Delhi District Court
Jiledar Bharti vs Sanjay Page 1 Of 32 on 18 November, 2019
Jiledar Bharti vs Sanjay Page 1 of 32
IN THE COURT OF SH. AMIT BANSAL, PRESIDING OFFICER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
New No. 71717
UNIQUE ID No. : DLNW010092692017
Sh. Jiledar s/o Late Munnu
R/o Jhuggi No. 159, N23/24, Bahujan Samaj Camp, Haiderpur, Delhi.
........ Petitioner/claimant
Vs.
1. Sh. Sanjay s/o Inderpal
R/o H. No. 332, Gali Chawpal Wali, Village Shalimar, Delhi.
....... Driver /R1
2. Meru Cab Company Pvt Ltd.
R/o Biml Plaza, 1st Floor, Plot no. 9,
Dwarka, Sector6, Delhi
Also at 431, LG Floor, Phase3, Udyog Vihar, Gurgaon, Haryana
.....Owner/R2.
3. M/s Bajaj Allianz General Insurance Co. Ltd.
N.S.P. Delhi.
... Insurance co/R3
Respondents
Other details
DATE OF INSTITUTION : 13.09.2017
DATE OF RESERVING JUDGMENT : 18.11.2019
DATE OF PRONOUNCEMENT : 18.11.2019
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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 13.05.2017
2. Date of intimation of the accident by the 13.09.2017
investigating officer to the Claims Tribunal
3. Date of intimation of the accident by the 13.09.2017
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 13.09.2017
Report (DAR) by the investigating Officer
before Claims Tribunal
6. Date of Service of DAR on the Insurance 13.09.2017
Company
7. Date of service of DAR on the claimant (s). 13.09.2017
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 13.09.2017
by the insurance Company.
13. Name, address and contact number of the Sh. Lalit Dhingra,
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 18.11.2019
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 18.03.2019
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 18.11.2019
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 Jiledar
claimant(s) and the address of the bank with Bharti savings bank
IFSC Code a/c No.
37142730066 with
SBI, Rohini Courts
branch, Delhi
IFSC : SBIN0010323
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 13.09.2017 with reference to FIR No.263/17 U/s 279/337 IPC PS Shalimar Bagh and subsequent charge sheet u/s 279/338 IPC which was filed in respect of injuries sustained by the petitioner Sh. Jiledar. This Tribunal vide order dated 13.09.2017 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988(hereinafter referred to as M.V. Act).
1.1 The record would show that petitioner has also filed a petition under
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Motor Vehicle Act which was clubbed with the DAR vide order dated 05.03.2018.
2. The facts mentioned in the petition/DAR/file are that on 13.05.2017 at about 5:30 pm, Sh. Jiledar (hereinafter referred to as 'injured') was driving his battery rickshaw at outer ring road, Haiderpur, Delhi. When he reached at Premier Hotel, Delhi, then a car bearing registration no. DL1RY8258 (hereinafter referred to as "offending vehicle") which was being driven by its driver/R1 in a rash and negligent manner came from front side and hit the battery rickshaw of injured/petitioner on front side. Due to said impact, petitioner fell down and sustained multiple injuries as well as fractured his right leg. The petitioner was taken to Max hospital, Shalimar Bagh, Delhi.
3. R1/Sanjay who was the driver and R2/Meru Cab Pvt Ltd owner of the offending vehicle have not filed their written statement. Their defence was struck of vide order dated 14.05.2018. They were ultimately proceeded exparte vide order dated 10.09.2018.
4. M/s Bajaj Allianz General Insurance co/R3 has filed written statement wherein it was admitted that offending vehicle was insured with it vide policy no. OG171701183100003386 in the name of R2/Meru Cab Company Ltd valid from 19.01.2017 to 18.01.2018 i.e. covering the date of accident 13.05.2017. It was mentioned that the petitioner/injured was himself negligent while plying the erickshaw on the ring road which was not permissible as per law. It was stated that the accident, if any, occurred due to sole negligence of the petitioner/injured i.e. driver of erickshaw.
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5. From the pleadings of the parties, the following issues were framed by this court order dated 14.05.2018: (1) Whether on 13.05.2017 at about 05:30 pm, in front of Premier Hotel, one car bearing registration no. DL1RY8258 which was being driven rashly and negligently by Sanjay/R1 hit battery rickshaw and caused injuries to Jiledar? OPP (2). Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP (3). Relief.
6. Petitioner has examined himself as PW1 and Dr. Gurvinder Singh, Assistant Professor from Dr. BSA hospital as PW2 in support of his case. The record would show that respondents have not examined any witness in support of their case.
7. I have heard the arguments addressed 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.
8. Issue wise findings are as under: ISSUES NO. 1 The onus to prove this issue beyond preponderance of probabilities is upon the petitioner.
8.1 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 entire DAR as Ex. PW1/1 (colly), his medical bills as Ex. PW1/2 Jiledar Bharti vs Sanjay Page 6 of32 Jiledar Bharti vs Sanjay Page 7 of 32 (colly), his aadhar card, PAN card and pass book as Ex. PW1/3 to Ex. PW1/5 and his photographs of injured body portion as Ex. PW1/6.
8.2 PW1 deposed through Ex. PW1/A that on 13.05.2017 at about 5:30 pm, he ( 'injured') was coming by driving his battery rickshaw from outer ring road, Haiderpur, Delhi to village Haiderpur. He deposed that when he reached at Premier Hotel, Delhi, then a car bearing registration no. DL1RY8258 (offending vehicle) which was being driven by its driver/R1 in a rash and negligent manner came from front side and hit his battery rickshaw of injured from front side. He deposed that due to said impact, he fell down and sustained multiple injuries including fracture in his right leg. He deposed that he was taken to Max hospital, Shalimar Bagh, Delhi.
8.3 PW1 was not cross examined on behalf of R1 and R2 and his cross examination by R1 and R2 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.
8.4 PW1 was cross examined by ld counsel for insurance co/R3 wherein he inter alia deposed that his statement was recorded by the doctor at the hospital. He deposed that he become unconscious immediately after the accident. He denied the suggestion that he was fully conscious when he was admitted in the hospital. He deposed that his statement was recorded by the police after about 2 months of the accident at the police station Shalimar Bagh, Delhi. Remaining cross examination of petitioner is not germane to the issue in hand.
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8.5 Nothing material has appeared in the cross examination of
PW1 to discredit his above said testimony which would show that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1. PW1 is an injured himself who received injuries in the said accident. He seems to be a reliable and truthful witness. 8.6 The copy of criminal case record would show that the case FIR No. 263/17 u/s 279/337 IPC PS Shalimar Bagh was registered and that the charge sheet u/s 279/338 IPC was also filed against R1/driver of the offending vehicle.
8.7 The issue no. 1 is only to be proved by claimant beyond preponderance of probabilities as distinguished from beyond reasonable doubt.
8.8 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.
8.9 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 him.
Issue no.1 is decided in favour of petitioner and against the respondents accordingly.
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9. It is pertinent to note that during final arguments, the ld counsel for insurance co./R3 has prayed that some amount due to contributory negligence of the petitioner be deducted from the total award amount of the petitioner. He contended that the petitioner admitted in his statement dated 14.05.2018 as recorded u/o X rule 2 CPC that he was driving an ebattery rickshaw at the relevant time of the case accident, it was neither having any registration number nor was it insured and that he was also not having any driving licence authorising him to drive at the relevant time. He argued that Section 2A was inserted in the M.V. Act on 07.01.2015 to add e rickshaw and Section 9 (10) M.V. Act was also inserted in the said date mentioning that the driving licence to drive erickshaw shall be issued in such manner and subject to such conditions as may be prescribed. He argued that in MLC of Max hospital, it was mentioned that some another vehicle hit the erickshaw of the petitioner from behind, whereas, in his statement on which the case FIR was registered, it was stated that said vehicle had hit the erickshaw from front side. He thus argued that as the petitioner was not having a driving licence, hence some amount of contributory negligence may be attributed to him entailing some deduction from the compensation amount.
9.1. The ld counsel for petitioner referred to the charge sheet of the corresponding FIR No. 263/17 PS Shalimar Bagh and the site plan which would show that petitioner was driving his erickshaw properly on the correct left side of the road. He also referred to the mechanical inspection of the erickshaw showing that front side was damaged and argued that offending vehicle had hit the erickshaw of petitioner from the front side by Jiledar Bharti vs Sanjay Page 9 of32 Jiledar Bharti vs Sanjay Page 10 of 32 coming on the wrong side of the road. He argued that there are no allegations that the petitioner was driving the erickshaw rashly or negligently and that the accident occurred due to sole rash driving of R1 who drove the offending vehicle on the wrong side of the road. He argued that although petitioner was not having a driving licence to drive erickshaw but even then on the facts of the case he could not have averted the accident as the accident occurred solely due to rash and negligent driving of R1. He thus contended that the petitioner did not contribute to the accident and prayed that no amount on account of contributory negligence should be deducted in this case.
9.2 The record would show that the case of the petitioner is that while driving an erickshaw it was hit on the front side by the offending vehicle being driven by R1 in a rash and negligent manner leading to the case accident. The record would further show that petitioner in his statement dated 14.05.2018 as recorded u/o X Rule 2 CPC inter alia stated that he was not having any driving licence at the relevant time.
9.3 Although the MLC of petitioner of Max hospital would mention that the erickshaw of the petitioner was hit by another vehicle coming from behind, however, the statement of the petitioner dated 04.07.2017 on which the case FIR was registered would show that it has been mentioned that the driver of the offending vehicle hit his erickshaw from the front side by driving it in a rash and negligent manner. It is pertinent to note that R1 and R2 have not contested the case and have not filed any written statement to contradict the version of the petitioner i.e. they would be deemed to admit the version of the petitioner in the DAR/petition that the Jiledar Bharti vs Sanjay Page 10 of32 Jiledar Bharti vs Sanjay Page 11 of 32 case accident occurred due to rash and negligent driving of the offending vehicle by R1 vide which he struck it against the front portion of the e rickshaw being driven by petitioner. The case accident occurred on 13.05.2017 and the mechanical inspection of the erickshaw and the offending vehicle was done on 14.05.2017. The mechanical inspection report of the offending vehicle DL1RY8258 (Toyota Etios) would show that it suffered fresh damages on front side body and bumper left side, bonnet and grill of left side, AC condenser and radiator and left HL was broken in half portion. It would show that the front portion of the offending vehicle hit the erickshaw in the accident. Similarly, the mechanical inspection report of the erickshaw of the petitioner would show that it suffered fresh damages in the front portion as its front side wheel rim, mudguard, shocker, HL and indicator light were damaged. Its front side body was also damaged, battery was displaced and the rear side passenger body was dislocated. Its electric wiring system was also damaged. It would show that the front portion of the offending vehicle had hit the front portion of the erickshaw of the petitioner in the case accident. The site plan which is a part of DAR would show that the case accident occurred on the left side i.e. correct side of the road for erickshaw which as per testimony of PW1 was going from outer ring road Haiderpur to village Haiderpur. It would show that the offending vehicle being driven by R1 came on the wrong side of the road and hit the erickshaw being driven by the petitioner. It would show that the case accident occurred due to sole rash and negligent driving of the offending vehicle by R1. It would further show that the petitioner while driving the erickshaw on the correct side of Jiledar Bharti vs Sanjay Page 11 of32 Jiledar Bharti vs Sanjay Page 12 of 32 the road was having no opportunity to save or evade the accident. There is nothing on record to suggest that the petitioner was driving his erickshaw in a rash or negligent manner and could have saved the accident. In the said circumstances, the absence of driving licence with petitioner is totally inconsequential and it can be safely held that he did not contribute to the occurrence of case accident. It is further pertinent to note that no specific question or suggestion was even put to petitioner/PW1 by the ld counsel for R3 in that regard in his cross examination. In the said circumstances and discussion, the insurance co/R3 has failed to show or prove any contributory negligence on the part of the petitioner. The arguments of ld counsel for insurance co/R3 to deduct some amount on account of alleged contributory negligence of the petitioner are hereby rejected.
10. Issue No. (2) In view of my findings on issue no.1, the petitioner is entitled to compensation.
10.1 Petitioner has filed his evidence by way of affidavit as Ex. PW1/A. 10.2 He deposed that due to the accident, he sustained multiple injuries and also fractured his right leg. He deposed that after the accident, he was removed to MAX hospital, Delhi. He deposed that thereafter he was admitted in Ramchandra Bone hospital, Lalganj, Azamgarh, UP and that doctor of the said hospital inserted a steel rod for joining fracture bones and plastered his leg.
10.3 Petitioner has also examined Dr. Gurvinder Singh, Assistant Professor, Dr. BSA hospital, Delhi as PW2 who has proved the disability Jiledar Bharti vs Sanjay Page 12 of32 Jiledar Bharti vs Sanjay Page 13 of 32 certificate of petitioner as Ex. PW2/A. He deposed that as per the disability certificate, the patient/petitioner suffered 22% permanent physical disability in relation to right lower limb with diagnosis of post traumatic stiffness of right knee. He deposed that petitioner would feel pain while squatting and sitting cross legged.
10.4 To a court question, PW2 deposed that the petitioner can drive the battery rickshaw with the above said permanent disability. He deposed that he may face some problems in further 5 to 10 years after he would develop secondary osteoarthritis of right knee joint. 10.5 PW2 was cross examined by ld counsel for insurance co/R3 wherein he inter alia deposed that the disability of the petitioner was permanent and it would not be reduced even if he went for physiotherapy. He deposed that he had not mentioned in the record brought by him that the petitioner would face some problems in further 510 years by developing secondary osteoarthritis of right knee joint. He deposed that there was no precaution or any treatment for the petitioner and he would definitely develop secondary osteoarthritis of right knee joint after 510 years.
Accordingly, the petitioner is entitled to following compensation:
11. Medical Expenses.
The petitioner has proved on record medical bills as Ex. PW1/2 (colly). The total of the said bills comes to Rs. 33,540/. Therefore, Rs. 33,540/ are granted to the petitioner under this head.
12. Special Diet and conveyance 12.1 Petitioner as PW1 has deposed that he had spent Jiledar Bharti vs Sanjay Page 13 of32 Jiledar Bharti vs Sanjay Page 14 of 32 Rs.1,00,000/ on medicine, special diet, conveyance etc. 12.2 During cross examination as conducted on behalf of insurance co/R3, he denied the suggestion that he had not spent Rs. 1,00,000/ on medical expenses, special diet and conveyance. 12.3 Petitioner has neither examined any witness to prove the expenditure on special diet & conveyance nor proved any bill in that regard. He also deposed in his cross examination that he did not have any document with regard to his treatment except the MLC. 12.4 As per the MLC of Max hospital, the opinion (regarding nature of injury) could not be given without investigative results. There is however, copy of one certificate dated 20.07.2017 in the DAR of Ramchander Haddi Hospital, Lalganj, Azamgarh, UP inter alia certifying that the petitioner came to that hospital on 18.05.2017 with RTA in Delhi, nature of injury was grievous, primary treatment of the petitioner took place in Max Health Care, Shalimar Bagh, Delhi and that the petitioner was treated in the said hospital (Ramchander Haddi Hospital) for fracture Tibia plateau of right knee with tibia plate on 20.05.2017 and was discharged on 23.05.2017. 12.5 PW2 has proved the disability certificate Ex. PW2/A to the effect that the petitioner suffered 22% permanent disability in relation to right lower limb with diagnosis of post traumatic stiffness of right knee. 12.6 In view of above said discussion and taking the probable period of treatment for about 2 months, a lump sum amount of Rs. 20,000/ is granted under the said head.
13. Attendant Charges 13.1 Petitioner has neither examined any witness to prove the expenditure Jiledar Bharti vs Sanjay Page 14 of32 Jiledar Bharti vs Sanjay Page 15 of 32 on attendant charges nor proved any bill in that regard. 13.2 As per the MLC of Max hospital, the opinion (regarding nature of injury) could not be given without investigative results. There is however, copy of one certificate dated 20.07.2017 in the DAR of Ramchander Haddi Hospital, Lalganj, Azamgarh, UP inter alia certifying that the petitioner came to that hospital on 18.05.2017 with RTA in Delhi, nature of injury was grievous, primary treatment of the petitioner took place in Max Health Care, Shalimar Bagh, Delhi and that the petitioner was treated in the said hospital (Ramchander Haddi Hospital) for fracture Tibia plateau of right knee with tibia plate on 20.05.2017 and was discharged on 23.05.2017. 13.3 PW2 has proved the disability certificate Ex. PW2/A to the effect that the petitioner suffered 22% permanent disability in relation to right lower limb with diagnosis of post traumatic stiffness of right knee. 13.4 Keeping in view of the above said injuries including fracture 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 2 months, a lump sum amount of Rs. 20,000/ is granted under the said head.
14. Loss of future earning capacity due to disability 14.1 PW2 has proved the disability certificate Ex. PW2/A to the effect that the petitioner suffered 22% permanent disability in relation to right lower limb with diagnosis of post traumatic stiffness of right knee.
14.2 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:
Jiledar Bharti vs Sanjay Page 15 of32 Jiledar Bharti vs Sanjay Page 16 of 32 "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."
14.3 Petitioner in his affidavit Ex. PW1/A has deposed that he was driver of battery rickshaw and was earning about Rs. 15,000/ per month.
14.4. During cross examination as conducted on behalf of Jiledar Bharti vs Sanjay Page 16 of32 Jiledar Bharti vs Sanjay Page 17 of 32 insurance co/R3, he deposed that he did not have any document to show that his income was Rs. 15,000/. He denied the suggestion that he was not earning Rs. 15,000/ per month.
14.5 In facts, petitioner has not properly proved his monthly income. He has also not proved his educational qualification on record.
14.6 In view of above said discussion and as he has not proved his income and profession, 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. 13,584/ per month as on the date of accident. 14.7 PW2 proved the disability certificate of the petitioner and deposed that he suffered permanent physical disability to the tune of 22% in relation to right lower limb with diagnosis of post traumatic stiffness of right knee. He deposed that the petitioner could drive the battery rickshaw with said disability but may face some problems in further 510 years after he would develop secondary osteoarthritis of right knee joint. In cross examination PW2 admitted that it was not mentioned in the record brought by him.
14.8 The copy of aadhar card and PAN card of petitioner are on record which mention his date of birth as 15.01.1970, therefore, he was aged about 47 years and 3 months on the date of accident (13.05.2017).
14.9 In view of above discussion, the injuries suffered by the
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petitioner with permanent disability and his nature of work at the time of accident, 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 10%.
15. Addition of Future Prospects.
15.1 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 Jiledar Bharti vs Sanjay Page 18 of32 Jiledar Bharti vs Sanjay Page 19 of 32 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.
(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) 15.2 Refence is also made to the case of Sanjay Oberoi vs Jiledar Bharti vs Sanjay Page 19 of32 Jiledar Bharti vs Sanjay Page 20 of 32 Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court. 15.3 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%.
15.4 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. 15.5 The age of the petitioner, as discussed above, in the present case was about 47 years & 3 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 25% of the established income as he was between the age group of 40 to 50 years at the time of his accident.
15.6 The monthly income of petitioner is thus calculated as Rs. 13,584/ +25% of 13,584/ which comes to Rs. 13,584/+ Rs.3396/ = Rs.16,980/.
15.7 The age of petitioner at the time of accident was about 47
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years & 3 months. In the said circumstances, the relevant multiplier of "13" is to be adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra). 15.8 The compensation is accordingly assessed towards loss of earning capacity at Rs. 2,64,888/ [(Rs.16,980/per month x12 months x 13 (age multiplier) x 10/100(functional disability)].
16. Loss of Amenities of Life.
16.1 As per the MLC of Max hospital, the opinion (regarding nature of injury) could not be given without investigative results. There is however, copy of one certificate dated 20.07.2017 in the DAR of Ramchander Haddi Hospital, Lalganj, Azamgarh, UP inter alia certifying that the petitioner came to that hospital on 18.05.2017 with RTA in Delhi, nature of injury was grievous, primary treatment of the petitioner took place in Max Health Care, Shalimar Bagh, Delhi and that the petitioner was treated in the said hospital (Ramchander Haddi Hospital) for fracture Tibia plateau of right knee with tibia plate on 20.05.2017 and was discharged on 23.05.2017. 16.2 PW2 has proved the disability certificate Ex. PW2/A to the effect that the petitioner suffered 22% permanent disability in relation to right lower limb with diagnosis of post traumatic stiffness of right knee.
16.3 In view of the said discussion, above mentioned injuries and fracture suffered by him, his permanent disability and taking the probable period of treatment for about 2 months, a lump sum amount Jiledar Bharti vs Sanjay Page 21 of32 Jiledar Bharti vs Sanjay Page 22 of 32 of Rs. 35,000/ is granted under the said head.
17. Pain and Suffering 17.1 As per the MLC of Max hospital, the opinion (regarding nature of injury) could not be given without investigative results. There is however, copy of one certificate dated 20.07.2017 in the DAR of Ramchander Haddi Hospital, Lalganj, Azamgarh, UP inter alia certifying that the petitioner came to that hospital on 18.05.2017 with RTA in Delhi, nature of injury was grievous, primary treatment of the petitioner took place in Max Health Care, Shalimar Bagh, Delhi and that the petitioner was treated in the said hospital (Ramchander Haddi Hospital) for fracture Tibia plateau of right knee with tibia plate on 20.05.2017 and was discharged on 23.05.2017. 17.2 PW2 has proved the disability certificate Ex. PW2/A to the effect that the petitioner suffered 22% permanent disability in relation to right lower limb with diagnosis of post traumatic stiffness of right knee.
17.3 In view of the said discussion, above mentioned injuries and fracture suffered by him, his permanent disability and taking the probable period of treatment for about 2 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
18 Loss of Income 18.1 As discussed above, his monthly income has been taken as Rs. 13,584/ p.m at the time of accident. As per record, the probable period of treatment of petitioner was about 2 months. Therefore, loss of income of Rs. 27,168/ (Rs. 13,584/x2 months) Jiledar Bharti vs Sanjay Page 22 of32 Jiledar Bharti vs Sanjay Page 23 of 32 is granted for 2 months.
19. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs.4,50,596/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/ 2 Special diet & Conveyance Rs. 20,000/
3. Attendant Charges Rs 20,000/
4. Medical Expenses Rs. 33,540/
5. Loss of income Rs. 27,168/
6. Loss of Earning/disability Rs. 2,64,888/
7. Loss of amenities of life Rs. 35,000/ Total Rs. 4,50,596/ Rounded of to Rs. 4,50,600/ ( Rupees Four Lakhs Fifty Thousand Six hundred only) 19.1 The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 13.09.2017 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.
20. Liability 20.1 In the case in hand, the Bajaj Allianz General Insurance co./R3 Jiledar Bharti vs Sanjay Page 23 of32 Jiledar Bharti vs Sanjay Page 24 of 32 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.
20.2. 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., Bajaj Allianz General Insurance co./R3 is directed to deposit the awarded amount of Rs. 4,50,600/ 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 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
21. Statement of petitioner in terms of clause 29 MCTAP was recorded on 18.11.2019 regarding his savings bank a/c with endorsement of MACT Jiledar Bharti vs Sanjay Page 24 of32 Jiledar Bharti vs Sanjay Page 25 of 32 claims SB A/c, 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 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, said statement of the petitioner/injured and clause 32 of MCTAP regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs. 50,000/ be released to him in his MACT Claims SB A/c no.2958000100155707 with PNB, Qutubgarh 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 Motor Accident Claims Annuity Account (MACAD) so that the maximum benefits can be availed by the petitioner. In case, the MACAD scheme has not become fully operational in the concerned bank, till the time the same becomes fully operational, the remaining amount be kept in 36 FDRs of equal amount for a period of one month to 36 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. 21.2 The aforesaid award amount shall be disbursed to the claimant
(s) through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated Jiledar Bharti vs Sanjay Page 25 of32 Jiledar Bharti vs Sanjay Page 26 of 32 07.12.2018 in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to following conditions:
(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 Jiledar Bharti vs Sanjay Page 26 of32 Jiledar Bharti vs Sanjay Page 27 of 32 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.
22. Relief 22.1 As discussed above, Bajaj Allianz General Insurance co./R3 is directed to deposit the award amount of Rs. 4,50,600/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 13.09.2017 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.
22.2 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.
22.3 A copy of this judgment/award be sent to respondent no. 3 for
Jiledar Bharti vs Sanjay Page 27 of32
Jiledar Bharti vs Sanjay Page 28 of 32
compliance within the granted time.
22.4 Nazir is directed to place a report on record in the event of non
receipt/deposit of the compensation amount within the granted time.
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 directed to take immediate steps in that regard. 22.5 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 18.11.2019 wherein he stated that he was entitled to Jiledar Bharti vs Sanjay Page 28 of32 Jiledar Bharti vs Sanjay Page 29 of 32 exemption from deduction of TDS and that he would submit form 15G to insurance co. so that no TDS is deducted.
23. 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 BANSAL AMIT Date:
BANSAL 2019.11.19
11:37:45
+0530
Announced in open court (AMIT BANSAL)
on 18th November 2019 PO MACT N/W
Rohini Courts, Delhi.
Jiledar Bharti vs Sanjay Page 29 of32
Jiledar Bharti vs Sanjay Page 30 of 32
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 13.05.2017
2. Name of injured Jiledar
3. Age of the injured: 47 years 3 months at the time of accident.
4. Occupation of the injured: Minimum Wages/self employed
5. Income of the injured. 16,980/
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 2 months
8. Period of hospitalization: 3 days
9. Whether any permanent disability ? If yes, give details.
22% permanent disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 33,540/
(ii) Expenditure on conveyance Rs. 10,000/
(iii) Expenditure on special diet Rs. 10,000/
(iv) Cost of nursing/attendant Rs. 20,000/
(v) Loss of earning capacity Rs. 2,64,888/
(vi) Loss of income Rs. 27,168/
(vii) Any other loss which may require any special treatment or aid to the injured Jiledar Bharti vs Sanjay Page 30 of32 Jiledar Bharti vs Sanjay Page 31 of 32 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. 35,000/
(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 22% 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 10% in relation of disability
(iv) Loss of future income - (Income X Rs. 2,64,888/ %Earning capacity X Multiplier) (Rs. 13,584/ x25%x12x13x10%)
14. TOTAL COMPENSATION Rs. 4,50,600/ (after rounding of)
15. INTEREST AWARDED 9% Jiledar Bharti vs Sanjay Page 31 of32 Jiledar Bharti vs Sanjay Page 32 of 32
16. Interest amount up to the date of Rs. 87,866/ award
17. Total amount including interest Rs. 5,38,466/
18. Award amount released Rs. 50,000/
19. Award amount kept in FDRs Rs. 4,88,466/
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. 23.12.2019 (Clause 31) Digitally signed by AMIT BANSAL AMIT Date:
BANSAL 2019.11.19
11:38:00
+0530
(AMIT BANSAL)
PO MACT N/W
Rohini Courts, Delhi.
18.11.2019
Jiledar Bharti vs Sanjay Page 32 of32