestion that as they were triple riding on the said two wheeler scooter, therefore, the driver of the scooter could not control it or that therefore, the accident occurred or that there was no negligence on the part of R1.
The copy of criminal case record as part of DAR would show the mechanical inspection reports of the vehicles nos. DL1YB1091 (Tavera) and LML Scooter no. DL8SL7067 both showing fresh damages. The seizure memo of both the said vehicles is also part of the DAR. The seizure memo of driving licence R1 and the necessary documents including RC, insurance policy, permit and fitness certificate of the offending vehicle is also part of the DAR. Said documents and copy of driving licence of R1 are also part of DAR. Further, it has not been denied by any respondents that the said two vehicles were not involved in the case accident. It is also an admitted position that the offending vehicle at the relevant time was being driven by R1 and the above said scooter was being driven by deceased Jagdish Sisodia at the time of accident. As discussed above, R1 and R2 have not cross examined the eye witness/injured persons i.e. PW3 & PW4 and hence, R1 and R2 shall be deemed to admit that the case accident occurred between the offending vehicle being driven by R1 and the above said scooter being driven by the deceased Jagdish Sisodia at the above said date, time and place and that R1 was driving the offending vehicle in a rash and negligent manner.
Issue no.1 is decided in favour of petitioner and against the respondents to the effect that the case accident was caused at the above said date, time and place due to the rash and negligent driving of R1 of the offending vehicle whereby petitioner sustained injuries. Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
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9. 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. PW2/A. He deposed that due to the accident, he sustained grievous injuries on all over his body. He deposed that he was removed to Sushruta Trauma Centre, Delhi where his MLC was prepared. He deposed that thereafter he was referred to LNJP hospital, Delhi on 19.11.2010 where the concerned doctor diagnosed him with fracture of posterior wall/post column, right dislocation hip acetabulum, both bone leg middle 1/3rd GdIII compounding fracture and that he was operated on 17.12.2010 and was discharged on 19.12.2010. He deposed that he was again admitted in Lok Nayak hospital, Delhi on 17.01.2011 where he was diagnosed with posterior dislocation of right hip, post operative fracture acetabulum, fracture both bone leg right implant in situ and was discharged on 22.01.2011. He deposed that he remained admitted in Lok Nayak hospital, Delhi on 03.02.2011 where the concerned doctor diagnosed him with post d/L hip right post OP fracture, acetabulum fracture, NV BB leg right. He deposed that bone grafting was done on 06.02.2011 and he was discharged on 16.02.2011. He deposed that he was again admitted in Lok Nayak hospital on 24.03.2011 and was discharged on 11.04.2011 after his operation dated 26.03.2011.
He deposed that he suffered 44% permanent disability. Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner has proved the medical bills which ars the part of DAR. The total of the said bills comes to Rs.1,04,865/. Therefore, Rs. 1,04,865/ are granted to the petitioner under this head.
B. Special Diet and conveyance PW3/petitioner deposed that he had incurred about Rs. 80,000/ on special diet and Rs. 30,000/ on conveyance.
During cross examination as conducted on behalf of insurance co/R3, Manjeet Rathi vs Ajay Kumar Page 10 of25 Manjeet Rathi vs Ajay Kumar Page 11 of 25 he deposed that he had not filed any documentary proof regarding expenses on conveyance, special diet etc as claimed by him in para no. 4 of his affidavit. He denied the suggestion that he had not spent any amount on the above heads.
Petitioner has neither examined any witness to prove the expenditure on special diet and conveyance nor proved any bill in that regard.
As per the discharge slip of Lok Nayak hospital, the petitioner was a patient of posterior dislocation of right hip with post operative fracture acetabulum with fracture of both bone leg with in situ implants.
As per the disability certificate no. 1075 of Dr. BSA hospital, the petitioner suffered permanent disability to the tune of 44% in relation to right lower limb with diagnosis of fracture acetabulum right with THR right with fracture of both bone leg right and stiffness of hip, knee and ankle right.
In view of above 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 PW3/petitioner deposed that he had incurred about Rs. 50,000/ on attendant charges.
During cross examination as conducted on behalf of insurance co/R3, he deposed that he had not filed any documentary proof regarding expenses on conveyance, special diet etc as claimed by him in para no. 4 of his affidavit. He denied the suggestion that he had not spent any amount on the above heads.
Petitioner has neither examined any witness to prove the expenditure on attendant charges nor proved any bill in that regard.
As per the discharge slip of Lok Nayak hospital, the petitioner was a patient of posterior dislocation of right hip with post operative fracture acetabulum with fracture of both bone leg with in situ implants.
As per the disability certificate no. 1075 of Dr. BSA hospital, the petitioner suffered permanent disability to the tune of 44% in relation to right Manjeet Rathi vs Ajay Kumar Page 11 of25 Manjeet Rathi vs Ajay Kumar Page 12 of 25 lower limb with diagnosis of fracture acetabulum right with THR right with fracture of both bone leg right and stiffness of hip, knee and ankle right.
Keeping in view of the above said injuries, it is evident that the petitioner must have required the services of an attendant. In view of above said discussion and taking the probable period of treatment for about 8 months, a lump sum amount of Rs. 40,000/ is granted under the said head. D. Loss of future earning capacity due to disability Petitioner suffered above said grievous injuries and 44% permanent disability in relation to right lower limb with diagnosis of fracture acetabulum right with THR right with fracture of both bone leg right and stiffness of hip, knee and ankle right.
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 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 Manjeet Rathi vs Ajay Kumar Page 12 of25 Manjeet Rathi vs Ajay Kumar Page 13 of 25 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. PW2/A has deposed that he was a Govt. Employee working as a driver with DTC BBM Depot1, Mukherjee Nagar, Delhi and was getting salary of Rs. 15,838/ per month. He has placed his salary certificate for the month of October, 2010 on record showing his monthly salary as Rs. 15,195.41/. He has also placed on record copy of his ID card issued by DTC mentioning him as a driver with BBM DepotI. During cross examination as conducted on behalf of insurance co., he denied the suggestion that he was not getting a salary of Rs. 15,835/ per month.
Petitioner has thus proved on record his salary for the month of October 2010 as Rs. 15,195/ (after rounding of).
Further, petitioner has placed on record his driving licence which mentions his date of birth as 04.06.1959, therefore, he was aged about 51 years and 5 months on the date of accident (18.11.2010).
The record would show that during the course of proceedings, the petitioner unfortunately expired on 19.09.2016 and copy of his death certificate issued by North Delhi Municipal Corporation, Govt of NCT of Delhi is on record.
Petitioner was a driver with DTC and had suffered with 44% permanent disability in relation to right lower limb.
It seems that due to the said permanent disability, he would not be able to work as a bus driver. It is further evident that with the said permanent disability, he can however, do other nature of work that involves sitting. It is clear that with the said permanent disability he would not be able to work with same efficiency and his efficiency to work would be considerably reduced.
In view of above discussion, the injuries suffered by the late Manjeet Rathi vs Ajay Kumar Page 13 of25 Manjeet Rathi vs Ajay Kumar Page 14 of 25 petitioner and permanent disability and his nature of work (driver) at the time of accident, the functional disability of the late petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 44%.
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 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.
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(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 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 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 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 permanent employee and thus while determining his income for computing compensation, Manjeet Rathi vs Ajay Kumar Page 15 of25 Manjeet Rathi vs Ajay Kumar Page 16 of 25 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 51 years & 5 months and he was permanent employee. In view of paragraph no. 61 (iii) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 15% of the established income as he was between the age group of 50 to 60 years at the time of his accident.
The monthly income of petitioner is thus calculated as Rs. 15,195/ +15% of 15,195/ which comes to Rs. 15,195/+ Rs.2279/ (after rounding of)= Rs.17,474/.
The petitioner had expired on 19.09.2016 and his death certificate is on record. During final arguments, it was the case of claimants that the petitioner expired due to natural circumstances and not as a result of injuries sustained in the accident. The date of accident is 18.11.2010. It is thus evident that the petitioner expired after about 6 years from the date of accident.
In the said circumstances, the loss of the petitioner should be considered @ Rs. 7688/ {Rs. 17,474/ x 44(% of disability)} (after rounding of) per month. Since he died otherwise within a period of 6 years from the date of accident, hence he had suffered monetary loss of Rs. 7688/ x 12x6= Rs. 5,53,536/. My views are substantiated by the judgment of Hon'ble Delhi High Court in case of Munni Devi & Ors vs New India Assurance Co. Ltd, I (2003) ACC 623.
F. Loss of Income/leave As discussed above, the petitioner has proved his salary for the month of October 2010 by filing a salary slip as Rs. 15,195/.
The petitioner/PW3 has deposed that he remained bed ridden for about 235 days due to the accident.
In his cross examination by ld counsel for R3/Insurance co., the petitioner denied the suggestion that he was not bed ridden for 235 days.
Manjeet Rathi vs Ajay Kumar Page 16 of25 Manjeet Rathi vs Ajay Kumar Page 17 of 25 One document bearing the signatures and stamp of Depot Manager, DTC, BBM, Depot1, Delhi is on record which has been proved as Ex. PW2/5 mentioning that he took LWP (Leave Without Pay) for total 235 days.
The monthly salary of the petitioner has been taken as Rs. 15,195/. The daily salary of the petitioner would thus be Rs. 506/ (after rounding of) (Rs. 15,195/ divided by 30 days).
The loss of income/leave under this head would thus come to Rs. 1,18,910/ (Rs. 506/ x 235 days).
10. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 8,67,311/ which is tabulated as below: Sl. No Compensation Award amount
1. Special diet & Conveyance Rs. 50,000/ 2 Attendant Charges Rs 40,000/
3. Medical Expenses Rs. 1,04,865/
4. Loss of income/leave Rs. 1,18,910/
5. Loss of earning capacity due to Rs. 5,53,536/ disability Total Rs. 8,67,311/ Rounded of to Rs. 8,67,500/ ( Rupees Eight Lakhs Sixty Seven Thousand Five hundred only) The claimants are also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 10.02.2011 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.
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11. Liability
The MLC of R1 would show that smell of alcohol in his breath was positive. The record would further show that police has filed the charge sheet against him inter alia u/s 185 M.V. Act.
It has however not been proved on record that R1 had consumed alcohol beyond permissible limits at the time of accident.
In the case in hand, the United India Insurance co./R3 has not lead any evidence and has not been able to show anything on record that R1 who was the driver 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 and as per settled law. Since the offending vehicle was duly insured with the insurance company/R3, hence R3 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., United India Insurance co./R3 is directed to deposit the awarded amount of Rs. 8,67,500/ 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 R3 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 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
12. Joint statement of petitioner in terms of clause 29 MCTAP had already been recorded on 28.11.2018. I have heard the petitioner and ld. counsel for Manjeet Rathi vs Ajay Kumar Page 18 of25 Manjeet Rathi vs Ajay Kumar Page 19 of 25 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: An amount of Rs. 2,00,000/ each be given to Ms. Ritu Rathi and Sh. Paramjeet Singh Rathi i.e. daughter and son respectively of the late petitioner and from the same an amount of Rs. 20,000/ each be released to them in their saving bank a/c no. 50432122010924 (in the name of Ms. Ritu) & savings bank a/c no. 50432122010931 (in the name of Sh. Paramjeet Singh) with OBC, Sant Nirankari Colony branch, Delhi i.e. the branch near their place of residence as mentioned in their statement recorded under clause 29 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 12 FDRs of equal amount for a period of one month to 12 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
Remaining amount be given to Smt. Devinderi who is wife of the late petitioner and from the same an amount of Rs. 1,00,000/ be released to her in her saving bank a/c no. 50432122010948 with OBC, Sant Nirankari Colony branch, Delhi i.e. the branch near her place of residence as mentioned in her statement recorded under clause 29 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 36 FDRs of equal amount for a period of one month to 36 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 Manjeet Rathi vs Ajay Kumar Page 19 of25 Manjeet Rathi vs Ajay Kumar Page 20 of 25 in terms of order dated 07.12.2018 of Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :
(a) The bank shall not permit any joint name(s) to be added in the 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 monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their 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. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(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.
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(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
13. Relief United India Insurance co./R3 is directed to deposit the award amount of Rs. 8,67,500/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 10.02.2011 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 R3/insurance to the petitioner and his advocate failing which the United India Insurance co./R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
United India Insurance co./R3 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 R3 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.
It is clarified that latest directions of Hon'ble Delhi High Court regarding opening of MACT Claims SB account by the claimants in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case of Rajesh Tyagi and Ors. Vs. Jaibir Singh & Ors. FAO 842/2003 under the Motor Accident Claims Annuity Deposit (MACAD) Scheme have been given separately in the order sheet. It is further clarified that the present award has only been passed as the statement of the claimant under clause 29 of MCTAP had already been recorded. It is also clarified that if the claimant fails to comply with the said directions then the compensation amount shall not be disbursed to her till compliance of the aforesaid directions by her.
Manjeet Rathi vs Ajay Kumar Page 21 of25 Manjeet Rathi vs Ajay Kumar Page 22 of 25 In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other details Personal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
14. 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, joint statement of petitioners was also recorded wherein they had stated that they were entitled to exemption from deduction of TDS. They would submit form 15G to the insurance co. so that no TDS is deducted.
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15. 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 by AMIT AMIT BANSAL BANSAL Date:
2019.05.15 16:40:13 +0530 Announced in open court (AMIT BANSAL) on 14th May 2019 PO MACT N/W Rohini Courts, Delhi.
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FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 18.11.2010
2. Name of injured Manjeet Rathi
3. Age of the injured 51 years at the time of accident
4. Occupation of the injured: Permanent job.
5. Income of the injured. 17,474/
6. Nature of injury: Grievious
7. Medical treatment taken by the injured. For about 8 months
8. Period of hospitalization: 20 days
9. Whether any permanent disability ? If yes, give details.
44% permanent disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 1,04,865/.
(ii) Expenditure on conveyance Rs. 25000/
(iii) Expenditure on special diet Rs. 25000/
(iv) Cost of nursing/attendant Rs. 40,000/
(v) Loss of earning capacity Rs. 5,53,536/
(vi) Loss of income Rs. 1,18,910/ (loss of
income/leave)
(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
(iii) Loss of amenities of life
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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 44% 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 44% relation of disability
(iv) Loss of future income - (Income X Rs. 5,53,536/ %Earning capacity X Multiplier) (Rs. 15,195/ x 15%x44%x6x12)
14. TOTAL COMPENSATION Rs.8,67,500 /
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 6,44,118/
17. Total amount including interest Rs. 15,11,618/
18. Award amount released Rs. 1,40,000/
19. Award amount kept in FDRs Rs. 13,71,618/
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. 03.07.2019 (Clause 31) Digitally signed by AMIT AMIT BANSAL Date: BANSAL 2019.05.15 16:40:26 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
14.05.2019
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