Delhi District Court
Jitender vs Narender Kumar Page 1 Of 24 on 29 January, 2020
Jitender vs Narender Kumar Page 1 of 24
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 5013116
MACT PETITION No. : 20/13
UNIQUE ID No. : DLNW010010192013
Sh. Jitender S/o Sh. Ram Swaroop
R/o H. No. 488, Police Colony, Narela, Delhi.
Versus
1. Sh. Narender Kumar s/o Sh. Ram Swaroop
R/o Village Sounkra, District Karnal, Haryana
.......... (Driver/R1)
2. Smt. Pushp Lata
r/o H. No. 305, Pocket8C, Sector8, Rohini, Delhi.
......... (Owner/R2)
3. United India Insurance co. Ltd.
181182, GT Road, Committee Chowk, Karnal, Haryana.
......... (Insurance co./R3)
Other details
DATE OF INSTITUTION : 07.01.2013
DATE OF RESERVING JUDGMENT : 29.01.2020
DATE OF PRONOUNCEMENT : 29.01.2020
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.
Jitender vs Narender Kumar Page 1 of 24
Jitender vs Narender Kumar Page 2 of 24
1. Date of the accident 20.02.2012
2. Date of intimation of the accident by the 07.01.2013
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 07.01.2013
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
(Clause 10)
5. Date of filing of Detailed Accident Information 07.01.2013
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 07.01.2013
Company (Clause 11)
7. Date of service of DAR on the claimant (s). 07.01.2013
(Clause 11)
8. Whether DAR was complete in all respects? Yes
(Clause 16)
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents Yes
filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 07.01.2013
by the insurance Company. (Clause20)
13. Name, address and contact number of the Sh. V.K. Gupta,
Designated Officer of the Insurance Company. Advocate
(Clause 20)
14. Whether the designated Officer of the Insurance No
Company submitted his report within 30 days of
the DAR? (Clause 20)Without insurance
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
Jitender vs Narender Kumar Page 2 of 24
Jitender vs Narender Kumar Page 3 of 24
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer Offer filed but not
of the Insurance Company .(Clause 24) accepted.
18. Date of the Award 29.01.2020
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 10.05.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 29.11.2018
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 Jitender
claimant(s) and the address of the bank with savings bank a/c no.
IFSC Code (Clause 27) 37767851300 with
SBI, Narela Branch,
Delhi.
IFSC : SBIN0021402
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)
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.
Jitender vs Narender Kumar Page 3 of 24
Jitender vs Narender Kumar Page 4 of 24
JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 07.01.2013 with reference to FIR No. 91/12 U/s 279/337 IPC PS Jahangirpuri in respect of grievous hurt sustained by the petitioner Sh. Jitender. The ld. Predecessor of this court vide order dated 07.01.2013 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988.
1.1 The record would show that petitioner has also filed petition under M.V. Act.
2. Brief facts of the case as mentioned in the DAR/petition/file are that on 20.02.2012 at about 8:30 am, petitioner, a Delhi Police Constable/employee, was going from his house to his work place at Kirti Nagar, Delhi on his motorcycle no. DL8SNC2815. When he reached near outer ring road, near Bhalswa red light, Delhi, then an Indica car bearing registration no. DL8CG9070 (hereinafter referred to as "offending vehicle" ) which was being driven by R1 at a high speed, in a rash and negligent manner came from behind, overtook the motorcycle from left side and hit the motorcycle of petitioner. Due to said impact, he along with his motorcycle fell down on road and sustained injuries on his right leg and thigh. It has been stated that petitioner was admitted in BJRM hospital, Delhi.
3. Sh. Narender Kumar/R1 and Smt. Pushplata/R2, who are the driver and owner of the offending vehicle respectively have filed their written statement jointly wherein they have stated that the petitioner was driving his vehicle in a rash and negligent manner and fell down himself on the road. They have stated that R1 was having valid driving licence and vehicle was under the valid insurance cover of R3. It was stated that no accident was ever caused by R1 and that he has been falsely implicated in this case. It was stated that R1 was standing on the red light whereas the petitioner while driving his motorcycle in a rash and negligent manner and at high speed himself fell down on the road, R1 Jitender vs Narender Kumar Page 4 of 24 Jitender vs Narender Kumar Page 5 of 24 picked up the petitioner, PCR van also reached at the spot, after enquiry they found that the accident was caused due to the fault of the petitioner, PCR official took the mobile number of R1, IO also reached at the spot and freed R1 from the spot. It was stated that notice u/s 133 M.V. Act was given to R2 on 28.04.2012 and the offending vehicle was seized on 08.05.2012. It was submitted that as per mechanical inspection the vehicle of petitioner was damaged on the right side, hence the offending vehicle had been falsely implicated by the police in collusion with the petitioner being an employee in Delhi Police.
4. United India Insurance co/R3 has filed its legal offer of Rs. 40,000/ plus actual medical bills which was not accepted by the petitioner.
5. From the pleadings of the parties, the following issues were framed by learned Predecessor of this court vide order dated 16.07.2014:
1. Whether on 20.02.2012 at about 8:30 pm at outer ring road, near Bhalswa red light, Indica car bearing registration No. DL8CG9070 which was being driven rashly and negligently by Narender Kumar/R1 hit the motorcycle no. DL8SNC2815 of petitioner and caused injuries to him?OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
6. The petitioner/injured in support of his case has examined total 3 witness in all i.e. he himself as PW1 and Dr. Gopal Krishna, CMO BJRM hospital, as PW2 and Dr. Mohit Sharma, Orthopedics, Dr. BSA hospital, Delhi as PW3.
6.1 The record would show that respondents have not examined any witness in support of their case.
7. I have heard arguments addressed on behalf of ld counsel for petitioner and ld counsel for insurance co/R3 and have carefully perused the record. I have also gone through the written submissions as filed on behalf of insurance co/R3. Now, I proceed to discuss the Jitender vs Narender Kumar Page 5 of 24 Jitender vs Narender Kumar Page 6 of 24 issues in the succeeding paragraphs.
8. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
8.1 The petitioner/injured has examined himself as PW1. He has filed and proved his evidence by way of affidavit as Ex. PW1/X. He has deposed in his evidence by way of affidavit Ex. PW1/X that on 22.02.2012 at about 8:30 am, he was going from his house to his working place at Kirti Nagar, Delhi on his motorcycle no. DL8SNC 2815. He deposed that when he reached near outer ring road, near Bhalswa red light, then an Indica car bearing registration no. DL8CG 9070 ( "offending vehicle" ) which was being driven by R1 at a high speed, in a rash and negligent manner came from behind, overtook his vehicle from the left side and hit his motorcycle. He deposed that due to said impact, he along with his motorcycle fell down on road and sustained injuries on his right leg and thigh. He deposed that he was admitted in BJRM hospital, Delhi where his MLC no. 38046 was prepared by the doctors.
8.2 PW1 was cross examined on behalf of R1 and R2 wherein he deposed that he reached at the spot at about 8:15 am and that there was no red light at the spot. He deposed that the distance of place of accident and red light was about 50 meters. He deposed that he had no knowledge that how many vehicles were going ahead of him. He deposed that there were two route lines of the road where the accident took place. He deposed that the motorcycle and car were running from his right hand side. He denied the suggestion that his motorcycle had collided with a motorcycle which was running at right side of his motorcycle or that because of that collision he fell down on the road or that after collision with the motorcycle he fell down on the road near the car of the respondent no. 1 or that on the humanitarian Jitender vs Narender Kumar Page 6 of 24 Jitender vs Narender Kumar Page 7 of 24 grounds the respondent no. 1 had lifted him from the ground. He deposed that he had not made a PCR call and that the PCR van reached thereafter about 10 minutes. He deposed that he became unconscious immediately when he fell down and regained his consciousness after some time. He deposed that he reached at the hospital at about 8:45 am. He deposed that CAT Amublence had reached at the spot when he regained his consciousness. He deposed that he met a police official in the BJRM hospital. He deposed that he at that time, had not made any statement to the police officials and that he was not in a position to give the statement at that time as much blood was oozing out. He denied the suggestion that he had not given the statement as no such accident took place with the car. He deposed that he had given the statement to the police after about 25 days of the accident. He deposed that he had noted the number of the offending vehicle involved in the accident on the spot. He deposed that respondent no. 1 was also present on the spot. He admitted that the police had not initiated any proceedings against the accused for about 25 days. He denied the suggestions that respondent no. 1 was falsely implicated in this case or that there was enough time for 25 days to falsely implicate the respondent no. 1. He deposed that he was driving his vehicle at the speed of about 50 km/h on the third line of the road. He denied the suggestion that Delhi Police had noted down the particulars of the respondent no. 1 at the spot or that as he was working with Delhi Police, hence, subsequently respondent no. 1 was falsely implicated for getting the compensation to him.
8.3 The record would show that insurance co/R3 did not cross examine PW1 and his cross examination by it was nil, opportunity given.
8.4 Nothing material has come on record in cross examination of PW1 to shake his version regarding the manner in which the said accident was caused by R1 while driving the above said offending Jitender vs Narender Kumar Page 7 of 24 Jitender vs Narender Kumar Page 8 of 24 vehicle in a rash and negligent manner. The testimony of PW1 seems to be reliable and trustworthy.
8.5 The issue no. 1 is only to be proved by claimant beyond preponderance of probabilities as distinguished from beyond reasonable doubt. In the facts and circumstances, the copies of FIR and chargesheet u/s 279/338 IPC against respondent no. 1 can also be looked into to determine the negligence on the part of respondent no. 1. There is thus nothing on record to suggest even remotely that R1 did not cause the said accident in the manner as deposed on behalf of the petitioner. Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material as placed on record and in view of above discussion, there is no reason to disbelieve the version of the petitioner and hence, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent no.1.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
9. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
9.1 Petitioner has filed his evidence by way of affidavit as Ex. PW1/X. He deposed that he sustained injuries on right leg and thigh and injuries all over body. He deposed that he was shifted to BJRM hospital where his MLC no. 38046 was prepared by the doctors and thereafter on the same day, he was taken to Parnami Ortho & Spine hospital, Sonipat, Haryana and was operated on his right leg/thigh/knee on 20.02.2012. He deposed that doctor found that there was tenderness fracture of leg/right knee and that femur bone was fractured in 55 pieces. He deposed that during operation the doctors has fixed a plate therein with support of nine screws. He deposed that he remained Jitender vs Narender Kumar Page 8 of 24 Jitender vs Narender Kumar Page 9 of 24 admitted in the said hospital till 23.02.2012. 9.2. Petitioner has examined Dr. Gopal Krishna, CMO, BJRM hospital, Delhi as PW2. He deposed that on 20.02.2012 he was posted at BJRM hospital as a CMO and on that day, Dr. Chetan, JR had examined patient Jitender under his supervision with alleged history of RTA. He has proved the MLC bearing no. 38046 as Ex. PW2/A. He deposed that as per opinion regarding the nature of injuries, the patient had suffered grievous injuries. 9.3 Petitioner has also examined Dr. Mohit Sharma, Orthopedics, Dr. BSA hospital, Delhi as PW3. He proved the disability certificate of petitioner as Ex. PW3/A (colly). He deposed that the patient suffered permanent physical disability to the tune of 34% in relation to his right lower limb with diagnosis of post traumatic stiffness of right knee and hip. 9.4 PW3 was cross examined by ld counsel for insurance co/R3 wherein he deposed that he was not a member of the disability board and he was deposing only as per the record. He admitted that Ex. PW3/A did not bear his signature. He deposed that he could not say if Dr. Ashish Goel was not the member of the board or that he had signed only in the capacity of a supervisory doctor on Ex. PW3/A. He volunteered that he was not a part of the said hospital at that time. He denied the suggestion that the present disability certificate has been issued by single doctor in violation of guidelines for the same. He deposed that he did not have personal knowledge of the case. He deposed that he could not tell the disability qua the whole body as there were no such guidelines. He denied the suggestion that the disability assessed by the board has no relation with the injuries as mentioned in the MLC of patient. He denied the suggestion that disability had not been assessed by the board as per guidelines.
Accordingly, the petitioner is entitled to following compensation:
10. Medical Expenses.
The petitioner has placed on record medical bills which are the part of DAR as Ex. PW1/4 (colly). The total of the said bills comes to Rs.1,22,122/ Therefore, Rs. 1,22,122/ are granted to the petitioner under this head.
Jitender vs Narender Kumar Page 9 of 24 Jitender vs Narender Kumar Page 10 of 2411. Special Diet & Conveyance Charges 11.1 Petitioner in his affidavit Ex. PW1/A has deposed that he had spent an amount of Rs. 2,00,000/ on treatment, medicine, special diet and conveyance.
11.2 Petitioner has neither examined any witness nor proved any document to prove the expenditure on special diet and conveyance. 11.3 The MLC of petitioner has been proved as Ex. PW2/A which would show that petitioner suffered grievous injuries. As per discharge summary of Parnami Ortho & Spine hospital, the petitioner suffered compound communited fracture of S/C and I/C of right femur. 11.4 PW3 has proved the disability certificate qua the petitioner as Ex. PW3/A as per which the patient suffered 34% permanent disability in relation to his right lower limb with diagnosis of post traumatic stiffness of right knee and hip.
11.5 In view of above said discussion and taking the probable period of treatment for about 5 months, a lump sum amount of Rs. 30,000/ is granted under the said head.
12. Attendant Charges 12.1 Petitioner has not placed on record any evidence regarding attendant charges.
12.2 The MLC of petitioner has been proved as Ex. PW2/A which would show that petitioner suffered grievous injuries. As per discharge summary of Parnami Ortho & Spine hospital, the petitioner suffered compound communited fracture of S/C and I/C of right femur. 12.3 PW3 has proved the disability certificate qua the petitioner as Ex. PW3/A as per which the patient suffered 34% permanent disability in relation to his right lower limb with diagnosis of post traumatic stiffness of right knee and hip.
12.4 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 5 Jitender vs Narender Kumar Page 10 of 24 Jitender vs Narender Kumar Page 11 of 24 months, a lump sum amount of Rs. 30,000/ is granted under the said head.
13. Compensation for permanent disability.
13.1 PW3 has proved the disability certificate qua the petitioner as Ex. PW3/A as per which the patient suffered 34% permanent disability in relation to his right lower limb with diagnosis of post traumatic stiffness of right knee and hip.
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 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."
13.2 PW1/petitioner deposed that he was serving the Delhi Police. He has proved his Delhi Police ID card as Ex. PW1/1 which mentions his post as Jitender vs Narender Kumar Page 11 of 24 Jitender vs Narender Kumar Page 12 of 24 Constable of Delhi Police with date of birth as 03.08.1971. It would show that petitioner was aged about 40 years and 6 months at the time of accident (20.02.12). It seems that due to the said permanent disability, although he was a Constable with Delhi Police but he would definitely face some difficulty in doing his job as it involves standing for a long time. It further seems that the claimant is not totally disabled from earning any kind of livelihood and has been restricted only to an extent from discharging his previous work with Delhi Police which he was doing before the accident.
13.3 The Hon'ble Delhi High Court in the case of Oriental Insurance co. Ltd vs Balram Yadav, MAC.APP. 62/2008, date of decision 31.05.2016 has inter alia held in a case where a police official suffered injuries and board of doctors gave the certificate that he was rendered permanently disabled to the extent of 25% in relation to whole body as follows: "5. The Claimant at the time of the injuries being suffered was employed in police force. It is inherent in the nature of job undertaken that he would be expected to always remain physically fit. Disability obviously is not acceptable to the rigor of the duties required to be performed in police service.
6. In these circumstances, the assessment made by the tribunal in accepting the extent of functional disability to the extent of 25%, cannot be faulted even though no witness had been examined to prove the effect on promotional avenues."
13.4 In view of above discussion, the injuries suffered by the petitioner who was a Constable with Delhi Police and his nature of work, the functional disability of the petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 20%.
13.5 Petitioner has placed/filed his form 16 for the relevant Assessment year 20122013 (from 01.04.2011 to 31.03.2012) which would show the gross total income of petitioner as Rs. 3,02,226/ and Jitender vs Narender Kumar Page 12 of 24 Jitender vs Narender Kumar Page 13 of 24 total income tax of Rs. 1109/. Therefore, the net annual income of petitioner comes to Rs. 3,01,117/ (Rs. 3,02,226/ minus Rs. 1109/) and monthly income comes to Rs.25,093/(after rounding off) (Rs. 3,01,117/ divided by 12).
14. Addition of Future Prospects.
14.1 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.
Jitender vs Narender Kumar Page 13 of 24 Jitender vs Narender Kumar Page 14 of 24(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) 14.2 Reference is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 by Hon'ble Delhi High Court & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court.
14.3 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%.
14.4 In the case in hand, the petitioner was having a permanent Jitender vs Narender Kumar Page 14 of 24 Jitender vs Narender Kumar Page 15 of 24 job with Delhi Police thus while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act. 14.5 The age of the petitioner, as discussed above, in the present case was about 40 years & 6 months and he was having a permanent job with Delhi Police. In view of paragraph no. 61 (iii) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 30% of the established income as he was between the age group of 40 to 50 years at the time of his accident. 14.6 The monthly income of petitioner is thus calculated as 25,093/ +30% of 25,093/ which comes to Rs. 25,093/+ Rs.7527/ (after rounding of) = Rs. 32,620/.
14.7 The age of petitioner at the time of accident was about 40 years & 6 months. Petitioner is a Govt Employee with Delhi Police. 14.8 The ld counsel for insurance co/R3 has relied upon the judgments of Hon'ble Delhi High Court in case of New India Assurance Co. Ltd vs Rajender Prasad & Ors. MAC. APP.58/2013, date of decision 17.05.2016 and Bajaj Allianz General Insurance Co. Ltd. Vs Gul Nawaj Naqvi & Ors., MAC.APP 869/2016 date of decision 06.07.2017. It was argued that the multiplier of 9 should be adopted. In the case of New India Assurance Co. Ltd vs Rajender Prasad & Ors. (supra), the Hon'ble Delhi High Court inter alia held as follows:
" 6. The contention of the insurer that there was no immediate loss of employment or earnings due to permanent disability to the extent of 7.5% (on account of amputation of the big toe) is correct. In this view, the loss of future income on account of loss of disability could not have been calculated with reference to the date of accident. The claimant being in government service would ordinarily superannuate at the age of 60 years. Thus, loss of future income due to disability ought to be calculated with reference to the age of 60 years and, therefore, on the Jitender vs Narender Kumar Page 15 of 24 Jitender vs Narender Kumar Page 16 of 24 multiplier of 9." ... (Emphasis supplied) 14.9 In the present case also the claimant is in government service who would ordinarily superannuate at the age of 60 years. In terms of above said judgment of Hon'ble Delhi High Court, his loss of future income due to disability should be calculated with reference to the age of 60 years and therefore, the multiplier of '9' is adopted in this case. 14.10 The compensation is accordingly assessed towards loss of earning capacity at Rs.7,04,592/ [(Rs. 32,620/per month x12 months x 9 (age multiplier) x 20/100(functional disability)].
15. Loss of Amenities of Life.
15.1 The MLC of petitioner has been proved as Ex. PW2/A which would show that petitioner suffered grievous injuries. As per discharge summary of Parnami Ortho & Spine hospital, the petitioner suffered compound communited fracture of S/C and I/C of right femur. 15.2 PW3 has proved the disability certificate qua the petitioner as Ex. PW3/A as per which the patient suffered 34% permanent disability in relation to his right lower limb with diagnosis of post traumatic stiffness of right knee and hip.
15.3 As discussed above, the petitioner was a Delhi Police employee and suffered above mentioned permanent physical disability. In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about 5 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
16. Pain and Suffering 16.1 The MLC of petitioner has been proved as Ex. PW2/A which would show that petitioner suffered grievous injuries. As per discharge summary of Parnami Ortho & Spine hospital, the petitioner suffered compound communited fracture of S/C and I/C of right femur. 16.2 PW3 has proved the disability certificate qua the petitioner as Ex. PW3/A as per which the patient suffered 34% permanent disability in relation to his right lower limb with diagnosis of post traumatic stiffness of right knee Jitender vs Narender Kumar Page 16 of 24 Jitender vs Narender Kumar Page 17 of 24 and hip.
16.3 As discussed above, the petitioner was a Delhi Police employee and suffered above mentioned permanent physical disability. In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about Five months, a lump sum amount of Rs. 50,000/ is granted under the said head.
17. Loss of leave period.
17.1 The petitioner has not examined any witness from his Department i.e. Delhi Police to prove the number of leaves taken by him for his treatment after the case accident. In the absence of any such authentic record, no compensation under the said head is being granted to the petitioner.
18. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 9,86,714/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/ 2 Special diet & Conveyance Rs. 30,000/
3. Attendant Charges Rs 30,000/
4. Medical Expenses Rs. 1,22,122 /
5. Compensation for permanent Rs. 7,04,592/ disability.
6. Loss of amenities of life Rs. 50,000/
7. Loss of leave period Nil Total Rs. 9,86,714/ Rounded of to Rs. 9,87,000/ ( Rupees Nine Lakh Eighty Seven Thousand only) 18.1 The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR i.e. w.e.f 07.01.2013 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
18.2 The amount of interim award, if any, shall however be Jitender vs Narender Kumar Page 17 of 24 Jitender vs Narender Kumar Page 18 of 24 deducted from the above amount, if the same has already been paid to the petitioner.
19. Liability 19.1 In the case in hand, the United India Insurance co./R3 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.
20. 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 company/R3 is directed to deposit the awarded amount of Rs. 9,87,000/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by 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 20.1 Statement of petitioner in terms of clause 29 MCTAP was recorded on 29.11.2018 regarding their savings bank a/c with endorsement of no loan, cheque book & ATM/debit card. I have heard the petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Jitender vs Narender Kumar Page 18 of 24 Jitender vs Narender Kumar Page 19 of 24 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: 21.1 Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 1,00,000/ be released to him in his savings bank account a/c no. 37767851300 with SBI bank, Narela branch, Delhi as per rules i.e. the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in her name in 36 FDRs of equal amount for a period of one month to 36 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. 21.2 It shall be subject to the following further conditions and directions 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.Jitender vs Narender Kumar Page 19 of 24 Jitender vs Narender Kumar Page 20 of 24
(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.
(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.
21. Relief 21.1 As discussed above, United India Insurance co./R3 is directed to deposit the award amount of Rs.9,87,000/ with interest @ 9% per annum from the date of filing of DAR i.e. 07.01.2013 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days. 21.2 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 claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 21.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
Jitender vs Narender Kumar Page 20 of 24 Jitender vs Narender Kumar Page 21 of 2421.4 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 claimants under clause 29 of MCTAP had already been recorded. It is also clarified that if the claimants fail to comply with the said directions then the compensation amount shall not be disbursed to them till compliance of the aforesaid directions by them.
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.
21.5 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 Jitender vs Narender Kumar Page 21 of 24 Jitender vs Narender Kumar Page 22 of 24 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded on 29.11.2018 wherein he stated that he was entitled to exemption from deduction of TDS and that he would submit form 15G to insurance co. so that no TDS is deducted.
22. Form IVB which has been duly filled in 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. Digitally signed by AMIT AMIT BANSAL BANSAL Date:
2020.01.29 17:14:50 +0530 Announced in open court (AMIT BANSAL) on 29th January 2020 PO MACT N/W Rohini Courts, Delhi.Jitender vs Narender Kumar Page 22 of 24 Jitender vs Narender Kumar Page 23 of 24
FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 20.02.2012
2. Name of injured Sh. Jitender
3. Age of the injured 40 years & 6 months
4. Occupation of the injured: Permanent Job
5. Income of the injured. 32,620/
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 5 months
8. Period of hospitalization: about 4 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 34% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 1,22,122/
(ii) Expenditure on conveyance Rs. 15,000/
(iii) Expenditure on special diet Rs. 15,000/
(iv) Cost of nursing/attendant Rs. 30,000/
(v) Loss of earning capacity Rs. 7,04,592/
(vi) Loss of income/loss of 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 Rs. 50,000/
(iii) Loss of amenities of life Rs. 50,000/
Jitender vs Narender Kumar Page 23 of 24
Jitender vs Narender Kumar Page 24 of 24
(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 34% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 20% relation of disability
(iv) Loss of future income - (Income X 7,04,592/ %Earning capacity X Multiplier) (25,093/ x 30% of 25,093x12x9x17%)
14. TOTAL COMPENSATION Rs. 9,87,000/ (after rounding of)
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 6,21,810/
17. Total amount including interest Rs. 16,08,810/
18. Award amount released Rs. 1,00,000/
19. Award amount kept in FDRs Rs. 15,08,810/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 16.03.2020 (Clause 31) Digitally signed by AMIT AMIT BANSAL BANSAL Date:
2020.01.29 17:15:00 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
29.01.2020 Jitender vs Narender Kumar Page 24 of 24