Delhi District Court
Sh. Tsering Angchuk vs Sh. Devender Singh S/O Sh. Jagan Nath ... on 24 July, 2014
IN THE COURT OF SHRI SANJEEV KUMAR SINGH
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL-02
(CENTRAL) DELHI
Case No. : 615/12
Unique ID No. 02401C0580092012
1. Sh. Tsering Angchuk,
S/o Late Sherap Zangpo,
R/o Village Spituk,
Tehsil & Distt. Leh,
Jammu & Kashmir.
2. Smt. Yangchan Dolma,
W/o Sh. Tsering Angchuk,
R/o Village-Spituk,
Tehsil & Distt. Leh,
Jammu & Kashmir.
Both through Special Power of Attorney
Stanzin Dukgyais S/o Sh. Tsering Dorjay,
R/o Housing Colony, LehLadakh,
Jammu & Kashmir.
.........Petitioners in the First petition.
Case No. : 619/12
Unique ID No. 02401C0580242012
Ravi Bhushan S/o Sh. Bachcha Prasad,
R/o H. No. 15, Glai No. 2, Part-III,
Near Jharoda Police Post, Delhi.
...........Petitioner in the Second petition
Versus
1. Sh. Devender Singh S/o sh. Jagan Nath Singh,
R/o Mahar Road, Rustampur,
Gorakhpur. (Driver)
2. M/s Navkar Traders,
Through Prop. Sanat Jain,
House No. 383/9, Jain Gali,
Gannour, Sonipat, Haryana. (Owner)
Suit No. 615/12 & 619/12 Page No. 1/17
3. Tata A.I.G. Insurance,
A-2, 2nd Floor, Near Kalra Hospital,
Near Metro Pillar No. 329,
Main Najafgarh, Road,
Kirti Nagar, Delhi. (Insurer)
......... Respondents in the
both the petitions.
Date of Institution: : 07/12/2012 (DAR) Date of reserving order/judgment : 15/07/2014 Date of pronouncement: : 24/07/2014 AWARD
1. Vide this judgment cum award, I shall dispose off two petitions bearing suit no. 615/12 & 619/12 (hereinafter called the first petition and the second petition respectively) filed by the petitioners u/s 166 and 140 Motor Vehicle Act 1988 amended upto date ( hereinafter referred as Act). Since both these petitions arise out of the same motor vehicle accident, they can be conveniently disposed off together.
2. The case of the petitioners is that on 27/09/2012 at 11.15 P.M., while the deceased in the first petition was standing on the side of the road and talking to a Taxi Driver regarding booking a Taxi in the meantime the offending vehicle bearing No. HR-55P-0227 (Dumper), coming from Wazirabad swerved left and right a number of times before hitting the deceased alongwith a Car as well as the TSR bearing NO. DL-1R-H-1473 and the driver of the aforementioned TSR (who is the petitioner in the second petition bearing Suit No. 619/12) was standing near his TSR,which was being driven by its driver/ respondent No.1 rashly and negligently hit the deceased in the first petition and the petitioner in the second petition. Resultantly, the deceased fell down and died on the spot in the first petition and the petitioner in the second petition sustained injuries. The petitioners in the first petition have claimed a total sum of Rs. 1,00,00,000/- on account of compensation for fatal injuries sustained by the deceased whereas the petitioner in the second petition has claimed a sum of Rs. 5,00,000/- on account of compensation for the injuries sustained by him.
Suit No. 615/12 & 619/12 Page No. 2/173. The written statement was filed by respondents No. 1 & 2 wherein they categorically denied the rash and negligent aspect and also described the contents of the petition as false one.
4. The written statement was filed by respondent no.3/insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident.
5. Vide orders dated 06/03/2013 passed by my Ld. Predecessor other petitions arising out of the same FIR bearing Suit No. 616/12, 617/12, 618/12 and 619/12 were consolidated. The Suit No. 615/12 was order to be treated as the lead case. The other petitions have already been disposed off as settled.
6. On the pleadings of the parties following consolidated issues arose for consideration on 06/03/2013 :-
1.Whether the deceased Rinchen Tundup died and other petitioners suffered injuries in a road traffic accident dated 28/09/2012 due to rash and negligent driving of the offending vehicle bearing No. HR 55P 0227 driven by respondent no. 1 as alleged?
2.What amount of compensation the petitioners are entitled to and from whom?
3. Relief.
7. In order to establish their claims, the petitioners have examined Sh. Prakash Singh as PW-1 who was one of the injured, Sh. Ravi Bhushan in Suit No. 619/2012 as PW-2 who was also one of injured and his TSR was fully damaged, Sh. Madan Lal as PW-3 who is also one of the injured.
8. Petitioner No. 1, who is the father of the deceased in the first petition bearing Suit No. 615/2012 examined himself as PW-4.
9. PW-5 is Sh. Arvinder Singh, the Mechanical Expert who conducted the Suit No. 615/12 & 619/12 Page No. 3/17 inspection of the TSR of the petitioner in the second petition.
10. PW-6 is Sh. Murlidhar, Work Shop Manager, J.S. Automobiles, who has proved the estimate of the repairs of damaged TSR of the petitioner in the second petition.
11. PW-7 is Sh. Ravinder Kumar, Assistant Professor in Guru Gobind Singh Inderprastha University, Dwarka, Delhi who has deposed about the previous placements of the students of his institute.
12. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the parties.
My findings on aforesaid issues are as under :-
ISSUE NO. 1 IN BOTH THE AFORMENTIONED PETITIONS BEARING SUIT NO. 615/12 & 619/12
13. Since both the present petitions are under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
14. The Petitioner No.1 ( PW-4) who is the father of the deceased in the first petition had explained the mode and manner of the accident in his affidavit, Ex. PW4/A to the effect that on the date of accident while the deceased in the first petition was standing on the side of the road and talking to a Taxi Driver regarding booking a Taxi in the meantime the offending vehicle bearing No. HR-55P-0227 (Dumper), coming from Wazirabad swerved left and right a number of times before hitting the deceased alongwith a Car as well as the TSR which was being driven by its driver/ respondent No.1 rashly and negligently hit the deceased in the first petition. Resultantly, the deceased fell down and died on the spot. PW- 1 who is also one of the injured has deposed as Suit No. 615/12 & 619/12 Page No. 4/17 deposed by PW-4. PW-2 Who is the petitioner in the second petition has also deposed on the same lines. He also deposed that his TSR got fully damaged and filed an estimate in the sum of Rs. 1,03,500/- vide Ex PW2/1. The cross-examination carried on by the respondents is not suggestive of anything which may discard the claim of the petitioners that the driver of the offending vehicle was rash and negligent at the time of accident.
15. The petitioners have filed the certified copies of the criminal case documents on record pertaining to case FIR etc. bearing No. 169/12, P.S. Civil Lines under Section 279/337/338304A IPC including chargesheet etc.
16. While determining the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act.
17. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation Suit No. 615/12 & 619/12 Page No. 5/17 is a benevolent legislation and not a penal one.
18. Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors held as under:-
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
19. Therefore, considering all the documents filed by the petitioners as a whole it is clear that respondent No. 1 was driving the vehicle in a rash and negligent manner.
20. The issue No: 1 therefore, goes in favour of the petitioners and against the respondents.
COMPENSATION IN THE FIRST PETITION BEARING SUIT NO. 615/12
21. As per the copy of the passport, the date of birth of the deceased is 27/04/1989. The date of accident was 28/09/2012. Accordingly the deceased was around 23 years of age as on the date of accident.
22. The father of the deceased deposed that his son was studying at IP Law College Dwarka in the 5th Year. PW-7, Sh. Ravinder Kumar, Assistant Professor, Guru Gobind Singh Inderprastha University, Dwarka, Delhi, where the deceased was pursuing his L.L.B has also deposed on Court's questions that he was the teacher of the deceased, he was sincere, intelligent and was having a bright future.
Suit No. 615/12 & 619/12 Page No. 6/1723. Ld. counsel for the petitioners in Suit No. 615/12 has placed reliance upon National Insurance Co. Ltd. Vs. Pushpa Rana & Ors. 2009 ACJ 287, Amrit Bhanu Shali & Ors. Vs. National Insurance Co. Ltd. & Ors. 2012 ACJ 2002, New India Assurance Co. Ltd. Vs. A. Narayanappa & Anr. 2012 ACJ 2008, Reshma Kumari & Ors. Vs. Madan Mohan & Anr. 2013 ACJ 1253, R.K. Malik & Anr. Vs. Kiran Pal & Ors. 2009 ACJ 1924, Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy & Ors. 2012 ACJ 48, Delhi Development Authority Vs. Bhagwan & Ors. LPA 1187/2007, The New India Assurance Co. Ltd. Vs. Bal Kishan Pawar & Ors. MAC.APP.246/2009 and CM Nos. 7210-11/2009 & Rajesh & Ors. Vs. Rajbir Singh & Ors. 2013 ACJ 1403.
24. Ld. counsel for the petitioner has further placed reliance upon MAC.APP. 614/2012 decided by the Hon'ble High Court of Delhi on 05.10.2012 titled as Smt. Purnima & Ors. Vs. New India Assurance Co. Ltd. & Ors. wherein, it was held in para no. 6 that 'It is well settled that potential income of a student pursuing a professional course must be taken into consideration to award loss of dependency.' and it was further held in para no. 10 that 'A Division Bench of Andhra Pradesh High Court in B. Ramulamma & Ors. v. Venkatesh, Bus Union, Rep. By A.M. Velu Mudaliyar & Anr., 2011 ACJ 1702, held that it was very difficult to determine the income of a student who was allowed to complete his course. It was observed that it was appropriate and reasonable to take the salary fixed by the Govt. at the entry level for such jobs.' He has further relied upon MAC.APP. 797/2012 decided by Hon'ble High Court of Delhi on 30.10.2012 titled as ICICI Lombard General Insurance. Co. Ltd. Vs. Archana Sethi & Ors., MAC. APP.513/2009 decided by Hon'ble High Court of Delhi on 10.12.2012 titled as United India Insurance Company Vs. Dr. Jia Lal Prashar & Ors., MAC.APP.687/2010 decided by the Hon'le High Court of Delhi on 17/05/2012 titled as Brijpal Singh Teotia & Ors Vs New India Assurance Co. Ltd, MAC. APP.137/2012 decided by Hon'ble High Court of Delhi on 08.08.2012 titled as New India Assurance Co. Ltd. Vs. Bharat Singh @ Bharat Kumar, MAC.APP. No. 780/2012 decided by Hon'ble High Court of Delhi on 24.08.2012 titled as Bajaj Allianz General Insurance Vs. Sheela Devi & Ors., MAC. No. 539/2010 decided by Hon'ble High Court of Delhi on Suit No. 615/12 & 619/12 Page No. 7/17 17.05.2012 titled as Reena Bhatia & Anr. Vs. Badan Singh & Ors.
25. Being guided by the aforesaid judgments, in the present case, I assume that after completing his L.L.B, the deceased atleast would have become Law Assistant. He would have easily earn a net salary of Rs. 28,994/- per month as per the Sixth Pay Commission after deduction of income tax. Therefore, I take the net potential income of the deceased to be as Rs. 28,994/- ( as per the Sixth Pay Commission for a minimum entry of a law graduate) per month considering the fact that deceased was stated to be a very brilliant student.
26. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim.
27. I have taken are of the submissions of the Ld. Counsel for petitioner and have perused the record.
28. Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012case had held as under:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a Suit No. 615/12 & 619/12 Page No. 8/17 cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
29. However,in a case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held that:
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not
30 % always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20. The ratio of a decision of this Court, on a legal issue is a precedent.
Suit No. 615/12 & 619/12 Page No. 9/17But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
30. Since the deceased was 23 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Rajesh's case(supra). Hence after averaging out, the income of deceased comes out to be Rs. 43,491/- (Rs. 28,994/ + 50% of Rs. 28,994/).
31. As per the judgment of Hon'ble Supreme Court of India in Sarla Verma (supra) , 50% of the income of the deceased is directed to be deducted towards personal and living expenses as the deceased was bachelor and has left behind his parents. After deducting one- half towards personal expenses, the monthly loss of dependency comes out to be Rs. 43,491/- Rs.28,994/- = Rs. 21,745.50p. The income of the deceased is rounded off to Rs. 21,746/- per month.
32. For the purpose of determining the multiplier in case of death of bachelor, the Suit No. 615/12 & 619/12 Page No. 10/17 petitioners cited the latest judgment of Hon'ble Supreme Court in case titled as Amrit Bhanu Shali & ors Vs. National Insurance Co. Ltd. & Ors, reported in 2012 VI AD(S.C.) 399 wherein it was held as under:-
"13. Learned Counsel appearing on behalf of the respondents- Insurance Company submitted that the deceased-Ritesh Bhanu Shali was unmarried boy aged about 26 years and the High Court rightly applied the multiplier of 13 as per the age of the claimants, i.e. Parents. According to the respondents, the multiplier is to be applied as per the age of the deceased or as per the age of the claimant, whichever is higher but aforesaid submission cannot be accepted in view of the finding of this Court in the case of Sarla Verma(supra).
14. We have considered the respective arguments and perused the record. The questions which arise for consideration are:
(i) What should be the deduction for the 'personal and living expenses of the deceased-Ritesh Bhanu shali to decide the question of the contribution of the dependent members of the family; and
(ii) What is the proper selection of multiplier for deciding the claim.
17. The Selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent.
There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation. 18. In the case of Sarla Verma(supra) this court held that the multiplier to be used should be as mentioned in column(4) of the table of the said judgment which starts with an operative multiplier of
18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13.
33. However, in the latest directions of the Hon'ble High Court of Delhi in MAC.APP. 196/2013 received vide circular number 719/11585-598-I/Genl./HCS/2014 Dated, Delhi the 11 Apl 2014, it has been opined that Tribunal should take the multiplier as per the age of the deceased while calculating the compensation.
34. As per the copy of the passport, date of birth of the deceased is 27/04/1989. The date of accident is 29.09.2012. As on the date of accident, the age of deceased Suit No. 615/12 & 619/12 Page No. 11/17 comes out to be as 23 years as on the date of accident. In view of the aforesaid discussion, the age of the deceased is in case of death of bachelor in terms of aforesaid judgment. The appropriate multiplier applicable is 18 as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to (Rs. 21,746/- X12 X 18) Rs. 46,97,136/-
35. In terms of the aforesaid judgment passed by the Hon'ble High Court of Delhi, I award Rs. 25,000/- towards love and affection; Rs. 75,000/- towards funeral charges as PW-4 has deposed that great deal of expenses were incurred by him in transportation of body of his son from Delhi to Laddakh and boarding passes are on record ( in terms of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" decided on 12.04.2013 by three Hon'ble Judges) & Rs. 10,000/-towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 48,07,136/- in favour of the petitioners and against the respondents . RELIEF:
36. I award Rs.48,07,136 ( Rupees Forty Eight Lakhs Seven Thousand One Hundred Thirty Six Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e. 07/12/2012 till the notice under Order XXI Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several. Both petitioners No.1 & 2 shall have equal share in the award amount.
37. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent( 50%) of the amount awarded to each Petitioners No. 1 & 2 shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. The Petitioners can withdraw the interest quarterly from her FDRs.
Suit No. 615/12 & 619/12 Page No. 12/17COMPENSATION IN THE SECOND PETITION BEARING SUIT NO. 619/12 NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
38. The petitioner has deposed in his examination in chief that he sustained multiple grievous injuries, but MLC suggests that he has suffered simple injuries It is common knowledge that generally people during the treatment do not maintain the bills etc as they are not aware of this benevolent legislation having provisions for compensation. Keeping in view the overall circumstances, I hereby grant a sum of Rs.3,000/- towards medical expenses.
PAIN AND SUFFERINGS :
39. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice Pradeep Nandrajog wherein it was held that:-
"On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
40. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, since the petitioner has sustained simple injuries, I hereby allow Rs. 5,000/- towards pain and sufferings and loss of amenities of life. Besides this, I Suit No. 615/12 & 619/12 Page No. 13/17 hereby award a sum of Rs. 3,000/- towards special diet and conveyance.
41. COMPENSATION ON ACCOUNT OF DAMAGES OF VEHICLE (TSR) OF THE PETITIONER IN SUIT NO. 619/12 It is claimed by the petitioner in the second petition that his TSR got fully damaged and he has filed an estimate in the sum of Rs. 1,03,500/- vide Ex PW2/1 for its repair. PW-6 Sh. Murlidhar, Work Shop Manager, J.S. Automobiles had prepared the estimate Ex PW2/1.for repairs of the damaged TSR. Considering all the facts and circumstances of the case, I award Rs. 90,000/- towards damages of TSR.
LOSS OF LIVELIHOOD DURING TREATMENT PERIOD
42. The petitioner in the second petitioner is stated to be driver and stated to be earning Rs. 25,000/- per month, but no income proof has been filed or proved on record. The petitioner is stated to be driver by profession and he has filed his driving license in which it is mentioned that he is authorized to drive TSR. Considering all circumstances, it appears to me that petitioner could not have run his TSR for for about one month. In these circumstances, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 27/09/2012 on which the minimum wages for skilled persons were Rs. 8,528/-. Accordingly, I award Rs. 8,528 towards loss of livelihood on account of damage of his TSR.
The total compensation is assessed as under:-
Treatment expenses: Rs. 3,000/-
Pain and sufferings: Rs 5,000/-
Conveyance & special diet: Rs. 3,000/-
Compensation towards
loss of livelihood on account of Rs. 8,528/-
damage of his TSR
Compensation towards damages of Rs. 90,000/-
vehicle (TSR)
Total: Rs 1,09,528/-
Suit No. 615/12 & 619/12 Page No. 14/17
RELIEF:
43. I award Rs. 1,09,528/- (Rupee One Lac Nine Thousand Five Hundred
Twenty Eight Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e., 07/12/2012 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
APPORTIONMENT OF LIABILITY
44. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
45. The Hon'ble High Court of Delhi in its judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon'ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 11801-11804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of Suit No. 615/12 & 619/12 Page No. 15/17 compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
46. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. L.N. Kakar, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09818356480) or to UCO Bank through Mr. M M Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, Suit No. 615/12 & 619/12 Page No. 16/17 the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
47. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank.
48. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
49. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
50. The parties are at liberty to contact in State Bank of India through its nodal officer Mr. L.N. Kakar, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09818356480) for their convenience.
This file be consigned to the Record Room.
A separate file be prepared for compliance report and put up the same on 18/10/2014, to be fixed by insurance company.
Announced in the open court
on 24th July day of 2014 (SANJEEV KUMAR SINGH)
PO: MACT-02(CENTRAL): DELHI
Suit No. 615/12 & 619/12 Page No. 17/17
Suit No. 615/12 ( The copy be also placed in Suit bearing No. 619/12) 24/07/2014 Present: None.
Consolidated Judgments in Suits No. 615/12 & 619/12 are announced vide separate sheets of even date This File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 18/10/2014.
(SANJEEV KR SINGH) PO, MACT-2 (CENTRAL) DELHI/24/07/2014 Suit No. 615/12 & 619/12 Page No. 18/17