Delhi District Court
Smt. Shanti Devi (Mother Of Deceased) vs Sh. Hari Om on 15 March, 2018
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
IN THE COURT OF SHRI VIDYA PRAKASH, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, ROHINI COURTS, DELHI
MAC Petition No. 5656/16 (Old MACP No. 218/15)
1. Smt. Shanti Devi (Mother of deceased)
W/o Sh. Budh Ram
2. Sh. Budh Ram (Father of deceased)
S/o Sh. Ram Parsad
Both R/o H.No. B5/9, Swarn Jayanti Vihar,
Tikri Khurd, Narela, Delhi. ..........Petitioners
VERSUS
1. Sh. Hari Om,
S/o Sh. Mool Chand,
R/o B2/562,
Ravi Dass Nagar,
Narela, Delhi. (Driver)
2. Sh. Ravi Kumar
S/o Sh. Satbir,
R/o 303, Near Mandir Punarvas Colony,
Pocket - 13, Sector A6,
Narela, Delhi. (Registered Owner)
3. Reliance General Insurance Co. Ltd.
105106, Express Arced Building,
H10, Netaji Subhash Place,
Delhi34.(Insurance Co.) ............Respondents
AND
MAC Petition No. 5657/16 (Old MACP No. 217/15)
1. Smt. Nazma (Mother of deceased)
W/o Sh. Rahanavi
2. Sh. Rahanavi (Father of deceased)
S/o Sh. Nosshae
Both R/o H.No. B5/72, Swarn Jayanti Vihar,
Tikri Khurd, Narela, Delhi. ..........Petitioners
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 1 of 38
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
VERSUS
1. Sh. Hari Om,
S/o Sh. Mool Chand,
R/o B2/562,
Ravi Dass Nagar,
Narela, Delhi. (Driver)
2. Sh. Ravi Kumar
S/o Sh. Satbir,
R/o 303, Near Mandir Punarvas Colony,
Pocket - 13, Sector A6,
Narela, Delhi. (Registered Owner)
3. Reliance General Insurance Co. Ltd.
105106, Express Arced Building,
H10, Netaji Subhash Place,
Delhi34.(Insurance Co.) ............Respondents
AND
MAC Petition No. 5731/16 (Old MACP No. 302/15)
1. Nand Kishor @ Nandu
S/o Sh. Amar Singh Poddar,
R/o H.No.B5/64, Swarn Jayanti Vihar,
Tikri Khurd, Narela, Delhi. ..........Petitioner
VERSUS
1. Sh. Hari Om,
S/o Sh. Mool Chand,
R/o B2/562,
Ravi Dass Nagar,
Narela, Delhi. (Driver)
2. Sh. Ravi Kumar
S/o Sh. Satbir,
R/o 303, Near Mandir Punarvas Colony,
Pocket - 13, Sector A6,
Narela, Delhi. (Registered Owner)
3. Reliance General Insurance Co. Ltd.
105106, Express Arced Building,
H10, Netaji Subhash Place,
Delhi34.(Insurance Co.) ............Respondents
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 2 of 38
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
AND
MAC Petition No. 5732/16 (Old MACP No. 303/15)
1. Mahesh
S/o Sh. Ram Swaroop,
R/o H.No. C5/84, Swarn Jayanti Vihar,
Tikri Khurd, Narela, Delhi. ..........Petitioner
VERSUS
1. Sh. Hari Om,
S/o Sh. Mool Chand,
R/o B2/562,
Ravi Dass Nagar,
Narela, Delhi. (Driver)
2. Sh. Ravi Kumar
S/o Sh. Satbir,
R/o 303, Near Mandir Punarvas Colony,
Pocket - 13, Sector A6,
Narela, Delhi. (Registered Owner)
3. Reliance General Insurance Co. Ltd.
105106, Express Arced Building,
H10, Netaji Subhash Place,
Delhi34.(Insurance Co.) ............Respondents
AND
MAC Petition No. 5733/16 (Old MACP No. 304/15)
1. Giri Bhadur @ Garish
S/o Late Sh. Kessar Singh,
R/o H.No.B5/23, Swarn Jayanti Vihar,
Tikri Khurd, Narela, Delhi. ..........Petitioner
VERSUS
1. Sh. Hari Om,
S/o Sh. Mool Chand,
R/o B2/562,
Ravi Dass Nagar,
Narela, Delhi. (Driver)
2. Sh. Ravi Kumar
S/o Sh. Satbir,
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 3 of 38
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
R/o 303, Near Mandir Punarvas Colony,
Pocket - 13, Sector A6,
Narela, Delhi. (Registered Owner)
3. Reliance General Insurance Co. Ltd.
105106, Express Arced Building,
H10, Netaji Subhash Place,
Delhi34.(Insurance Co.) ............Respondents
APPEARENCES
Sh. P.K. Mishra, Adv for petitioners/Lrs of deceased.
Sh. A.K. Singla, Adv for petitioners/injured persons.
None for R1 & R2.
Sh. Vikas Chauhan, adv for insurance co/R3.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of all these five claim
petitions with regard to fatal injuries sustained by Om Parkash (MACP No.
5656/16) and by Mursaleen(MACP No. 5657) and grievous injuries sustained
by petitioner/injured Nandu @ Nand Kishore (MACP No. 5731/16), grievous
injuries sustained by petitioner/injured Mahesh (MACP No. 5732/16) and
grievous injuries sustained by petitioner/injured Giri Bhadur @ Garish in Motor
Vehicular Accident which occurred on 21.02.2015 at about 4:00 am at main
G.T. Road, in front of Fisrat Farm House, Village Khampur, Delhi, involving
Tata Ace bearing registration no. DL1LT7513 (alleged offending vehicle)
being driven in rash and negligent manner by its driver namely Hari Om (R1
herein).
2. All these five claim petitions were consolidated for the purpose of
recording evidence vide order dated 16.09.2015 passed by my
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 4 of 38
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
Ld. Predecessor and MACP No. 5657/16 titled as " Nazma & Ors. Vs. Hari
Om & Ors" was treated as leading case. Accordingly, the evidence was led on
behalf of both the sides in the leading case for the purpose of all these five
matters.
FACTS OF THE CASES
3. According to Detailed Accident Report (DAR) filed in all these five cases, Mursaleen (since expired), Om Parkash(since expired) alongwith injured persons namely Nandu @ Nand Kishore, Mahesh and Giri Bhadur @ Garish, were coming to their home on foot from Palm Green Resort after finishing their work. When they reached at main G.T. Road, in front of Fisrat Farm House, Village Khampur, Delhi, one Tata Ace bearing registration no. DL1LT7513 which was being driven by its driver/respondent no. 1 at very high speed, rashly, negligently and without taking necessary precautions, without proper lookouts and without blowing any horn, came from back side and hit against them, as a result of which they all sustained multiple injuries. They were removed to SRHC Hospital, Narela, where after giving first aid to Mursaleen and Om Parkash, they were taken to LNJP Hospital, where they both expired during the course of treatment. FIR No. 180/15 U/s 279/338/304A IPC was registered at PS. Alipur with regard to the accident in question.
4. Before proceeding further, it may be noted here that petitioners in MACP Nos. 5656/16 and 5657/16 have also preferred separate claim petitions u/s. 166/140 M.V. Act seeking compensation for the fatal injuries sustained by Om Parkash and Mursaleen in the accident in question.
5. It is averred in MACP No. 5656/16 that Om Parkash was bachelor aged about 19 years old; was working as Waiter and was earning Rs. 12,000/ to Rs. 15,000/ per month at the time of accident in question. The petitioners are his parents and younger sister. All the petitioners were fully dependent Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 5 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 upon the income of deceased. The petitioners have claimed compensation to the tune of Rs. 30,00,000/ (under pecuniary as well as non pecuniary heads) alongwith interest against all the respondents on the ground that they are jointly and severally liable to pay the compensation amount.
6. It is averred in MACP No. 5657/16 that Mursaleen was bachelor aged about 20 years old; was working as Waiter and was earning Rs. 12,000/ per month at the time of accident in question. The petitioners are his parents, younger sisters and younger brother. All the petitioners were fully dependent upon the income of deceased. The petitioners have claimed compensation to the tune of Rs. 30,00,000/ (under pecuniary as well as non pecuniary heads) alongwith interest against all the respondents on the ground that they are jointly and severally liable to pay the compensation amount.
7. Respondents no. 1 & 2 i.e. driver and registered owner have filed separate but identical WS in all the five claim petitions, wherein they have raised preliminary objections that the alleged accident was not caused by alleged offending vehicle or by respondent no. 1. It is averred that the respondent no. 1 was having valid DL to drive the alleged vehicle which was duly insured with respondent no.3/insurance company. On merits, they have simply denied the averments made in the claim petitions and have prayed for dismissal of the claim petitions.
8. Respondent no. 3/insurance company has filed separate but identical written statements in all the five claim petitions raising statutory defence provided in Section 149(2) M.V. Act. It has not denied that the aforesaid vehicle no. DL1LT8556 was insured with it in the name of Ravi Kumar (Respondent no. 2) during the period in question, vide policy no. 1313742334000223 w.e.f. 29.07.14 to 28.07.15. On merits, the averments made in the claim petition have been simply denied for want of knowledge.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 6 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
9. From pleading of the parties, the following issues were framed in MACP No. 5656/16 by Ld. Predecessor vide order dated 16.09.2015 :
1) Whether the deceased Om Prakash suffered fatal injuries in road traffic accident on 21.02.2015 at about 4:00 am main G.T. Road, firsat ke samne, Village Khampur, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Hari Om who was driving tempo bearing registration no. DL1LT8556 bearing fake number plate with number DL1LT7513 owned by Ravi Kumar and insured with Reliance General Insurance Co.? OPP.
2) Whether the petitioners/Lrs of deceased are entitled to any compensation, if so to what amount and from whom? OPP.
3) Relief.
10. From pleading of the parties, the following issues were framed in MACP No. 5657/16 by Ld. Predecessor vide order dated 16.09.2015 :
1) Whether the deceased Mursaleen Khan suffered fatal injuries in road traffic accident on 21.02.2015 at about 4:00 am main G.T. Road, firsat ke samne, Village Khampur, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Hari Om who was driving tempo bearing registration no. DL1LT 8556 bearing fake number plate with number DL1LT7513 owned by Ravi Kumar and insured with Reliance General Insurance Co.? OPP.
2) Whether the petitioners/Lrs of deceased are entitled to any compensation, if so to what amount and from whom? OPP.
3) Relief.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 7 of 38
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
11. From pleading of the parties, the following issues were framed in MACP No. 5731/16 by Ld. Predecessor vide order dated 16.09.2015 :
1) Whether the injured Nand Kishore @ Nandu suffered injuries in road traffic accident on 21.02.2015 at about 4:00 am main G.T. Road, firsat ke samne, Village Khampur, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Hari Om who was driving tempo bearing registration no. DL1LT 8556 bearing fake number plate with number DL1LT7513 owned by Ravi Kumar and insured with Reliance General Insurance Co.? OPP.
2) Whether the injured is entitled to any compensation, if so to what amount and from whom? OPP.
3) Relief.
12. From pleading of the parties, the following issues were framed in MACP No. 5732/16 by Ld. Predecessor vide order dated 16.09.2015 :
1) Whether the injured Mahesh suffered injuries in road traffic accident on 21.02.2015 at about 4:00 am main G.T. Road, firsat ke samne, Village Khampur, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Hari Om who was driving tempo bearing registration no. DL1LT8556 bearing fake number plate with number DL1LT7513 owned by Ravi Kumar and insured with Reliance General Insurance Co.? OPP.
2) Whether the injured is entitled to any compensation, if so to what amount and from whom? OPP.
3) Relief.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 8 of 38
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
13. From pleading of the parties, the following issues were framed in MACP No. 5733/16 by Ld. Predecessor vide order dated 16.09.2015 :
1) Whether the injured Girish @ Giri Bahadur suffered injuries in road traffic accident on 21.02.2015 at about 4:00 am main G.T. Road, firsat ke samne, Village Khampur, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of Hari Om who was driving tempo bearing registration no. DL1LT 8556 bearing fake number plate with number DL1LT7513 owned by Ravi Kumar and insured with Reliance General Insurance Co.? OPP.
2) Whether the injured is entitled to any compensation, if so to what amount and from whom? OPP.
3) Relief.
14. In order to establish their claim, the petitioners have examined seven witnesses i.e. PW1 Smt. Nazma (Mother of deceased Mursaleen), PW2 Smt. Shanti Devi (mother of deceased Om Parkash), PW3 Sh. Mahesh(injured in MACP No. 5732/16), PW4 Sh. Giri Bhadur @ Garish (injured in MACP No. 5733/16), PW5 Dr. Ashutosh Gupta, PW6 Sh. Nand Kishor @ Nandu (injured in MACP No. 5731/16) and PW7 Sh. Shashi Bhushan, Record Clerk from Dr. Mukesh Ortho & Trauma Centre. They all closed their evidence on 20.11.17 through their respective counsels. On the other hand, no evidence has been adduced by either of the respondents despite grant of repeated opportunities and ultimately, RE of respondents no. 1 & 2 was closed vide order dated 23.01.2018. Insurance company also closed its evidence through its counsel on 23.01.2018.
15. I have already heard the arguments addressed by ld counsels for the parties. I have also carefully gone through the material available on record. I have also considered the authorities cited at Bar. My findings on the issues are as under: Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 9 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 ISSUE NO. 1 ( IN ALL THE THREE CASES)
16. For the purpose of this issue, the testimonies of PW3, PW4 & PW6 are relevant. According to DAR, on 21.02.2015 at about 4:00 am, all these three witnesses alongwith both the deceased namely Om Parkash and Mursaleen, were coming from Palm Green Resort after finishing their work. These three witnesses are also claimed to have sustained grievous injuries due to the accident in question
17. In his evidence by way of affidavit(Ex. PW3/A), PW3 Sh. Mahesh has deposed on the lines of averments made in the DAR petitions to the effect that on 21.02.2015 at about 4:00 am, he alongwith seven colleagues namely Giri Bhadur @ Garish, Nand Kishor @ Nandu, Muslim Khan, Om Parkash, Raj Kumar, Monu and Vikas Dass, were going towards their respective residence at Swarn Jayanti Vihar, Tikri Khurd from Palm Green Resort, Village Bakoli after finishing their work in a marriage ceremony. He further deposed that they all were on foot and were going on extreme left side on Kutcha Road of G.T.K. Raod. When they reached opposite Firsat Farm House, Village Khampur, Delhi, one Tata Ace bearing registration No. DL1LT7513 being driven by its driver at very high speed, in rash and negligent manner and without observing traffic rules, came from back side and hit against them with great impact. As a result thereof, they all fell down on the road and sustained grievous/dangerous injuries. They were immediately removed to SRHC Hospital, Narela, where their MLCs were prepared. He further deposed that the accident was caused due to rash and negligent driving by driver of Tata Ace no. DL1LT8556. FIR No. 180/15 was registered at PS. Alipur with regard to said accident. He has relied upon the following documents: Sr. No. Description of Remarks documents
1. Photocopy of his disability Ex PW3/1 certificate
2. His original discharge Ex. PW3/2(colly) Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 10 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 summary of DR. Mukesh Orthopedic and Trauma Centre
3. Original Emergency Ex. PW3/3 to Ex.
Registration Card, OPD PW3/13 Cards and treatment papers of SRHC Hospital
4. Original Medical Bills of Ex. PW3/14(25 Rs. 35,209/. bills)
5. Copy of his report Ex. PW3/15 card/result of class 8th
6. Copy of his Election I Ex. PW3/16 Card
7. Copy of his Aadhaar Card Ex. PW3/17
18. During his crossexamination on behalf of respondents, he deposed that the the accident took place by Chota Hathi/Tata Ace. He had not visited the place of accident alongwith IO after the accident. He denied the suggestion that accident did not take place due to negligent driving of vehicle bearing no. DL1LT8556.
19. The testimony of PW3 finds corroboration from the testimony of PW4 Sh. Giri Bhadur @ Garish, who has also testified on identical lines in his evidence by way of affidavit(Ex. PW4/A) that the accident took place due to rash and negligent driving of Tata Ace No. DL1LT7513 by respondent no. 1.
He has relied upon the following documents:
Sr. No. Description of Remarks
documents
1. Original Emergency Ex. PW4/1 to Ex.
Registration Card, OPD PW4/17
Cards and treatment
papers of SRHC Hospital
2. Original Rehabilitation Ex. PW4/18
OPD card Pt. Deendayal
Upadhyaya National
Institute, Narela
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 11 of 38
MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
3. Original medical bills of Ex. PW4/19
Rs. 267/.
4. Copy of certificate of Ex. PW4/20
Delhi Secondary School
Examinations 1986.
5. Copy of certificate of Ex. PW4/21
Delhi Secondary School
Examinations 1988.
6. Copies of his Aadhaar Ex. PW4/22 & Ex.
Card and Election I card PW4/23.
20. No crossexamination whatsoever ot this witness has been conducted on behalf of respondents no. 1 & 2. During his crossexamination on behalf of insurance company, PW4 deposed that at the time of accident, he alongwith his colleagues were going to their respective residence on Katcha road on GTK Karnal Road which was leading from Byepass to Singhu Border. He further deposed that Tata Ace/Chota Hathi had hit them from back side. He denied the suggestion that at the time of accident, they all were going on main road and accident took place due to their own fault.
21. The testimony of PW6 also corroborates the testimony of PW3 Sh. Mahesh and PW4 Sh. Giri Bahadur @ Garish. PW6 has also testified on identical lines in his evidence by way of affidavit(Ex. PW6/A) that the accident took place due to rash and negligent driving of Tata Ace No. DL1LT7513 by respondent no. 1. He has relied upon the following documents: Sr. No. Description of Remarks documents 1. Copy of his MLC Ex. PW6/1
2. Original Emergency Ex. PW6/2 Registration Card of SRHC Hospital 3. Copy of his marks Ex. PW6/3 statement/certificate of Delhi Secondary School Exam.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 12 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
4. Copy of his Aadhaar Card Ex. PW6/4
5. Copy of his Election I Ex. PW6/5 card
22. No crossexamination whatsoever of this witness has been conducted on behalf of respondents no. 1 & 2. During his crossexamination on behalf of insurance company, he deposed that the accident took place by Tata Ace(Chota Hathi). He denied the suggestion that the accident in question had occurred due to his own negligence.
23. Apart from PW3, PW4 & PW6, the respondent no. 1/driver of the alleged offending vehicle was the other material witness, who could have thrown sufficient light as to how and under what circumstances, the accident in question took place. However, he preferred to stay away from the proceedings. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to his rash and negligent driving of offending vehicle i.e. Tata Ace bearing registration no. DL1LT8556.
24. Moreover, it is an undisputed fact that FIR no. 180/15 u/s 279/338 IPC was registered at PS. Alipur with regard to accident in question. Copy of said FIR(which is part of DAR Ex. PW1/8 Colly), would show that same was registered on the basis of statement of Raj Kumar (alleged eyewitness), wherein he has attributed the entire negligence on the part of driver of Tata Ace in causing the accident in question. Furthermore, the said FIR is shown to have been registered on 21.02.2015 i.e. on the date of accident itself. Thus, there is no possibility of false implication of respondent no. 1 and / or false involvement of Tata Ace No. DL1LT8556 at the instance of the petitioners.
25. The very fact that the police has filed chargesheet (which is part of DAR Ex. PW1/8 Colly) before the Court of Magistrate claiming therein that it was due to rash and negligent driving of offending vehicle no. DL1LT8556 Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 13 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 by its driver namely Hari Om/R1 (accused in State case) that the accident in question had occurred, due to which Om Parkash and Mursaleen had sustained fatal injuries and Mahesh, Giri Bhadur and Nand Kishor @ Nandu had sustained grievous injuries, also points out towards the rash and negligent driving of offending vehicle on the part of respondent no. 1. All the three aforesaid injured persons have also been cited as prosecution witnesses in the list of witnesses filed with the said chargesheet.
26. Not only this, copy of PM report (which is part of DAR Ex. PW1/8 colly) of deceased Om Parkash as available on record, would reveal that he was claimed to have sustained fatal injuries in road accident and his cause of death is opined due to craniocerebral damage consequent upon blunt force trauma to head. Likewise, copy of PM report (which is part of DAR Ex. PW1/8 colly) of deceased Mursaleen as available on record, would also reveal that he was claimed to have sustained fatal injuries in road accident and his cause of death is due to Hemorrhagic shock consequent upon blunt force trauma to his body. The injuries sustained by both the deceased were antemortem in nature and were possible in road traffic accident. The MLCs (which are part of DAR Ex. PW1/8 Colly) of injured Mahesh(PW3) and of injured Girish prepared at SRHC Hospital, Narela, would further reveal that they had been removed to said hospital by PCR Officials on 21.02.2015 at 5:16 am with alleged history of Road Traffic Accident (RTA). It is mentioned in said MLCs that they had sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the aforesaid documents from the side of respondents including insurance company.
27. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that Om Parkash, Mursaleen had sustained fatal injuries, whereas petitioners/injured persons namely Mahesh, Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 14 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 Girish and Nand Kishor @ Nandu had sustained grievous injuries in the road accident which took place on 21.02.2015 at about 4.00 am at main G.T. Road, in front of Fisrat Farm House, Village Khampur, Delhi due to negligence on the part of driver of Tata Ace No. DL1LT8556. Thus, issue no. 1 is decided in favour of petitioners and against the respondents.
ISSUE NO.2
28. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Compensation Amount in MAC Petition No. 5656/16 LOSS OF DEPENDENCY
29. As already stated above, the petitioners in this claim petition have claimed that deceased Om Parkash was aged 19 years old; was working as Waiter and was earning Rs. 12,000/ to Rs. 15,000/ per month at the time of accident in question. PW2 Smt. Shanti Devi (mother of deceased) has deposed in her evidence by way of affidavit Ex. PW2/A on similar lines. She has relied upon the following documents: Sr. No. Description of Remarks documents
1. Copy of death certificate Ex PW2/1 of deceased Om Parkash
2. Copy of marksheet of 10th Ex. PW2/2 class of deceased Om Parkash
3. Copy of certificate issued Ex. PW2/3(colly) by Mahalaxmi Computer Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 15 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 Typing & Shorthand Institute
4. Copy of her Aadhaar Ex. PW2/4 Card
5. Copy of Aadhaar Card of Ex. PW2/5 Budh Ram
6. Copy of Aadhaar Card of Ex. PW2/6 Santosh
7. Copy of DAR Ex. PW1/8(colly)
30. During her crossexamination on behalf of respondents no. 1 & 2, she deposed that her son was earning Rs. 15,000/ per month, however she did not have documentary proof in this regard. She denied the suggestion that accident did not take place with Tata Ace. During her crossexamination on behalf of insurance company, she deposed that her son was working as Waiter in Palm Green Resort near Alipur since 5 to 6 years. She further deposed that she did not have any proof about the salary of her deceased son. She admitted that date of birth of her deceased son was 10.05.1997.
31. During the course of arguments, counsel for petitioners had fairly conceded that for want of cogent evidence regarding monthly income of deceased Om Parkash being available on record, his monthly income has to be assessed as that of Matriculate under Minimum Wages Act applicable during the period in question, since deceased was 10 th class passed. This fact stands duly established from copy of marksheet of 10 th class issued by Central Board of Secondary Education, Delhi (Ex. PW2/2). The said document has not been disputed from the side of respondents throughout the inquiry. The Minimum Wages of Matriculate under Minimum Wages Act were Rs. 10, 478/ per month as on the date of accident i.e. 21.02.2015.
32. In copy of 10th class marksheet ( Ex. PW2/2) of deceased, his date of birth is mentioned as 10.05.1997. The date of accident is 21.02.15. Thus, he was less than 18 years of age at the time of accident.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 16 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
33. Now, the question arises as to how the compensation has to be calculated in case of death of minor person. Hon'ble Delhi High Court in the celebrated judgment delivered in the case titled as " Chetan Malhotra Vs. Lala Ram & Ors." passed in MAC. APP. No. 554/10 decided on 13.05.2016, has held that compensation on account of death of children in Motor Vehicular Accident cases ought to be dealt with by considering the claim towards pecuniary damages (towards loss of estate), in accordance with the age group wise categories as laid down by Hon'ble Apex Court in the matter titled as "
R.K Malik Vs. Kiran Pal" reported at 2009 (14) SCC 1; the first category being of children less than 10 years' in age, the second category being of children more than 10 years' and upto 15 years' in age, and the third category of children more than 15 years' but not having attained the age of majority (18 years).
34. In the above cited decision, Hon'ble Dehi High Court further held in para 68 of the judgment that since in the claims arising out of death of children, generally speaking, (nonearning hands), the income is to be notionally assumed on the basis of the Second Schedule of the M.V Act, the general practice of deduction of onehalf (50%) towards personal and living expenses, as applied in case of bachelors above the age of 18 years would be unfair. Pertinently, the notional income specified for nonearning persons in the Second Schedule is very low as compared to the rates of Minimum Wages. Therefore, the deduction of onethird ( 1/3rd ) on this account, as provided by the first note below the Second Schedule would only be appropriate.
35. Now, again turning back to the facts of the present case. As already stated above, Master Om Parkash was aged just less than 18 years at the time of accident. By applying the dictum of law laid down by Hon'ble Delhi High Court in Chetan Malhotra's case mentioned supra, the value of notional income in respect of deceased would be Rs. 92,809.66 paise (15,000 x 1024 divided by 331)( The date of accident being 21.02.2015). The said amount is Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 17 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 rounded off to Rs. 93,000/. After making deduction of one third towards personal and living expenses of deceased, annual loss to estate would come to Rs. 62,000/(Rs. 93,000/ x 2/3). The total loss of estate would be Rs. 11,16,000/(Rs. 62,000/ x 18). Accordingly, the amount of Rs. 11,16,000/ is awarded as pecuniary damages on account of his death. Similarly, amount of Rs. 11,16,000/ is awarded as composite non pecuniary damages on account of death of said child. Thus, the total compensation amount is assessed as Rs. 22,32,000/ for the fatal injuries sustained by Om Parkash.
Compensation Amount in MAC Petition No. 5657/16 LOSS OF DEPENDENCY
36. As already stated above, the petitioners in this claim petition have claimed that deceased Mursaleen was aged 20 years old; was working as Waiter and was earning Rs. 12,000/ per month at the time of accident in question. PW2 Smt. Nazma (mother of deceased) has deposed in her evidence by way of affidavit Ex. PW1/A on similar lines. She has relied upon the following documents: Sr. No. Description of Remarks documents
1. Copy of death certificate Ex PW1/1 of deceased Mursaleen
2. Copy of marksheet of 10th Ex. PW1/2 class of deceased Mursaleen
3. Copy of her Aadhaar Ex. PW1/3 Card
4. Copy of Aadhaar Card of Ex. PW1/4 Rehanvi
5. Copy of Aadhaar Card of Ex. PW1/5 Aashma
6. Copy of Aadhaar Card of Ex. PW1/6 Saima
7. Copy of Aadhaar Card of Ex. PW1/7 Nadim
8. Copy of DAR Ex. PW1/8(colly) Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 18 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
37. During her crossexamination on behalf of respondents no. 1 & 2, she deposed that her son was earning Rs. 15,000/ per month, however she did not have documentary proof in this regard. During her crossexamination on behalf of insurance company, she deposed that her son was working as Waiter in Palm Green Resort near Alipur since last 3 to 4 years. She could not tell as to how the accident had taken place. She further deposed that she did not have any proof about the salary of her deceased son. She denied the suggestion that her son was not earning or was studying at the time of accident. She deposed that her husband is a casual labour and does not have fixed income.
38. During the course of arguments, counsel for petitioners had fairly conceded that for want of cogent evidence regarding monthly income of deceased Mursaleen being available on record, his monthly income has to be assessed as that of Matriculate under Minimum Wages Act applicable during the period in question, since deceased was 10 th class passed. This fact stands duly established from the copy of marksheet of 10th class issued by Central Board of Secondary Education, Delhi (Ex. PW1/2). The said document has not been disputed from the side of respondents throughout the inquiry. The Minimum Wages of Matriculate under Minimum Wages Act were Rs. 10, 478/ per month as on the date of accident i.e. 21.02.2015.
39. In copy of 10th class marksheet ( Ex. PW1/2) of deceased, his date of birth is mentioned as 15.02.1996. The date of accident is 21.02.15. Thus, he was aged just less than 19 years at the time of accident in question. Hence, the multiplier of 18 would be applicable in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 19 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
40. Keeping in view the fact that there was one dependent upon deceased at the time of accident(there being no evidence showing that father and siblings of deceased were also dependent upon him), there has to be deduction of 1/2 as held in the case of Pranay Sethi mentioned supra. There has to be addition of 40% towards element of future prospect in the monthly income of deceased(he being aged about 19 years at the time of accident), in view of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra as well as in view of recent decision of Hon'ble Delhi High Court in appeal bearing MAC APP No. 798/2011 titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", decided on 02.11.17. Thus, the total of loss of dependency would come out to Rs. 15,84,273.60 paise (Rs. 10,478/ X 1/2 X 140/100 X 12 X 18). Hence, a sum of Rs. 15,84,274/(Rounded off) is awarded under this head in favour of the petitioners.
LOSS OF LOVE & AFFECTION
41. After the celebrated judgment of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", mentioned supra, Hon'ble Delhi High Court in appeal titled as "Bajaj Allianz General Insurance Company Ltd. Vs. Pooja & Ors", mentioned supra, has been pleased to observe in para 18 of the judgment that the Constitution Bench decision in Pranay Sethi (supra) does not recognize any other nonpecuniary head of damages. Hence, no amount of compensation is being awarded under this head.
LOSS OF ESTATE & FUNERAL EXPENSES
42. In view of the facts and circumstances of the present case and in view of decision of Hon'ble Apex Court in the case of "National Insurance Company Ltd. Vs. Pranay Sethi & Ors." mentioned supra, a sum of Rs. 15,000/ each is awarded in favour of petitioners on account of loss of estate and funeral expenses.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 20 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 The total compensation is assessed as under:
1. Loss of dependency Rs. 15,84,274/
2. Loss of Estate & Funeral Rs. 30,000/ Expenses Total Rs. 16,14,274/ Rounded Off to Rs. 16,15,000/ Compensation in MACP No. 5731/16(Injured Nand Kishor @ Nandu) MEDICAL EXPENSES
43. PW6 Nand Kishor @ Nandu has deposed in his evidence by way of affidavit Ex. PW6/A that due to the accident in question, he had sustained local wound (1cm x 1cm) on right parietal scalp, multiple small abrasions on nasal bridge, dorsum of right hand, right side of face and left knee, punctured wound right popliteal fossa and tenderness on left side of chest. He was removed to SRHC Hospital, Narela and was discharged after gving treatment and prescribing medicines. Thereafter, he was treated as an OPD patient in private hospital. He had spent approx Rs. 10,000/ on his medical treatment. He has relied upon copies of treatment record as Ex. PW6/1and Ex. PW6/2. During crossexamination on behalf of insurance company, he denied the suggestion that he had not spent Rs. 10,000/ on his medical treatment. He was not crossexamined by respondents no. 1 & 2 despite grant of opportunity. However, the petitioner/injured has failed to file any medical bills in respect of injuries sustained by him due to the accident in question. Hence, no amount is being awarded to the petitioner under this head.
Loss of Income
44. PW6 Nand Kishor @ Nandu has deposed that he was doing the work of labourer and was earning Rs. 15,000/ per month at the time of accident. Due to accident in question, he could not work for about 2 months.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 21 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 During his crossexamination, he deposed that at the time of accident, he was earning Rs. 15,000/ per month. He further deposed that he had not placed any document with respect to his income.
45. Apart from the bald statement made by PW6 Nand Kishor @ Nandu that he was earning Rs. 15,000/per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. However, the injured has filed copy of his marksheet of 12th class which is Ex. PW6/3.
46. In the absence of any definite evidence with regard to actual avocation and monthly income of petitioner, his monthly income is being assessed as that of Matriculate under Minimum Wages Act applicable during the relevant period. The minimum wages of Matriculate were Rs. 10,478/ p.m at the time of accident. Thus, a sum of Rs. 20,956/ (Rs. 10,478/ x 2) is awarded in favour of petitioner and against the respondents under this head.
PAIN AND SUFFERING
47. Hon'ble Delhi High Court in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 22 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
48. The MLC (Ex. PW6/1) and medical treatment record (Ex. PW6/2) of petitioner/injured Nand Kishor, would show that he had sustained local wound (1cm x 1cm) on right parietal scalp, multiple small abrasions on nasal bridge, dorsum of right hand, right side of face and left knee, punctured wound right popliteal fossa and tenderness on left side of chest as already mentioned above. Keeping in view the medical treatment record of petitioner available on record, the discussion made herein above and the nature of injuries suffered by petitioner as stated above, I hereby award notional sum of Rs. 25,000/ towards pain and sufferings to him.
LOSS OF AMENITIES OF LIFE
49. Ld. Counsel of petitioner argued that the petitioner is also entitled to compensation under this head as he had sustained he had sustained local wound (1cm x 1cm) on right parietal scalp, multiple small abrasions on nasal bridge, dorsum of right hand, right side of face and left knee, punctured wound right popliteal fossa and tenderness on left side of chest due to accident in question. It can not be overlooked that the petitioner had sustained multiple injuries and would have remained confined to his residence for considerable period, during which he would not have been able to enjoy general amenities of life during said period. In view of the nature of injuries sustained by petitioner, I award notional amount of Rs. 10,000/ towards loss of general amenities of life to him.
CONVEYANCE & SPECIAL DIET
50. Although, injured as PW6 has deposed that he had spent Rs. 5,000/ to Rs. 6,000/ each towards special diet and conveyance. However, no definite evidence has been led by him to prove the same. Thus, it would involve guess work on the part of Tribunal to award notional amount under this head since petitioner would have definitely taken rich protein diet for his Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 23 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 speedy recovery. He would have also used the facility of conveyance for visiting the hospital from time to time as OPD patient during the period of his treatment. In these facts and circumstances, I hereby award a sum of Rs. 5,000/ each on account of special diet and conveyance charges to the petitioner.
Thus, the total compensation is assessed as under:
1. Loss of Income Rs. 20,956/
2. Pain & Suffering Rs. 25,000/
3. Loss of amenities of life Rs. 10,000/
4. Conveyance & Special Diet Rs. 10,000/ Total Rs. 75,956/ Rounded off to Rs. 76,000/ Compensation in MACP No. 5732/16(Injured Mahesh) MEDICAL EXPENSES
51. PW3 Mahesh has deposed in his evidence by way of affidavit Ex. PW3/A that due to the accident in question, he had sustained multiple fractures of his right hand (multiple fracture of shaft of humerus right and fracture distal end of radius right) and vision of his both eyes is reduced. He was removed to SRHC Hospital, Narela and thereafter, he was immediately shifted to Dr. Mukesh Orthopedic and Trauma Centre, Narela. During his treatment in the said hospital, his right hand was operated twice by close reduction internal fixation and interlocking nailing with BBCR and B/E Fibre cast was applied and he was discharged on 23.02.2015. He stated to have spent more than Rs. 50,000/ on his medical treatment. He has relied upon his original medical bills to the tune of Rs. 35,209/ only(Ex. PW3/14). He further deposed that rest of his medical bills and treatment papers were misplaced.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 24 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 None of respondents crossexamined the said witness on this aspect. It is quite evident that respondents have not disputed the authenticity and genuineness of the said medical bills filed on record. Accordingly, a sum of Rs. 35,209/ is awarded to him under this head.
Loss of Income
52. PW3 Mahesh has deposed that he was doing the work of labourer and was earning Rs. 15,000/ per month at the time of accident. Due to accident in question and being permanent disabled from his right hand, he had been deprived to do his work and to earn his livelihood. During his cross examination, he denied the suggestion that prior to the accident, he was not doing the work of labourer and was not earning Rs. 15,000/ per month.
53. PW7 Sh. Shashi Bhushan, Record Clerk, Dr. Mukesh Ortho & Trauma Centre, produced original admission treatment and discharge record of patient namely Mahesh S/o Sh. Ram Swaroop. He deposed that said injured was admitted in their hospital on 21.02.2015 with alleged history of RTA vide registration no. 8297 and IPD No. 8531 under Consultant Dr. Mukesh Aggarwal and was discharged on 23.02.2015. He exhibited the aforesaid record of said patient as Ex. PW7/1(colly). He also produced carbon copies of Bill Book of their hospital containing Bill Nos. 401 to 497 in which Bill No. 475 was issued to the above said patient for Rs. 25,700/. He deposed that the said amount was paid to their hospital by the patient. He exhibited the photocopy of Bill No. 475 of Rs. 25,700/ as Ex. PW7/2. He further testified that the medical bills(Ex. PW3/14) in respect of injured Mahesh, were issued by their hospital. During his crossexamination on behalf of insurance company, he deposed that he had no personal knowledge about the treatment record. However, respondents no. 1 & 2 did not crossexamine him at all.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 25 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
54. The petitioner is also found to have sustained permanent disability to the extent of 77% in relation to his right upper limb, as per Disability Certificate(Ex. PW3/1) issued by Medical Board of SRHC Hospital as well as in view of testimony of PW5 Dr. Ashutosh Gupta. Although, the petitioner has failed to file his entire treatment record showing the exact period till which his treatment actually continued but considering the nature of injuries sustained by petitioner and in view of ocular testimonies of the witnesses available on record, it is presumed that he would not have been able to work at all atleast for a period of one year or so.
55. Apart from the statement made by PW3 Mahesh that he was earning Rs. 15,000/per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. However, the injured has filed copy of his marksheet of 8 th class which is Ex. PW3/15.
56. In the absence of any definite evidence with regard to actual avocation and monthly income of petitioner, his monthly income is being assessed as that of NonMatriculate under Minimum Wages Act applicable during the relevant period. The minimum wages of NonMatriculate were Rs. 9,542/ p.m at the time of accident. Thus, a sum of Rs. 1,14,504/(9,542/ x 12) is awarded in favour of petitioner and against the respondents under this head.
PAIN AND SUFFERING
57. The medical treatment record (Ex. PW3/2 to Ex. PW3/13) of petitioner/injured Mahesh, would show that he had sustained multiple fractures of his right hand (multiple fracture of shaft of humerus right and fracture distal end of radius right) and vision of his both eyes had been reduced as already mentioned above. He is also shown to have suffered permanent disability of 77% in relation to his right upper limb. Keeping in view the medical treatment Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 26 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 record of petitioner available on record, the discussion made herein above and the nature of injuries suffered by petitioner as stated above, I hereby award notional sum of Rs. 2,00,000/ towards pain and sufferings to him.
LOSS OF AMENITIES AND ENJOYMENT OF LIFE
58. Ld. Counsel of petitioner argued that petitioner is also entitled to compensation under this head as he had sustained he had sustained multiple fractures of his right hand (multiple fracture of shaft of humerus right and fracture distal end of radius right) and vision of his both eyes has been reduced due to accident in question. It can not be overlooked that since the petitioner had sustained multiple injuries, he would have remained confined to his residence for considerable period and during which he would not have been able to enjoy general amenities of life. He is also shown to have suffered permanent disability of 77% in relation to his right upper limb. He would not be able to enjoy general amenities of life in future as well and quality of his life has also been affected. In view of the nature of injuries sustained by petitioner, I award notional amount of Rs. 2,00,000/ towards loss of general amenities and enjoyment of life to him.
CONVEYANCE & SPECIAL DIET
59. Although, injured as PW3 has deposed that he had spent Rs. 25,000/ to Rs. 30,000/ each towards special diet and conveyance. However, no definite evidence has been led by him to prove the same. Thus, it would involve guess work on the part of Tribunal to award notional amount under this head since petitioner would have definitely taken rich protein diet for his speedy recovery. He would have also used the facility of conveyance for visiting the hospital from time to time as OPD patient during the period of his treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs. 10,000/ each on account of Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 27 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 special diet and attendant charges and Rs. 5,000/ on account of conveyance charges to the petitioner.
LOSS OF FUTURE INCOME
60. As already stated above, the petitioner is shown to have sustained 77% permanent disability in relation to right upper limb. Same is quite evident from Disability Certificate dated 24.11.16 (Ex. PW3/1) of Medical Board of SRHC Hospital. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. As per the testimony of PW5 Dr. Ashutosh Gupta, the petitioner was found to have suffered 77% permanent disability in relation to right upper limb. During his crossexamination on behalf of insurance company, he denied the suggestion that the injuries mentioned in the Disability Certificate, were not sustained due to Motor Vehicular Accident. He further denied the suggestion that disability of the aforesaid patient was not assessed by Disability Board as per guidelines issued by Ministry of Social Welfare & Empowerment. However, respondents no. 1 & 2 did not cross examine him at all despite grant of opportunity.
61. It is mentioned in the Disability Certificate (Ex. PW3/1) that the case of petitioner/injured Mahesh is that of multiple fracture of shaft of humerus right and fracture distal of radius right apart from stiffness in his wrist. He is a right handed person and in view of permanent physical impairment to the extent of 77% sustained by him, the movement of his right hand has been restricted to a very great extent and he would not be able to perform most of his daily routine activities in his life and his quality of life has been affected. Keeping in view the fact that the permanent disability sustained by petitioner is in relation to right upper limb, he would have great difficulty in lifting over head objects and placing the same at the same place if required, in eating from right hand as well as in combing from right hand. He would also have moderate difficulty in lifting any type of object and he would also have difficulty in writing Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 28 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 with right hand. He would not be able to drive any kind of vehicle. Hence, his functional disability is taken as 75% with regard to whole body. (Reliance placed on "IFFCO Tokio General Insurance Company Limited Vs. Arjun & Ors.", MAC APP. No. 01/2013, decided on 04.01.2018 by Hon'ble Delhi High Court and " Oriental Insurance Company Limited Vs. Ashok Sen Gupta & Ors.", MAC APP No. 1150/2014, decided on 24.12.2014 by Hon'ble Delhi High Court).
62. The petitioner was aged about 22 years of age as on the date of accident, as averred in his affidavit in evidence(Ex. PW3/A). According to copy of his Voter Card ( Ex. PW3/16), his age is mentioned as 19 years as on 01.01.14. The date of accident is 21.02.2015. Accordingly, the age of injured is taken as 20 years at the time of accident in question. Thus, the appropriate multiplier to be applied, would be 18 in view of recent pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17.. The notional monthly income of petitioner has been taken as Rs. 9,542/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 7,157/(rounded off) (Rs. 9,542/ x 75/100 ). The total loss of future income would be Rs. 21,64,277/(rounded off) (Rs. 7,157/ x 140/100 x 12 x 18). Thus, a sum of Rs. 21,64,277/ is awarded in favour of petitioner under this head. (Reliance placed on decisions of Hon'ble Delhi High Court in "National Insurance Co. Ltd. Vs. Hari Om Const. & Ors.", MAC APP No. 464/2011 decided on 03.11.17 and "ICICI Lombard General Insurance Company Limited Vs. Mahesh Kumar & Ors.", MAC APP No. 843/2011, decided on 03.11.17).
LOSS OF MARRIAGE PROSPECTS
63. Counsel for petitioner argued that the petitioner/injured Mahesh was unmarried at the time of accident and in view of disability suffered by him Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 29 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 due to said accident, chances of his marriage have decreased considerably. He therefore, urged that reasonable amount of compensation should be awarded to him under this head.
64. On the other hand, counsel for insurance company opposed the aforesaid contention on the ground that no compensation is to be awarded under this head as no evidence whatsoever has been led by petitioner on this aspect.
65. After considering the rival submissions made on behalf of both the sides, I find substance in the submissions raised on behalf of petitioner/claimant. In view of permanent physical impairment to the extent of 77 % in relation to right upper limb sustained by the injured, his chances of getting married have been definitely reduced. Thus, compensation under the head of loss of marriage prospects also deserves to be awarded in favour of petitioner. Hence, notional sum of Rs. 1,50,000/ is awarded to him under this head.
Thus, t he total compensation is assessed as under:
1. Medical Expenses Rs. 35,209/
2. Loss of income Rs. 1,14,504/
3. Pain and suffering Rs. 2,00,000/
4. Loss of amenities of life Rs. 2,00,000/
5. Conveyance, special diet and attendant Rs. 25,000/ charges
6. Loss of future income Rs. 21,64,277/
7. Loss of marriage prospects Rs. 1,50,000/ Total Rs. 28,88,990/ Rounded off to Rs. 28,89,000/ Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 30 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 Compensation in MACP No. 5733/16(Injured Giri Bhadur @ Garish) MEDICAL EXPENSES
66. PW4 Giri Bhadur @ Garish has deposed in his evidence by way of affidavit(Ex. PW4/A) that due to the accident in question, he had sustained multiple fractures of ribs right side and hidden injuries on right shoulder. He was removed to SRHC Hospital, Narela and was discharged after giving treatment and prescribing medicines. Thereafter, he was treated as an OPD patient in private hospital. He had spent approx Rs. 20,000/ on his medical treatment. During crossexamination on behalf of insurance company, he deposed that he had spent approximate Rs. 20,000/ on his medical treatment. He denied the suggestion that he had not spent Rs. 20,000/ on his medical treatment. He was not crossexamined by respondents no. 1 & 2 despite grant of opportunity. It may be noted here that the petitioner/injured has filed medical bill (Ex. PW4/19) only to the tune of Rs. 267/ in all. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bill during the course of inquiry. Accordingly, a sum of Rs. 267/ is awarded to the petitioner under this head.
Loss of Income
67. PW4 Giri Bhadur @ Garish has deposed that he was doing the work of labourer and was earning Rs. 15,000/ per month at the time of accident. He further deposed that his treatment continued for about approx one year. During his crossexamination, he deposed that he was doing the work of labourer at the time of accident and was earning Rs. 15,000/ per month. He further deposed that he had not placed any document with respect to his earning. He denied the suggestion that he was not earning Rs. 15,000/ per month at the time of accident in question. Although, the petitioner has failed to file his entire treatment record showing the exact period till which his treatment actually continued but considering the nature of injuries sustained by Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 31 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 petitioner i.e. multiple fractures of ribs, it is presumed that he would not have been able to work at all atleast for a period of 6 months or so.
68. Apart from the bald statement made by PW4 Giri Bhadur @ Garish that he was earning Rs. 15,000/per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. However, the injured has filed copy of his 12th class certificate, which is Ex. PW4/21.
69. In the absence of any definite evidence with regard to actual avocation and monthly income of petitioner, his monthly income is being assessed as that of Matriculate under Minimum Wages Act applicable during the relevant period. The minimum wages of Matriculate were Rs. 10,478/ p.m at the time of accident. Thus, a sum of Rs. 62,868/ (Rs. 10,478/ x 6) is awarded in favour of petitioner and against the respondents under this head.
PAIN AND SUFFERING
70. The medical treatment record (Ex. PW4/1 to Ex. PW4/18) of petitioner/injured Giri Bhadur @ Garish, would show that he had sustained multiple fractures of ribs right side and hidden injuries on right shoulder as already mentioned above. Keeping in view the medical treatment record of petitioner available on record, the discussion made herein above and the nature of injuries suffered by petitioner as stated above, I hereby award notional sum of Rs. 50,000/ towards pain and sufferings to him.
LOSS OF AMENITIES OF LIFE
71. Ld. Counsel of petitioner argued that the petitioner is also entitled to compensation under this head as he had sustained multiple fractures of ribs right side and hidden injuries on right shoulder due to accident in question. It Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 32 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 can not be overlooked that the petitioner had sustained multiple injuries and would have remained confined to his residence for considerable period, during which he would not have been able to enjoy general amenities of life during said period. In view of the nature of injuries sustained by petitioner, I award notional amount of Rs. 50,000/ towards loss of general amenities of life to him.
CONVEYANCE & SPECIAL DIET
72. Although, injured as PW6 has deposed that he had spent Rs. 25,000/ to Rs. 30,000/ each towards special diet and conveyance. However, no definite evidence has been led by him to prove the same. Thus, it would involve guess work on the part of Tribunal to award notional amount under this head since petitioner would have definitely taken rich protein diet for his speedy recovery. He would have also used the facility of conveyance for visiting the hospital from time to time as OPD patient during the period of his treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs. 10,000/ each on account of special diet and attendant charges and Rs. 5,000/ on account of conveyance charges to the petitioner.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 267/
2. Loss of Income Rs. 62,868/
3. Pain & Suffering Rs. 50,000/
4. Loss of amenities of life Rs. 50,000/
5. Conveyance & Special Diet Rs. 25,000/ Total Rs. 1,88,135/ Rounded off to Rs. 1,89,000/ Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 33 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
73. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence since it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided in favour of petitioner and against the respondents.
ISSUE NO. 3 RELIEF
74. In view of my findings on issues no. 1 and 2, I award a sum of Rs. 22,32,000/ (including interim award amount if any) in MAC Petition No. 5656/16, a sum of Rs. 16,15,000/ (including interim award amount if any) in MAC Petition No. 5657/16, a sum of Rs. 76,000/ in MAC Petition no. 5731/16, a sum of Rs. 28,89,000/ in MAC Petition no. 5732/16 and a sum of Rs. 1,89,000/ in MAC Petition no. 5733/16, alongwith interest @ 9% per annum w.e.f. date of filing of petitions i.e. 07.04.15 (MACP Nos. 5656/16 & 5657/16) and 03.06.15 (MACP Nos. 5731/16, 5732/16 & 5733/16) respectively in favour of petitioner(s) and against the respondents no. 1 & 2 jointly and severally. (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). Issue no. 3 is decided accordingly.
APPORTIONMENT
75. Statements of petitioners in terms of Clause 26 MCTAP were recorded. Having regard to the facts and circumstances of the case and in view of their statements, it is hereby ordered that out of total compensation amount in MAC Petition No. 5656/16, petitioner no. 1 Smt. Shanti Devi shall be Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 34 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 entitled to share amount of Rs. 14,00,000/ (Rupees fourteen lakhs only) alongwith proportionate interest and petitioner no. 2 Sh. Budh Ram shall be entitled to share amount of Rs. 8,32,000/ (Rupees eight lakhs and thirty two thousand only) alongwith proportionate interest. Out of share amount of petitioner no. 1, a sum of Rs. 1,50,000/ (Rupees one lac and fifty thousand only) and out of share amount of petitioner no. 2, a sum of Rs. 85,000/ (Rupees eighty five thousand only) shall be immediately released to them through their saving bank account nos. 520101260360712(of Shanti Devi) and 520101252050753 (of Budh Ram) with Corporation Bank, Tikri Khurd Branch, having IFSC Code. CORP0001944 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 10,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
76. Out of total compensation amount in MAC Petition No. 5657/16, petitioner no. 1 Smt. Nazma shall be entitled to share amount of Rs. 10,00,000/ (Rupees ten lakhs only) alongwith proportionate interest and petitioner no. 2 Sh. Rahanavi shall be entitled to share amount of Rs. 6,15,000/ (Rupees six lakhs and fifteen thousand only) alongwith proportionate interest. Out of share amount of petitioner no. 1, a sum of Rs. 1,00,000/ (Rupees one lac only) and out of share amount of petitioner no. 2, a sum of Rs. 70,000/(Rupees seventy thousand only) shall be immediately released to them through their saving bank account nos. 35820161499 (of Nazma) with State Bank of India, Tikri Khurd, Delhi and 520101252082567 (of Rahanavi) with Corporation Bank, Tikri Khurd Branch, Delhi and remaining amounts alongwith interest amounts are directed to be kept in the form of FDRs in the multiples of Rs.10,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
77. Out of total compensation amount in MAC Petition No. 5731/16, a sum of Rs. 16,000/ (Rupees sixteen thousand only) shall be immediately Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 35 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 released to injured Nand Kishor @ Nandu through his saving bank account no. 520101260355808 (Old A/c no. 194400101001744) with Corporation Bank, Tikri Khurd Branch, Delhi and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 5,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
78. Out of total compensation amount in MAC Petition No. 5732/16, a sum of Rs. 3,00,000/ (Rupees three lakhs only) shall be immediately released to injured Mahesh through his saving bank account 37552285314 with State Bank of India, Tikri Khurd Branch, Delhi and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 20,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
79. Out of total compensation amount in MAC Petition No. 5733/16, a sum of Rs. 25,000/(Rupees twenty five thousand only) shall be immediately released to injured Giri Bhadur @ Garish through his saving bank account no. 05341000024305 with Punjab and Sind Bank, Post Singhola Branch, Delhi and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 7,000/ each for a period of one month, two months, three months and so on and so forth having cumulative interest.
80. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions: (I) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs alongwith photocopies of the FDRs be given to claimants/petitioners. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank accounts of the Claimants/petitioners.
(ii) The maturity amount(s) of the FDR(s) shall be credited to the savings bank accounts of the claimant(s) in a nationalized bank near the place of their residence.
Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 36 of 38MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018
(iii) No cheque book/Debit Card be issued to the claimant(s) in respect of the savings bank accounts in which the award amount is to be sent/credited, without permission of the Court. However, in case the debit card and/or cheque book have already been issued, the bank shall cancel the same before the disbursement of the award amount.
(iv) No loan, advance or withdrawal be allowed on the fixed deposit(s) without permission of the Court.
(v) The Bank shall not permit any joint name(s) to be added in the savings bank accounts or fixed deposit accounts of the victims.
(vi) Half yearly statement of account be filed by the Bank before the Tribunal.
81. During the course of hearing final arguments, claimants were examined in order to ascertain as to whether they were entitled to exemption from deduction of TDS or not. They made statement on oath that they were entitled to exemption from deduction of TDS and also furnished their respective Form No. 15G on record.
82. Respondent no. 3, being insurer of offending vehicle is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 12% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the respective share amount as mentioned above in the aforesaid saving bank accounts of petitioners mentioned supra, on completing necessary formalities as per rules. He be 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 award amount starts earning interest from the date of clearance of the cheques. Order be given dasti alongwith Forms No. 15G in original of all the claimants (on retaining photocopy thereof on record) to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form Shanti Devi, Nazma, Nandu @ Nand Kishore, Mahesh & Girish Vs. Hari Om & Ors. Page 37 of 38 MACP Nos. 5656/16, 5657/16, 5731/16, 5732/16 & 5733/16 , FIR No. 180/15; PS. Alipur DOD: 15.03.2018 V in terms of MCTAP is annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award be placed on the judicial records of MAC Petition Nos. 5656/16, 5731/16, 5732/16 and 5733/16, as per the rules.
Announced in the open
Court on 15.03.2018 (VIDYA PRAKASH)
Judge MACT2 (North)
Rohini Courts, Delhi
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