Delhi District Court
Lata Punjani & Ors. vs . Oic & Ors. on 30 November, 2017
Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), DELHI.
MACT No. 357165/16
Suit No. 684/2011
Unique Case ID No. DLCT-01-000328-2006
Date of filing of case: 04.11.2006
1. Smt. Lata Punjani
W/o Sh. Vijay Punjani @ Vijay Kumar
2. Riya Punjani
D/o Late Sh. Vijay Punjani @ Vijay Kumar
3. Raima Punjani
D/o Late Sh. Vijay Punjani @ Vijay Kumar
4. Krishna Devi
W/o Sh. Tulsi Das (mother of deceased Vijay Punjani
& Vijay)
5. Tulsi Das
S/o Not known
(father of deceased Vijay Punjani & Vijay)
(Petitioner No. 4 & 5 were deleted on account of their death)
All resident of:
3/84, Nirankari Colony,
Delhi-110009.
........Petitioners
VERSUS
MACT No. 357165/16 (Old Suit No.684/2011)
MACT No. 357829/16 (Old Suit No. 665/2011)
MACT No. 356777/16 (Old Suit No. 664/2011)
MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 1 of 62
Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
1. Oriental Insurance Company Ltd.
(Legal Department)
88, Janpath, Cannaught Place,
New Delhi.
............Respondent No.1
(Insurer)
2. Sh. Bhagat Singh S/o Sh. Tulsi Ram R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.2 (Owner)
3. Sh. Manoj Kumar S/o Bhagat Singh R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.3 (Owner)
4. Sh. Raj Pal S/o Medi Ram R/o Village Godota Tehsil Hodal District Faridabad Haryana.
............Respondent No.4 (Driver) MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 2 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
AND MACT No. 357829/16 Suit No. 665/2011 Unique Case ID No. DLCT-01-000473-2010 Date of filing of case: 23.01.2010
1. Smt. Lata Punjani W/o Sh. Vijay Punjani @ Vijay Kumar R/o 3/84, Nirankari Colony, Delhi-110009.
........Petitioner VERSUS
1. Oriental Insurance Company Ltd.
(Legal Department) 88, Janpath, Cannaught Place, New Delhi.
............Respondent No.1 (Insurer)
2. Sh. Bhagat Singh S/o Sh. Tulsi Ram R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.2 (Owner) MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 3 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
3. Sh. Manoj Kumar S/o Bhagat Singh R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.3 (Owner)
4. Sh. Raj Pal S/o Medi Ram R/o Village Godota Tehsil Hodal District Faridabad Haryana.
............Respondent No.4 (Driver) AND MACT No. 356777/16 Suit No. 664/2011 Unique Case ID No. DLCT-01-000209-2008 Date of filing of case: 20.08.2008
1. Riya Punjani (Through her mother/next friend and natural guardian) Smt. Lata Punjani W/o Sh. Vijay Punjani @ Vijay Kumar R/o 3/84, Nirankari Colony, Delhi-110009.
........Petitioner MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 4 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
VERSUS
1. Oriental Insurance Company Ltd.
(Legal Department) 88, Janpath, Cannaught Place, New Delhi.
............Respondent No.1 (Insurer)
2. Sh. Bhagat Singh S/o Sh. Tulsi Ram R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.2 (Owner)
3. Sh. Manoj Kumar S/o Bhagat Singh R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.3 (Owner)
4. Sh. Raj Pal S/o Medi Ram R/o Village Godota Tehsil Hodal District Faridabad Haryana.
............Respondent No.4 (Driver) MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 5 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
AND MACT No. 357166/16 Suit No. 663/2011 Unique Case ID No. DLCT-01-000329-2006 Date of filing of case: 04.11.2006
1. Raima Punjani (Through her mother/next friend and natural guardian) Smt. Lata Punjani W/o Sh. Vijay Punjani @ Vijay Kumar R/o 3/84, Nirankari Colony, Delhi-110009.
........Petitioner VERSUS
1. Oriental Insurance Company Ltd.
(Legal Department) 88, Janpath, Cannaught Place, New Delhi.
............Respondent No.1 (Insurer)
2. Sh. Bhagat Singh S/o Sh. Tulsi Ram R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.2 (Owner) MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 6 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
3. Sh. Manoj Kumar S/o Bhagat Singh R/o Village & Post Office Godota, Tehsil Hodal District Faridabad Haryana.
............Respondent No.3 (Owner)
4. Sh. Raj Pal S/o Medi Ram R/o Village Godota Tehsil Hodal District Faridabad Haryana.
............Respondent No.4
(Driver)
Arguments heard on : 30.10.2017
Date of passing of Award : 30.11.2017
Present: Sh. Subhash Gupta, Advocate, counsel for
Sh. Sunder Lal, Advocate, counsel for respondent No. 2 & 3 Respondent No.4 is ex-parate A W A R D:
1. Above said four claim suits are the subject matter of this award as all the claim suits have arisen from the same motor vehicular accident that took place on August 14, MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 7 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
2005 within the jurisdiction of PS Sadar Palwal, Faridabad. All the claim suits have been filed under Section 166 read with 140 of Motor Vehicles Act, 1988 (in short M.V Act).
(i) Though the accident had not taken place within the jurisdiction of this Tribunal, yet claim suits have been filed before this Tribunal as at the time of accident, petitioners were residing within the jurisdiction of this Tribunal. Moreover, respondent no. 1 was also having its office in Delhi.
(ii) MACT suits no. 357165/16 and 357166/16 were filed on November 4, 2006; MACT suit no. 356777/16 was filed on August 20, 2008 and MACT suit No. 357829/16 was filed on January 23, 2010. In the said accident, Mr. Vijay Punjani @ Vijay Kumar sustained fatal injuries; while his wife Lata Punjani sustained dangerous injuries and his two minor daughters namely Raima Punjani aged about 5½ years and Riya Punjani aged about 8 years sustained grievous injuries. Besides the above, one more person named Nitin died in the accident and another person named Avnish (PW3) also sustained injuries but their claim suits are not before this Tribunal.
(iii) In respect of fatal injuries caused to Vijay Punjani, petitioners claimed compensation of ` 50,00,000/-; qua dangerous injuries, Lata Punjani claimed compensation of ` 35,35,737.93; qua grievous injuries caused to Raima Punjani MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 8 of 62 Lata Punjani & ors. vs. OIC & ors.
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petitioner claimed compensation to the sum of ` 5,00,000/- whereas qua injuries caused to Riya Punjani petitioner claimed compensation to the tune of ` 2,00,000/-.
2. Facts in brief as emerged from the claim petitions are that on August 14, 2005 deceased Vijay Punjani along with his above said family members and two other relatives was returning to Delhi from Agra in his Santro Car bearing no. DL 3C XP 7777. The car was being driven by deceased Vijay Punjani. It was alleged at about 6:30 a.m. when they reached within the vicinity of village 'Prithla', deceased found that one 'Green colour L&T Tractor-trolley' loaded with bricks was going in the middle of the road. On seeing the tractor trolley, deceased slowed down the car and sought permission of the driver of said tractor-trolley to overtake it by blowing horn and light dipper. It was alleged that when both the vehicles reached near Kaka Hotel, driver of the said tractor- trolley gave side to the car from his right side and also made gesture by waiving his right hand allowing the deceased to overtake the tractor-trolley. Accordingly, deceased accelerated the speed of his car and started to overtake the tractor-trolley, but suddenly driver of the said tractor-trolley steered the tractor-trolley towards right side diagonally without any warning, horn or signal. Due to which front portion of the car struck against the right side of the tractor-trolley, accordingly, front portion of the car smashed badly. Besides Vijay Kumar Punjani, Nitin also sustained fatal injuries as he was sitting on MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 9 of 62 Lata Punjani & ors. vs. OIC & ors.
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the front seat whereas Lata Punjani, Raima Punjani and Riya Punjani sustained multiple dangerous injuries. After the accident, driver of tractor-trolley fled away from the spot. In this regard an FIR no. 278/2005 under section 279/337/338/304A IPC was got registered at PS Sadar Palwal, Faridabad, Haryana.
(i) It was alleged that the tractor-trolley was being driven by the respondent no. 4 and it was registered jointly in the name of respondent no. 2 & 3 while it was insured with respondent no. 1.
(ii) It was alleged that deceased Vijay Kumar Punjani was earning between ` 21,500 to ` 22,000 per month from three sources i.e. service, property income & business.
(iii) It was alleged that injured Lata Punjani was also earning between ` 8,000/- to ` 10,000/- per month at the time of accident. It was alleged that Lata Punjani sustained multiple injuries such as head injury; fracture of right 2 nd and 3rd rib; fracture of left humerus bone; fracture of pelvis (hip bone); chip fracture of right occipital condyle and scractes abrasions and cut injuries on other parts of the body. Initially she was treated at Diamond Hospital, Palwal. From there she was shifted to Sushrut Trauma Center, Civil Lines, Delhi. From there she was shifted to Sir Ganga Ram Hospital and from there she was taken to Max Super Specialty Hospital, Saket. She also MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 10 of 62 Lata Punjani & ors. vs. OIC & ors.
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taken treatment from Dr. Ashok Makhija, Prof. Dr. D.N. Pal and Dr. Ashok Rajagopal.
(iv) It was alleged that injured Raima Punjani was also initially taken to Diamond Hospital, Palwal but from there she was shifted to Sir Ganga Ram Hospital. She sustained injuries such as head injury (soft tissue scalp haematoma in the left front temporoparietal region); lacerated wound on left shoulder and scratches abrasions and minor cut injuries on other parts of body.
(v) Similarly, injured Riya was also shifted to Sir Ganga Ram Hospital and it was alleged that she sustained grievous injuries such as left thalamic haematoma; fracture of maxillary sinus and scratches, abrasions and minor injuries on other parts of the body.
3. In claim suits qua the injuries caused to Raima and Riya Punjani, respondent no. 1 to 3 filed their written statement. In MACT suit qua the fatal injuries caused to Vijay Punjani, respondent no. 1 & 2 filed their separate written statement whereas in MACT suit qua the injuries caused to Lata Punjani, only respondent no. 1 filed its written statement. Respondent no. 4 did not file his written statement in any of the matters.
(i) Registered owners of the offending vehicle in MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 11 of 62 Lata Punjani & ors. vs. OIC & ors.
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their written statement took the plea that the accident in question had taken place due to rash and negligence of the deceased Vijay Punjani and further submitted that since the offending vehicle was duly insured with respondent no.1, insurance company is liable to indemnify their liability, if, it is held that the accident had taken place due to rash or negligence of respondent no. 4. It was further submitted that respondent no. 4 had a valid driving license at the time of accident.
(ii) Respondent No.1 admitted that the offending vehicle was insured with it but submitted that the offending vehicle was insured under the Kisan Package Policy which is meant for agricultural purpose only whereas the offending vehicle was being used for commercial purpose i.e. for transportation of brick. It was further submitted that since respondent no. 4 did have the driving licence for commercial vehicle, he will be considered without valid and effective driving license. Accordingly, it was urged that insurance company is not liable to indemnify the liability of insured. It was further alleged that the accident had taken place due to rash or negligence of the deceased.
4. On the basis of pleadings, vide order dated July 9, 2007, following issues were framed:
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 12 of 62 Lata Punjani & ors. vs. OIC & ors.
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MACT Suit No. 357165/16:
(i). Whether the deceased Vijay Punjani @ Vijay Kumar sustained fatal injures in motor accident caused by rash and negligent driving of 'Green colour L & T Tractor-trolley bearing Engine No. PY-3029d119934, Chasis No. PY-5203B003231 (subsequently alloted Temp. Registration No. HR-30TB-1971 by the RTO, Palwal Haryana) by respondent no. 4 on 14.08.2005 at about 6.30 a.m. on Mathura Raod near Kaka Hotel, village Prithla under PS Sadar Palwal, Distt Faridabad, Haryana.
(ii). Whether the petitioners are entitled to compensation, if so, to what amount and from whom?
(iii). Relief.
MACT Suit No. 357166/16:
(i). Whether the injured Raima Punjani sustained grievous injuries in motor MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 13 of 62 Lata Punjani & ors. vs. OIC & ors.
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accident caused by rash and negligent driving of 'Green colour L & T Tractor-trolley bearing Engine No. PY-3029d119934, Chasis No. PY-5203B003231 (subsequently alloted Temp. Registration No. HR-30TB-1971 by the RTO, Palwal Haryana) by respondent no. 4 on 14.08.2005 at about 6.30 a.m. on Mathura Road near Kaka Hotel, village Prithla under PS Sadar Palwal, Distt Faridabad, Haryana.
(ii). Whether the petitioner is entitled to compensation, if so, to what amount and from whom?
(iii). Relief.
MACT Suit No. 356777/16:
1. Whether the petitioner had suffered grievous injuries in road traffic accident on 14.08.2005 due to rash and negligent driving of the vehicle No. HR-30TB-1971 by respondent no. 4.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 14 of 62 Lata Punjani & ors. vs. OIC & ors.
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2. Whether the petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
(i) It is pertinent to state that no formal issues were framed in MACT Suit No. 357829/16.
5 Vide order dated February 19, 2016, respondent No. 2, 3 & 4 were proceed ex-parate.
6. Vide order dated May 15, 2008 an interim compensation of ` 50,000/- was awarded to the petitioners in MACT Suit No. 35716516 but it is not clear whether the said amount was paid to the petitioners or not.
7. Vide order dated October 22, 2007, MACT Suit No. 357165/16 and MACT Suit No. 357166/16 were consolidated. Further, from the orders dated September 24, 2015 & December 19, 2016, it appears that remaining two matters were also consolidated with above matters. It is pertinent to state that parties have led common evidences in the matter. It is also pertinent to state that respondents were not only knew about the claim petition of Lata Punjani, but they had also cross-examined her.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 15 of 62 Lata Punjani & ors. vs. OIC & ors.
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8. In support of their claim suits, claimants examined following witnesses:
PW1 Mr. Gaurav Malhotra, Sr. Medical Record Technician, Sir Ganga Ram Hospital PW2 Ms. Lata Punjani, injured/petitioner PW3 Mr. Avinsh, eye witness PW4 Mr. Mohit Rai, partner of Chemist Jaina House, New Delhi PW5 Mr. Roop Chand, Medical Record Technician, Max Hospital relating to Lata Punjani PW6 Mr. Pyara Singh, Medical Record Officer, Sir Ganga Ram Hospital relating to injured Raima and Riya Punjani
(ii). In rebuttal respondent no. 1 examined Mr. Niket Anand, Administrative Officer as R3W1.
9. I have heard arguments advanced on behalf of petitioners and counsel for respondent No.2 & 3 and perused the record carefully and gave my thoughtful consideration to their contentions. However, it is pertinent to state that though respondent No.2 & 3 were proceeded ex-parate vide order dated February 19, 2016, but later on they joined the proceedings without getting set aside the ex-parate order. Since, none appeared on behalf of respondent No.1, MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 16 of 62 Lata Punjani & ors. vs. OIC & ors.
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respondent no. 1 was permitted to file the written submission, if any, but respondent No.1 failed to file the same.
10. My issue-wise findings are as under:-
Issue No.1 relating to the rashness and negligence of the offending vehicle:
11. Learned counsel appearing for respondent No.2 & 3 contended that the accident had taken place due to rashness or negligence of deceased as he was driving the car at very fast speed. Per contra, counsel appearing for the petitioners refuted the said contention by arguing that the accident had taken place due to negligence of respondent No.4 as he steered the tractor-trolley towards right side without caring that he had allowed the santro car to over take the tractor-trolley from the right side.
(i) Though the petitioners have examined as many as six witnesses, yet only the testimony of PW3 Mr. Avinsh is relevant to ascertain the rashness or negligence on the part of respondent No.4. Though PW2 Lata Punjani was also travelling in the said car, but she testified that since at the time of accident, she was sleeping, she did not know how the accident had taken place. Accordingly, her testimony on the aspect of rashness and negligence of respondent No.4 is not relevant.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 17 of 62 Lata Punjani & ors. vs. OIC & ors.
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(ii) PW3 Mr. Avinsh reiterated the version of the petitioners in his examination-in-chief. As per his testimony, after seeing the offending tractor-trolley, deceased Vijay Punjani slowed down the speed of car and asked for the side from respondent no.4 to over take the Tractor-trolley by blowing horn and light dipper. After some time, when both the vehicles reached near Kaka Hotel, respondent No.4 gave the side and made gesture by waiving his right hand, allowing the deceased to over take the Tractor-trolley from right side. Consequently, deceased accelerated the speed of his car and started to overtake the offending vehicle. But when deceased was over taking the tractor-trolley, respondent No.4, all of sudden without giving any horn or signal steered the tractor-trolley towards central verge of the road i.e. towards right side. Consequently, front portion of the santro car struck against the right side of the tractor-trolley and smashed badly. Due to the accident, Vijay Punjani and Nitin sustained fatal injuries whereas other occupants of the car sustained multiple injuries. Though PW3 was cross-examined at length, yet nothing could be extracted during cross-examination, which may show that the accident had not taken place due to rashness or negligence of respondent No.4 or that the accident had taken place due to rashness or negligence of deceased Vijay Punjani. From the testimony of PW3, I am of the considered opinion that the accident had taken place due to the negligence of respondent No.4 as he steered the tractor-trolley towards right side without caring that he had already allowed the deceased to over-take MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 18 of 62 Lata Punjani & ors. vs. OIC & ors.
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the tractor-trolley from its right side. Accordingly, Issue No.1 regarding rashness and negligence in all the matters is decided in favour of petitioners and against the respondents.
Issue No.2 in all the matters:
12. Before proceeding further, I deem it appropriate to refer the judgment titled National Insurance Company Ltd. vs. Pranay Sethi & ors. SLP (Civil) No. 25590 of 2014 decided by the Constitution Bench of Supreme Court on October 30, 2017. Hon`ble Bench reconsidered all the previous judgments relating to just compensation under Motor Vehicle Act including Sarla Verma & ors. vs. DTC & another, 2009 (6) SCC 121; Reshma Kumari & others vs. Madan Mohan & anr (2013) 9 SCC 65 and Rajesh Tyagi & others vs. Rajbir Singh & ors. (2013) 9 SCC 54.
(i) After analyzing all the precedents, Hon`ble Bench held as under:-
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 19 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors. Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(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 self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For 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 herein- before.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 20 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
(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 funeral expenses should be ` 15,000/-, ` 40,000/- and ` 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
(i) Now, I proceed to examine the facts of the cases at hand.
Income of deceased Vijay Punjani
(i) PW2 Smt. Lata Punjani in her examination-in- chief testified that her husband was employed with M/s Sidhi Vinayak Plastic Products Pvt. Ltd., Mukherjee Nagar, Delhi and was drawing salary of ` 7,500/- per month. She also testified that besides his job, her husband was also earning between ` 7,000/- to ` 7,500/- per month from her private business. Accordingly, his monthly income was between ` 14,500/- to ` 15,000/-. She also testified that her husband was income tax assessee and she filed his ITRs for the assessment year 2002- 2003 to 2005-2006 and same are Ex. PW2/6, PW2/8 and PW2/9. As per ITR for the assessment year 2002-2003 (Ex. MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 21 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
PW2/9), his gross income was ` 50,057; as per ITR for the assessment year 2003-2004 (Ex. PW2/8), his gross salary was ` 72,279/- including income of ` 16,800/- from property and income from other source was ` 6,384/-. As per ITR for the assessment year 2005-2006 (Ex. PW2/6), his gross income was ` 83,201 including income from property ` 16,800/- and from other source was ` 450/-. From the said ITRs, it becomes clear that deceased had never mentioned in his ITRs that he had any income from business/profession. Thus, the testimony of PW2 to the extent that her husband was also earning ` 7,000/- to ` 7,500/- per month from his private business does not inspire any confidence. From the ITRs, it becomes clear that deceased had the constant income from the property, probably it may be rental income from some property. During her deposition, PW2 did not clarify about the said income. Moreover, there is no evidence on record that due to the death of Vijay Punjani, petitioners failed to get income from the said property. Accordingly, the said income is not required to be considered at the time of ascertaining the income of the deceased for computation of just compensation.
(ii) No doubt, ITR for the assessment year 2005- 2006 is filed by PW2 Lata Punjani and this fact is also mentioned in ITR (Ex. PW2/6). Indisputably, assessee Vijay Punjani died in the accident which took place on August 14, 2005, the ITR was to be filed by his LRs. Mere fact that PW2 filed the ITR for the financial period w.e.f April 1, 2004 to March MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 22 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
31,2005 is not sufficient to discard the said ITR. Moreover, there is no evidence on record to show that the income mentioned in the ITR for the assessment year 2005-2006 is excessive. From the ITR filed by the petitioners, it is clear that during the assessment year 2002-2003 and 2003-2004, income from the salary was constant i.e. ` 53,600/- whereas the income from salary was reduced during the assessment year 2004-2005, but it was increased in the assessment year 2005-2006. Mere fact that the income from salary has been increased during the assessment year 2005-2006 is not sufficient to discard the said ITR. Since, as per ITR Ex. PW2/6, the income from the salary was ` 65,951/-, income of the deceased Vijay Punjani is assessed at ` 65,951/- for the computation of just compensation.
Addition towards Future Prospects:-
(i) From the testimony of PW2 Lata Punjani, it is established that deceased was working with M/s Sidhi Vinayak Plastic Products Pvt. Ltd. From the ITRs, it has been established that his income from the salary has grown up from ` 53,600/- to ` 65,951/- in the assessment year 2005-2006, which shows that he got substantial increase in his salary.
From this, it can safely be culled out that he was the permanent employee of the company. No doubt, petitioner failed to produce any employment certificate from M/s Sidhi Vinayak Plastic Products Pvt. Ltd., but this is not helpful to the MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 23 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
respondents in any manner as from his ITR, it has been established that the deceased had regular income.
(ii) From the passport (Ex. PW2/H), it is established that date of birth of the deceased was May 22, 1970. Since the accident had taken place on August 14, 2005, it means that he was 35 years, 2 months and 23 days old at the time of accident.
(iii) Since deceased was below 40 years old at the time of his death, in view of the law laid down in Praney Sethi case (supra), petitioners are entitled for 50% addition towards future prospects. Accordingly, a sum of ` 32,976/- [50 % of ` 65,951] is added in the income of the deceased Vijay Punjani.
Selection of multiplier:
(i) Since the deceased was 35 years 2 months and 23 days old at the time of his death, in view of law laid down in Sarla Verma case (supra) and approved by the Apex Court in Pranay Sethi's case (supra), multiplier of 16 shall be apply in this matter.
Deduction towards personal and living expenses of the deceased:-
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 24 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
(i). As per the claim petition, petitioner No.1 is the wife of deceased; petitioner No.2 & 3 were minor daughters of deceased whereas petitioner No. 4 & 5 were parents of deceased, who were between 72-75 years old at the time of accident and there is nothing on record to show that parents of the deceased had any source of income. Accordingly, they are also considered dependent on the income of deceased.
Accordingly, five persons were financially dependent on the earning of the deceased.
(ii). In view of the law laid down in Sarla Verma case (supra) and approved in Pranay Sethi's case (supra), 1/4th of the income of the deceased is liable to be deducted towards personal and living expenses. Accordingly, a sum of ` 24,731/- is deducted towards personal and living expenses of the deceased.
Loss of income:-
(i) In view of the above, loss of income is calculated as under:
NAME OF THE HEAD AMOUNT
(IN `)
Annual Income of deceased 65,951/-
50% addition of towards future prospects 32,976/-
Total 98,927/-
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 25 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
Less 1/4th deduction towards personal 24,731/-
and living expenses
Actual Total 74,196/-
Selection of multiplier 16
Total loss of income (74,196 X 16) 11,87,136/-
13. Compensation under non-pecuniary heads:-
(i) In view of the law laid down in Pranay Sethi's case (supra), a sum of ` 15,000/- is awarded towards loss of estate; ` 40,000/- is awarded towards loss of consortium and ` 15,000/- is awarded towards funeral expenses. In total ` 70,000/- is awarded to the petitioners under the above said three heads.
(ii) Accordingly, claimants are entitled to compensation in respect of the death of deceased as under:
NAME OF THE HEAD AMOUNT
(IN `)
Loss of Income 11,87,136/-
Loss of estate 15,000/-
Loss of consortium 40,000/-
Funeral expenses 15,000/-
Total 12,57,136/-
Rounded off ` 12,58,000/-
(Rupees Twelve Lac Fifty Eight Thousands Only) MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 26 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
(ii) Since, interest @ 9% per annum was awarded by the Apex Court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), it is held that claimants shall be entitled to interest @ 9% per annum from the date of filing of claim petition i.e. November 04, 2006 (except for the period August 10, 2010 to September 3, 2016 as vide order dated March 5, 2011, petitioners were disqualified to claim interest w.e.f August 10, 2010 till conclusion of the evidence, which was concluded on September 3, 2016) till realization of the amount.
Apportionment of the Award:-
14. Since petitioner No.1 (Lata Punjani) is the wife of deceased, 50% of award shall go to petitioner No.1. Since, petitioner No.2 & 3 (Riya Punjani & Raima Punjani) are daughters of deceased, they shall be entitled to 25% each of the award. Petitioner No. 4 & 5 have already been deleted as they had expired during pendency of the inquiry.
(i) The individual share of claimants is tabulated as under, which is subject to adjustment of interim compensation, if any:-
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 27 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
Name of the Relation Percentage of Actual amount
claimant with award amount (In `)
deceased
Smt. Lata Punjani Wife 50% 6,29,000
Gupta
Riya Punjani Daughter 25% 3,14,500
Raima Punjani Daughter 25% 3,14,500
DISBURSEMENT:
15. In her statement recorded on March 18, 2017 in compliance of Clause 26 of FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 12, 2014, petitioner Lata Punjani testified that her monthly household expenses are about ` 35,000/-.
(i) In view of her statement, on realization, a sum of ` 1,29,000/- plus entire interest shall be released to Smt. Lata Punjani and the balance amount of her share i.e. ` 5,00,000/- shall be put in 25 fixed deposits of equal amount i.e. ` 20,000/- each for period of 1 month to 25 months in a nationalized bank in her name.
(ii) Since, petitioner No.2 (Riya Punjani) is minor, on realization, her entire share including interest shall be kept in the form of FDR till she attains the age of majority.
However, being the natural guardian/next friend/mother, petitioner No.1 shall be entitled to draw interest monthly or quarterly as she desires for education expenses of MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 28 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
petitioner No.2. However, On attaining the age of majority, 25% of the FDR amount shall be released to petitioner no.2 automatically and the balance amount of 75% of FDR amount shall be put in 20 FDRs of equal amount for period of 1 month to 20 months in a nationalized bank in her name.
(iii) Since, petitioner No.3 has already attained the age of majority, on realization, a sum of a sum of ` 1,14,500/- plus entire interest be released to her and the balance amount of her share i.e. ` 2,00,000/- shall be put in 20 fixed deposits of equal amount i.e. ` 10,000/- each for period of 1 month to 20 months in a nationalized bank in her name.
In MACT No 357829/16:
FINDINGS:
16. In this matter, injured Lata Punjani not only sustained grievous injuries but also sustained 40% permanent disability in relation to her left lower and left upper limbs.
INCOME OF PETITIONER (Lata Punjani):
(i) As per claim petition, claimant Lata Punjani was initially got admitted at Diamond hospital, Palwal, Haryana.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 29 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
From there, she was shifted to Sushrut Trauma Center, Civil Line, Delhi. Thereafter, she was taken to Sir Ganga Ram Hospital. As per Discharge Summary Ex. PW6/1 (colly), petitioner Lata Punjani was got admitted at Sir Ganga Ram Hospital on August 14, 2005 at 18:09 hours and she was discharged from the hospital on September 8, 2005. This establishes that she was got admitted to Sir Ganga Ram Hospital on the day of accident itself and she remained admitted in the hospital for 26 days. As per medical record, she had sustained head injury; fracture of right 2nd and 3rd rib; fracture of left humerus bone; fracture of pelvis (hip bone); chip fracture of right occipital condyle and scractes abrasions and cut injuries on other parts of the body. From the discharge summary (Ex. PW5/2), it is clear that petitioner was again got admitted in Max Super Specialty Hospital, Saket on November 19, 2006 and she was discharged on November 26, 2006. It means that she remained admitted for 8 days at Max Super Specialty Hospital. She had undergone surgery of left promima hip replacement on November 21, 2006.
(ii) From the discharge summary Ex. PW5/3 (colly), it becomes clear that petitioner again got admitted at Max Super Specialty Hospital, Saket on April 28, 2010 and was discharged on May 3, 2010. It means that she remained admitted for six days in the Max Hospital. She had undergone surgery i.e. Ist stage revision total hip replacement left side under CSE and implants were also removed. From the MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 30 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
discharge summary Ex. PW5/4, it is clear that injured was again got admitted at Max Super Specialty Hospital on September 11, 2010 and she was discharged from the hospital on September 18, 2010. It means that she remained admitted for eight days in the hospital. She had undergone surgery i.e. left side 2nd stage revision total hip replacement under CSE on September 13, 2010.
(iii) From the above said medical record, it can safely be culled out that injured had undergone multiple surgeries at Sir Ganga Ram hospital & Max Super Specialty Hospital. Since, her hip was replaced, it can safely be presumed that petitioner must have remained confined to the bed atleast till the end of September, 2010.
(iv) Though petitioner Lata Punjani in her claim petition states that she was earning ` 8000/- to ` 10,000/- per month, yet during inquiry, she failed to produce any cogent evidence in this regard. On the contrary, in her statement recorded in compliance of clause 26 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 12, 2014, petitioner testified that she is a housewife and she had no source of income. In these circumstances, it is held that petitioner had no source of income at the time of accident and she was a house wife. But mere fact that she was a house wife is not sufficient to hold that she was not doing any work. Being MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 31 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
the house-wife, besides managing home, she had also to manage both the minor daughters; to look after their studies. She was also required to look after kitchen and other responsibilities of the house. Considering the fact that she had to perform multiple tasks without any break, I am of the view that income of the petitioner should be assessed as per minimum wages applicable to skilled worker. Since, she had to perform for 24 hours without any break, I am of considered opinion that petitioner should get a 1.5 times of the minimum wages applicable to skilled worker because rate of wages is prescribed for fixed hours and not for 24 hours. It is pertinent to state that parties failed to provide minimum wages prevalent in August 2005. However w.e.f August 1, 2007, the minimum wages for skilled worker was ` 3,940/- per month. As stated above, petitioner remained confine to bed till September 2010. Accordingly, minimum wages prevalent in February 2008 is considered for the purpose of computation of just compensation. Since, the minimum wages in February, 2008 was ` 4,057/-, income of the petitioner is assessed at ` 6,085/- per month (` 4057 X 1.5).
LOSS OF INCOME:-
(i) As already stated that due to multiple fractures and replacement of hip, petitioner remained confined to bed till end of September, 2010. Accordingly, it can safely be culled out that petitioner must not be able to perform her duties till September MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 32 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
2010. Accordingly, loss of income for a period of five years @ ` 6,085/- is awarded to her. Accordingly, a sum of ` 3,65,100/- is awarded to her under this head.
MEDICAL EXPENSES:
(i) Ex. PW1/7 is the medical bill of Sir Ganga Ram hospital, which pertains for the period of treatment w.e.f August 14, 2005 to September 8, 2005 and the amount of bill is ` 4,71,716/-. As per medical bill dated December 12, 2005 of Sir Ganga Ram Hospital is pertaining to the treatment given to the petitioner on December 12, 2005 and the amount of bill is ` 7,764/-. Ex. PW1/8 are two medical bills of Max Super Specialty hospital, Saket; first bill of ` 1,08,627/- pertaining to the treatment from April 28,2010 to May 3, 2010 whereas the another bill of ` 3,26,441/- and the same pertains to the treatment given to the injured during the period w.e.f September 11, 2010 to September 18, 2010. Besides that Ex.
PW1/9 (colly) are bills relating to medicines/drugs/nursing and various medical tests etc. The total bills are 105. Summary of the bills has been supplied by the counsel and the total of all the bills is ` 1,38,483/-, same are as under:-
S.NO BILL/RECEIPT/CASH DATED AMOUNT MEMO NOS. (In `) 1 4327 14.08.2005 2364.00 2 85707 15.08.2005 155.00 MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 33 of 62 Lata Punjani & ors. vs. OIC & ors.
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Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
3 G1-14784 21.08.2005 14.36 4 G1-15160 24.08.2005 624.00 5 S07650 25.08.2005 46.80 6 G1-15462 26.08.2005 26.22 7 S07666 26.08.2005 14.36 8 G1-15545 27.08.2005 18.82 9 S08015 31.08.2005 300.00 10 G1-16107 31.08.2005 56.48 11 G1-16385 02.09.2005 14.24 12 S08320 03.09.2005 30.34 13 S08409 05.09.2005 300.00 14 G1-16741 05.09.2005 300.00 15 G1-16844 06.09.2005 42.58 16 2830 12.09.2005 297.00 17 2905 16.09.2005 265.00 18 2930 17.09.2005 148.00 19 2947 18.09.2005 509.00 20 2977 20.09.2005 1035.00 21 11563 27.09.2005 430.00 22 863 03.01.2006 2037.00 23 7793 13.05.2006 287.00 24 295 06.06.2006 429.00 25 2344 01.09.2006 239.00 26 380 23.10.2006 372.00 27 1376 27.10.2006 100.00 28 1380 27.10.2006 100.00 29 1384 27.10.2006 100.00 30 4007 09.11.2006 334.00 31 031 15.09.2005 3600.00 32 40(Dressing) 07.10.2005 12000.00 33 450(Nursing 08.09.2005 16100.00 MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 34 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
17.08.2005 to 08.09.2005 total 23 days @ 700/- day & night.
34 471(Nursing 07.11.2005 10850.00 01.10.2005 to 31.10.2005 total 31 days @ 350/- day & night) 35 1223 30.09.2005 2850.00 36 463 17.08.2005 3100.00 37 511 02.09.2005 5252.00 38 0041926 14.10.2005 400.00 39 3618 24.08.2005 56.00 40 MSCS31924 15.11.2006 500.00 41 MSCS36832 06.12.2005 500.00 42 MSCS43565 06.01.2007 500.00 43 MSCS43572 06.01.2007 600.00 44 MSCS57744 28.10.2007 500.00 45 16698 26.11.2007 1304.13 46 9827 12.08.2010 13989.00 47 9748 22.05.2010 659.00 48 9747 22.05.2010 3661.00 49 10256 30.05.2010 282.40 50 10300 03.06.201 282.00 51 10688 16.06.2010 717.00 52 10696 17.06.2010 724.00 53 10562 23.06.2010 482.00 54 10588 25.06.2010 241.00 55 11003 28.06.2010 482.00 56 10859 01.07.2010 482.00 57 10916 06.07.2010 241.00 MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 35 of 62 Lata Punjani & ors. vs. OIC & ors.
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Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
58 10952 08.07.2010 241.00 59 11407 13.07.2010 482.00 60 11438 15.07.2010 241.00 61 11307 19.7.2010 540.00 62 11514 22.07.2010 650.00 63 11625 26.07.2010 299.00 64 11579 03.08.2010 540.00 65 12259 14.08.2010 2485.00 66 12617 28.08.2010 660.00 67 12916 18.09.2010 2294.20 68 13301 30.09.2010 1158.00 69 045774 28.05.2010 680.00 70 045707 05.06.2010 680.00 71 2833 10.06.2010 450.00 72 045769 22.06.2010 680.00 73 181225 06.07.2010 680.00 74 181270 17.07.2010 450.00 75 232465 02.08.2010 680.00 76 269707 13.08.2010 680.00 77 238196 25.08.2010 450.00 78 269746 27.08.2010 250.00 79 1155 15.05.2010 4500.00 80 1155 14.05.2010 8000.00 81 3483 19.09.2010 1845.00 82 44823 18.09.2010 150.00 83 44822 18.08.2009 150.00 84 2151 11.08.2010 617.36 85 507 18.08.2009 250.00 86 MSCS506852 12.03.2010 500.00 87 MSCS506932 12.03.2010 600.00 88 MSCS527160 14.04.2010 800.00 MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 36 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
89 MSCS661645 01.01.2011 800.00 90 MSCS661656 10.02.2011 700.00 91 MSCS629553 29.10.2010 800.00 92 MSCS629601 29.10.2010 700.00 93 17250 03.05.2010 565.00 94 17253 03.05.2010 2307.00 95 15730 18.09.2010 2340.00 96 MSCS549232 21.05.2010 800.00 97 MSCS592163 14.08.2010 800.00 98 MSCS600901 01.09.2010 525.00 99 26638 17.01.2012 453.00 100 25860 27.08.2013 300.00 101 8088 27.08.2016 200.00 102 24206 02.05.2013 172.00 103 525582 02.05.2013 1392.00 104 MSCS1093438 02.05.2013 800.00 105 MSCS1093455 02.05.2013 800.00
(i) Detail of the above bills is tabulated as under:-
Medical Bills Amount
(In ` )
Ex. PW1/7 4,71,716
Bill dated 12.12.2005 7,764
Ex. PW1/8 1,08,627
Ex. PW1/8 3,26,441
Ex. PW1/9 1,38,483
Total 10,53,031
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 37 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
(ii) During inquiry, no contrary evidence has been produced which may cast any doubt over the genuineness or authenticity of the above said bills. Accordingly, a sum of ` 10,53,031/- is awarded towards medical expenses.
CONVEYANCE CHARGES:
(i) Admittedly, accident had taken place at Palwal, Haryana. From their injured was shifted to Sushrut Trauma Center and then shifted to Sir Ganga Ram Hospital. In the claim petition, petitioners claimed a sum of ` 2,500/- towards transportation of patient from Palwal to Delhi. No doubt, the petitioner did not place any document in this regard. But since, it is undisputed fact that the accident had taken place at Palwal and patient was shifted to Delhi, it can safely be culled out that petitioner must have incurred substantial amount in shifting the patient from Palwal to Delhi. To my mind, the amount claimed by the petitioner is reasonable, accordingly same is awarded to the petitioner.
(ii) Further counsel claimed conveyance charges @ ` 3000/- per month for two years. However, counsel fairly conceded that petitioner has no documentary evidence in this regard. As already discussed that petitioner had undergone multiple surgeries at Sir Ganga Ram Hospital and Max Super Specialty Hospital and she remained under treatment for a period of about more than 5 years. From the claim petition, it is MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 38 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
clear that the petitioner was residing at Nirankari colony. Considering the number of visits paid by the petitioner to the hospital and distance between her residence and the hospital, a sum of ` 25,000/-is awarded towards conveyance charges. Accordingly, in total, a sum of ` 27,500/- (` 25,000/- + ` 2500/-) is awarded to her under this head.
SPECIAL DIET:
(i) Counsel claimed ` 4,500/- per month for a period of two years towards special diet. However, he fairly conceded that petitioner has no documentary evidence in this regard. As already stated that petitioner sustained multiple injuries and she had undergone multiple surgeries at two hospitals namely Sir Ganga Ram Hospital & Max Super Specialty Hospital. It is further clear that petitioner remained under treatment for a very long period. Accordingly, it can safely be culled out that petitioner must have incurred substantial amount on her special diet. Considering the duration of treatment, special diet @ ` 2500/- per month for a period of two years is awarded. Accordingly, a sum of ` 60,000/- (` 2500 X24) is awarded to her under this head.
ATTENDANT CHARES:
(i) Considering the nature of injuries sustained by the petitioner and the fact that she had undergone multiple MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 39 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
surgeries, it can safely be presumed that petitioner must be attended either by family member or paid attendant during her treatment. Accordingly, attendant charges to the sum of ` 60,000/- is awarded.
LOSS ON ACCOUNT OF PERMANENT DISABILITY:
(i) Ex. PW1/6 is the Disability certificate issued by the Medical Board of Hindu Rao Hospital. As per Ex. PW1/6, Lata Punjani has sustained 40% disability in respect of left lower and left upper limbs and the disability is permanent in nature.
(ii) Before dealing with the contention raised by the counsel for the petitioner, I deem it appropriate to refer the judgmnet Raj Kumar vs. Ajay Kumar and Another 2011 (1) T.A.C. 785 (S.C) where a question arose before the Apex Court whether the claimant is entitled for loss of earning capacity equal to the loss of disability or the loss of earning capacity shall be calculated on the basis of approximate loss of capacity to the injured due to disability. The relevant paras are reproduced as under:-
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to particular limb. When a disability certificate states that the injured had MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 40 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors. suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 41 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in term of money, to arrive at the future loss of earning (by applying the standard multiplier method used to determine loss of dependency).We may, however, note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that Tribunal should consider and decide with reference to the evidence: (I) whether the disablement is permanent or MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 42 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors. temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. 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 ability (sic disability) (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his age. The third step is to find out whether (I) the claimant is totally disabled from earning any kind of livelihood, or (ii) 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 (iii) whether he was prevented or restricted from discharging his previous MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 43 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors. 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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 %. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be 100%, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequences of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity of 100% (or even MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 44 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors. anything more than 50%), the need to award compensation separately under the head of loss of amenities nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
(emphasis supplied)
(iii) In the light of the aforesaid case law, I proceed to analysis the facts of the case at hand.
(iv) No doubt the petitioner had sustained 40% permanent disability in respect of left lower and left upper limb. But during inquiry, petitioner failed to lead any specific evidence to establish, how the said disability has caused loss of earning capacity. Even petitioner failed to lead any evidence to show that due to disability, she became incapable to perform her duty being house wife. But since she had sustained 40% of disability in relation to her left lower and left upper limbs, it can safely be culled out that her efficiency must be affected due to disability. Accordingly, loss of earning capacity is assessed at 25% of the income.
(v) As per All India Senior Secondary School certificate Ex. PW1/16, date of birth of petitioner Lata Punjani was July 25, 1971. Since the accident had taken place on August 14, 2005, it means that she was 34 years and 20 days old at the time of accident. Accordingly, in view of the law laid MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 45 of 62 Lata Punjani & ors. vs. OIC & ors.
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down in Sarla Verma case (supra) and approved by the Constitution Bench in Pranay Sethi's case (supra), multiplier of 16 shall be applied to calculate the loss of earning due to disability. Accordingly, loss of disability is calculated as under:
NAME OF HEAD AMOUNT (IN ` ) Annual income 3,65,100 Multiplier 16 58,41,600 25% of said amount 14,60,400/- 17. COMPENSATION UNDER NON-PECUNIARY HEADS:- Mental & Physical Shock:- (i) Indisputably, petitioner was travelling in the
car, which was being driven by her husband and at the time of accident she was sleeping in the car. But all of sudden, car met with an accident and she sustained multiple injuries, which compelled her to undergo multiple surgeries. She also suffered 40% permanent disability in relation to her left lower and left upper limbs. Besides that in the said accident, she lost her husband and her minor daughters also sustained injuries. Accordingly, it can safely be presumed that she must have suffered severe mental and physical shock not only at the time of accident but even during treatment and even thereafter. Though the mental and physical shock cannot be quantified in monetary terms, yet considering the facts and MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 46 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
circumstances of the case, sum of ` 1 lac is awarded to her under this head.
Pain and Suffering:-
(i) In view of the above and the fact that due to injuries petitioner confined to bed for a very long period and she had to undergo for replacement of hip. Accordingly, it can safely be presumed that she must have suffered acute pain and suffering due to injuries caused to her not only at the time of accident, but also during treatment and even thereafter.
Though pain and suffering cannot be quantified in monetary terms, yet considering the facts & circumstances of the case, a sum of ` 2 lac is awarded to her on account of pain and suffering.
Loss of life amenities:
(i) Since petitioner remained admitted in the hospital at several occasions and undergone multiple surgeries and also sustained 40% disability, it can safely be culled out that petitioner must have suffered a loss of amenities till she remained under treatment. Though it is difficult to quantify the said loss in terms of money, yet considering the facts and circumstances of the case, a sum of ` 1 lac is awarded under this head.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 47 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
Disfiguration:-
(i) As already stated that petitioner sustained 40% permanent disability in relation to left lower and left upper limb. Accordingly, left lower & upper portion became disfigured.
Though it is difficult to quantify the loss of disfiguration in terms of money, yet considering the facts and circumstances of the case, a sum of ` 1 lac is awarded to her under this head.
Loss of inconvenience/hardship/disappointment/mental stress etc:
(i) Considering the nature of injuries caused to the petitioner and duration of treatment, it can safely be culled out that petitioner must have faced some inconvenience and hardship for a considerable period. However, since the petitioner has already been compensated toward loss of life of amenities and earning capacity due to disability, a sum of ` 30,000/- is awarded under this head.
18. As discussed above, the overall compensation is tabulated as under:
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 48 of 62 Lata Punjani & ors. vs. OIC & ors.
Lata Punjani vs. OIC & ors.
Riya Punjani & ors. vs. OIC & ors.
Raima Punjani & ors. vs. OIC & ors.
NAME OF HEAD AMOUNT
(In ` )
Loss of Income 3,65,100
Medical Expenses 10,53,031
Conveyance charges 27,500
Special Diet 60,000
Attendant Charges 60,000
Loss on account of permanent disability 14,60,400
Mental & physical shock 1,00,000
Pain & suffering 2,00,000
Loss of life amenities 1,00,000
Disfiguration 1,00,000
Loss of inconvenience/hardship/ 30,000
disappointment/mental stress
Total 32,27,441
Round off :- ` 32,28,000/-
(Rupees Thirty Two Lac & Twenty Eight Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the petition i.e. January 23, 2010 (except for the period August 10, 2010 to September 3, 2016 as vide order dated March 5, MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 49 of 62 Lata Punjani & ors. vs. OIC & ors.
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2011, petitioners were disqualified to claim interest w.e.f August 10, 2010 till conclusion of the evidence, which was concluded on September 3, 2016) till realization of the amount. Interim award, if any, shall be deducted from the award amount.
19. DISBURSEMENT:-
(i) In view of her statement recorded regarding financial status in terms of clause 26 of Rajesh Tyagi & others Vs Jaibir Singh & others, FAO No. 842 of 2003 decided by Hon`ble High Court of Delhi on December 12, 2014, on realization, a sum of ` 2,28,000/- with interest up-
to date shall be released to her forthwith and balance amount of ` 30 lac shall be put in 100 fixed deposits in the name of petitioner/claimant in a nationalized bank of equal amount ` 30,000/- each for a period of one (1) month to one hundred months (100) in her name.
In MACT No 357166/16:
FINDINGS:
20. As per Discharge Summary Ex. PW2/14, injured Raima Punjani remained admitted in Sir Ganga Ram Hospital from August 14, 2005 to August 16, 2005. As per discharge summary, she sustained bruises and abrasion and MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 50 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
her wounds were stitches. At the time of discharge, she was advised to visit hospital after five days for removal of stitches.
MEDICAL EXPENSES:
(i) As per medical bills Ex. PW2/12, hospital has charged ` 21,425/- for the treatment given during the period August 14, 2005 to August 16, 8, 2005. Besides that the petitioner also incurred a sum of ` 2,523/- on the medicines vide bill Ex. PW2/13. During inquiry, no evidence has been adduced, which may cast any doubt over the genuineness or authenticity of the bills. Accordingly, a sum of the ` 23,948/-
(` 21,425/- + ` 2,523/-) is awarded to her under this head.
CONVEYANCE CHARGES:
(i) Considering the fact that petitioner was shifted to Sir Ganga Ram hospital and she visited the hospital 2-3 times, a sum of ` 1,000/- is awarded towards conveyance charges.
SPECIAL DIET:
(i) Though no special diet was advised to injured at the time of discharge, yet a sum of ` 5,000/- is awarded towards special diet.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 51 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
ATTENDANT CHARES:
(i) Since injured was just 5½ years at the time of accident, it can safely be culled out that injured must be attended either by family member or paid attendant during her treatment. Accordingly, attendant charges to the sum of ` 5000/- for is awarded.
21. COMPENSATION UNDER NON-PECUNIARY HEADS:-
Pain and Suffering & Mental and physical shock:-
(i) Admittedly, injured was travelling with her parents and she sustained injury all of sudden. She was just 5 years old at the time of accident. Accordingly, it can safely be presumed that she must have suffered acute pain and suffering due to injuries. Besides that she must have suffered mental and physical shock after seeing the outcome of accident.
Though the pain and suffering cannot be quantified in monetary terms, yet considering the facts & circumstances of the case, a sum of ` 50,000/- is awarded to her on account of pain and suffering & Mental and physical shock.
22. As discussed above, the overall compensation is tabulated as under:
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 52 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
NAME OF HEAD AMOUNT
(In ` )
Medical Expenses 23,948
Conveyance charges 1,000
Special Diet 5,000
Attendant Charges 5,000
Pain & suffering 50,000
Total 84,948/-
Round off :- ` 85,000/-
(Rupees Eighty Five Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the petition i.e. November 4, 2010 (except for the period August 10, 2010 to September 3, 2016 as vide order dated March 5, 2011, petitioners were disqualified to claim interest w.e.f August 10, 2010 till conclusion of the evidence, which was concluded on September 3, 2016) till realization of the amount. Interim award, if any, shall be deducted from the award amount.
23. DISBURSEMENT:-
(i) Since, petitioner is minor, on realization, her MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 53 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
entire share with interest shall be kept in the form of FDR till she attains the age of majority. However, being the natural guardian/next friend/mother, Ms. Lata Punjani shall be entitled to draw interest monthly or quarterly as she desires for education expenses of injured.
(ii) On attaining the age of majority, 25% of the FDR amount shall be released to injured automatically and the balance amount of 75% of FDR amount shall be put up in 10 FDRs of equal amount for period of 1 month to 10 months in a nationalized bank in her name.
In MACT No 356777/16:
FINDINGS:
24. As per Discharge Summary Ex. PW1/20, injured Riya Punjani was admitted in the hospital on August 14, 2005 and discharged on August 24, 2005. It also reveals that she had sustained minor fracture of maxillary sinus and no surgery was advised. She was advised to visit the hospital after two days of discharge and physiotherapy exercises was advised to the patient. From the OPD card, it is clear that she remained under treatment till October 17, 2006.
MEDICAL EXPENSES:
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 54 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
(i) As per medical bills Ex. PW1/18, Sir Ganga Ram Hospital had charged ` 48,007/- for the treatment given during August 14, 2005 to August 24, 2005. Besides that as per Ex.
PW1/19 (colly), petitioner also incurred a sum of ` 41,836/- on her medicines and various medical tests etc. In total, petitioner incurred a sum of ` 89,843/- on her treatment. During inquiry, no evidence has been adduced, which may cast any doubt over the genuineness or authenticity of the bills. Accordingly, a sum of the ` 89,843/- is awarded to her under this head.
CONVEYANCE CHARGES:
(i) Considering the duration of treatment, a sum of ` 5,000/- is awarded towards conveyance charges.
SPECIAL DIET:
(i) Though no special diet was advised to injured at the time of discharge, yet considering the duration of treatment, it can safely be culled out that special diet must be given to the injured for the purpose of fast recovery. Accordingly, a sum of ` 10,000/- is awarded towards special diet.
ATTENDANT CHARES:
(i) Since injured was just 8 years at the time of accident, it can safely be culled out that injured must be MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 55 of 62 Lata Punjani & ors. vs. OIC & ors.
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attended either by family member or paid attendant during her treatment. Accordingly, attendant charges to the sum of ` 10,000/- for is awarded.
24. COMPENSATION UNDER NON-PECUNIARY HEADS:-
Pain and Suffering & Mental and physical shock:-
(i) Admittedly, injured was travelling with her parents and she sustained injury without any fault. Due to the injuries, she was compelled to undergo treatment for a period of more than one year. Even in the accident, she lost her father and he mother also sustained dangerous injuries. Accordingly, it can safely be presumed that she must have suffered not only acute pain and suffering at the time of treatment, but she also sustained mental and physical shock after seeing the outcome of the accident. Though the pain and suffering & mental and physical shock cannot be quantified in monetary terms, yet considering the facts & circumstances of the case, a sum of ` 1 lac is awarded to her under this head.
Loss of Education:
(i) Injured was just 8 years at the time of accident.
Counsel submitted that she was in third standard and due to the injuries, she could not attend the school for a long period.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 56 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
No doubt, during inquiry no evidence has been adduced in this regard. But considering the fact that she remained admitted in the hospital till August 24, 2005 and remained under medical treatment till October 17, 2006, it can safely be culled out that due to injuries, she must have suffered a loss of education. Accordingly, a sum of ` 5,000/- is awarded under this head.
25. As discussed above, the overall compensation is tabulated as under:
NAME OF HEAD AMOUNT
(In ` )
Medical Expenses 89,843
Conveyance charges 5,000
Special Diet 10,000
Attendant Charges 10,000
Pain and suffering & Mental and 1,00,000
physical shock
Loss of Education 5,000
Total 2,19,843/-
Round off :- ` 2,20,000/-
(Rupees Two Lac Twenty Thousands Only) MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 57 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the petition i.e. August 20, 2008 (except for the period August 10, 2010 to September 3, 2016 as vide order dated March 5, 2011, petitioners were disqualified to claim interest w.e.f August 10, 2010 till conclusion of the evidence, which was concluded on September 3, 2016) till realization of the amount. Interim award, if any, shall be deducted from the award amount.
26. DISBURSEMENT:-
(i) Since, petitioner attained the date of majority, on realization, a sum of ` 70,000/- plus entire interest be released to her and the balance amount of her share i.e. ` 1,50,000/- shall be put in 15 fixed deposits of equal amount i.e. ` 10,000/- each for period of 1 month to 15 months in a nationalized bank in her name.
27. The above FDRs in all the matters shall be prepared with the following conditions:-
(i) Original fixed deposit receipts be retained by the bank in safe custody. However, a statement containing FDR number, FDR amount, date of maturity of FDR and maturity amount of the FDRs be given to the claimants.
(ii)The maturity amount of the FDR be credited in the MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 58 of 62 Lata Punjani & ors. vs. OIC & ors.
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saving account of the claimants near the place of their residence.
(iii) No cheque book be issued to the claimants in the savings bank account without permission of the court.
(iv) No loan, advance or premature withdrawal be allowed on the fixed deposits without permission of the court.
(v) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victims/claimants.
28. LIABILITY TO PAY:-
(i) Though insurance company did not file written arguments despite opportunities given, yet perusal of the reply to the petition reveals that insurance company had taken the plea that insurance company is not liable to indemnify the liability of insured as the offending tractor-trolley was being used in violation of terms and conditions of the Policy. It is stated in the reply that the offending tractor-trolley was insured under Kisan Package Policy, which is meant for agricultural purpose, but the tractor-trolley was being used for commercial purpose as at the time of accident, tractor was transporting bricks. It was further stated that since the tractor was used for commercial purpose, respondent No.1 was required to hold a commercial licence,but he did not have the same.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 59 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
who has driving licence for agriculture purpose, but he was not carrying any commercial licence.
(i) Per contra, counsel appearing for respondent No.2 & 3 contended that the tractor-trolley was being used for agricultural purpose only and the driver had a valid driving licence.
(ii) Perusal of Policy Ex. R3W1/1 reveals that the offending vehicle was insured under Kisan Package Policy. As per terms and conditions of the Policy, the same was to fulfill the needs of different categories of farmers. During inquiry, respondent No.2 & 3 failed to adduce any evidence to establish that the bricks were transporting in connection with the requirement of farmers. Since, as per FIR, tractor-trolley was loaded with bricks, it shows that the offending vehicle was being used for commercial purpose. In other words, there was a wilful breach of the terms and conditions of the Policy on the part of its registered owners well as driver. Accordingly, insurance company is entitled to recover the said amount from the registered owners as well as driver of the offending vehicle without filing a separate suit. However, insurance company is liable to recover the amount only after satisfying the award.
(iii) Since the offending vehicle belonged to respondent no.2 & 3 (Bhagat Singh & Manoj Kumar) and it was being driven by respondent No.4 (Raj Pal) and same was MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 60 of 62 Lata Punjani & ors. vs. OIC & ors.
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insured with respondent no.1 (Oriental Insurance Company Ltd.), all are jointly and severally liable to pay compensation. Accordingly, Issue No.2 is decided in favour of petitioners and against the respondents.
29. Relief:
Since, the offending vehicle was duly insured with respondent no.1 (Oriental Insurance Company Ltd.), respondent No.1 is directed to deposit the award amount of ` 12,58,000/- in MACT No. 357165/16; ` 32,28,000/- in MACT No. 357829/16; ` 85,000/- in MACT No. 357166/16 and ` 2,20,000/- in MACT No. 3576777 with interest @ 9 % per annum from the date of filing of respective petitions (except for the period August 10, 2010 to September 3, 2016 as vide order dated March 5, 2011, petitioners were disqualified to claim interest w.e.f August 10, 2010 till conclusion of the evidence, which was concluded on September 3, 2016) till realization of the amount.
30. Insurance company, driver and owner of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioners/claimants and complete detail in respect of calculation of interest etc. within 30 days from today.
MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 61 of 62 Lata Punjani & ors. vs. OIC & ors.
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Raima Punjani & ors. vs. OIC & ors.
(i) A copy of this judgment be sent to Respondent No.1 for compliance within the time granted.
(ii) Nazir is directed to place a report on record on January 12, 2018 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(iv) Original award is signed and placed in MACT Suit No. 357165/16, copy of thereof be placed in other matters.
(v) File be consigned to Record Room.
Announced in open court on this 30th day of November, 2017 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), THC, Delhi/sv MACT No. 357165/16 (Old Suit No.684/2011) MACT No. 357829/16 (Old Suit No. 665/2011) MACT No. 356777/16 (Old Suit No. 664/2011) MACT No. 357166/16 (Old Suit No. 663/2011) Page No. 62 of 62