Delhi District Court
Surender vs . Rajesh & Ors. Page 1 Of 39 on 30 April, 2022
Surender Vs. Rajesh & Ors. Page 1 of 39
IN THE COURT OF MS JASJEET KAUR: JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No.4508772016
MACT PETITION No.372/2015
UNIQUE ID No. : DLNW010020382015
1. Ms. Kiran Kumar W/o Late Sh. Surender Mohan Kumar,
2. Mrs. Anjali Bhatia W/o Sh. Mohit Bhatia(daughter of deceased)
Both at R/o H34/117, Sector3, Rohini,
New Delhi110085.
........ Petitioners
Vs.
1. Sh. Rajesh S/o Sh. Hari Ram,
R/o Village Bichhaiya, Vikrampur, PS Kurawali,
District Manpuri, U.P.
....... Driver/R1
2. Sh. Gumej Singh,
R/o WZ325, Sant Garh, Gali No.29,
New Delhi.
....... Owner/R2
3. Magma HDI Insurance Company,
Unit No. 477, 4th Floor,
Agarwal Cyber Plaza,
Pitampura, Delhi. ..... Insurance co/R3
..... Respondents
Other details
DATE OF INSTITUTION : 28.10.2015
DATE OF RESERVING JUDGMENT : 25.04.2022
DATE OF PRONOUNCEMENT : 30.04.2022
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
Surender Vs. Rajesh & Ors. Page 1 of 39
Surender Vs. Rajesh & Ors. Page 2 of 39
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED BY
THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH TYAGI
Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED 07.12.2018.
1. Date of the accident 11.03.2015
2. Date of intimation of the accident by the 28.10.2015
investigating officer to the Claims Tribunal (Clause
2)
3. Date of intimation of the accident by the 28.10.2015
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not mentioned in the
before the Metropolitan Magistrate (Clause 10) DAR
5. Date of filing of Detailed Accident Information 28.10.2015
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company 28.10.2015
(Clause 11)
7. Date of service of DAR on the claimant (s). (Clause 28.10.2015
11)
8. Whether DAR was complete in all respects? (Clause Yes
16)
9. If not, whether deficiencies in the DAR removed later N/A
on?
10. Whether the police has verified the documents filed Yes
with DAR? (Clause 4)
11. Whether there was any delay or deficiency on the N/A
part of the Investigating Officer? If so, whether any
action/direction warranted?
12. Date of appointment of the Designated Officer by the 28.10.2015
insurance Company. (Clause20)
13. Name, address and contact number of the Sh. Shailender Rai,
Designated Officer of the Insurance Company. Advocate
(Clause 20)
Surender Vs. Rajesh & Ors. Page 2 of 39
Surender Vs. Rajesh & Ors. Page 3 of 39
14. Whether the designated Officer of the Insurance No.
Company submitted his report within 30 days of the
DAR? (Clause 20)Without insurance
15. Whether the insurance company admitted the Not fairly computed
liability? If so, whether the Designated Officer of the the compensation
insurance company fairly computed the
compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the N/A
part of the Designated Officer of the Insurance
Company? If so, whether any action/direction
warranted?
17. Date of response of the claimant (s) to the offer of N/A
the Insurance Company .(Clause 24)
18. Date of the Award 30.04.2022
19. Whether the award was passed with the consent of No.
the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of residence?
(Clause 18)
21. Date of order by which claimant(s) were directed to 07.01.2020
open saving bank account (s) near his place of
residence and produce PAN Card and Aadhar Card
and the direction to the bank not issue any cheque
book/debit card to the claimant(s) and make an
endorsement to this effect on the passbook(s).
(Clause 18)
22. Date on which the claimant (s) produced the 07.12.2020
passbook of their saving bank account near the place
of their residence along with the endorsement, PAN
Card and Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) As mentioned above
(Clause 27)
24. Details of saving bank account(s) of the claimant(s) Ms. Kiran Kumar,
and the address of the bank with IFSC Code (Clause saving a/c
27) no.39794623705 and
Ms. Anjali Bhatia,
saving a/c
Surender Vs. Rajesh & Ors. Page 3 of 39
Surender Vs. Rajesh & Ors. Page 4 of 39
no.39779640390, both
with SBI, Rohini
Courts Branch, Delhi.
IFSC Code:
SBIN0010323.
25. Whether the claimant(s) saving bank account(s) is Yes
near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time Yes
of passing of the award to ascertain his/their
financial condition. (Clause 27)
27. Account number/CIF No, MICR number, IFSC Code, 86143654123,
name and branch of the bank of the Claims Tribunal 110002427,
in which the award amount is to be SBIN0010323, SBI,
deposited/transferred. (in terms of order dated Rohini Courts, Delhi
18.01.2018 of Hon'ble Delhi High Court in FAO
842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. The present claim proceedings have emanated from a Detailed Accident Report (hereinafter referred to as DAR) filed on 28.10.2015 with reference to FIR No.217/15 registered at PS South Rohini in respect of commission of offences of causing hurt by rash and negligent driving of a motor vehicle on a public road punishable U/s 279/337 of Indian Penal Code, 1860 (hereinafter referred to as IPC) wherein subsequent charge sheet for the alleged commission of the offences of causing grievous hurt by rash and negligent driving of a motor vehicle on a public road punishable u/s 279/338 IPC against one Sh. Rajesh was also filed in respect of grievous hurt sustained by one Sh. Surender Mohan Kumar (hereinafter referred to as the injured/ the petitioner/the claimant). The learned Predecessor Court had vide order dated 28.10.2015 treated the DAR as petition u/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act'). Subsequently, the petitioner had also filed a petition U/s 166/140 of M.V. Act on Surender Vs. Rajesh & Ors. Page 4 of 39 Surender Vs. Rajesh & Ors. Page 5 of 39 27.01.2016 for seeking compensation in the sum of Rs.20,00,000/ (Rupees Twenty Lakhs Only) along with interest @ 18% p.a. in respect of injuries sustained by Sh. Surender Mohan Kumar (hereinafter referred to as the 'injured/the petitioner') in a road traffic accident.
2. The brief facts of the case as discernible from the DAR, the claim petition and the documents of the petitioner are that on 11.03.2015, the petitioner was walking back home after finishing his work and at about 11:00 am while crossing the road in front of Ahuja Furnishing, near M2K DTC bus stand at Sector3, Rohini, Delhi, a truck bearing registration No. HR55L1781(hereinafter referred to as "the offending vehicle") being driven by Sh. Rajesh (hereinafter referred to as the respondent No.1/R1) at a very high speed and in a negligent and rash manner without obeying the traffic rules and regulations and without caring for other commuters using the same road, as well as without blowing the horn had hit the petitioner from behind in a forceful manner and had run over the leg of the petitioner due to which the petitioner had sustained grievous injuries on his body. It is the case of petitioner that an unknown person had called the police at 100 number and the petitioner was shifted to Jaipur Golden Hospital where he was medically examined vide MLC No.12829 wherein it had been mentioned that the petitioner had sustained fracture of left lower limb and had been shifted to another hospital for further treatment. Subsequently, the petitioner had remained admitted in MAX Hospital, Shalimar Bagh, New Delhi with effect from 11.03.2015 to 14.03.2015 and in the MedicoLegal Injury Report dated 13.05.2015 prepared at the said hospital, it had been observed that the petitioner had suffered grievous injuries. However, the fracture sustained by the petitioner in his left Tibia bone had not been completely healed, and thereafter, he had been admitted thrice at Sir Ganga Ram Hospital including once with effect from 02.01.2016 to 06.01.2016 during which period the implant affixed in his fractured Surender Vs. Rajesh & Ors. Page 5 of 39 Surender Vs. Rajesh & Ors. Page 6 of 39 tibia bone along with external fixator had been removed under spinal anesthesia on 04.01.2016 and secondly, with effect from 12.04.2016 to 16.04.2016 during which period Ipsilateral Iliac Crest Bone Grafting was done on the left leg of the petitioner for ensuing repair of fracture of his left tibia bone under spinal anesthesia. As per record the petitioner had been admitted at Sir Ganga Ram Hospital for the third time with effect from 02.07.2016 and was discharged on 05.07.2016 after undergoing a surgery for removal of external fixator from left leg which was followed by placement of left leg of petitioner in a below knee slab. 2.1 It is pertinent to mention that petitioner/Sh. Surender Mohan Kumar had since expired during the course of Court proceedings in the present claim petition on 08.09.2019 and vide order dated 07.01.2020 his legal heirs(LRs) were taken on record.
3. Sh. Rajesh/R1 and Sh. Gurmej Singh, owner of the offending vehicle (hereinafter referred to as the respondent number 2/R2) had filed their joint written statement wherein they had claimed that the offending vehicle was duly insured by Magma HDI Insurance Company Ltd. vide insurance policy bearing No.P0015100021/4103/106871 commencing from 12.08.2014 and expiring on midnight of 11.08.2015 issued in the name of R2 Mr. Gurmej Singh and therefore, they were not liable to pay any compensation to the victim of the accident in question as the insurance policy of the offending vehicle was live and valid on the date of occurrence of the alleged accident. Besides, it had been claimed by R1 and R2 in their written statement that at the relevant time of occurrence of the case accident, R1 was having a valid driving licence issued by the competent authority.
3.1 Magma HDI Insurance Company Ltd. (hereinafter referred to as respondent number 3 or R3) had filed its written statement wherein it had been admitted that offending vehicle/truck was insured with it vide policy No. Surender Vs. Rajesh & Ors. Page 6 of 39 Surender Vs. Rajesh & Ors. Page 7 of 39 P0015100021/4103/106871 commencing with effect from 12.08.2014 and expiring on midnight of 11.08.2015 and therefore the offending vehicle was duly insured as on the date of accident, that is, 11.03.2015 and the insurance policy stood valid in favour of R2. The insurance company had offered to settle the matter with the petitioner for a total sum of Rs.35,000/. However, the said offer was not acceptable to by the petitioner.
3.2 Subsequently, R1 and R2 had stopped appearing in the Court and were proceeded exparte vide order dated 02.06.2018.
4. From the pleadings of the parties, the following issues were framed by the learned Predecessor Court vide order dated 31.05.2016:
1. Whether on 11.03.2015 at about 11:00 am, at Village Naharpur red light, one truck bearing registration No. HR55L1781, which was being driven rashly and negligently by Rajesh and hit Surender and caused injuries to him? OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
3. Relief.
5. After the framing of issues, opportunities were given to all the parties to prove their respective versions of the case by leading evidence in support of the same. The petitioner/injured had examined two witnesses in support of his version of the case including himself as PW1 and Dr. Satish Kumar, Consultant (Orthopedics Department), RML Hospital, New Delhi as PW2. No other witness had been examined by the petitioner in support of his version of the case. 5.1 A perusal of Court record reveals that all three respondents had not examined any witness in support of their respective versions of the case.
6. I have heard the final arguments addressed by Sh. Umesh Kumar Gupta, Surender Vs. Rajesh & Ors. Page 7 of 39 Surender Vs. Rajesh & Ors. Page 8 of 39 learned counsel for the petitioner and Sh. Shailender Rai, learned counsel for the insurance co./R3. My issuewise findings based on my appreciation of the evidence led by the parties in support of their respective versions of the case are reproduced herein below.
7. Issue wise findings are as under: Issue No.1 "1. Whether on 11.03.2015 at about 11:00 am, at Village Naharpur red light, one truck bearing registration No. HR55L1781, which was being driven rashly and negligently by Rajesh and hit Surender and caused injuries to him? OPP"
The onus of proving this issue beyond preponderance of probabilities was on the petitioner.
7.1 Sh. Surender Mohan Kumar, the petitioner had examined himself as PW1 by way of affidavit as Ex.PW1/A wherein he had reiterated the facts narrated in the DAR by stating that on the relevant date, time and place the offending truck had hit against him when he was in the process of crossing the road near Nahapur red light, in front of Ahuja Furnishing as a consequence of which he had sustained grievous injuries. He deposed that after the accident, he had been taken to Jaipur Golden Hospital by some passerby, where his MLC No. 12823 dated 11.03.2015 was prepared by the doctors. He deposed that on the same day, he was shifted to the MAX Hospital, Shalimar Bagh, New Delhi where he had undergone treatment as inpatient with effect from 11.03.2015 to 29.05.2015 during which period, the fracture injuries sustained by him had been surgically managed by way of nail fixation but his situation was going down as leakage had not stopped, and therefore, he had been shifted to Sir Ganga Ram Hospital, Delhi where he had undergone various surgeries. He further deposed that he was still under treatment at the time of preparation of his evidence by way of Surender Vs. Rajesh & Ors. Page 8 of 39 Surender Vs. Rajesh & Ors. Page 9 of 39 affidavit and he had been compelled to bear the expenses of treatment, such as, cost of medicines, consultation fee of doctors, charges of hiring attendants and procuring special diets in addition to the conveyance charges. He further deposed that due to grievous injuries sustained in the alleged accident, he had lost the sensation in left side of his body and had become bed ridden for a few months. He stated that he had undergone four surgeries after which he was able to sit in a wheelchair with the help of someone. He further deposed that he was unable to attend the call of nature without the help of others. He further deposed that he had lost his amenities and was left to live with the disabilities for the rest of his life. Besides, it had been averred in the evidence by way of affidavit of PW1 that he had sustained permanent multiple disabilities as a consequence of injuries sustained in the case accident. He stated that he was still under treatment as on the date of preparation of his evidence by way of affidavit and upto the said date he had already incurred expenses to the tune of Rs.15,00,000/ on his medical treatment. PW1 had relied upon following documents in support of the averments made in his evidence by way of affidavit:
1. Copy of his discharge summary and treatment record Ex.PW1/1(colly) (running into 16 to 22 pages).
2. His medical bills Ex.PW1/2 (colly) (running into 28 to 154 pages).
3. His attendant bills Ex.PW1/3 (colly) (running into 155 to 219 pages) (objected to by mode of proof).
7.2 In his crossexamination by Sh. Shailender Rai, learned counsel for R3/insurance co., PW1 deposed that he had told the police officials about the registration number of the offending vehicle. He admitted that the registration number of the offending vehicle was not mentioned in his complaint dated 15.03.2015. He denied the suggestion that the entire cost of his treatment had Surender Vs. Rajesh & Ors. Page 9 of 39 Surender Vs. Rajesh & Ors. Page 10 of 39 been borne by his employer, that is, NDMC Department. He stated that all the medical bills which had been filed and proved on record by him had not been reimbursed to him by his department, however, he had received some other partial amount as reimbursement from his department. He stated that he had not claimed the medical bills filed on Court record from his department. He stated that Sir Ganga Ram Hospital was not on the panel of hospitals of NDMC. He deposed that he was not aware about the fact as to whether any Zebra Crossing was in existence or not at the spot of occurrence from where he was crossing the road at the time of accident. He denied the suggestion that he was negligent in crossing the road due to which he had met with the alleged accident or that his accident had not occurred with the vehicle having registration No.HR55L1781 as the said vehicle was a truck which was not permitted to enter Delhi at that particular time. He stated that he had already filed a document on Court record whereby the treating doctor had prescribed him to undergo physiotherapy on regular basis. He denied the suggestion that he had not been advised any such physiotherapy by the treating doctor. He further denied the suggestion that he had not lost sensation in his both hands and legs. He voluntarily stated that his left hand was okay(functional). He denied the suggestion that he was no longer under treatment that is why he had not filed any document to show the same. He stated that he had already filed the bills of the physiotherapy treatment taken by him at his home which were already exhibited as Ex.PW1/2 (colly) at page No.73, 80, 84, 98, 150 and 152. He stated that he may be having in his possession some other bills of home physiotherapy taken by him at his residence. He denied the suggestion that since there were no other bills of physiotherapy in existence, therefore, the same had not been filed by him on record. He further denied the suggestion that he had not spent Rs. 1,000/ per day upon medicines, consultation fee of doctors, attendants charges, Surender Vs. Rajesh & Ors. Page 10 of 39 Surender Vs. Rajesh & Ors. Page 11 of 39 physiotherapy charges and expenses of special diet as mentioned in paragraph No.11 of his evidence by way of affidavit.
7.3 He stated that he had retired from service of NDMC on 31.03.2011 and was receiving Rs. 40,000/ as monthly pension. He denied the suggestion that there was no financial loss to him in respect of his pension after the accident. He stated that the medical expenses incurred by him at MAX Hospital had been reimbursed to him even after his retirement, however the expenses incurred by him at Sir Ganga Ram Hospital had not been reimbursed. He admitted that his department had reimbursed the expenditure incurred by him in some of the hospitals which were on panel of his department. He stated that he had not brought any list of empaneled hospitals of NDMC, however, he expressed his ability to produce the same. He denied the suggestion that the entire medical bills filed by him were forged and fabricated. He clarified that the bills of Sir Ganga Ram Hospital would not have been reimbursed to him even if he would have applied for the same. He denied the suggestion that he had not suffered any loss because of the alleged accident. He further denied the suggestion that the record furnished by him qua the attendant was forged and fabricated. Respondents No.1 and 2 had failed to appear in Court to cross examine PW1 and as such, the cross examination of PW1 on behalf of R1 and R2 was treated as nil, despite opportunity being given to R1 and R2 in this regard. In the said circumstances, R1 and R2 shall be deemed to have admitted the above said testimony of PW1 to the effect that the case accident had occurred on the above said date, time and place due to the rash and negligent driving of the offending vehicle by R1 and thereby he(the petitioner) had sustained injuries. 7.4 The petitioner had subsequently led additional evidence by way of affidavit Ex.PW1/B wherein he had reiterated the facts narrated in the DAR by stating that on the relevant date, time and place the offending truck being driven in a rash Surender Vs. Rajesh & Ors. Page 11 of 39 Surender Vs. Rajesh & Ors. Page 12 of 39 and negligent manner had hit against him when he was in the process of crossing the road near Nahapur red light, as a consequence of which he had sustained grievous injuries for treatment of which he was taken to Jaipur Golden Hospital by some passerby. He deposed that due to the injuries sustained in the case accident, he had lost sensation in his both legs and hands. He further deposed that his urinary system had got damaged and he was not in a position to walk or to do any work himself because he also could not use his hands or legs. He further deposed that he was likely to remain in wheelchair for the whole of his life and would perhaps also not be able to speak correctly. He had clarified that his medical condition was such that he would be required to avail the services of an attendant round the clock through out his life. He claimed that he had already spent Rs.1,50,454/ as attendant charges and had spent another sum of Rs. 1,15,654/ on bills of medicines purchased by him whereas he had spent another sum of Rs. 34,800/ as charges on availing services of a physiotherapist.
7.5 In his crossexamination Sh. Shailender Rai, learned counsel for the insurance company/R3, PW1 admitted that no prescription of any doctor had been filed by him along with the medical bills Ex.PW1/4. He denied the suggestion that he had filed false and fabricated attendant bills along with his evidence by way of affidavit. He deposed that he had not made any inquiry from his medical attendants to ascertain as to whether they had pursued any course in nursing or not, however he had made inquiries from his medical attendant to insure that they had earlier looked after other patients with similar needs or not. He denied the suggestion that he had hired incompetent attendants who had not done any course in nursing. He stated that at the time of occurrence of the accident he had already retired from NDMC. He denied the suggestion that he had not suffered any loss of income due to the disability sustained by him in the Surender Vs. Rajesh & Ors. Page 12 of 39 Surender Vs. Rajesh & Ors. Page 13 of 39 case accident.
7.6 Respondents No.1 and 2 had failed to appear in Court to cross examine PW1 and as such, the cross examination of PW1 on behalf of R1 and R2 was treated as nil, despite opportunity being given to R1 and R2 in this regard. In the said circumstances, R1 and R2 shall be deemed to have admitted the above said testimony of PW1 to the effect that the case accident had occurred on the above said date, time and place due to the rash and negligent driving of the offending vehicle by R1 and thereby he(the petitioner) had sustained injuries. 7.7 Petitioner has also examined Dr. Satish Kumar, a Consultant posted at Orthopedic Department of RML Hospital as PW2, who clarified that patient Surender Mohan, aged about 67 years had been examined by the Medical Board of Dr. RML Hospital for ascertainment of permanent physical disability sustained by him vide disability certificate bearing file number Addl. M.S (PK)/CMB 45/2018/RMLH, dated 24.01.2018 Ex.PW2/1 whereby it had been certified that the petitioner had sustained 10% permanent disability due to the injuries sustained in a road traffic accident whereas the petitioner was already suffering from 50% physical impairment due to right sided hemiparesis (weakness of the right side of body) prior to the case accident. He clarified that due to the injuries sustained in the case accident the petitioner had suffered 10% permanent physical disability because of fracture of both bones of left leg. On being asked a specific question by the court, PW2 clarified that the disability of the petitioner would hardly effect his functional capacity. He further clarified that there had been a shortening of 4cm in left leg of the petitioner in comparison to his right leg, however the said 10% disability of the petitioner would not affect his speech at all.
7.8 In his crossexamination by learned counsel for the insurance company/R3, PW2 admitted that the petitioner had not suffered any injury in his Surender Vs. Rajesh & Ors. Page 13 of 39 Surender Vs. Rajesh & Ors. Page 14 of 39 head as well as in his right upper limb. He deposed that the discharge summaries issued by Sir Ganga Ram Hospital, MAX Hospital, Shalimar Bagh and Jaipur Golden Hospital revealed that the petitioner had taken treatment only for fracture of both bones of his left leg.
7.9. Respondents No.1 and 2 had failed to appear in Court to cross examine PW2 and as such, the cross examination of PW2 on behalf of R1 and R2 was treated as nil, despite opportunity being given to R1 and R2 in this regard. In the said circumstances, R1 and R2 shall be deemed to have admitted the above said testimony of PW2 regarding the nature of injuries and permanent disability sustained by the petitioner in the case accident.
7.10 All the three respondents had not examined any witness in support of their respective versions of the case.
7.11 Nothing material has come on record in cross examination of PW1 to shake his version regarding the manner in which the case accident had occurred due to rash and negligent driving of offending vehicle by R1. Besides, PW2 Dr. Satish Kumar has withstood his crossexamination by learned counsel for the insurance company in respect of the nature of injuries and permanent disability suffered by the petitioner due to the case accident and as such his testimony regarding nature of injuries sustained by the victim as well as the permanent disability suffered by the victim is trustworthy and reliable. 7.12 In the facts and circumstances, the copy of FIR and charge sheet filed for the commission of offences punishable u/s 279/338 IPC against respondent no.1 can also be looked into to determine the negligence on the part of respondent no.1.
7.13 Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material placed on record and in view of above discussion, there is no reason to disbelieve the version of PW1 regarding the manner in which the Surender Vs. Rajesh & Ors. Page 14 of 39 Surender Vs. Rajesh & Ors. Page 15 of 39 offending vehicle was being driven at the time of occurrence of the case accident or to doubt the version of PW2 Dr. Satish Kumar regarding the nature of injuries and permanent disability sustained by the petitioner as well as about the impossibility of improvement in his condition, and hence, Issue No.1 is decided in favour of the petitioner and against the respondents by arriving at a finding to the effect that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1 and thereby grievous injuries had been sustained by the petitioner.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
8. Issue no. 2.
"Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP"
8.1 In view of my findings on issue no.1 regarding negligence of R1 resulting in the occurrence of the case accident, I am of the considered opinion that the petitioner is entitled to compensation in respect of medical expenses, conveyance expenses, special diet charges, etc. incurred by him. I shall now examine the entire evidence including the documents of the petitioner for the purpose of arriving at a finding about the quantum of compensation to which the petitioner is entitled.
8.2 PW1/petitioner/Surender Mohan Kumar had deposed that on the relevant date and time, he had been hit by a speeding truck being driven in a rash and negligent manner during his attempt to cross the road at the red light of Naharpur in front of Ahuja Furnishing near M2K DTC bus stand situated at Sector3, Rohini, as a consequence of which he had sustained grievous injuries and permanent disability. He stated that although being a retired employee of NDMC he had not suffered loss of income due to the injuries sustained in the case Surender Vs. Rajesh & Ors. Page 15 of 39 Surender Vs. Rajesh & Ors. Page 16 of 39 accident, however, he had suffered financial loss in the form of expenditure incurred on his treatment, special diet as well as on availing services of a medical attendant. He had further claimed that he had also lost amenities of life and had become disabled as well as dependent on others for the rest of his life. Besides, the permanent disability sustained by the petitioner had been proved through the testimony of PW2 Dr. Satish Kumar, a consultant posted in orthopedic department of RML Hospital.
8.3 The petitioner had passed away on 08.09.2019 during the course of trial. There is a time interval of about 04 years 05 months between the accident and the date of unfortunate demise of the petitioner. In the said circumstances, it is evident that the injured had not expired as a result of injuries sustained in the accident. In view of the fact that the injured had not passed away as a result of injuries sustained in the accident, this Tribunal is of the opinion that he would be entitled to be granted compensation only under pecuniary heads, that is, special diet and conveyance, attendant charges, medical expenses. He shall not be entitled to compensation under non pecuniary heads in terms of law laid down by the Hon'ble Apex court in a catena of judgments including Oriental Insurance Company vs. Kahlon, (2) Jasmail Singh Khalon 2021 (4) T.A.C. 1(SC). 8.4 Although by virtue of gazette notification bearing number CGDLE 25022022233754, the newly inserted clause(5) in section 166 of M.V. Act has come into force and the same provides that a claim for motor vehicular accident will not abate and can be pursued by the LRs of the victim upon death of the victim irrespective of the fact as to whether the victim had died due to the impact of injuries sustained in the case accident or had otherwise passed away due to natural reasons of old age and illness etc. However, the aforesaid provision of section 166(5) has come into force on 01.04.2022 and the present matter pertains a DAR filed several years back on 28.10.2015. Therefore, the provision Surender Vs. Rajesh & Ors. Page 16 of 39 Surender Vs. Rajesh & Ors. Page 17 of 39 of section 166(5) cannot be retrospectively applied to the present matter and as such, the petitioner shall be entitled to compensation under pecuniary heads only as discussed above.
8.5 Accordingly, in view of the nature of injuries and the extent of permanent disability suffered by the petitioner, I am of the considered opinion that the petitioner is entitled to following compensation:
9. Medical Expenses.
9.1 The petitioner has claimed to have spent a sum of Rs. 15,00,000/ on his medical treatment. He has, however, placed on record his medical bills including bill of expenses incurred on three surgeries and other procedures undergone by him as inpatient at Sir Ganga Ram Hospital. The petitioner has not placed on record the bills in respect of medical expenses incurred by him for treatment taken from MAX Hospital, Shalimar Bagh on the pretext that the same had been reimbursed by his employer NDMC whereas the bill raised by Sir Ganga Ram Hospital could not be reimbursed as the said hospital was not in the panel of NDMC. Thus, the petitioner has annexed on Court record, total medical bills to the tune of Rs. 7,42,669.60/ and he is entitled to recover the said amount as medical expenses. Accordingly, a sum of Rs.7,42,669.60/ as compensation towards medical expenses under this head.
10. Special Diet and conveyance 10.1 Petitioner Surender Mohan Kumar as PW1 has claimed in his evidence by way of affidavit Ex.PW1/A that he had incurred Rs.15,00,000/ lac as medical expenses. Besides, he had claimed Rs.20 lacs as total compensation under various head including Rs.10,00,000/ as compensation towards special diet, conveyance and attendant charges etc. However, he had neither specified the exact sum of money spent by him on special diet and conveyance nor supported his averment to the effect of having incurred any expenses towards Surender Vs. Rajesh & Ors. Page 17 of 39 Surender Vs. Rajesh & Ors. Page 18 of 39 special diet and conveyance by leading any documentary evidence in the form of prescription of special diet by the doctor, transport bills and bills of purchases made towards special diet such as nutritional supplements etc. In such circumstances the entitlement of petitioner to seek compensation towards special diet and nutrition depends on the nature of injuries sustained by the petitioner. 10.2 In this context, a perusal of the MLC of petitioner dated 13.05.2015 prepared at Max Hospital prima facie reveals that petitioner had sustained grievous injuries in the case accident. Besides, it is the case of the petitioner that he had remained admitted at Max Hospital Saket from 11.05.2015 to 29.05.2015 and had undergone a surgery at the said hospital whereby nailing had been done in his left tibia bone for management of fracture of the said bone and thereafter the petitioner had undergone four surgeries at Sir Ganga Ram Hospital Delhi. However the petitioner had not fully recovered and had sustained 10 per cent permanent disability on account of injuries suffered in the accident in question. PW2 Dr. Satish Kumar, Consultant posted in Orthopedic Department of Dr. MRL hospital has proved the disability certificate of the petitioner Ex.PW2/A containing a finding to the effect that the petitioner had sustained 10 per cent permanent physical disability due to the case accident in addition to 50 per cent permanent physical disability which he was already suffering from prior to having sustained injuries in the alleged accident. Also the petitioner had annexed his medical record which prima facie reveals that petitioner had remained admitted at Sir Ganga Ram Hospital on three occasions for undergoing various surgeries and was in continuous treatment till the date of filing the DAR as well as thereafter during trial of the present matter. Keeping in view the nature of injuries sustained by the petitioner, the four surgeries undergone by him as well as the permanent physical disability suffered by petitioner this court is of the opinion that the petitioner must have remained under treatment for a period of one year Surender Vs. Rajesh & Ors. Page 18 of 39 Surender Vs. Rajesh & Ors. Page 19 of 39 from the date of occurrence of case of accident. Accordingly, the probable period of treatment of the petitioner is determined to be one year. Also, in view of the nature of injuries sustained by the petitioner as well as the surgeries undergone by him this tribunal is of the opinion that the petitioner must have found it essential to take certain special diets during his treatment period and must also have incurred expenses on travelling to the hospital from his residence and vice versa.
10.3 In view of above said discussion, injuries including fracture sustained by the petitioner as well as the four surgeries undergone by him and taking the probable period of treatment to be about one year, a lump sum amount of Rs.1,00,000/ is granted under this head including Rs. 50,000/ each for special diet and conveyance.
11. Attendant Charges 11.1 Petitioner Surender Mohan Kumar as PW1 had claimed in his evidence by way of affidavit Ex.PW1/A a sum of Rs.20 lacs as total compensation under various heads including Rs.10,00,000/ as compensation towards special diet, conveyance and attendant charges etc. The petitioner has annexed receipts of payment made to private attendants hired by him including day and night charges paid to separate attendants during the period commencing from 14.03.2015 and running upto 22.08.2018. However, it is a matter of record that the petitioner was attending the Court even on the first date of hearing, that is, at the time of filing of DAR on 28.10.2015 and thereafter, on 05.02.2018 and 07.04.2018. Subsequently, the petitioner had also got himself examined in the Court as PW1 by appearing in person on 02.06.2018. Besides, the receipts of payment made to medical attendant relied upon by the petitioner have not been corroborated by him by examining the concerned attendant in the Court. In such circumstances, keeping in view the fact that the petitioner was physically Surender Vs. Rajesh & Ors. Page 19 of 39 Surender Vs. Rajesh & Ors. Page 20 of 39 attending the Court on certain dates of hearing, it cannot be safely presumed that the petitioner had become totally disabled as a result of injuries sustained in the case accident or that he required 24 hours attendant for a period of three years as claimed by him through receipts of payment made to medical attendant Ex.PW1/3(colly)(page no.155 to 219) running into 64 pages. The total of the said bill is amounting to Rs.8,72,667/. Thus, it is prima facie evident from the documents relied upon by the petitioner that he is claiming attendant charges to the tune of Rs.8,72,667/ for a period of about three years with effect from the date of accident.
11.2 Although after examining the nature of injuries sustained by the petitioner, the probable period of treatment of the petitioner has already been computed to be about one year, however, in his evidence by way of affidavit, the petitioner has claimed that he had lost sensation in both his legs and had become wheelchair bound for the rest of his life. Besides, the petitioner has also claimed that the injuries sustained in the case accident had effected his speaking abilities and he had become incapable of speaking coherently. In fact, it has been claimed in the evidence by way of affidavit of the petitioner that he was likely to require round the clock attendant for the rest of his life as he was unable to even attend the call of nature without the help of an attendant. However, the petitioner was not only present in the Court on some of the dates of hearing but he had also got himself examined as PW1 and was cross examined at length by learned defence counsel and it is nowhere mentioned in the ordersheet or in the testimony of PW1 that the petitioner had taken help of any speech therapist or sign language interpreter for deposing in the Court. Therefore, the petitioner may have faced difficulty in speaking but there is no material on record to arrive at a finding that he had become totally become incapable of speaking coherently. Even otherwise, it is nowhere mentioned in the MLC or discharge summary of Surender Vs. Rajesh & Ors. Page 20 of 39 Surender Vs. Rajesh & Ors. Page 21 of 39 the petitioner as well as in his disability certificate issued by Dr. RML Hospital that he had sustained any injury to his vocal cords or throat or even a head injury etc. which had made him incapable of speaking coherently and therefore, it cannot be safely concluded that the petitioner had become permanently speech impaired due to injuries sustained in the case accident. In fact, as per the disability certificate of the petitioner Ex.PW2/1, the petitioner had sustained only 10% permanent disability due to united fracture of left tibia whereas he was already suffering from 50% permanent disability due to right side hemiparesis. Moreover, the factum of the increase in physical disability of petitioner by 10% due to the case accident has been corroborated with the testimony of PW2 Dr. Satish Kumar who reiterated that the petitioner had sustained 10 per cent permanent physical disability due to the case accident in addition to 50 per cent permanent physical disability which he was already suffering from due to right sided hemiparesis prior to having sustained injuries in the alleged accident. In such circumstances, the petitioner cannot claim any compensation from the insurance company of the offending vehicle for physical disability which he had already been suffering from due to disease, that is, right sided hemiparesis and the petitioner is merely entitled to avail attendant charges for additional disability to the tune of 10% suffered on account of injuries sustained in the case accident. 11.3 Nevertheless, it is the admitted case of the parties that the petitioner was not wheelchair bound prior to the case accident and he did not require round the clock services of a medical attendant. In fact, the petitioner was crossing the road all by himself when he had met with the case accident. Thus, irrespective of his right sided hemiparesis, the petitioner was capable of living independently and enjoying all the amenities of life prior to having met with the accident in question and 10% increase in his physical disability had, in fact, adversely effected the functional capacity of the petitioner to a great extent and had made Surender Vs. Rajesh & Ors. Page 21 of 39 Surender Vs. Rajesh & Ors. Page 22 of 39 him wheelchair bound.
11.4 In view of above said discussion regarding injuries and fracture sustained by the petitioner as well as the permanent disability suffered by him and also in view of the testimony of the petitioner to the effect that he had become permanently wheelchair bound due to the injuries sustained in the case accident, this Tribunal is of the opinion that although the probable period of treatment of the petitioner has been computed to be about one year, however, the petitioner must have required services of a medical attendant throughout his life. The opinion of this court regarding requirement of services of medical attendant by the petitioner is also fortified from the fact that learned counsel for the insurance company has chosen not to cross examine PW1 in respect of his averment that he had become wheelchair bound and no suggestion had been given to PW1 to the effect that he was not wheelchair bound or he was capable of walking independently. Hence, despite computing the probable period of treatment of the petitioner to be one year, this Tribunal deems it appropriate to grant attendant charges to the petitioner till his unfortunate demise in 2018 with effect from the date of accident. However, the amount claimed by the petitioner as attendant charge, that is, Rs.8,72,667/ appears to be exorbitant and a prudent person like the petitioner would not pay such a huge amount to an attendant, particularly in view of the fact that the petitioner had remained bed ridden only for a few months and thereafter, he was capable of ambulation with the help of wheel chair. Even otherwise, the receipts of payment made to medical attendant have not been corroborated with the deposition of the concerned attendant and the same are, as such, not reliable. Accordingly, a lump sum amount of Rs.2,00,000/ is granted as compensation to the petitioner towards attendant charges under this head.
Surender Vs. Rajesh & Ors. Page 22 of 39 Surender Vs. Rajesh & Ors. Page 23 of 3912. Compensation due to permanent disability/Loss of future earning capacity due to disability 12.1 PW1 deposed by way of affidavit Ex.PW1/A wherein he had claimed that he had sustained permanent disability due to injuries suffered in the case accident. Subsequently, he was also examined by the medical board of Dr. RML Hospital vide Disability Certificate bearing File No.Addl. M.S (PK)/CMB 45/2018/RMLH dated 24.01.2018 Ex.PW2/1 whereby it had been certified that the petitioner had sustained 10% permanent disability due to the injuries sustained in a road traffic accident whereas the petitioner was already suffering from 50% permanent physical impairment due to right sided hemiparesis (weakness of the right side of body prior to the case accident). Thus, the permanent physical disability sustained by the petitioner as a result of injuries sustained by him in the case accident was to the tune of 10% in relation to his left lower limb. I shall now proceed to ascertain the functional disability, if any, sustained by the petitioner and the impact of such functional disability on the earning capacity of the petitioner.
12.2 In this context, the Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors.
6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves Surender Vs. Rajesh & Ors. Page 23 of 39 Surender Vs. Rajesh & Ors. Page 24 of 39 three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
12.3 In the present case, the petitioner suffered 10% permanent disability in relation to his left lower limb due to the injuries sustained in the case accident. Besides, as already discussed above, the findings of medical board regarding the nature and extent of permanent disability suffered by the petitioner have Surender Vs. Rajesh & Ors. Page 24 of 39 Surender Vs. Rajesh & Ors. Page 25 of 39 been corroborated with the deposition of PW2 Dr. Satish Kumar from Dr. RML Hospital, Delhi, who clarified that the petitioner had suffered only 10% permanent disability due to fracture of both bones of left leg. On being asked a Court question, he had further clarified that the said disability would hardly affect the functional capacity of the petitioner. He had also elaborated that the normal walking of the patient was likely to be affected by the accident because his left leg had become shortened by 4 cms. in comparison to his right leg. He had stated that there was no element of head injury at the time of accident, and therefore, the injuries sustained by the petitioner due to the case accident were not likely to affect the speech of the patient in any manner. Relevant extract of deposition of PW2 Dr. Satish Kumar is reproduced herein below in this context:
"The said disability would hardly affect the functional capacity of the patient.
The normal walking by the patient would be affected by the said accident and the 10% disability caused by the said accident as there was shortening of the left leg by 4 cms in comparison to right leg. There was no element of head injury at the time of accident, hence the above said 10% permanent disability would not affect at all in the speech of the patient. The above said 10% permanent disability would not increase any further in case the patient does not undergo physiotherapy."
12.4 In view of the above cited extract of deposition of PW2 Dr. Satish Kumar, it can be safely concluded that the disability sustained by the petitioner due to the case accident was likely to have very less impact on his functional capacity and was not likely to effect his vocal ability in any manner. In view of above discussion regarding the injuries suffered by the petitioner with permanent disability to the tune of 10% in left lower limb, the functional disability of the petitioner is taken as 5%.
12.5 I shall now proceed to determine the impact of permanent disability Surender Vs. Rajesh & Ors. Page 25 of 39 Surender Vs. Rajesh & Ors. Page 26 of 39 sustained by the petitioner on his earning capacity. In this context, it is pertinent to note that it is the admitted case of the petitioner that he was not gainfully employed anywhere after having superannuated from NDMC and in the claim petition, the petitioner had claimed that his monthly emoluments were to the tune of Rs.30,000/ received as pension from his employer, that is, NDMC. In his crossexamination dated 02.06.2018, petitioner as PW1 had categorically deposed that his income from pension was to the tune of Rs.40,000/ per month. In these circumstances, it can be safely concluded that the 10% permanent disability sustained by the petitioner due to the case accident had no bearing on income of the petitioner or his future earning capacity because he was not gainfully employed anywhere and his pension would not have been adversely effected in any manner by the injuries sustained in the case accident. 12.6 Similar observations were made by Hon'ble Apex Court in the case of Raj Kumar vs. Ajay Kumar, Civil Appeal No.8981 of 2010 decided on 18.10.2010 wherein it had been categorically observed by the Hon'ble Apex Court that in certain cases, the permanent disability sustained by the petitioner does not adversely affect the earning capacity of the victim. Using illustration of an office clerk earning fixed salary who had sustained injuries and permanent disability in left upper limb, the Hon'ble Apex Court had observed that the salary as well as the working efficiency of such a clerk were not likely to be adversely effected in any manner due to permanent disability sustained in a road traffic accident. Relevant extract of observations made in paras 10 and 13 are reproduced herein below in this context:
"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 (this is Surender Vs. Rajesh & Ors. Page 26 of 39 Surender Vs. Rajesh & Ors. Page 27 of 39 also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also 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 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 hundred percent, 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 consequence 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 as 100% (or even anything more than 50%), the need to award compensation separately under the head Surender Vs. Rajesh & Ors. Page 27 of 39 Surender Vs. Rajesh & Ors. Page 28 of 39 of loss of amenities or loss of expectation of life may disappear and as a result, only a token or 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.
13. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
12.7 The facts of the present case are similar to the illustration of office clerk used by the Hon'ble Supreme Court of India in the above cited case of Raj Kumar vs. Ajay Kumar(supra). In the present case as well, the petitioner is not likely to suffer any loss in his monthly emoluments of Rs.30,000/ to Rs.40,000/ received by him by way of pension paid by his employer NDMC on account of injuries sustained in the case accident. The case of the petitioner is akin to the Surender Vs. Rajesh & Ors. Page 28 of 39 Surender Vs. Rajesh & Ors. Page 29 of 39 case of the office clerk taken up as an example by the Hon'ble Apex Court which observed that an office clerk who had sustained injuries as well as permanent disability in his left hand was not likely to face any loss in his future earning capacity and his income was not likely to be adversely effected due to permanent disability sustained by him in a road traffic accident. The petitioner being a pensioner in the present matter was similarly not likely to suffer financial loss as his pension would have remained uneffected by his permanent disability. Admittedly, the petitioner had no other source of income which was likely to be adversely effected due to permanent disability suffered by the petitioner in the case accident. Thus, although the petitioner had sustained 5% functional disability due to injuries sustained in the case accident, however, the impact of such functional disability on his earning capacity as a pensioner was nil. Accordingly, this Tribunal is not inclined to grant any compensation to the petitioner towards loss of future earning capacity due to permanent disability. 13 Loss of Income 13.1 It is the admitted case of petitioner that as on the date of occurrence of the case accident he had already superannuated from Government service in NDMC department and was continuously receiving pension even after having met with the case accident. Besides, it is also not in dispute that the petitioner was not gainfully employed anywhere after his superannuation from NDMC and his monthly pension was not affected in any manner on account of injuries sustained in the case accident. Thus it is the admitted case of petitioner that he had not suffered any loss of income due to injuries sustained in the case accident. Accordingly the petitioner has not claimed any compensation towards loss of income suffered by him and as such this court is not inclined to grant any compensation to the petitioner towards loss of income under this head.
Surender Vs. Rajesh & Ors. Page 29 of 39 Surender Vs. Rajesh & Ors. Page 30 of 3914. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs.10,42,670/ which is tabulated as below: Sl. No Compensation Award amount
1. Medical Expenses Rs. 7,42,669.60 2 Special diet & Conveyance Rs. 1,00,000/
3. Attendant Charges Rs 2,00,000/
4. Compensation due to permanent Nil disability/loss of earning capacity
5. Loss of income Nil Total Rs. 10,42,669.60 Rounded of to Rs.10,42,670/ ( Rupees Ten Lakh Forty Two Thousand Six Hundred Seventy only) 14.1 In respect of entitlement of the petitioner to interest on the awarded amount, it is noteworthy that the Hon'ble Apex Court had in the case of Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) had observed that the victims of Uphaar Tragedy be awarded compensation with interest @ 9% per annum. The present matter is pending trial since 28.10.2015 and the rate of interest of fixed deposits in Nationalized banks has fluctuated/dropped several times during the pendency of the present proceedings. Therefore, in the interest of justice, in the present case, this court is of the opinion that the claimant/petitioner is entitled to interest at the prevailing bank rate of 6% per annum from the date of filing of DAR/petition, that is, with effect from 28.10.2015 till realisation of the compensation amount. 14.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
15. Liability 15.1 In the case in hand, the Magma HDI General Insurance co./R3 has Surender Vs. Rajesh & Ors. Page 30 of 39 Surender Vs. Rajesh & Ors. Page 31 of 39 not lead any evidence and has not been able to show anything on record that R1 who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law. Since the offending vehicle was duly insured with the insurance company/R3, hence, R3 is liable to pay the entire compensation amount to the petitioner as per law.
15.2 Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Magma HDI Insurance Company Ltd./R3 is directed to deposit the awarded amount of Rs.10,42,670/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 6% per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank along with the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approach the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
16. Statement of petitioners in terms of clause 29 MCTAP was recorded on 07.12.2020 regarding their savings bank account with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. I have heard the petitioner and learned counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Surender Vs. Rajesh & Ors. Page 31 of 39 Surender Vs. Rajesh & Ors. Page 32 of 39 Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiary owing to his ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 16.1 Keeping in view the facts and circumstances of the case, said statement of the petitioner/injured and clause 32 of MCTAP regarding protection of the award amount, it is hereby directed that on realization of the entire award amount, an amount of Rs.7,00,000/ be given to Ms. Kiran Kumar (wife of the deceased) and remaining amount of Rs. Rs.3,42,670/ be given to Ms. Anjali Bhatia(daugther of the deceased). Also, out of the amount falling in share of wife of the deceased, a sum of Rs.70,000/ be released to Ms. Kiran Kumar, wife of deceased in her MACT Claims SB A/c no.39794623705 with SBI, Rohini Courts Branch, Delhi as per rules, that is, the branch near their place of residence (as mentioned in statement recorded under clause 29 MCTAP) and the remaining amount falling in her share be kept in 60 FDRs of equal amount for a period of one month to 60 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal. Similarly, out of the amount of Rs. 3,42,670/ falling in the share of Ms. Anju Bhatia, daughter of the deceased, an amount of Rs.Rs.30,000/ be released to the Ms. Anjali Bhatia, daughter of the deceased in her MACT Claims SB A/c bearing No. 39779640390 with SBI, Rohini Courts Branch, Delhi as per rules, that is, the branch near their place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount falling in the share of the daughter of the deceased be kept in 30 FDRs of equal amount for a period of one month to 30 months respectively with cumulative interest without the facility of advance, loan and premature Surender Vs. Rajesh & Ors. Page 32 of 39 Surender Vs. Rajesh & Ors. Page 33 of 39 withdrawal without the prior permission of the Tribunal. 16.2 The aforesaid award amount shall be disbursed to the claimant (s) through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated 07.12.2018 in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003. However, till the time MACAD Scheme becomes fully operational and to ensure that the petitioner is not put to any undue inconvenience, the fixed deposits shall be subject to following conditions:
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant/(s) near the place of their residence.
(d) The maturity amount of the FDR(s) be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the Surender Vs. Rajesh & Ors. Page 33 of 39 Surender Vs. Rajesh & Ors. Page 34 of 39 disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
17. Relief 17.1 As discussed above, Magma HDI Insurance co/R3 is directed to deposit the award amount of Rs.10,42,670/ with interest @ 6% per annum from the date of filing of DAR/petition i.e. 28.10.2015 till realization within the jurisdiction of this Tribunal at SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 9% per annum from the period of delay beyond 30 days. 17.2 R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today.
17.3 A copy of this judgment/award be sent to respondent no.3 for compliance within the granted time.
17.4 Nazir is directed to place a report on record in the event of non Surender Vs. Rajesh & Ors. Page 34 of 39 Surender Vs. Rajesh & Ors. Page 35 of 39 receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (02222741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman Point, Mumbai400021} through email ([email protected]) through the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
17.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioners were also recorded on 07.12.2020. The record would show that the relevant documents including copy of aadhar cards, PAN cards, copy of bank pass books and form 15G of the petitioner have already been supplied to the learned counsel for insurance co. on 07.12.2020 itself.
18. Form IVB which has been duly filled in has also been attached Surender Vs. Rajesh & Ors. Page 35 of 39 Surender Vs. Rajesh & Ors. Page 36 of 39 herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Announced in open court (JASJEET KAUR)
On 30th April, 2022 PO MACT N/W
Rohini Courts, Delhi.
Surender Vs. Rajesh & Ors. Page 36 of 39
Surender Vs. Rajesh & Ors. Page 37 of 39
FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident: 11.03.2015
2. Name of injured: Surender Mohan Sharma
3. Age of the injured: 64 years at the time of accident.
4. Occupation of the injured: Retired Government Servant/pensioner
5. Income of the injured Rs. 30,000/ by way of pension
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 4 months
8. Period of hospitalization: NA
9. Whether any permanent disability ? If yes, give details.
10% permanent disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 7,42,669.60/
(ii) Expenditure on conveyance Rs. 50,000/
(iii) Expenditure on special diet Rs. 50,000/
(iv) Cost of nursing/attendant Rs. 2,00,000/
(v) Compensation due to permanent Nil disability/loss of earning capacity
(vi) Loss of income Nil
(vii) Any other loss which may require any N/A special treatment or aid to the injured Surender Vs. Rajesh & Ors. Page 37 of 39 Surender Vs. Rajesh & Ors. Page 38 of 39 for the rest of his life
12. NonPecuniary Loss:
(I) Compensation for mental and physical N/A
shock
(ii) Pain and suffering N/A
(iii) Loss of amenities of life N/A
(iv) Disfiguration N/A
(v) Loss of marriage prospects N/A
(vi) Loss of earning, inconvenience, N/A
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 10% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of N/A expectation of life span on account of disability
(iii) Percentage of loss of earning capacity 5% in relation of disability
(iv) Loss of future income - (Income X Nil %Earning capacity X Multiplier)
14. TOTAL COMPENSATION Rs. 10,42,670/(after rounding of)
15. INTEREST AWARDED 6%
16. Interest amount up to the date of Rs.4,06,988.84/ award Surender Vs. Rajesh & Ors. Page 38 of 39 Surender Vs. Rajesh & Ors. Page 39 of 39
17. Total amount including interest Rs. 14,49,658.84/(after rounding of Rs.14,49,659/)
18. Award amount released Rs. 1,00,000/
19. Award amount kept in FDRs Rs. 13,49,659/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 30.05.2022 (Clause 31) (JASJEET KAUR) PO/MACT, N/W Rohini Courts, Delhi.
30.04.2022 Surender Vs. Rajesh & Ors. Page 39 of 39