Delhi District Court
Ajay Gaur vs . Jitendeer Singh & Ors. on 15 December, 2018
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
IN THE COURT OF SH. PAWAN KUMAR JAIN,
JUDGE, MACT-1 (CENTRAL), THC, DELHI.
Suit No. 448/2015
MACT No. 356705/2016
Unique Case ID No. DLCT01-001559-2015
Sh. Ajay Gaur
W/o Sh. Raunak Singh
R/o WZ-29, Main Bazar Road, Near Choti Chopal,
Shadipur Village, New Delhi-110008.
........Petitioner
VERSUS
1. Sh. Jitender Singh
S/o Sh. Bhudev Singh
R/o Village Ibrahimpur Nagaria, PS Rijor,
District-ETA, Uttar Pradesh-207001.
...........Respondent No.1
(Driver)
2. Sh. Nalin Sharma
S/o Sh. N.L. Sharma
R/o Village Thakurdwara Bagpat
PS & District Bagpat
Uttar Pradesh-250609.
Also at:
71, University Road,
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
Bhawani Puram,
Victoria Park, Meerut,
Uttar Pradesh-250001.
...........Respondent No.2
(Owner)
3. Oriental Insurance Company Ltd.
50, Navyug Market
Ghaziabad, Uttar Pradesh-201001
...........Respondent No.3
(Insurer)
AND
Suit No. 449/2015
MACT No. 356706/2016
Unique Case ID No. DLCT01-001560-2015
Smt. Shakuntla
W/o Sh. Raunak Singh
R/o WZ-29, Main Bazar Road, Near Choti Chopal,
Shadipur Village, New Delhi-110008.
........Petitioner
VERSUS
1. Sh. Jitender Singh
S/o Sh. Bhudev Singh
R/o Village Ibrahimpur Nagaria,PS Rijor,
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 2 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
District-ETA, Uttar Pradesh-207001.
...........Respondent No.1
(Driver)
2. Sh. Nalin Sharma
S/o Sh. N.L. Sharma
R/o Village Thakurdwara Bagpat
PS & District Bagpat
Uttar Pradesh-250609.
Also at:
71, University Road,
Bhawani Puram,
Victoria Park, Meerut,
Uttar Pradesh-250001.
...........Respondent No.2
(Owner)
3. Oriental Insurance Company Ltd.
50, Navyug Market
Ghaziabad, Uttar Pradesh-201001.
...........Respondent No.3
(Insurer)
AND
Suit No. 450/2015
MACT No. 356707/2016
Unique Case ID No. DLCT01-001561-2015
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 3 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
Master Aarav Bhargava
(Being minor through his father/natural guardian
Sh. Yogesh Bhargava
R/o 79/9, Kishan Garh,
Vasant Kunj, New Delhi-110070.
Also at:
WZ-29, Shadipur Village,
New Delhi-110008.
........Petitioner
VERSUS
1. Sh. Jitender Singh
S/o Sh. Bhudev Singh
R/o Village Ibrahimpur Nagaria,PS Rijor,
District-ETA, Uttar Pradesh-207001.
...........Respondent No.1
(Driver)
2. Sh. Nalin Sharma
S/o Sh. N.L. Sharma
R/o Village Thakurdwara Bagpat
PS & District Bagpat
Uttar Pradesh-250609.
Also at:
71, University Road,
Bhawani Puram,
Victoria Park, Meerut,
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
Uttar Pradesh-250001.
...........Respondent No.2
(Owner)
3. Oriental Insurance Company Ltd.
50, Navyug Market
Ghaziabad, Uttar Pradesh-201001
...........Respondent No.3
(Insurer)
AND
Suit No. 447/2015
MACT No. 356704/2016
Unique Case ID No. DLCT01-001558-2015
Sh. Ajay Gaur
S/o Sh. Raunak Singh
R/o WZ-29, Shadipur Village,
Main Bazar Road, New Delhi-110008.
........Petitioner
VERSUS
1. Sh. Jitender Singh
S/o Sh. Bhudev Singh
R/o Village Ibrahimpur Nagaria,PS Rijor,
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
District-ETA, Uttar Pradesh-207001.
...........Respondent No.1
(Driver)
2. Sh. Nalin Sharma
S/o Sh. N.L. Sharma
R/o Village Thakurdwara Bagpat
PS & District Bagpat
Uttar Pradesh-250609.
Also at:
71, University Road,
Bhawani Puram,
Victoria Park, Meerut,
Uttar Pradesh-250001.
...........Respondent No.2
(Owner)
3. Oriental Insurance Company Ltd.
50, Navyug Market
Ghaziabad, Uttar Pradesh-201001
...........Respondent No.3
(Insurer)
4. United India Insurance Company Ltd.
D.O-4, Vikrant Tower, 501-503,
Rajendera Place, New Delhi.
...........Respondent No.3
(Insurer)
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 6 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
Date of filing of all above claim petitions : 20.10.2015
Arguments heard on : 26.11.2018
Date of passing of Award : 15.12.2018
Present: Sh. Yogesh Kumar Narula, Advocate,
counsel for petitioners
Sh. V. P. Singh, Advocate, counsel for
respondent No. 1 & 2
Sh. V. K. Gupta, Advocate, counsel for
respondent no.3
Sh. H. S. Hans & Sh. V. P. Malhotra,
Advocates, counsel for respondent
no.4
A W A R D:
1. The above four claim suits are the subject
matter of this award as all the claim suits have arisen from the
same motor vehicular accident which allegedly took place on
18.05.2015 within the jurisdiction of PS Mansurpur, Muzaffar
Nagar, U. P.
2. All the claim petitions have been preferred by
the petitioners under Section 166 & 140 of the Motor Vehicle
Act, 1988 (in short M.V Act).
(i) MACT Suit No. 356705/16 pertains to
grievous injuries caused to the claimant Ajay Gaur claiming a
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
compensation of ` 15 lac; MACT Suit no. 356706/16 pertains
to grievous injuries caused to claimant Shakuntla wherein
claimant claimed a compensation of ` 5 lac and MACT Suit no.
356707/16 pertains to the injuries caused to minor Aarav
Bhargava claiming a compensation of ` 25 lac.
(ii) MACT Suit No. 356704/16 pertains to the
damage caused to the claimant's (Ajay Gaur) vehicle bearing
registration no. DL-4CAW-4030 wherein claimant claimed a
compensation of ` 15 lac.
(ii) Though the accident in question had not
taken place within the jurisdiction of this Tribunal, yet the claim
petitions have been filed before this Tribunal as all the
petitioners have been residing in Delhi. Besides that
respondent no.4 is also working in Delhi for gain.
3. Facts in brief as emerged from the above
claim petitions are that in the intervening night of 17 th & 18th
May, 2015, all the petitioners were going to Haridwar from
Delhi in their car bearing registration No. DL-4C-AW-4030 via
Muzaffar Nagar National Highway No. 58. It was alleged that
the said car was being driven by petitioner Ajay Gaur. When at
about 2 AM, they reached at NH-58, near Singhawali Bridge,
PS Mansurpur, Muzaffar Nagar, U. P., offending truck bearing
registration No. UP-17A-6991 came from opposite side at fast
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Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
speed in a rash and negligent manner and hit their car.
Consequently, all the occupants of car sustained grievous
injuries. Injured persons were taken to Civil Hospital, Muzaffar
Nagar from where, they were shifted to Bhagya Shree
Hospital.
(i) It was alleged that car was also got badly
damaged. Accordingly, petitioner Ajay Gaur also claimed a
compensation in respect of said car.
(ii) In this regard, an FIR No.289/2015 for the
offence punishable under Section 279/337/338/427 IPC was
got registered at PS Mansurpur, Muzaffar Nagar, U. P.
(iii) It was alleged that at the time of accident,
offending vehicle was being driven by respondent no.1 and it
was registered in the name of respondent no.2 whereas same
was insured with respondent no.3.
(iv) It was alleged that respondent no.4 is the
insurer of the car bearing registration No. No. DL-4C-AW-4030.
4. Claim petitions are contested by all the
respondents by filing their separate written statements.
(i) Respondent no. 1 & 2 (driver & owner of the
offending vehicle) in their separate written statement took a
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Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
plea that since the accident had taken place due to the rash
and negligent driving of claimant Ajay Gaur, they are not liable
to pay any compensation.
(ii) Respondent No.3 submitted a legal offer in
all injury matters. However, in property damage case bearing
MACT Suit No. 356704/16, respondent no. 3 took a plea that
since the claimant had lodged a claim before respondent no.4
(United India Insurance Company Ltd), claim petition is not
maintainable.
(iii) In MACT Suit No. 356704/16, respondent
no.4 (United India Insurance Company Ltd.) took a plea that
the claim petition is not maintainable as claimant cannot claim
compensation for the damage caused to his own car under M.
V. Act from his insurer.
5. Vide order dated 17.08.2016, following issues
were framed in all the injury matters whereas in MACT No.
356704/16 following issues have been framed on 26.10.2016:
In MACT Suit No. 356705/16:
(i) Whether the petitioner had suffered injuries
in road traffic accident which took place on
18.05.2015 within the jurisdiction of PS Mansur
Pur, Muzaffar Nagar, U.P due to rash and
negligent driving of the vehicle bearing
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
registration No. UP 17A 6991 by Respondent
no.1?
(ii) Whether the petitioner is entitled to any
compensation if so, to what amount and from
whom?
(iii) Relief.
In MACT Suit No.356706/16:
(i) Whether the petitioner had suffered injuries
in road traffic accident which took place on
18.05.2015 within the jurisdiction of PS Mansur
Pur, Muzaffar Nagar, U.P due to rash and
negligent driving of the vehicle bearing
registration No. UP 17A 6991 by Respondent
no.1?
(ii) Whether the petitioner is entitled to any
compensation if so, to what amount and from
whom?
(iii) Relief.
In MACT Suit No.356707/16:
(i) Whether the petitioner had suffered injuries
in road traffic accident which took place on
18.05.2015 within the jurisdiction of PS Mansur
Pur, Muzaffar Nagar, U.P due to rash and
negligent driving of the vehicle bearing
registration No. UP 17A 6991 by Respondent
no.1?
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
(ii) Whether the petitioner is entitled to any
compensation if so, to what amount and from
whom?
(iii) Relief.
In MACT Suit No.356704/16:
(i) Whether the vehicle bearing registration No.
DL-4CAW-4030 was damaged in road traffic
accident which took place on 18.05.2015 within
the jurisdiction of PS Mansur Pur, Muzaffar
Nagar, U.P due to rash and negligent driving of
the vehicle bearing registration No. UP 17A
6991 by Respondent no.1 Jitender Singh?
(ii) Whether the petitioner is entitled to any
compensation if so, to what amount and from
whom?
(iii) Relief.
6. In order to prove their case, petitioners
examined following witnesses:
In MACT Suit No. 356705/16:
PW1 Sh. Yogesh Bhargava, father of injured
Aarav Bhargava
PW2 Smt. Shakuntla, eye witness/injured
PW3 Sh. Ajay Gaur, petitioner
PW4 ASI Prem Pal Singh, proved the salary
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Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
record of the petitioner
PW5 ASI Kesha Ram, proved the leave record of
the petitioner
PW6 Dr. Bushu, proved the medical record of the
petitioner
In MACT Suit No.356706/16:
PW1 Sh. Yogesh Bhargava, father of injured
Aarav Bhargava
PW2 Smt. Shakuntla, petitioner/injured
PW3 Sh. Ajay Gaur, eye witness/injured
In MACT Suit No. 356707/16:
PW1 Sh. Yogesh Bhargava, father of injured
Aarav Bhargava
PW2 Smt. Shakuntla, eye witness/injured
PW3 Sh. Ajay Gaur, eye witness/injured
In MACT Suit No. 356704/16:
PW1 Sh. Yogesh Bhargava, father of injured
Aarav Bhargava
PW2 Smt. Shakuntla, eye witness/injured
PW3 Sh. Ajay Gaur, petitioner/claimant
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
(i) In rebuttal respondents did not lead any
evidence in three injuries matter whereas in property
damage matter bearing MACT No. 356704/16, respondent
no.4 (insurer of car) examined Sh. Jagdish Narang, Motor
Claim Hub Incharge as R4W1.
7. On completion of evidence led by both the
parties, statement of petitioners in all three injuries matters
were recorded on 12.09.2018 in compliance of clause 27 of
FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir
Singh & ors. decided by Hon`ble High Court of Delhi on
December 15, 2017.
8. I have heard rival submissions advanced by
counsel for petitioners and respondents, perused the record
carefully and gave my thoughtful consideration to their
contentions.
9. My issue-wise findings are as under:-
Issue No. 1 in all the matters:
FINDING:-
10. Learned counsels appearing for insurance
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Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
companies contended that since it was a head-on-collision,
this shows that there was also contributory negligence on the
part of driver of the car. Accordingly, it was urged that 50% of
the award amount in relation to injuries caused to claimant
Ajay Gaur (driver of the car) is liable to be deducted towards
his contributory negligence.
(i) Per contra, counsel appearing for petitioners
contended that there is no iota of evidence to show that there
was any contributory negligence on the part of claimant Ajay
Gaur.
(ii) In this regard, testimony of PW2 Smt.
Shakuntla & PW3 Sh. Ajay Gaur are relevant.
(iii) PW2 & PW3 reiterated their version in their
examination-in-chief by testifying that when they reached near
Singhawali Bridge, offending truck came from opposite side at
fast speed in a rash and negligent manner and hit their car,
consequently, all the occupants of car sustained injuries.
Though during the cross-examination of PW3, a suggestion
was given that he was driving the car at very fast speed. But
he denied the same.
(iv) In this regard, the Site plan prepared by the
investigating officer is also relevant to prove the rashness or
negligence on the part of respondent no.1. Perusal of the Site
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Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
plan reveals that the road, on which offending truck was plying,
was closed and due to that reason truck entered into the road,
on which the car was going on. Since, the truck entered into
the road on which car was going on, it was the duty of truck
driver to ensure that no vehicle was coming from other side.
But it appears that before entering the road, he did not care
whether the car was coming from the other side. Since, the car
was being driven in its lane, it cannot be said that there was
any rashness or negligence on the part of Ajay Gaur, i.e. driver
of car.
(v) In view of the aforesaid discussion, I am of
the considered opinion that there is no iota of evidence to
show that accident had taken place due to the contributory
negligence of claimant Ajay Gaur. On the contrary, there are
sufficient evidence on record to hold that the accident was
caused due to the rash and negligent driving of respondent
no.1. Accordingly, Issue no. 1 is decided in favour of
petitioners and against the respondents in all the matters.
Issue No.2:
In MACT Suit No. 356705/16:
Whether the petitioner is entitled to
any compensation? if so, to what
amount and from whom?
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Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
11. As per discharge summary Ex. PW3/1,
claimant Ajay Gaur remained admitted in Indian Spinal Injury
Centre w.e.f 18.05.2015 to 22.05.2015. He was diagnosed as
fracture subtrochanteric right with multiple facial abrasions and
abrasion left evulsion with loss of ear lobule and skin over
helical root. He was operated on 19.05.2015. At the time of
discharge, he was advised to walk with the help of walker with
weight bearing as tolerated. He remained under treatment till
30.09.2015. On 30.09.2015, he was advised to visit the
hospital after 6-8 weeks for review. He was also declared fit to
join the duty, but advised to avoid heavy work/long standing.
As per disability certificate dated 25.11.2016, he has sustained
21.6% permanent disability in relation to his right lower limb.
(a). INCOME OF THE PETITIONER:
(i) Indisputably, petitioner was working as Head
Constable in Delhi Police at the time of accident. As per pay
slip Ex. PW4/A, gross salary of the petitioner in the month of
April 2015 was ` 37,128/-. During inquiry, no contrary evidence
has been led, which may raise any suspicion over the pay slip
of the petitioner. Accordingly, income of the petitioner is
assessed at ` 37,128/- per month.
LOSS OF INCOME:
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Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
(i) As already stated that petitioner was declared
fit on 30.09.2015. PW ASI Kesha Ram also testified that
claimant Ajay Gaur remained on medical leaves w.e.f
18.05.2015 to 29.09.2015 and he joined his duty on
30.09.2015. Counsel appearing for insurance company
contended that since he was a government employee,
presumption is that he must have received full salary during
the leave period, accordingly, it was urged that petitioner is not
entitled for any loss of income as no loss was caused to him.
(ii) No doubt, being the government employee,
he must have received full salary during the leave period. But it
is also true that the leaves must be debited from his leave
account. Thus, petitioner have suffered a loss of leave, which
is equal to the full pay. Since the petitioner had availed the
leave for 4½ months due to the injuries caused to him in the
accident, I am of the considered opinion that petitioner is
entitled for loss of income for 4½ months. Accordingly, loss
of income for 4½ months @ ` 37,128/- per month; in total
a sum of ` 1,67,076/- is awarded to the petitioner.
(b) Expenditure on Medical Treatment:
(i) Counsel for petitioner submitted that
petitioner has incurred a sum of ` 1,02,153/- on his treatment.
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Ajay Gaur vs. Devender Singh & ors.
The bills are Ex. PW3/2. During inquiry, no cogent evidence
has been led, which may raise any suspicion over the bills
produced by the claimant. Accordingly, a sum of
` 1,02,153/- is awarded to him towards medical expenses.
(c) CONVEYANCE CHARGES:
(i) Admittedly, accident had taken place within
the jurisdiction of PS Mansurpur, Muzaffar Nagar and petitioner
got the treatment from Indian Spinal Injury Centre, Vasant
Kunj, Delhi. This establishes that after the accident, petitioner
must be shifted to Delhi, thus he must have incurred
substantial amount in shifting. Further, petitioner is a resident
of Shadipur Village. Considering all these facts and distance of
the hospital from his residence and duration of treatment, a
sum of ` 25,000/- is awarded to him towards conveyance
charges.
(d) SPECIAL DIET:
(i) Though no special diet was prescribed by
the doctor at the time of discharge, but considering the nature
of injuries, it can safely be culled out that petitioner must have
taken some special diet for the purpose of fast recovery.
Considering the nature of injury and duration of
treatment, a sum of ` 20,000/- is awarded to him under
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Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
this head.
(e) NURSING/ATTENDANT CHARGES :
(i) Perusal of the medical documents reveals
that petitioner was declared fit to walk on 14.08.2015. This
shows that for a period of three months, he may not be able to
walk freely. Thus, it can safely be culled out that petitioner
must he attended either by a paid attendant or a family
member during the said period. Considering the facts and
circumstances of the case, a sum of ` 15,000/- is awarded to
him under this head.
(c) Loss of earning capacity due to disability:
(i) Learned counsel appearing for petitioner
contended that since the petitioner has been working in Delhi
Police as a Head Constable, he has not sustained any loss of
earning capacity due to the permanent disability caused to
him. However, it was urged that after the retirement, petitioner
would suffer loss of future earning capacity due to disability
caused to him and in support of his submission counsel
reliance placed on the judgment Tata AIG General Insurance
Company Ltd. vs. Dipanjan Ghosh & ors. MAC Appeal No.
44/2014 decided by the Hon`ble High Court of Delhi on
12.03.2016.
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Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
(i) Per contra, counsel appearing for the
insurance company refuted the said contention by arguing that
since petitioner is a government employee, he would get
pension even after retirement, thus petitioner is not entitled for
any loss of future earning capacity.
(ii) Since petitioner has been working in Delhi
Police and it is admitted by the claimant that due to the
disability caused to him in the accident, he has not sustained
any loss of earning capacity or any other monetary loss. Since,
he has not sustained any monetary loss due to the permanent
disability caused to him in the accident, in view of the judgment
Raj Kumar vs. Ajay Kumar and Another 2011 (1) T.A.C. 785
(S.C), I am of the considered opinion that petitioner is not
entitled for loss of earning capacity due to the disability caused
to him in the accident.
(iii) In case Tata AIG Insurance Company Ltd.
vs. Dipanjan Ghosh (supra), loss of future earning was
granted to the claimant despite the fact that he had not
sustained any loss of earning capacity due to the permanent
disability caused to him in the accident. The relevant para of
the judgment is reproduced as under:
4. In the face of the fact that there is no loss of
employment and the claimant has continued to be in
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service, there is substance in the contention raised by
the insurance company. But it cannot be forgotten that
there would be loss of future earnings arising out of the
disability suffered, once the claimant retires. Ordinarily,
the employees even in private service are
superannuated at the age of 60 years. In these
circumstances, the loss of future earnings due to
disability requires to be recalculated on the multiplier of
9.
(iv) Indisputably, petitioner would also retire
from Delhi Police at the age of 60 years and in case he seeks
any employment after his retirement, he may face difficulty in
getting a suitable job. As already stated that petitioner has
sustained 21.6% permanent disability in relation to his right
lower limb. Since the percentage of disability is not significant,
it can safely be culled out that petitioner may not suffer a
significant loss of future earning capacity due to disability
caused to him in the accident. Considering the facts and
circumstances of the case, loss of future earning capacity is
assessed at 7%.
(v) Since petitioner was below 40 years of age
at the time of accident, in view of law laid down in Pranay
Sethi's case, petitioner is entitled for 50% addition in his
income towards future prospects.
(vi) Since petitioner would retire at the age of 60
years, in view of law laid down in Sarla Verma case and
approved by the Apex Court in Pranay Sethi's case,
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 22 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
multiplier of 9 shall be apply to calculate the loss of future
earning capacity.
(vii) Accordingly, loss of future earning capacity
is quantified as under:
NAME OF HEAD AMOUNT (IN ` )
Annual income (37,128 X 12) 4,45,536
50% Future prospects 2,22,768
Total 6,68,304
Multiplier 9 60,14,736
7% of said amount 4,21,031.52
(xiii) Accordingly, a sum of ` 4,21,031/- is
awarded to him towards loss of future earning capacity
due to disability.
(d) Compensation for Future Treatment:
(i) Learned counsel contended that petitioner
may require ` 1 lac for future treatment for removal of the
nailing etc. This contention is refuted by the counsel appearing
for insurance company on the ground that during inquiry,
petitioner has not led any evidence in this regard.
(ii) As per discharge summary, on 19.05.2015,
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 23 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
petitioner had undergone surgery and internal fixation with
interlocking by nailing with the the right femur was done. But
since then petitioner has not approached the hospital for
removal of the same. Even during inquiry, petitioner has not
led any evidence in this regard. Even no document has been
produced to show that petitioner had been advised by the
doctor for removal of the above said interlocking/nails.
Assuming that petitioner may require removal of the
nails/interlocking, but since petitioner is a government servant,
he may get the medical expenses reimbursed from his
department. In the absence of any specific evidence, I am of
the view that petitioner is not entitled for the reimbursement of
the amount to be spent on the removal of the interlocking/nails
etc. But since he may require bed rests for few days,
compensation of ` 15,000/- is awarded to him towards
Attendant/Nursing/Conveyance charges etc.
(e) COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock :-
(i) As already discussed that petitioner met with
an accident when he was going to Haridwar alongwith his
relatives. Due to the accident, he not only sustained multiple
fractures, but his relatives who were travelling in the said car
also sustained multiple injuries. Besides that minor Aarav also
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 24 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
sustained permanent disability. Due to the injuries caused to
him in the accident, he had to remain admitted in the hospital
for 05 days and had to undergo surgery. Besides that he
remained under treatment for a long period and also sustained
21.6% permanent disability in relation to his right lower limb.
Thus, it can safely be culled out that petitioner must have
suffered acute mental and physical shock not only at the time
of accident, but even thereafter. Though it is difficult to quantify
the said loss in monetary terms, yet considering the facts and
circumstances of the case, a sum of ` 1,00,000/- is awarded
to him under this head.
Pain and suffering
(i) In view of the above, it can safely be culled
out that petitioner must have also suffered acute pain and
suffering not only at the time of accident but even thereafter.
Though it is difficult to quantify the said loss in monetary terms,
yet considering the facts and circumstances of the case, a
sum of ` 40,000/- is awarded to him under this head.
Loss of amenities:
(i) Since petitioner remained admitted in the
hospital for 05 days and remained under treatment for about
4-½ months, it can safely be culled out that petitioner must
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 25 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
have suffered some loss of amenities of life though for a
limited period. Though it is difficult to quantify the said loss in
monetary terms, yet considering the facts and circumstances
of the case, a sum of ` 15,000/- is awarded to him under
this head.
Loss of inconvenience/hardship/disappointment/mental
stress etc:
(i) Since petitioner has sustained 21.6%
permanent disability in relation to his right lower limb, it can
safely be culled out that he must have faced lot of
inconvenience, hardship and mental stress for a considerable
period. Though it is difficult to quantify the said loss in
monetary terms, yet considering the facts and circumstances
of the case, a sum of ` 75,000/- is awarded to him under
this head.
12. As discussed above, the overall
compensation is tabulated as under:
NAME OF HEAD AMOUNT (In ` )
Loss of Income 1,67,076
Medical Expenses 1,02,153
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 26 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
Conveyance charges 25,000
Special Diet 20,000
Attendant Charges 15,000
Loss of earning capacity due to disability 4,21,031
Future Treatment 15,000
Mental and physical shock 1,00,000
Pain and suffering 40,000
Amenities of life 15,000
Loss of inconvenience/hardship/ 75,000
disappointment/mental stress etc.
Total 9,95,260
Round off :- ` 9,96,000/-
(Rupees Nine Lac & Ninety Six Thousands Only)
(i) The claimant/petitioner is also entitled to
interest @ 9% per annum from the date of filing of the claim
petition i.e. 20.10.2015 till realization.
13. DISBURSEMENT:-
(i) Petitioner's statement was recorded on
12.09.2018 in compliance of clause 27 of FAO No. 842 of
2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 27 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
decided by Hon`ble High Court of Delhi on December 15,
2017 wherein he submitted that he needs about ` 50,000/- per
month for his household expenses.
(ii) In view of his statement, on realization, a
sum of ` 99,600/- with entire interest shall be released to
him forthwith and in terms of the directions contained in
FAO No. 842/2003 dated December 15, 2017, balance
amount of ` 9 lac shall be put in the form of 9 fixed
deposits in the name of petitioner/claimant of equal
amount of ` 1,00,000/- each in a nationalized bank for a
period of six months, one year, one and half year, two
year and so on. Besides the above said amount, amount
of FDRs on maturity, shall automatically be transferred in
his saving account maintained in a nationalized bank
near the place of his residence without the facility of
cheque book and ATM card. It is clarified that the amount
shall be released to the petitioner only on submitting the
copy of passbook of such saving account with
endorsement of the bank that no cheque book facility and
ATM card has been issued or if has been issued, same
has been withdrawn and same shall not be issued without
the prior permission of this Tribunal. However, petitioner
shall have liberty to seek release of ` 99,600/- from the
above amount from the bank located within the
jurisdiction of this Tribunal.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 28 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
14. In compliance of the directions given by
Hon`ble High court in FAO No. 842/2003 dated December
15, 2017, Summary of the Award in the prescribed format-
IV B is as under:-
SUMMARY OF AWARD
(i) Date of accident 18.05.2015
(ii) Name of the injured Ajay Gaur
(iii) Age of the injured 41 years
(iv) Occupation of the Government Servant
injured
(v) Income of the injured ` 37,128/- per month
(vi) Nature of injury Grievous
(vii) Medical treatment taken Indian Spinal Injury Centre
by the injured
(viii) Period of 05 days
hospitalization
(ix) Whether any permanent 21.6% in relation to his right
lower
disability? If yes, give details:
10. COMPUTATION OF COMPENSATION
S.No. Heads Awarded by the
Tribunal (IN `)
11. Pecuniary Loss:
(i) Expenditure on treatment 1,02,153/-
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 29 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
(ii) Expenditure on conveyance 25000/-
(iii) Expenditure on special diet 20,000/-
(iv) Cost of nursing/attendant 15,000/-
(v) Loss of earning capacity 4,21,031/-
i) Loss of income 1,67,076/-
(vii) Any other loss which may require any NA
special treatment or aid to the injured
for the rest of his life
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical 1,00,000
shock
(ii) Pain and suffering 40,000
(iii) Loss of amenities of life 15,000
(iv) Disfiguration NA
(v) Loss of marriage prospects NA
(vi) Loss of earning, inconvenience, 75,000
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
(vii) Less contributory negligence NA
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and 21.6%
nature of disability as permanent or permanent
temporary disability
(ii) Loss of amenities or loss of NIL
expectation of life span on account of
disability
(iii) Percentage of loss of earning capacity 7%
in relation to disability
(iv) Loss of future Income-(Income x% 4,21,031
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 30 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
Earning Capacity x Multiplier)
14 Total Compensation (Rounded off) 9,96,000
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 2,82,529
03 years 01 months 25 days
17. Total amount including interest 12,78,529
18. Award amount release As mentioned in
para no.13
19. Award amount kept in FDRs As mentioned in
para no.13
20. Mode of disbursement of the award as mentioned in
amount to the claimants (s) (Clause para No. 13
29)
21. Next date for compliance of the award. 16.01.2019
(Clause 31.)
In MACT Suit No. 356704/16:
15. Learned counsel appearing for the claimant
contended that in the above accident, car of the claimant was
also totally damaged and the said car was insured with
respondent no.4 (United India Insurance Company Ltd.). It
was urged that though claimant had lodged a claim before
respondent no.4, but the same was not decided by the
respondent no.4. Accordingly, claimant is entitled for
compensation of ` 15 lac from respondent no. 3 & 4.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 31 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
(i) Learned counsel appearing for respondent
no.3 contended that since the claimant had already lodged a
claim before the respondent no.4 and the same is still pending,
and as per Knock for Knock Agreement executed between
insurance companies, present claim petition is not
maintainable. It was further submitted that at the most,
claimant can claim a sum of ` 8,23,650/-, which he disclosed
at the time of taking insurance of the car.
(ii) Learned counsel appearing for respondent
no.4 contended that since the accident in question was caused
due to the negligence of offending truck, claim petition under
Section 166 of M. V. Act is not maintainable as no third party is
involved in this case.
16. I have heard rival submissions advanced by
counsel for the parties, perused the record carefully and gave
my thoughtful consideration to their contentions.
(i) From the testimony of R4W1, it is clear that
claimant had submitted own damage claim with respondent
no.4 and a claim of ` 7,15,000/- was passed, but since
claimant failed to comply with certain formalities, the amount
could not be released. He further testified that claimant had not
withdrawn the said claim till date. He also admitted that at the
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 32 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
time of insurance, claimant had disclosed the value of the car
to the sum of ` 8,23,650/-. He further admitted that Knock for
Knock Agreement has been executed among all the insurance
companies under which it is agreed that the claim for damaged
vehicle shall be submitted before the company with whom the
vehicle is insured.
(ii) Counsel for respondent no.3 filed the copy
of Knock for Knock agreement. Perusal of the same reveals
that irrespective of the negligence, insurance companies are
liable to satisfy the claim submitted before them by the
claimants. It further reveals that said Knock to Knock
agreement is not mandate of any Regulator, but it is an internal
understanding among insurance companies. Relevant clauses
of the Knock for Knock Agreement are reproduced as under:
Knock for Knock Agreement:
(i) Therefore, insurers have entered
into an agreement (called Knock for Knock
Agreement) according to which, irrespective of who
was negligent, provided the damage is covered
under the policy, the insurers covering the damage
will not exercise subrogation rights against the party
involved in the accident. Instead they will indemnify
their insured subject to the terms of policy.
Similarly, the other insurers will indemnify their
insured provided the damage is covered under the
policy. In other words, each insurer will indemnify their
insured.
This agreement, however, does not apply to goods
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 33 of 70
Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors.
Ajay Gaur vs. Devender Singh & ors.
vehicles policies and Public Service Vehicles (i.e.
Taxies, Buses) used for hire or reward, and
technically the Insurers are free to enter into litigation
to recover losses caused by such vehicles.
......
Definition:
The dictionary defines the term "Knock for Knock" as an agreement between auto insurers that in the even of an accident each insurance company will pay for the damage to the vehicle insured with it without attempting to establish blame for the accident.
Why do Insurers have this Agreement?
Every year the insurers sign a Knock-for-knock agreement with all other insurers. The insurers do so to avoid getting into litigation and unnecessary delays by dragging the matter to the court on account of third-party policies. So instead of finding whose fault it is and making the insurer compensate the victim, both the insurers of both the vehicles pay for the damages of their insured vehicles respectively. This is an internal understanding among the insurers and is not mandated by the regulator.
(i) From bare perusal of Knock for knock agreement, it is clear that the said agreement does not disqualify the claimant either to claim compensation from his insurance company or from the insurer of the offending vehicle.
17. Now question arises whether claimant is entitled only for the value of the car, which he disclosed at the time of taking the insurance policy or he is entitled for other charges as claimed by him in his claim petition and deposition.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 34 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(i) This question was answered by the Hon`ble High Court in National Insurance Company Ltd. vs. Rajesh Kumar & anr. MAC. App. No. 416/2010 decided by High Court of Delhi on 12.07.2011). The relevant paras are reproduced as under:
4. Record shows that the "Repaired Damages" under the head of compensation awarded had been in the sum of ` 1,45,000/-; this was keeping in view the 14 bills which had been proved by the petitioner (Ex.PW-1/1 to Ex.PW-1/14) which bills had not been disputed; the final bill dated 11.7.20 03 was in the sum of ` 1,44,460/-. This amount of ` 1,45,000/- awarded under the head of "Repaired Damages" calls for no interference. The other amounts awarded as towing charges, inconvenience caused to the petitioner, conveyance charges i.e. the amount spent by the petitioner while his vehicle was being repaired, loss of income in this intervening period are illegal and impermissible.
Section 165 of the Motor Vehicle Act reads as follows:
165.Claims Tribunals: (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accident Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating up on claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both."
5. Damages to any property" as occurring in this Section refers to a direct damage to the property alone i.e. to the vehicle in question which in this case was the MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 35 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
TATA India vehicle. Damages assessed on that account was rightly awarded in the sum of ` 1,45,000/-. The damages or loss suffered by the owner of the vehicle due to the vehicle having remained idle during the period of its repair are not permissible under Section 165 of the M.V.Act. The grant of these amounts is an illegality; they are liable to be set aside. This view is supported by the judgment of the Andhra Pradesh High Court reported in New India Assurance Co. (supra); It is only the Civil Court which can pass a decree on other counts.
(ii) It is admitted case of the claimant that he had disclosed the value of the car to the sum of ` 8,23,650/- at the time of taking insurance policy. It is also admitted case of the claimant that it was a case of total damage and this fact is also established from the testimony of R4W1.
(iii) Applying the aforesaid proposition of case law in the matrix of case at hand, I am of the considered opinion that claimant is entitled only to the sum of ` 8,23,650/- under the Motor Vehicle Act and no other amount can be awarded to him under other heads such as towing charges, inconvenience charges, parking charges etc. etc.
(iv) Since, interest @ 9% per annum was awarded by the Apex Court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), it is held that claimant shall be entitled to interest @ 9% per annum from the date of filing of claim MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 36 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
petition i.e. 20.10.2015 till realization of the amount.
(v) Accordingly, claimant is entitled for a compensation of ` 8,23,650/- ; rounded of ` 8,24,000/- with interest @ 9% per annum from the date of filing of the claim petition i.e. 20.10.2015 till realization of award amount.
18. DISBURSEMENT:-
(i) As the claim pertains to property damage, on realization, entire award of ` 8,24,000/- plus entire interest shall be released to the petitioner. The entire amount shall automatically be transferred in his saving account main-
tained in a nationalized bank near the place of his resi- dence.
19. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV A is as under:-
SUMMARY OF AWARD
(i) Date of accident 18.05.2015
(ii) Name of the claimant Sh. Ajay Gaur MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 37 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
COMPUTATION OF COMPENSATION
S.No. Heads Awarded by the
Tribunal (IN `)
A. Pecuniary Loss:
(i) Total loss of property 8,23,650/-
B Total Compensation (Rounded off) 8,24,000/-
C. INTEREST AWARDED 9%
D. Interest amount upto the date of award 2,33,739/-
03 years 01 months 25 days
E. Total amount including interest 10,57,739/-
. Award amount release As mentioned in
para no. 18
F. Award amount kept in FDRs NA
G. Mode of disbursement of the award as mentioned in
amount to the claimants (s) (Clause para No. 18
29)
H. Next date for compliance of the award. 16.01.2019
(Clause 31.)
In MACT Suit No. 356706/16:
20. As per discharge summary Ex. PW2/1, claimant Smt. Shukuntla remained admitted in Indian Spinal Injury Centre w.e.f 18.05.2015 to 22.05.2015. She was diagnosed as Intercondylar fracture left distal femur with fracture left scapular neck. She was operated on 19.05.2015. At the time of discharge, she was advised to visit the hospital after one week. On 14.08.2016 she was advised bed rest for MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 38 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
02 months. She remained under treatment till 17.04.2017. As per disability certificate dated 25.11.2016, she has sustained 10% permanent disability in relation to her left lower limb.
(a). INCOME OF THE PETITIONER: (i) Learned counsel appearing for the claimant
fairly conceded that since claimant is a housewife, her income is liable to be assessed as per minimum wages applicable to skilled workers prevalent at the relevant time.
(ii) Since claimant is a house wife, it can safely be culled out that she must have attained skill in various fields such as maintaining house, cooking etc. Accordingly, income of claimant is liable to be assessed as per minimum wages applicable to skilled workers prevalent at the relevant time. Since at the relevant time, minimum wages for skilled workers was ` 10,998/-, income of the petitioner is assessed at ` 10,998/- per month for the purpose of computation of just compensation.
LOSS OF INCOME:
(i) As already stated that petitioner was advised bed rest for 02 months on 14.08.2016, thus it can safely be culled out that she must not be able to join her work atleast till MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 39 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
October-2016. Considering facts and circumstances of the case loss of income for 16 months @ ` 10,998/- per month; in total a sum of ` 1,75,968/- is awarded to the petitioner.
(b) Expenditure on Medical Treatment:
(i) Counsel for petitioner submitted that petitioner has incurred a sum of ` 1,25,490/- on her treatment.
The bills are Ex. PW2/2. During inquiry, no cogent evidence has been led, which may raise any suspicion over the bills produced by the claimant. Accordingly, a sum of ` 1,25,490/- is awarded to her towards medical expenses.
(c) CONVEYANCE CHARGES: (i) Admittedly, accident had taken place within
the jurisdiction of PS Mansurpur, Muzaffar Nagar and petitioner got treatment from Indian Spinal Injury Centre, Vasant Kunj, Delhi. This establishes that after the accident, petitioner must be shifted to Delhi, thus she must have incurred a substantial amount in shifting. Further, petitioner is a resident of Shadipur Village. Considering all these facts and distance of the hospital from her residence and duration of treatment, a sum of ` 25,000/- is awarded to her towards conveyance charges.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 40 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(d) SPECIAL DIET: (i) Though no special diet was prescribed by
the doctor at the time of discharge, but considering the nature of injuries and age of the petitioner, it can safely be culled out that petitioner must have taken some special diet for the purpose of fast recovery. Considering the nature of injury and duration of treatment, a sum of ` 20,000/- is awarded to her under this head.
(e) NURSING/ATTENDANT CHARGES : (i) Perusal of the medical documents reveals
that petitioner remained on bed rest atleast for 15-16 months. Thus, it can safely be culled out that petitioner must be attended either by a paid attendant or a family member during the said period. Considering the facts and circumstances of the case, a sum of ` 35,000/- is awarded to her under this head.
(c) Loss of earning capacity due to disability:
(i) Learned counsel appearing for petitioner claimed 20% loss of earning capacity on the ground that petitioner has sustained 10% permanent disability in relation to her left lower limb.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 41 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(ii) Per contra counsel appearing for insurance company submitted that since petitioner is a housewife, petitioner is not entitled for any loss of earning capacity.
(iii) Before dealing with the contention raised by the counsel for the parties, I deem it appropriate to refer the judgment Raj Kumar vs. Ajay Kumar and Another 2011 (1) T.A.C. 785 (S.C) where a question arose before the Apex Court whether the claimant is entitled for loss of earning capacity equal to the loss of disability or the loss of earning capacity shall be calculated on the basis of approximate loss of capacity to the injured due to disability. The relevant paras are reproduced as under:-
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to particular limb. When a disability certificate states that the injured had suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 42 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 43 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in term of money, to arrive at the future loss of earning (by applying the standard multiplier method used to determine loss of dependency).We may, however, note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that Tribunal should consider and decide with reference to the evidence: (I) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 44 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (sic disability) (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his age. The third step is to find out whether (I) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous 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 MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 45 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
disablement may be assessed around 60 %. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be 100%, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequences of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity of 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities nominal amount may have to be awarded under the head of loss of amenities or loss of MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 46 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
(emphasis supplied)
(iv) In the light of the aforesaid case law, I proceed to examine the evidence of the case at hand.
(v). From the disability certificate it is clear that petitioner has sustained 10% permanent disability in relation to her left lower limb. Since she is a housewife, it can safely be culled out that her efficiency is liable to be affected. Though no specific evidence has been led to quantify the loss of earning of capacity in percentage term but considering the facts and circumstances of the case, I am of the view that petitioner must have suffered at least 4% of her capacity. Accordingly, loss of earning capacity is assessed at 4%.
(vi) In case Meer Khan vs. Mehender Kumar Singh & ors. MAC No. 758/2011 decided by Hon`ble High Court of Delhi on 01.11.2017, Hon`ble High Court pleased to add future prospect in the income of claimant in terms of the law laid down in National Insurance Company Ltd. vs. Pranay Sethi & ors. SLP (C ) 25590/14 decided by the Hon`ble Supreme Court on 31.10.2017 before calculating the loss of future earning capacity due to disability. The relevant para is reproduced as under:-
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 47 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors.
Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
"There is, however need for correction in the calculation of loss of future earning since the element of future prospects was omitted. Following the ruling of the Constitution Bench of the Supreme Court rendered on 31.10.2017 in SLP (C ) National Insurance Company Ltd. vs. Pranay Sethi & ors., future prospects to the extent of 10% will have to be added, this keeping in view the facts that the claimant was a self employed person, his income having being assessed notionally, his age on the relevant date being 54 years."
(vii) In view of the aforesaid judgment, I am of the considered opinion that petitioner is also entitled for future prospects.
(Viii). Since the petitioner was about 58+ years old, in view of the law laid down in Praney Sethi's Case, petitioner is entitled for 10 % addition in her income towards future prospects.
(ix) As per Aadhaar Card, the date of birth of the petitioner is 25.08.1956. Since, the accident had taken place on 18.05.2015, it means that she was 58+ years old at the time of accident. In view of law laid down in Sarla Verma Case's multiplier of 9 shall be applied in this matter.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 48 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(x). In view of the above loss of earning capacity is assessed as under:
NAME OF THE HEAD AMOUNT
(IN ` )
Annual Income 1,31,976/-
10,998 X 12
Future prospects 13,197/-
10%
Total 1,45,173/-
Multiplier 9 13,06,557/-
Loss of earnings Capacity 52,262/-
4%
(xi) Accordingly, a sum of ` 52,262/- is
awarded to her towards loss of earning capacity due to disability.
(e) COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock :-
(i) As already discussed that petitioner met with an accident when she was going to Haridwar alongwith her relatives. Due to the accident, she not only sustained multiple MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 49 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
injuries, but her relatives who were travelling in the said car also sustained multiple injuries. Besides that minor Aarav & Ajay Gaur also sustained permanent disability. Due to the injuries caused to her in the accident, she had to remain admitted in the hospital for 05 days and had to undergo surgery. Besides that she remained under treatment for a long period and also sustained 10% permanent disability in relation to her left lower limb. Thus, it can safely be culled out that petitioner must have suffered acute mental and physical shock not only at the time of accident, but even thereafter. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 75,000/- is awarded to her under this head.
Pain and suffering
(i) In view of the above, it can safely be culled out that petitioner must have also suffered acute pain and suffering not only at the time of accident but even thereafter. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 35,000/- is awarded to her under this head.
Loss of amenities:
(i) Since petitioner remained admitted in the MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 50 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
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hospital for 05 days and remained under treatment for a long period, it can safely be culled out that petitioner must have suffered some loss of amenities of life, though for a limited period. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 15,000/- is awarded to her under this head.
Loss of inconvenience/hardship/disappointment/mental stress etc:
(i) Since petitioner has sustained 10% permanent disability in relation to her left lower limb, it can safely be culled out that she must have faced lot of inconvenience, hardship and mental stress for a considerable period. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 40,000/- is awarded to her under this head.
21. As discussed above, the overall compensation is tabulated as under:
NAME OF HEAD AMOUNT (In ` ) Loss of Income 1,75,968 MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 51 of 70
Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
Medical Expenses 1,25,490
Conveyance charges 25,000
Special Diet 20,000
Attendant Charges 35,000
Loss of earning capacity due to disability 52,262
Mental and physical shock 75,000
Pain and suffering 35,000
Amenities of life 15,000
Loss of inconvenience/hardship/ 40,000
disappointment/mental stress etc. Total 5,98,720 Round off :- ` 5,99,000/-
(Rupees Five Lac & Ninety Nine Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the claim petition i.e. 20.10.2015 till realization.
22. DISBURSEMENT:-
(i) Petitioner's statement was recorded on 12.09.2018 in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 52 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
decided by Hon`ble High Court of Delhi on December 15, 2017 wherein she submitted that she needs about ` 12,000/- per month for her household expenses.
(ii) In view of her statement, on realization, a sum of ` 99,000/- with entire interest shall be released to her forthwith and in terms of the directions contained in FAO No. 842/2003 dated December 15, 2017, balance amount of ` 5 lac shall be put in the form of 10 fixed deposits in the name of petitioner/claimant of equal amount of ` 50,000/- each in a nationalized bank for a period of six months, one year, one and half year, two year and so on. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in her saving account maintained in a nationalized bank near the place of her residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to the petitioner only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner shall have liberty to seek release of ` 59,900/- from the above amount from the bank located within the jurisdiction of this Tribunal.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 53 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
23. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV B is as under:-
SUMMARY OF AWARD
(i) Date of accident 18.05.2015
(ii) Name of the injured Shakuntla
(iii) Age of the injured 58+ years
(iv) Occupation of the House wife injured
(v) Income of the injured ` 10,988/- per month
(vi) Nature of injury Grievous
(vii) Medical treatment taken Indian Spinal Injury Centre by the injured
(viii) Period of 05 days hospitalization
(ix) Whether any permanent 10% in relation to her left lower limb disability? If yes, give details:
10. COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Tribunal (IN `)
11. Pecuniary Loss:
(i) Expenditure on treatment 1,25,490/-
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 54 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(ii) Expenditure on conveyance 25000/-
(iii) Expenditure on special diet 20,000/-
(iv) Cost of nursing/attendant 35,000/-
(v) Loss of earning capacity 52,262/-
(vi) Loss of income 1,75,968/- (vii) Any other loss which may require any NA
special treatment or aid to the injured for the rest of his life
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical 75,000 shock
(ii) Pain and suffering 35,000
(iii) Loss of amenities of life 15,000
(iv) Disfiguration NA
(v) Loss of marriage prospects NA
(vi) Loss of earning, inconvenience, 40,000 hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
(vii) Less contributory negligence NA
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and 10 % nature of disability as permanent or permanent temporary disability
(ii) Loss of amenities or loss of NIL expectation of life span on account of disability
(iii) Percentage of loss of earning capacity 4% in relation to disability
(iv) Loss of future Income-(Income x% 52,262 MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 55 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
Earning Capacity x Multiplier) 14 Total Compensation (Rounded off) 5,99,000
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 1,69,514 03 years 01 months 25 days
17. Total amount including interest 7,68,914
18. Award amount release As mentioned in para no.22
19. Award amount kept in FDRs As mentioned in para no.22
20. Mode of disbursement of the award as mentioned in amount to the claimants (s) (Clause para No. 22
29)
21. Next date for compliance of the award. 16.01.2019 (Clause 31.) In MACT Suit No. 356707/16:
24. At the time of accident, injured Aarav Bhargav was just 09 years old. From the medical record, it is clear that he was diagnosed as a case of Evacuation of acute EDH & SDH with osteoclastic decompression of depressed skull fracture with contusectomoy of right frontal contusion with duroplasty. He sustained 68% permanent neurological disability. Though as per OPD treatment record, petitioner lastly attended the hospital in September 2015. But since he sustained 68% permanent disability in relation to neurology, it MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 56 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
can safely be culled out that injured must be taking treatment even thereafter and this fact is deposed by PW1 in his examination-in-chief by stating that injured is still under treatment
(a). LOSS OF STUDIES:
(i) Since injured was just 09 years old at the time of accident, it can safely be culled out that he must be a student of 4th or 5th standard at the time of accident. Since he sustained 68% permanent disability in relation to neuro, it can safely be culled out that he may require extra attention for his studies. PW1 in his examination in chief testified that due to head injuries, his son is unable to continue his study. However, in his cross-examination he testified that recently his son has joined school. It is pertinent to state that PW1 testified this fact in 2017. Since injured sustained 68% permanent disability in relation to neuro, it can safely be culled that injured is required special attention and special school to continue his study.
Though no specific evidence has been led in this regard, yet considering the facts and circumstances of the case, a sum of ` 1,00,000/- is awarded to him under this head.
(b) Expenditure on Medical Treatment:
(i) Learned counsel submitted that injured has MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 57 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
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incurred a sum of ` 7,35,000/- on his treatment. Bills are on record and same are part of Ex. PW1/2. During inquiry, no cogent evidence has been led which may raise any suspicion over the bills produced by the claimant. Accordingly, a sum of ` 7,35,000/- is awarded to him towards medical expenses.
(c) CONVEYANCE CHARGES: (i) Admittedly, accident had taken place within
the jurisdiction of PS Mansurpur, Mujaffarnagar and thereafter, he was shifted to Medanta Hospital, Gurgaon. Injured is a resident of the Vasant Kunj. Thus, it can safely be culled out that parents of the injured must have incurred a substantial amount in shifting besides in the further treatment at Medanta. Considering all these facts and circumstances of the case, a sum of ` 25,000/- is awarded to him towards conveyance charges.
(d) SPECIAL DIET: (i) Though no special diet was prescribed by
the doctor at the time of discharge, but considering the nature of injury, it can safely be culled out that parents of the injured must have incurred some amount on special diet. Considering the facts and circumstances of the case, a MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 58 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
sum of ` 15,000/- is awarded to him under this head.
(e) NURSING/ATTENDANT CHARGES : (i) Since injured has sustained 68% permanent
disability in relation to neurology and he was just 09 years old at the time of accident, it can safely be culled out that injured must be attended either by a paid attendant or a family member for a considerable period. Considering the facts and circumstances of the case, a sum of ` 50,000/- is awarded to him under this head.
(c) Loss of earning capacity due to disability/loss of amenities of life on account of permanent disability etc:
(i) Counsel appearing for insurance company submitted that Hon`ble Apex Court laid down a criteria for loss of mental and physical shock, hardship and inconvenience and loss of amenities on account of disability in the case Master Mallikarjun vs. Divisional Manager, National Insurance Company Ltd. & anr., Civil Appeal No. 71239/18 decided by the Apex Court on 26.08.2013. Counsel appearing for the petitioner conceded the submission made by the counsel for insurance company.
(ii) In Master Mallikarjun's case (supra), the MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 59 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
criteria was laid down as under:
Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc, should, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakhs; upto 60%, Rs. 4 Lakhs; upto 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick.
(iii) Since injured sustained 68% permanent disability in relation to neurology, it can safely be culled out that injured became incapable to take care himself or to do any work independently. This fact is corroborated by PW1 as he testified that after the accident, study of his son was discontinued and he joined the school recently in 2017. There is nothing on record, which may show that the injured may be able to lead a normal life in future also. Considering all these facts, loss earning capacity due to disability is assessed at 100%.
(iv) Applying the above said criteria in the facts and circumstances of the present case, I am of the considered opinion that petitioner is entitled for ` 6 lac under this MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 60 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
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head.
Discomfort, hardship and loss of earning to the parents due to hospitalization of the injured:
(i) Though no specific evidence has been led by the father of the injured to show the monetary loss caused to him due to injuries caused to his son, but from the nature of injury, it can safely be culled out that parents of the injured must have taken leave from their job for a considerable period.
Besides that they must have faced lot of discomfort and hardship due to injuries caused to their son. Since, injured has sustained 68% permanent disability in relation to neuro, it can safely be culled out that his parents must be facing discomfort and hardship even till date. Considering the facts and circumstances of the case, a sum of ` 2 lac is awarded to him under this head.
Pain and suffering
(i) As already stated that due to the injuries caused to injured, injured has sustained 68% permanent disability in relation to neurology. Thus, it can safely be culled out that petitioner must have suffered acute pain and suffering not only at the time of accident but even till date. Though it is difficult to quantify the said loss in monetary terms, yet MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 61 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
considering the facts and circumstances of the case, a sum of ` 1,50,000/- is awarded to him under this head.
Loss of marriage prospects:
(i) Since petitioner was just 09 years old at the time of accident and sustained 68% permanent disability in relation to neurology, it can safely be culled out that he would face difficulty in getting suitable life partner. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 1,50,000/- is awarded to him under this head.
25. As discussed above, the overall compensation is tabulated as under:
NAME OF HEAD AMOUNT (In ` ) Loss of Studies 1,00,000 Medical Expenses 7,35,000 Conveyance charges 25,000 Special Diet 15,000 Attendant Charges 50,000 Loss of earning capacity due to 6,00,000
disability/Loss of amenities of life on MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 62 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
account of permanent disability Discomfort, hardship and loss of earning 2,00,000 to the parents due to hospitalization of the injured Pain and suffering 1,50,000 Loss of marriage prospects 1,50,000 Total 20,25000/-
Round off :- ` 20,25,000/-
(Rupees Twenty Lac & Twenty Five Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the claim petition i.e. 20.10.2015 till realization.
26. DISBURSEMENT:-
(i) Petitioner's statement was recorded on 12.09.2018 in compliance of clause 27 of FAO No. 842 of 2003 titled Rajesh Tyagi & ors. vs. Jaivir Singh & ors.
decided by Hon`ble High Court of Delhi on December 15, 2017.
(ii) In view of her statement, petitioner is minor, his entire share with interest shall be kept in an FDR till he attains the age of majority. On attaining age of majority, 20% of the amount shall be released to him automatically MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 63 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
and the balance amount shall be kept in ten fixed deposits of equal amount in his name in a nationalized bank for a period of six months, one year, eighteen months, two years and so on. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank near the place of his residence without the facility of cheque book and ATM. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal.
27. In compliance of the directions given by Hon`ble High court in FAO No. 842/2003 dated December 15, 2017, Summary of the Award in the prescribed format- IV B is as under:-
SUMMARY OF AWARD
(i) Date of accident 18.05.2015
(ii) Name of the injured Aarv Bhargava
(iii) Age of the injured 9+ years
(iv) Occupation of the Student MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 64 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
injured
(v) Income of the injured NA
(vi) Nature of injury Grievous
(vii) Medical treatment taken Vedanta Hospital
by the injured
(viii) Period of 18.05.2015 to 03.06.2015 &
21.08.2015 to 24.08.2015
hospitalization
(ix) Whether any permanent 68% Neuron
disability? If yes, give details:
10. COMPUTATION OF COMPENSATION
S.No. Heads Awarded by the
Tribunal (IN `)
11. Pecuniary Loss:
(i) Expenditure on treatment 7,35,000/-
(ii) Expenditure on conveyance 25000/-
(iii) Expenditure on special diet 15,000/-
(iv) Cost of nursing/attendant 50,000/-
(v) Loss of earning capacity 6,00,000/-
i) Loss of studies 1,00,000/-
(vii) Any other loss which may require any NA
special treatment or aid to the injured for the rest of his life
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical NA shock
(ii) Pain and suffering 1,50,000
(iii) Loss of amenities of life NA MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 65 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(iv) Disfiguration NA (v) Loss of marriage prospects 1,50,000 (vi) Loss of earning, inconvenience, 2,00,000
hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
(vii) Less contributory negligence NA
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and 68 % nature of disability as permanent or permanent temporary disability
(ii) Loss of amenities or loss of NIL expectation of life span on account of disability
(iii) Percentage of loss of earning capacity 100% in relation to disability
(iv) Loss of future Income-(Income x% 6 lac Earning Capacity x Multiplier)
14 Total Compensation (Rounded off) 20,25,000
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 5,74,419 03 years 01 months 25 days
17. Total amount including interest 25,99,419
18. Award amount release As mentioned in para no.25
19. Award amount kept in FDRs As mentioned in para no.25
20. Mode of disbursement of the award as mentioned in amount to the claimants (s) (Clause para No. 25 MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 66 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
29)
21. Next date for compliance of the award. 16.01.2019 (Clause 31.)
28. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in MAC Appeal No. 422/2009, titled Sobat Singh vs. Ramesh Chandra Gupta & ors and FAO No. 842/2003 Rajesh Tyagi & ors vs. Jaivir Singh & ors decided on December 15, 2017:-
(i) The bank shall not permit any joint name(s) to be added in the saving account or fixed deposit account of the victims i.e. saving bank account(s) of the claimants shall be individual saving bank account and shall not a joint account.
(ii) 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 the bank to the claimants.
(iii) The monthly interest be credited by Electronic Clearing System(ECS) in the saving bank account of the claimant near the place of their residence.
(iv) The maturity amount of the FDR be credited by the ECS in the saving bank account of the claimants near the place of their residence.
(v) No loan, advance or withdrawal or premature MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 67 of 70 Ajay Gaur vs. Jitendeer Singh & ors.
Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimant. However, in case the debit card and/cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank. The bank shall make an endorsement on the passbook of the claimants 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 claimants shall produce the passbook with the necessary endorsement before the Tribunal for compliance.
LIABILITY TO PAY:-
29. Since the offending vehicle was being driven by respondent no.1 and it was registered in the name of respondent no.2 and same was insured with respondent no.3, all shall be jointly and severally liable to pay compensation to the petitioner.
(i) In view of above, Issue No.2 is decided in favour of petitioners and against respondents.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 68 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
RELIEF:
30. Since, the offending vehicle was insured with respondent no. 3 (Oriental Insurance Company Ltd.), respondent no.3 is directed to deposit deposit:
(i) a sum of ` 9,96,000/- in MACT No. 356705/16;
(ii) a sum of ` 8,24,000/- in MACT No. 356704/16;
(iii) a sum of ` 5,99,000/- in MACT No. 356706/16;
(iv) a sum of ` 20,25,000/- in MACT No. 356707/16 with interest @ 9 % per annum from the date of filing of petition i.e. 20.10.2015 till realization with Nazir of this Tribunal within 30 days under intimation to the petitioners failing which the respondent No. 3 shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
31. Driver, owner and insurer of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioners/claimants and complete detail in respect of calculation of interest etc. within 30 days from today.
MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 69 of 70 Ajay Gaur vs. Jitendeer Singh & ors. Shakuntla vs. Jitender Singh & ors. Aarav Njargava vs. Jitender Singh & ors. Ajay Gaur vs. Devender Singh & ors.
(i) A copy of this judgment be sent to Respondent No. 3 for compliance within the time granted.
(ii) Nazir is directed to place a report on record on 16.01.2019 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iii) In terms of clause 31 & 32 of the judgment titled Rajesh Tyagi & others Vs. Jaibir Singh & Ors. decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(iv) The original award be placed in the MACT Suit No. 356705/16 and copy thereof be placed in another matter.
(v) File be consigned to Record Room.
Announced in open court on this 15th day of December-2018 (PAWAN KUMAR JAIN) Judge, MACT-1 (Central), THC, Delhi/sv Digitally signed by PAWAN PAWAN KUMAR KUMAR JAIN Date: 2018.12.15 JAIN 14:18:05 +0530 MACT No. 356705/16, 356706/16, 356707/16 & 356704/16 Page No. 70 of 70