Delhi District Court
Raja Ram vs Pawan Kumar Page 1 Of 35 on 26 February, 2020
Raja Ram vs Pawan Kumar Page 1 of 35
IN THE COURT OF SH. AMIT BANSAL, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 5088816
UNIQUE ID No. : DLNW010021082015
Sh. Raja Ram s/o Sh. Amar Singh
R/o WZ90, Dasgarha, Todapur, Inderpuri, Delhi
Also at Village Bhasedha, PS Gharashan, East Champaran Bihar.
Bihar.
........ Petitioner/claimant
Vs.
1. Sh. Pawan Kumar s/o Ram Niwas
R/o VPO Meham, Rohtak, Haryana.
....... Driver /R1
2. Haryana Roadways Department
Bhiwani, Haryana.
.....Owner/R2.
3. Oriental Insurance Co Ltd.
CBOIII, Office 15, Sector35A, Chandigarh
... Insurance co/R3
Respondents
Other details
DATE OF INSTITUTION : 02.11.2015
DATE OF RESERVING JUDGMENT : 26.02.2020
DATE OF PRONOUNCEMENT : 26.02.2020
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FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED
BY THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED
07.12.2018.
1. Date of the accident 04.11.2014
2. Date of intimation of the accident by the 02.11.2015
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 02.11.2015
investigating officer to the insurance company.
4. Date of filing of Report under section 173 Not mentioned in
Cr.P.C. before the Metropolitan Magistrate the DAR
5. Date of filing of Detailed Accident Information 02.11.2015
Report (DAR) by the investigating Officer
before Claims Tribunal
6. Date of Service of DAR on the Insurance 02.11.2015
Company
7. Date of service of DAR on the claimant (s). 02.11.2015
8. Whether DAR was complete in all respects? Yes
9. If not, whether deficiencies in the DAR N/A
removed later on?
10. Whether the police has verified the documents Yes.
filed with DAR?
11. Whether there was any delay or deficiency on N/A
the part of the Investigating Officer? If so,
whether any action/direction warranted?
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12. Date of appointment of the Designated Officer 02.11.2015
by the insurance Company.
13. Name, address and contact number of the Ms. Neeru Garg ,
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the No.
Insurance Company submitted his report
within 30 days of the DAR? (Clause 22)
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.
16. Whether there was any delay or deficiency on N/A
the part of the Designated Officer of the
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the Legal offer not filed.
offer of the Insurance Company .
18. Date of the Award 26.02.2020
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence?
21. Date of order by which claimant(s) were 28.08.2018
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).
22. Date on which the claimant (s) produced the 05.10.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned above
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Claimant(s)
24. Details of saving bank account(s) of the Petitioner Raja Ram
claimant(s) and the address of the bank with savings bank a/c No.
IFSC Code 37809431924 with
SBI Bank, Purnia
branch, Bihar
IFSC : SBIN0008185
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition.
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 SBIN0010323, SBI,
to be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court
in FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 02.11.2015 with reference to FIR No.796/14 U/s 279/337 IPC PS Rani Bagh and subsequent charge sheet u/s 279/338 IPC which was filed in respect of injuries sustained by the petitioner Sh. Raja Ram in a motor vehicular accident. The Ld predecessor of this court vide order dated 02.11.2015 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988(hereinafter referred to as M.V. Act).
2. The facts mentioned in the petition/DAR/file are that on 04.11.2014, Sh. Raja Ram (hereinafter referred to as 'injured') along with his friend Sh. Surender was going towards Dwarka outer ring road by Raja Ram vs Pawan Kumar Page 4 of35 Raja Ram vs Pawan Kumar Page 5 of 35 motorcycle bearing no. DL7SAP2027 which was being driven by Sh. Surender at a normal speed and on the correct side of the road. When they reached in front of PS Rani Bagh outer ring road towards Peera Garhi, Delhi, then a bus bearing no. HR61B7109 (hereinafter referred to as 'offending vehicle') which was being driven by its driver/R1 at a very high speed, rashly and negligently came from behind and hit the motorcycle with a great force. Due to said impact, they both fell down on road and front left tyre of the offending bus ran over on his left leg as a result of this petitioner sustained grievous injuries. The petitioner was removed to Bhagwan Mahavir hospital where his MLC was prepared by the doctors.
3. R1/Pawan Kumar who was the driver of the offending vehicle has filed his written statement wherein he has stated that the accident took place due to negligence of the petitioners who were trying to overtake the bus from the wrong side i.e. left side of the bus at a very high speed. He has stated that he had a valid and effective driving licence, permit and that the offending vehicle/bus was comprehensively insured at the time of accident. The record would show that R1 was proceeded against exparte vide order dated 01.08.2017.
4. R2/Haryana Roadways Transport has not filed its written statement and was ultimately proceeded against exparte vide order dated 01.08.2017.
5. M/s Oriental Insurance co/R3 has filed its written statement wherein it was admitted that offending vehicle was insured with it vide policy no. 230002/31/2015/3704 w.e.f 15.08.2014 to 14.08.2015 i.e. covering the date Raja Ram vs Pawan Kumar Page 5 of35 Raja Ram vs Pawan Kumar Page 6 of 35 of accident 04.11.2014. It was stated that the offending vehicle was being driven without any valid fitness. It was further stated that the present driving licence of R1 was found issued from Rohtak whereas his earlier driving licence (DL) was issued from Nagaland and that the IO did not verify the genuineness of DL from Nagaland.
6. From the pleadings of the parties, the following issues were framed by the ld predecessor of this court vide order dated 31.05.2016: (1) Whether on 04.11.2014 at about 12:30 hours, in front of PS Rani Bagh outer ring road towards Peeragarhi, Rani Bagh, Delhi, one bus bearing registration no. HR61B7109 which was being driven rashly and negligently by Pawan Kumar, hit the motorcycle bearing registration no. DL7SAP2027 and caused injuries to Raju Ram?
(2). Whether petitioner is entitled to compensation, if so, to what amount and from whom?
(3). Relief.
7. It is pertinent to note that there are two connected matters relating to the same accident titled as Raja Ram vs Pawan Kumar, MACT No.5088816 (present file) and Surender Singh vs Pawan Kumar MACT No. 35718. Vide order dated 22.05.2018 these files were clubbed/consolidated for the purpose of evidence with directions that the file of Raja Ram vs Pawan Kumar, MACT No. 5088816 ( old no 38515) would be the main file and that the evidence would be read in both the files. It was an admitted position that the testimony of all the Raja Ram vs Pawan Kumar Page 6 of35 Raja Ram vs Pawan Kumar Page 7 of 35 witnesses can be read in both files and that all the documents of both the files can be read together as these files arise out of the same accident. Evidence of both the cases was lead together and was attached in the present main file i.e. MACT No. 50888/16.
8. Petitioner has examined himself as PW1, Sh. Surender (another injured) as PW2, and Dr. Sameer Mehta, (Specialist Ortho), BJRM hospital, Delhi as PW3 in support of his case.
8.1 Insurance Co./R2 has examined Ms. Neelam Rani, Its Assistant Manager, as R3W1, Sh. Narender Singh, Transport Inspector, RTA Bhiwani, Haryana as R3W2, Sh. Anuj Nayyar, Its Assistant Manager, as R3W3 and Mr. Toshimenba AO, Lower Division Assistant, DTO Zunheboto, Nagaland as R3W4. The record would show that remaining respondents have not examined any witness in support of their case, however, R1 filed his evidence by way of affidavit but did not tender it in evidence.
9. I have heard the final arguments on behalf of ld counsel for petitioner and ld counsel for insurance co/R3. I have also perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
10. Issue wise findings are as under: ISSUES NO. 1 The onus to prove this issue beyond preponderance of probabilities is upon the petitioner.
10.1 Petitioner/claimant has examined himself as PW1. PW1 has filed and proved his evidence by way of affidavit as Ex. PW1/A. He has proved his discharge summary of different hospitals, Delhi as Ex. PW1/1 (colly), OPD cards/treatment record as Ex. PW1/2 (colly), his medical bills Raja Ram vs Pawan Kumar Page 7 of35 Raja Ram vs Pawan Kumar Page 8 of 35 as Ex. PW1/3(colly), his Election ID card as Ex. PW1/4 and entire DAR as Ex. PW1/5 (colly). .
10.2 PW1/injured deposed that on 04.11.2014, he along with his friend Sh. Surender was going towards Dwarka outer ring road by the motorcycle bearing no. DL7SAP2027 which was being driven by Sh. Surender at a normal speed and on the correct side of the road. He deposed that when they reached in front of PS Rani Bagh outer ring road towards Peera Garhi, Delhi, then a bus bearing no. HR61B7109 ( 'offending vehicle) which was being driven by its driver/R1 at a very high speed, rashly and negligently came from behind and hit the motorcycle with a great force. He deposed that due to said impact, they both fell down on road and front left tyre of the offending bus ran over his left leg as a result of which he sustained grievous injuries. He deposed that he was removed to Bhagwan Mahavir hospital where his MLC was prepared by the doctors.
10.3 PW1 was not cross examined on behalf of R1 and R2 and his cross examination by them was nil, opportunity given. R1 and R2 shall thus be deemed to admit the above said testimony of PW1 to the effect that the case accident was caused by the offending vehicle being driven by R1 in a rash and negligent manner.
10.4 PW1 was cross examined by ld counsel for insurance co/R3 wherein he denied the suggestions that accident occurred due to own negligence of motorcycle driver Surender Kumar or that there was no fault of R1.
10.5 The petitioner has also examined Sh. Surender i.e. the person who was driving the said motorcycle on which injured/petitioner was sitting Raja Ram vs Pawan Kumar Page 8 of35 Raja Ram vs Pawan Kumar Page 9 of 35 as a pillion rider as PW2. He has deposed on the same lines as PW1. In his cross examination also PW2 denied the suggestion that the accident occurred due to his own negligence as he was driving the motorcycle rashly.
10.6 Nothing material has appeared in the cross examination of PW1 & PW2 to discredit their above said testimonies which would show that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1. PW1 & PW 2 are injured persons who received injuries in the said accident. They seem to be a reliable and truthful witness.
10.7 The copy of criminal case record would show that the case FIR No. 796/14 u/s 279/337 IPC PS Rani Bagh was registered and that the charge sheet u/s 279/338 IPC was also filed against R1/driver of the offending vehicle.
10.8 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 of the case, the charge sheet u/s 279/338 IPC against R1 can also be relied upon to show that the case accident was caused due to rash and negligent driving of R1 while driving the offending vehicle. In the said circumstances, testimony of PW1 and other record including charge sheet against R1, it has been clearly proved beyond preponderance of probabilities that the case accident was caused at the above said date, time and place and in the above said manner by the rash and negligent driving of R1 by which he drove the offending vehicle rashly and negligently and thereby caused injuries to the petitioner.
Raja Ram vs Pawan Kumar Page 9 of35 Raja Ram vs Pawan Kumar Page 10 of 35 Issue no.1 is decided in favour of petitioner and against the respondents accordingly.
11. Issue No. (2) In view of my findings on issue no.1, the petitioner is entitled to compensation.
11.1 Petitioner has filed his evidence by way of affidavit as Ex. PW1/A. 11.2 He deposed that due to the accident, he sustained grievous injuries. He deposed that after the accident, he was taken to Bhagwan Mahavir hospital where his MLC no. 10271/14 was prepared by the doctors. He deposed that thereafter he was taken to Safdarjung hospital, Delhi where he remained admitted from 06.11.2014 to 12.11.2014. He deposed that he was further treated in Sanwari Surgical Centre, New Delhi where he was hospitalised from 13.11.2014 to 22.01.2015. 11.3 Petitioner has also examined Dr. Sameer Mehta, Specialist (Orthopedic), BJRM hospital, Delhi as PW3 who has proved the disability certificate of petitioner as Ex. PW3/1. He deposed that as per the disability certificate, the patient suffered 84% permanent disability in relation to left lower limb. The disability certificate Ex. PW3/1 would show that the petitioner suffered permanent disability to the tune of 84% in relation of left lower limb with diagnosis of post traumatic stiffness of left knee and ankle. 11.4 PW3 was cross examined by ld counsel for insurance co/R3, wherein he deposed that he was not the treating doctor of the patient at the time of accident. He deposed that the permanent disability was in relation to left lower limb as per MLC and treatment record examined by the Raja Ram vs Pawan Kumar Page 10 of35 Raja Ram vs Pawan Kumar Page 11 of 35 medical board. He deposed that there was no known criteria to assess the disability in relation to whole body.
Accordingly, the petitioner is entitled to following compensation:
12. Medical Expenses.
12.1 The petitioner has proved the medical bills as Ex. PW1/3 (colly) and the entire DAR as Ex. PW1/5 (colly). The total of the said bills come to Rs. 1,68,239/. Therefore, Rs.1,68,239/ are granted to the petitioner under this head.
13. Special Diet and conveyance 13.1 Petitioner as PW1 has deposed that he had spent Rs.40,000/ on special diet and Rs. 50,000/ on conveyance. 13.2 Petitioner/PW1 during his cross examination as conducted on behalf of insurance co/R3 admitted that he had not filed any document regarding special diet, conveyance etc and attendant charges of Rs. 1,80,000/ 13.3 Petitioner has neither examined any witness to prove the expenditure on special diet and conveyance nor proved any bill in that regard.
13.4 The MLC which is the part of DAR Ex. PW1/5 (colly) would show that petitioner suffered grievous injuries. Ex. PW1/1 (colly) which is the treatment record of petitioner would show that petitioner suffered grade IIIB fracture of proximal tibia with skin loss over left leg and that trans knee external fixator was applied on 06.11.2014.
13.5 Petitioner has also examined Dr. Sameer Mehta, Specialist (Orthopedic), BJRM hospital, Delhi as PW3 who has proved the disability Raja Ram vs Pawan Kumar Page 11 of35 Raja Ram vs Pawan Kumar Page 12 of 35 certificate of petitioner as Ex. PW3/1. He deposed that as per the disability certificate, the patient suffered 84% permanent disability in relation to left lower limb. The disability certificate Ex. PW3/1 would show that the petitioner suffered permanent disability to the tune of 84% in relation of left lower limb with diagnosis of post traumatic stiffness of left knee and ankle. 13.6 In view of above said discussion, injuries and fracture sustained by the petitioner and taking the probable period of treatment for about 6 months, a lump sum amount of Rs. 50,000/ is granted under this head.
14. Attendant Charges 14.1 Petitioner as PW1 has deposed that he had spent Rs. 180,000/ on attendant.
14.2 Petitioner/PW1 during his cross examination as conducted on behalf of insurance co/R3 admitted that he had not filed any document regarding special diet, conveyance etc and attendant charges of Rs. 1,80,000/ 14.3 Petitioner has neither examined any witness to prove the expenditure on attendant charges nor proved any bill in that regard. 14.4 The MLC which is the part of DAR Ex. PW1/5 (colly) would show that petitioner suffered grievous injuries. Ex. PW1/1 (colly) which is the treatment record of petitioner would show that petitioner suffered grade IIIB fracture of proximal tibia with skin loss over left leg and that trans knee external fixator was applied on 06.11.2014.
14.5 Petitioner has also examined Dr. Sameer Mehta, Specialist (Orthopedic), BJRM hospital, Delhi as PW3 who has proved the disability Raja Ram vs Pawan Kumar Page 12 of35 Raja Ram vs Pawan Kumar Page 13 of 35 certificate of petitioner as Ex. PW3/1. He deposed that as per the disability certificate, the patient suffered 84% permanent disability in relation to left lower limb. The disability certificate Ex. PW3/1 would show that the petitioner suffered permanent disability to the tune of 84% in relation of left lower limb with diagnosis of post traumatic stiffness of left knee and ankle. 14.6 Keeping in view of the above said grievous injuries and permanent disability, 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 6 months, a lump sum amount of Rs. 40,000/ is granted under the said head.
15. Loss of future earning capacity due to disability 15.1 Petitioner has also examined Dr. Sameer Mehta, Specialist (Orthopedic), BJRM hospital, Delhi as PW3 who has proved the disability certificate of petitioner as Ex. PW3/1. He deposed that as per the disability certificate, the patient suffered 84% permanent disability in relation to left lower limb. The disability certificate Ex. PW3/1 would show that the petitioner suffered permanent disability to the tune of 84% in relation of left lower limb with diagnosis of post traumatic stiffness of left knee and ankle.
15.2 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.
Raja Ram vs Pawan Kumar Page 13 of35 Raja Ram vs Pawan Kumar Page 14 of 35 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."
15.3 Petitioner in his affidavit Ex. PW1/A has deposed that at the time of accident he was working as a painter with Asian Paints, Sector9, Rohini, Delhi and was earning Rs. 15,000/ per month. 15.4. During cross examination as conducted on behalf of insurance co/R3, PW1/petitioner admitted that he had no proof of his income as Rs. 15,000/ as a labour and also no proof of his employment.
15.5 It would show that in the absence of any independent
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witness or any document in that regard, the petitioner has failed to properly prove his income and work. He has also not proved any document regarding his educational qualification and has admitted in his cross examination that he was an illiterate person. 15.6 In view of above said discussion and as he has not proved his income, profession and educational status, it would be appropriate to assess the income of the petitioner on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of an unskilled worker were Rs. 8632/ per month as on the date of accident.
15.7 Petitioner has placed on record copy of his PAN card and aadhar card (Ex. PW1/4) which mention his date of birth as 01.01.1981. The date of accident is 04.11.2014. It would show that he was aged about 33 years & 10 months at the time of accident. 15.8 In the case in hand, as discussed above, the petitioner has failed to properly prove that he was working as a painter. In the present case, the petitioner suffered permanent disability to the tune of 84% in relation to his left lower limb with diagnosis of post traumatic stiffness of left knee and ankle. It is evident that with the above said permanent disability, the ability and efficiency of the petitioner to do any work would be considerably reduced, however, the petitioner can do some work while sitting.
15.9 In view of above discussion and the injuries suffered by the petitioner with permanent disability, the functional disability of the Raja Ram vs Pawan Kumar Page 15 of35 Raja Ram vs Pawan Kumar Page 16 of 35 petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 50%.
16. Addition of Future Prospects.
16.1 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 Raja Ram vs Pawan Kumar Page 16 of35 Raja Ram vs Pawan Kumar Page 17 of 35 deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) 16.2 Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 Raja Ram vs Pawan Kumar Page 17 of35 Raja Ram vs Pawan Kumar Page 18 of 35 decided on October 11,2018 by Hon'ble Delhi High Court. 16.3 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%.
16.4 In the case in hand, the petitioner was self employed and 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. 16.5 The age of the petitioner, as discussed above, in the present case was about 33 years & 10 months and he was self employed. In view of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 40% of the established income as he was below the age of 40 years at the time of his accident.
16.6 The monthly income of petitioner is thus calculated as Rs. 8632/ +40% of 8632/ which comes to Rs. 8632/+ Rs.3452/ (after rounding of) = Rs.12,084/.
16.7 The age of petitioner at the time of accident was about 33 years & 10 months. In the said circumstances, the relevant multiplier of "16" is to be adopted as per judgment in case of Sarla Verma vs Raja Ram vs Pawan Kumar Page 18 of35 Raja Ram vs Pawan Kumar Page 19 of 35 Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra). 16.8 The compensation is accordingly assessed towards loss of earning capacity at Rs. 11,60,064/ (after rounding of) [(Rs.12,084/per month x12 months x 16 (age multiplier) x 50/100(functional disability)].
17. Loss of Amenities of Life.
17.1 The MLC which is the part of DAR Ex.
PW1/5 (colly) would show that petitioner suffered grievous injuries. Ex. PW1/1 (colly) which is the treatment record of petitioner would show that petitioner suffered grade IIIB fracture of proximal tibia with skin loss over left leg and that trans knee external fixator was applied on 06.11.2014.
17.2 Petitioner has also examined Dr. Sameer Mehta, Specialist (Orthopedic), BJRM hospital, Delhi as PW3 who has proved the disability certificate of petitioner as Ex. PW3/1. He deposed that as per the disability certificate, the patient suffered 84% permanent disability in relation to left lower limb. The disability certificate Ex. PW3/1 would show that the petitioner suffered permanent disability to the tune of 84% in relation of left lower limb with diagnosis of post traumatic stiffness of left knee and ankle.
17.3 In view of the said discussion, above mentioned grievous injuries suffered by him, his permanent disability and taking the probable period of treatment for about 6 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
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18. Pain and Suffering
18.1 The MLC which is the part of DAR Ex. PW1/5 (colly)
would show that petitioner suffered grievous injuries. Ex. PW1/1 (colly) which is the treatment record of petitioner would show that petitioner suffered grade IIIB fracture of proximal tibia with skin loss over left leg and that trans knee external fixator was applied on 06.11.2014.
18.2 Petitioner has also examined Dr. Sameer Mehta, Specialist (Orthopedic), BJRM hospital, Delhi as PW3 who has proved the disability certificate of petitioner as Ex. PW3/1. He deposed that as per the disability certificate, the patient suffered 84% permanent disability in relation to left lower limb. The disability certificate Ex. PW3/1 would show that the petitioner suffered permanent disability to the tune of 84% in relation of left lower limb with diagnosis of post traumatic stiffness of left knee and ankle.
18.3 In view of the said discussion, above mentioned grievous injuries suffered by him, his permanent disability and taking the probable period of treatment for about 6 months, a lump sum amount of Rs. 50,000/ is granted under the said head. 19 Loss of Income 19.1 As discussed above, the monthly income of petitioner has been taken as Rs. 8632/ p.m at the time of accident. As per record, the probable period of treatment of petitioner was about 6 months. Therefore, loss of income of Rs. 51,792/ (Rs. 8632/x6 months) is granted for 6 months.
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20. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs.15,70,095/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/ 2 Special diet & Conveyance Rs. 50,000/
3. Attendant Charges Rs 40,000/
4. Medical Expenses Rs. 1,68,239/
5. Loss of income Rs. 51,792/
6. Loss of Earning/disability Rs. 11,60,064/
7. Loss of amenities of life Rs. 50,000/ Total Rs. 15,70,095/ Rounded of to Rs. 15,70,000/ ( Rupees Fifteen Lakhs Seventy Thousand only) 20.1 The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 02.11.2015 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) . 19.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
21. Liability 21.1 R3/Insurance co. has examined Smt. Neelam Rani its Assistant as R3W1 vide her evidence by way of affiavit Ex. R3W1/1. She deposed Raja Ram vs Pawan Kumar Page 21 of35 Raja Ram vs Pawan Kumar Page 22 of 35 that the above said offending vehicle/bus was insured with R3 from 15.08.2014 to 14.08.2015 in the name of General Manager Haryana Transport Department, Bhiwani, Haryana. The copy of the policy has been proved as Ex. R3W1/A. She deposed that on 04.11.2014 R1 was driving the offending bus at the instructions of R2 without any valid and effective permit and fitness. She deposed that R2 and R1 have failed to produce any fitness certificate of the offending vehicle covering the date of accident. She deposed that R3 issue notice u/o 12 rule 8 CPC Ex. R3W1/B to R1 and R2 and postal receipts in that regard have been proved as Ex. R3W1/C and Ex. R3W1/D. She deposed that at the time of accident, R1 produced his DL No. 48/RTK/13 issued from RTA, Rohtak and as per verification report from RTA Rohtak, the said DL was issued/renewed on the basis of old DL no. 13514/TV/2003 issued by licensing authority, Nagaland, however, the IO has failed to verify it from Nagaland. The DL verification report as filed by the IO from licensing authority, Rohtak, Haryana has been proved as Ex. R3W1/E wherein it was verified that the DL no. 48/RTK/13 was in the name of Sh. Pawan Kumar/R1and he was authorised to drive motorcycle, LMV, HTV, HPV from 23.12.2012 to 22.12.2015 (covering the date of accident i.e. 04.11.2014) and the old number of DL was 13514/TV/2003 dated 23.12.2003 from Nagaland. 21.2 R3 got examined Sh. Narender Singh, Transport Inspector, office of Secretary, RTA, Bhiwani, Haryana as R3W2. He brought the summoned record i.e. permit no. 40/ST/93 issued to Haryana Roadways, Bhiwani w.e.f 21.12.2008 to 21.12.2013 & again renewed w.e.f 21.12.2013 to 21.12.2018. He deposed that as per the Govt. instructions dated Raja Ram vs Pawan Kumar Page 22 of35 Raja Ram vs Pawan Kumar Page 23 of 35 25.09.2008 on the said permit, the Haryana Roadways can ply any vehicle available in their fleet strength. The said permit has been proved as Ex. R3W2/1. The verification of fitness certificate of the offending vehicle/bus as received through SHO PS Rani Bagh has been proved as Ex. R3W2/2. It was inter alia reported on Ex.R3W2/2 by Secretary Transport authority, Bhiwani that the fitness of the offending vehicle/bus was valid from 01.09.2014 to 31.08.2015 (covering the date of accident 04.11.2014) at Sl. No. 7124 of the register.
21.3 R3 further examined Sh. Anuj Nayar, its Assistant Manager, as R3W3 who deposed through his evidence by way of affidavit Ex. R3W3/1. He inter alia deposed that R3 summoned the witness from DTO, Zunheboto, Nagaland, however, the said authority directly send a report to the court through post, copy of which was proved as Ex. R3W3/A. He deposed that from the said report R3 came to know that the DL no. 13514/TV/Z/2003 did not exist and R1 got a DL on the basis of renewal of a forged DL as his original DL was found fake. He deposed that R3 issue notice u/o 12 rule 8 CPC to R1 and R2 through its counsel in respect of said report about DL and its copy is Ex. R3W3/B with postal receipts proved as Ex. R3W3/C and Ex. R3W3/D. 21.4 R3W3 was cross examined by ld counsel for R1 wherein he admitted that he had not gone for any physical verification for the DL of R1. He deposed that he did not know the name of the concerned officer from the office of Zunheboto, Nagaland who had sent the report. He deposed that R3 got the DL of R1 verified from Rohtak from where it was found that the base licence was purportedly issued from Nagaland, therefore, the Raja Ram vs Pawan Kumar Page 23 of35 Raja Ram vs Pawan Kumar Page 24 of 35 process was got issued to the concerned witness from Nagaland through the court upon which verification report Ex. R3W3/A was sent to the court from Nagaland authority by post and one copy was sent to the insurance company. He deposed that IO had not mentioned anywhere in the DAR that the DL of R1 was fake. He volunteered that IO did not verify the base driving licence of R1 from Naglanad.
21.5. R3 finally got examined Mr. Toshimenba AO, Lower Division Assistant, Office of DTO, Zunheboto, Nagaland as R3W4. He proved his detailment order to attend the court as given by DTO, Zunheboto, Nagaland as Ex. R3W4/1. He proved the report of DL no. 13514/TV/Z/2003 as given by said DTO and brought by him as Ex. R3W4/2. The extract of said DL as brought by me has been proved as Ex. R3W4/3 and the screen shot of DL which was converted into Smart card has been proved as Ex. R3W4/4. He specifically deposed that the said DL was issued in the name of Mr. Pawan Kumar s/o Sh. Ram Niwas which was subsequently converted into a smart card bearing no. NL0620030002817. He further deposed that in earlier correspondence through RTI letter vide number DTOZ/RTI/201314/453 dated 28.03.2014 and number DTO/ZBTO/RTI 05/201819/565, his office had replied that the said driving licence no. 13514/TV/Z/2003 was issued by the office, however, in the later part of the correspondence, since the DL had been converted into a smart card/digitalised and the DL register containing said DL number was not traceable, hence the office had given an erroneous report that it was not found or issued by the office. He also tendered his sincerest apology on behalf of his office for the same. He specifically deposed that the said DL Raja Ram vs Pawan Kumar Page 24 of35 Raja Ram vs Pawan Kumar Page 25 of 35 no. 13514/TV/Z/2003 was validly issued in the name of Sh. Pawan Kumar s/o Sh. Ram Niwas.
21.6 R3W4 was not cross examined by anyone and his cross examination by all the other parties to the case was nil, opportunity given. 21.7 The first defence of R3/insurance co. was that although the renewed DL of R1 as issued from Licensing authority, Rohtak was valid, however, its base DL as issued from licensing authority, Zunheboto, Nagaland was fake. In that regard, the document Ex. R3W1/E would show that licensing authority, Rohtak indeed verified that licence no. 48/RTK/13 was issued in the name of R1 with validity from 23.12.2012 to 22.12.2015 for motorcycle, LMV, HTV, HPV and that its old no. was 13514/TV/2003 from Nagaland. The said licence from license authority Rohtak of R1 covered the category of vehicle and the date of accident. R3W4 has further proved that the said base DL of R1 was validly issued in the name of R1 which was subsequently converted into a smart card. His report in that regard is Ex. R3W4/2. In the said circumstances, it has been proved on record that R1 was having a valid and effective driving licence as on the date of the accident to drive the offending vehicle. It is pertinent to note that during final arguments also, the ld counsel for insurance co/R3 fairly admitted that from the testimony of R3W4 it has been proved that R1 was having a valid and effective driving licence as on the date of accident. 21.8 Another defence of R3 was that the offending bus was not having a valid fitness and permit as on the date of accident. In that regard R3W2 had proved the said permit as Ex. R3W2/1 which was valid for the offending vehicle as on the date of accident. R3W2 has also proved the Raja Ram vs Pawan Kumar Page 25 of35 Raja Ram vs Pawan Kumar Page 26 of 35 verification of fitness certificate of the offending vehicle received through SHO PS Rani Bagh as R3W2/2 vide which the Secretary Transport Authority, Bhiwani has verified that the offending vehicle was having a valid fitness from 01.09.2014 to 31.08.2015 i.e. covering the date of accident dated 04.11.2014. Even otherwise, the law regarding the fitness has been settled by Hon'ble High Court of Delhi to the effect that the non possession of the fitness certificate would not be treated as a fundamental breach of terms and conditions of the policy or to have contributed to the cause for accident. My views are substantiated by the judgment of The Hon'ble Delhi High Court in the case titled as United India Insurance Co. Ltd. vs. Ramesh Kumar Raman, MAC.APP. 18/2015 date of decision 04.04.2016. The Hon'ble Delhi High Court in the case of Ashok Kumar Gulati vs Reeta & Ors, MAC.APP.77/2017, date of decision 26.04.2018 has inter alia held as follows:
"6. Learner counsel for the appellants in MAC.APP. 77/2017 submits that the recovery rights have been granted to the Insurance Company on the ground that there was no fitness certificate. It is submitted that the appellants had a valid permit in respect of the offending vehicle and the driver was having valid driving licence at the time of incident. It is submitted that fitness certificate is not a permissible ground for grant of recovery rights. Reliance is placed on National Insurance Co. Ltd. v. Nicolleta Rohtagi, II (2002) ACC 292 (SC) and United India Insurance Company Ltd. v. Shila Datta, Civil Appeal nos. 60266027/2007 decided on 13th October, 2011 in Raja Ram vs Pawan Kumar Page 26 of35 Raja Ram vs Pawan Kumar Page 27 of 35 which this court has declined the recovery rights on the similar grounds. Following National Insurance Co. Ltd. vs Nicolleta Rohtagi (supra) and United India Insurance Company Ltd. V Shila Datta (supra), the recovery rights granted by the Claims Tribunal are set aside."
21.9. In the said circumstances, it has been proved on record that the offending vehicle was having a valid permit and fitness as on the date of the accident and even otherwise the non possession of the fitness certificate would not be treated as a fundamental breach of terms and conditions of the policy or to have contributed to the cause for accident and is not a valid defence to the insurance co.
21.10 In the said circumstances and discussion, the insurance co/R3 has failed to prove any of its defences in the present matter.
22. 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., Oriental Insurance co/R3 is directed to deposit the awarded amount of Rs. 15,70,000/ 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 advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 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 Raja Ram vs Pawan Kumar Page 27 of35 Raja Ram vs Pawan Kumar Page 28 of 35 further directed to keep the said amount in fixed deposit in its own name till the claimant approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
23. Statement of petitioner in terms of clause 29 MCTAP was recorded on 05.10.2018 regarding his 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 regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 23.1 Keeping in view the facts and circumstances of the case, on realization, an amount of Rs. 1,50,000/ be released to him in his savings bank account a/c no. 37809431924 with SBI, Purnia branch, Bihar 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 his name in 60 FDRs of equal amount for a period of one month to 60 months with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
23.2 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. Raja Ram vs Pawan Kumar Page 28 of35 Raja Ram vs Pawan Kumar Page 29 of 35 Midha in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 with respect to fixed deposits :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other Raja Ram vs Pawan Kumar Page 29 of35 Raja Ram vs Pawan Kumar Page 30 of 35 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.
24. Relief 24.1 As discussed above, Oriental Insurance co/R3 is directed to deposit the award amount of Rs. 15,70,000/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 02.11.2015 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.
24.2 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. 24.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
24.4 Nazir is directed to place a report on record in the event of non
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Raja Ram vs Pawan Kumar Page 31 of 35
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 (022 22741336/9414048606) {other detailsPersonal 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 Raja Ram vs Pawan Kumar Page 31 of35 Raja Ram vs Pawan Kumar Page 32 of 35 directed to take immediate steps in that regard. 24.5 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 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 05.10.2018 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.
25. 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 Date:
BANSAL 2020.02.26
17:16:24
+0530
Announced in open court (AMIT BANSAL)
on 26th February 2020 PO MACT N/W
Rohini Courts, Delhi.
Raja Ram vs Pawan Kumar Page 32 of35
Raja Ram vs Pawan Kumar Page 33 of 35
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 04.11.2014
2. Name of injured Sh. Raja Ram
3. Age of the injured: 33 years 10 months at the time of accident.
4. Occupation of the injured: Minimum Wages/self employed
5. Income of the injured. 12,084/
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 6 months
8. Period of hospitalization: 19 days.
9. Whether any permanent disability ? If yes, give details.
84% permanent disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 1,68,239/
(ii) Expenditure on conveyance Rs. 25,000/
(iii) Expenditure on special diet Rs. 25,000/
(iv) Cost of nursing/attendant Rs. 40,000/
(v) Loss of earning capacity Rs. 11,60,064/
(vi) Loss of income Rs. 51,792/
(vii) Any other loss which may require any special treatment or aid to the injured Raja Ram vs Pawan Kumar Page 33 of35 Raja Ram vs Pawan Kumar Page 34 of 35 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/
(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 84% 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 50% in relation of disability
(iv) Loss of future income - (Income X Rs. 11,60,064/ %Earning capacity X Multiplier) (Rs. 8362/x40%x12x16x50%)
14. TOTAL COMPENSATION Rs. 15,70,000/ (after rounding of)
15. INTEREST AWARDED 9%
16. Interest amount up to the date of Rs. 6,00,525/ Raja Ram vs Pawan Kumar Page 34 of35 Raja Ram vs Pawan Kumar Page 35 of 35 award
17. Total amount including interest Rs. 21,70,525/
18. Award amount released Rs. 1,50,000/
19. Award amount kept in FDRs Rs. 20,20,525/
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. 04.04.2020 (Clause 31) Digitally signed by AMIT AMIT BANSAL BANSAL Date:
2020.02.26 17:16:34 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
26.02.2020
Raja Ram vs Pawan Kumar Page 35 of35