Delhi District Court
Hem Chand Mishra vs Atar Singh Page 1 Of 29 on 2 July, 2020
Hem Chand Mishra vs Atar Singh Page 1 of 29
IN THE COURT OF SH. AMIT BANSAL, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
New No. 5016016
UNIQUE ID No. : DLNW010010502014
Sh. Hem Chand Mishra s/o Sh. Badri Mishra
R/o VP25, Inder EnlaveII, Nithari, Delhi.
........ Petitioner/claimant
Vs.
1. Sh. Atar Singh s/o Sh. Janak Singh Tomar
R/o Shukla Sadan Azad Nagar Murar, PS Murar
Gwalior
Also At H. No. 44C, Regal Shipra Sun City,
Indira Puram, PS Indrapuram, Distt. Ghaziabad.
....... Driver /R1
2. Sh. Dinesh Shrivastava s/o Ram Ji Lal Shrivastava
R/o H. No. C708, SG Impressions Sec4 B
Vasundhra, PS Indrapuram, Distt Ghaziabad.
.....Owner/R2.
3. Oriental Insurance Co Ltd.
80, First Floor, F.I.E, Patparganj,
Industrial Area, Delhi92.
... Insurance co/R3
Respondents
AMIT Other details
BANSAL
DATE OF INSTITUTION
Digitally signed
: 21.08.2014
by AMIT BANSAL
DATE OF RESERVING JUDGMENT
Date: 2020.07.02 : 29.06.2020
DATE OF PRONOUNCEMENT : 02.07.2020
13:56:01 +0530
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FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN THE ORDER PASSED
BY THE HON'BLE DELHI HIGH COURT IN FAO 842/2003 RAJESH
TYAGI Vs. JAIBIR SINGH & ORS. VIDE ORDER DATED
07.12.2018.
1. Date of the accident 02.12.2012
2. Date of intimation of the accident by the It is an outstation
investigating officer to the Claims Tribunal accident of
Ghaziabad,UP.
3. Date of intimation of the accident by the It is an outstation
investigating officer to the insurance company. accident of
Ghaziabad,UP.
4. Date of filing of Report under section 173 It is an outstation
Cr.P.C. before the Metropolitan Magistrate accident of
Ghaziabad,UP.
5. Date of filing of Detailed Accident Information It is an outstation
Report (DAR) by the investigating Officer accident of
before Claims Tribunal Ghaziabad,UP.
6. Date of Service of DAR on the Insurance It is an outstation
Company accident of
Ghaziabad,UP.
7. Date of service of DAR on the claimant (s). It is an outstation
accident of
Ghaziabad,UP.
8. Whether DAR was complete in all respects? It is an outstation
Digitally accident of
signed by
AMIT AMIT BANSAL Ghaziabad,UP.
Date:
BANSAL
9.
2020.07.02
13:56:12 If not, whether deficiencies in the DAR It is an outstation
removed later on? accident of
+0530
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Ghaziabad,UP.
10. Whether the police has verified the documents It is an outstation
filed with DAR? accident of
Ghaziabad,UP.
11. Whether there was any delay or deficiency on It is an outstation
the part of the Investigating Officer? If so, accident of
whether any action/direction warranted? Ghaziabad,UP.
12. Date of appointment of the Designated Officer It is an outstation
by the insurance Company. accident of
Ghaziabad,UP.
13. Name, address and contact number of the Sh. Sujit Keshri,
Designated Officer of the Insurance Company. Advocate
14. Whether the designated Officer of the It is an outstation
Insurance Company submitted his report accident of
within 30 days of the DAR? (Clause 22) Ghaziabad,UP.
15. Whether the insurance company admitted the It is an outstation
liability? If so, whether the Designated Officer accident of
of the insurance company fairly computed the Ghaziabad,UP.
compensation in accordance with law.
16. Whether there was any delay or deficiency on It is an outstation
the part of the Designated Officer of the accident of
Insurance Company? If so, whether any Ghaziabad,UP.
action/direction warranted?
17. Date of response of the claimant (s) to the It is an outstation
offer of the Insurance Company . accident of
Ghaziabad,UP.
18. Date of the Award 02.07.2020
19. Whether the award was passed with the No
consent of the parties?
20. Whether the claimant(s) were directed to open
Digitally Yes
saving bank account(s) near their place of
signed by
AMIT
AMIT
residence?
BANSAL
BANSAL Date:
2020.07.02
21. Date of order by which claimant(s) were
13:56:31
+0530 26.03.2019
directed to open saving bank account (s) near
his place of residence and produce PAN Card
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and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s).
22. Date on which the claimant (s) produced the 30.01.2020
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
23. Permanent Residential Address of the As mentioned above
Claimant(s)
24. Details of saving bank account(s) of the Petitioner
claimant(s) and the address of the bank with Hemchander Mishra
IFSC Code savings bank a/c No.
520101258169707
with Corporaion
Bank, Asif Ali road
branch, Delhi
IFSC :
CORP0000679
25. Whether the claimant(s) saving bank Yes
account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the Yes
time of passing of the award to ascertain
his/their financial condition.
27. Account number/CIF No, MICR number, IFSC 86143654123,
Digitally
signed byCode, name and branch of the bank of the 110002427,
AMIT
AMIT BANSAL Claims Tribunal in which the award amount is SBIN0010323, SBI,
BANSAL Date:
to be deposited/transferred. (in terms of order Rohini Courts, Delhi
2020.07.02
13:56:42
+0530 dated 18.01.2018 of Hon'ble Delhi High Court
in FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
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JUDGMENT
1. The present petition under Motor Vehicles Act, 1988 ( hereinafter referred to as 'M.V. Act') was filed in respect of injuries sustained by the petitioner Sh. Hem Chand Mishra in a motor vehicular accident.
2. The facts mentioned in the petition/file are that on 02.12.2012, Sh. Hem Chand Mishra (hereinafter referred to as 'injured/petitioner') was coming to his home on a rickshaw from Krishna Nagar Meerut Road. At about 6:30 pm, when he reached near Krishna Nagar, Meerut Road, Ghaziabad, then suddenly a Motorcycle bearing no. UP14BV2448 (hereinafter referred to as 'offending vehicle) which was being driven by its driver/R1 at a fast speed, rashly and negligently hit the petitioner. Due to said impact, petitioner sustained grievous injuries. The petitioner was removed to Kailash Medicare & Research Center Ghaziabad. It was mentioned in the petition that FIR No. 938/12 U/s 279/338 IPC was registered at PS Sihani Gate, Ghaziabad.
3. R1/ Sh. Attar Singh who was the driver and R2/ Sh. Dinesh Srivastava owner of the offending vehicle have filed their written statement jointly wherein they have stated that the alleged accident took place due to sole negligence on the part of the petitioner. They stated that the petitioner was crossing the road on the other side whereas there was no crossing at the AMIT spot of the accident and that the petitioner himself hit the motorcycle BANSAL driven by R1 at the relevant time. It was stated that R1 was driving the said motorcycle at a very slow speed. It was stated that the petitioner Digitally signed by AMIT BANSAL Date: 2020.07.02 turned around his rickshaw and hit the motorcycle due to which both 13:57:01 +0530 petitioner and R1 fell down from their respective vehicles. They were Hem Chand Mishra vs Atar Singh Page 5 of29 Hem Chand Mishra vs Atar Singh Page 6 of 29 ultimately proceeded against exparte vide order dated 26.03.2019.
4. M/s Oriental Insurance co/R3 has filed written statement wherein it was admitted that offending vehicle was insured with it vide policy no. 254003/31/2013/4611 w.e.f 04.11.2012 to 03.11.2013 i.e. covering the date of accident 02.12.2012 in favour of R2.
5. From the pleadings of the parties, the following issues were framed by the ld. Predecessor of this court vide order dated 01.09.2016: (1) Whether on 02.12.2012 at about 06:30 pm, near Krishna Nagar, Meerut road, Ghaziabad, UP, one Motorcycle bearing registration no. UP14BV2448 which was being driven rashly and negligently by Atar Singh/R1, hit petitioner and caused injuries to him? OPP (2). Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP (3). Relief.
6. Petitioner has examined himself as PW1 and Dr. Abhimanyu Singh, Assistant Professor, Department of Orthopedic from Dr. BSA hospital, Delhi as PW2 in support of his case.
6.1 The record would show that respondents have not examined any witness in support of their case.
AMIT 7. I have heard the final arguments on behalf of ld counsel for petitioner BANSAL and ld counsel for insurance co/R3 through video conferencing due to Digitally signed by AMIT BANSAL Covid19 situation. I have also perused the record. Now, I proceed to Date: 2020.07.02 13:57:12 +0530 discuss the issues in the succeeding paragraphs.
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8. Issue wise findings are as under: ISSUES NO. 1 The onus to prove this issue beyond preponderance of probabilities is upon the petitioner.
8.1 Petitioner/claimant has examined himself as PW1. PW1 has filed and proved his evidence by way of affidavit as Ex. PW1/1. He has proved his medical bills and treatment record as Ex. PW1/A (colly), certified copies of criminal case record as Ex. PW1/B (colly) and copy of his aadhar card as Ex.PW1/C. 8.2 PW1/injured deposed that on 02.12.2012, he was coming back to his home on a rickshaw from Krishna Nagar Meerut Road. He deposed that in the meantime, a Motorcycle bearing no. UP14BV2448 ('offending vehicle) which was being driven by its driver/R1 at a fast speed, rashly and negligently hit him. He deposed that due to said impact, he sustained grievous injuries. He deposed that he was removed to Kailash Medicare & Research Center Ghaziabad, UP. He deposed that the accident took place solely due to rash and negligent driving of R1 who drove the offending vehicle at a very high speed, rashly and negligently.
8.3 PW1 was cross examined on behalf of R1 and R2 wherein he deposed that the accident took place at Meerut road, Ghaziabad and that at that time he was going by rickshaw. He deposed that he did not AMIT remember the make of the offending vehicle as he had become BANSAL unconscious but someone from the crowd gathered at the spot had Digitally signed provided him the registration number of the offending vehicle. He admitted by AMIT BANSAL Date: 2020.07.02 13:57:24 +0530 that at the time of accident, he was in the process of crossing the road with Hem Chand Mishra vs Atar Singh Page 7 of29 Hem Chand Mishra vs Atar Singh Page 8 of 29 his rickshaw. He deposed that there was a red light crossing at the spot. He denied the suggestions that there was no red light/crossing at the spot or that the offending vehicle had not hit his rickshaw. He deposed that at the time of accident, the offending vehicle was at a high speed i.e. 7080 kms per hour. He denied the suggestion that the offending vehicle was at slow speed at the time of accident due to being a crowded place. He denied the suggestions that he was on wrong side at the time of accident or that the case accident had taken place due to his negligence. He deposed that at the time of accident, the offending vehicle hit him from his right side. He deposed that at the time of accident, the traffic signal was green for his side.
8.4 PW1 was cross examined by ld counsel for insurance co/R3 wherein he deposed that his statement was recorded by the police. He denied the suggestion that the accident occurred due to his sole negligence.
8.5 Nothing material has appeared in the cross examination of PW1 to discredit his above said testimony which would show that the case accident had occurred due to rash and negligent driving of the offending vehicle by R1. PW1 is an injured himself who received injuries in the said accident. He seems to be a reliable and truthful witness. 8.6 The copy of criminal case record would show that the case AMIT FIR No. 938/12 u/s 279/338 IPC PS Sihani Gate was registered and that BANSAL the charge sheet u/s 279/338 IPC was also filed against R1/driver of the Digitally signedoffending vehicle.
by AMIT
BANSAL
Date: 2020.07.02
13:57:35 +0530 8.7 The issue no. 1 is only to be proved by claimant beyond
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preponderance of probabilities as distinguished from beyond reasonable doubt. In the facts and circumstances of the case, the charge sheet u/s 279/338 IPC against R1 can also be relied upon to show that the case accident was caused due to rash and negligent driving of R1 while driving the offending vehicle. In the said circumstances, testimony of PW1 and other record including charge sheet against R1, it has been clearly proved beyond preponderance of probabilities that the case accident was caused at the above said date, time and place and in the above said manner by the rash and negligent driving of R1 by which he drove the offending vehicle rashly and negligently and thereby caused injuries to the petitioner.
Issue no.1 is decided in favour of petitioner and against the respondents accordingly.
9. Issue No. (2) In view of my findings on issue no.1, the petitioner is entitled to compensation.
9.1 Petitioner has filed his evidence by way of affidavit as Ex. PW1/1.
9.2 He deposed that due to the accident, he sustained grievous injuries. He deposed that after the accident, he was admitted in Kailash Medicare & Research Centre, Ghaziabad, UP. In his cross examination, the injured/PW1 has deposed that he was discharged from the said hospital after 2 days of his admission there. AMIT BANSAL 9.3 Petitioner has also examined Dr. Abhimanyu Singh, Assistant Digitally signed by AMIT Professor, Department of Orthopedic, Dr. BSA hospital, Delhi as PW2 who BANSAL Date: 2020.07.02 has proved the disability certificate of petitioner as Ex. PW2/A (colly). He 13:57:56 +0530 Hem Chand Mishra vs Atar Singh Page 9 of29 Hem Chand Mishra vs Atar Singh Page 10 of 29 deposed that as per the disability certificate, the patient/petitioner suffered 19% permanent disability in relation to left lower limb with diagnosis of post traumatic stiffness of left ankle with LLD (Limb Length Discrepancy). He deposed that the patient/petitioner would feel mild pain and difficulty while squatting on the floor, taking turns, walking on plain surface and slope. 9.4 To a court question, PW2 deposed that the petitioner could continue his work of rickshaw puller but he would feel pain and some difficulty in it.
9.5 PW2 was cross examined by ld counsel for insurance co/R3 wherein he deposed that he was not the treating doctor of the patient. He denied the suggestion that the disability qua the petitioner was not assessed properly as per rules.
Accordingly, the petitioner is entitled to following compensation:
10. Medical Expenses.
10.1 The petitioner has proved the medical bills and treatment record as Ex. PW1/A (colly). The total of the said bills come to Rs. 3143/. Therefore, Rs. 3143/ are granted to the petitioner under this head.
11. Special Diet and conveyance 11.1 Petitioner as PW1 has deposed that he had spent Rs.2,00,000/ on his treatment, conveyance and other expenses. 11.2 Petitioner/PW1 during his cross examination as conducted on behalf of insurance co/R3 admitted that he had not filed the bills of Rs. 2 AMIT lakhs related to treatment, medical bills, conveyance, special diet etc. BANSAL 11.3 Petitioner has neither examined any witness to prove the Digitally signed by AMIT expenditure on special diet nor proved any bill in that regard.
BANSAL 11.4 Date: 2020.07.02 13:58:08 +0530 The discharge summary of Safdarjung hospital, New Delhi Hem Chand Mishra vs Atar Singh Page 10 of29 Hem Chand Mishra vs Atar Singh Page 11 of 29
which is the part of treatment record Ex. PW1/A (colly) would show that petitioner suffered segmental fracture bone tibia with impending compartment syndrome.
11.5 PW2/Dr. Abhimanyu Singh has proved the disability certificate of petitioner as Ex. PW2/A (colly). He deposed that as per the disability certificate, the patient suffered 19% permanent disability in relation to left lower limb with diagnosis of post traumatic stiffness of left ankle with LLD (Limb Length Discrepancy). He deposed that the patient would feel mild pain and difficulty while squatting on the floor, taking turns, walking on plain surface and slope.
11.6 In view of above said discussion, injuries and fracture sustained by the petitioner and taking the probable period of treatment for about 4 months, a lump sum amount of Rs. 30,000/ is granted under this head.
12. Attendant Charges 12.1 Petitioner as PW1 has deposed that he had spent Rs.2,00,000/ on his treatment, conveyance and other expenses. 12.2 Petitioner/PW1 during his cross examination as conducted on behalf of insurance co/R3 admitted that he had not filed the bills of Rs. 2 lakhs related to treatment, medical bills, conveyance, special diet etc. 12.3 Petitioner has neither examined any witness to prove the expenditure on attendant charges nor proved any bill in that regard. 12.4 The discharge summary of Safdarjung Hospital, New Delhi AMIT BANSALwhich is the part of treatment record Ex. PW1/A (colly) would show that petitioner suffered segmental fracture Digitally signed bone tibia with impending by AMIT BANSAL compartment syndrome..
Date: 2020.07.02
13:58:17 +0530
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12.5 PW2/Dr. Abhimanyu Singh has proved the disability certificate
of petitioner as Ex. PW2/A (colly). He deposed that as per the disability certificate, the patient suffered 19% permanent disability in relation to left lower limb with diagnosis of post traumatic stiffness of left ankle with LLD (Limb Length Discrepancy). He deposed that the patient would feel mild pain and difficulty while squatting on the floor, taking turns, walking on plain surface and slope.
12.6 Keeping in view of the above said grievous injuries and permanent disability, it is evident that the petitioner must have required the services of an attendant. In view of above said discussion and taking the probable period of treatment for about 4 months, a lump sum amount of Rs. 30,000/ is granted under the said head.
13. Loss of future earning capacity due to disability 13.1 PW2/Dr. Abhimanyu Singh has proved the disability certificate of petitioner as Ex. PW2/A (colly). He deposed that as per the disability certificate, the patient suffered 19% permanent disability in relation to left lower limb with diagnosis of post traumatic stiffness of left ankle with LLD (Limb Length Discrepancy). He deposed that the patient would feel mild pain and difficulty while squatting on the floor, taking turns, walking on plain surface and slope. .
13.2 The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order AMIT 09.03.2018 has inter alia held as follows:
BANSAL "6.4 The same permanent disability may result in different percentages of Digitally signed loss of earning capacity in different persons, depending upon the nature of by AMIT BANSAL Date: 2020.07.02 13:58:28 +0530 Hem Chand Mishra vs Atar Singh Page 12 of29 Hem Chand Mishra vs Atar Singh Page 13 of 29 profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps:
(i) The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life).
(ii) The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age.
(iii) The third step is to find out whether :
a) The claimant is totally disabled, earning any kind of livelihood, or
b) Whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or
c) Whether he was prevented all restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
13.3 Petitioner in his petition has stated that he was a rickshaw puller and was earning Rs. 10,000/ per month. 13.4. During cross examination as conducted on behalf of insurance AMIT co/R3, PW1/petitioner deposed that he had not filed any income proof of BANSAL Rs. 8000/ per month..
Digitally signed by AMIT BANSAL 13.5 It would show that in the absence of any independent witness Date: 2020.07.02 13:58:38 +0530 or any document in that regard, the petitioner has failed to properly prove Hem Chand Mishra vs Atar Singh Page 13 of29 Hem Chand Mishra vs Atar Singh Page 14 of 29
his income and work. He has also not proved any document regarding his educational qualification.
13.6 The ld counsel for insurance co/R3 has argued that the accident took place in Ghaziabad, UP and hence minimum wages of UP should be taken while assessing the notional income of the petitioner. The ld counsel for petitioner on the other hand has argued that the petitioner was a resident of Delhi and has referred to his Aadhar card Ex. PW1/C and also copy of his election ID card to support his contention. 13.7 The record would show that the aadhar card of petitioner has been proved on record as Ex. PW1/C. The address of the petitioner on the same has been mentioned as VP25, Inder EnclaveII, Nithari, North West, Delhi. The copy of election ID card of petitioner is also on record mentioning the same address of Delhi. It is dated 07.12.2002 i.e. it was prepared even much prior to the case accident which took place in the year 2012. Even the bank account of the petitioner as furnished by him on record shows that it is of Corporation bank, Asaf Ali Road, New Delhi and mentions his same address as VP25, Inder EnclaveII, Nithari, North West, Delhi. It would show that the petitioner has sufficient documentary proof to show that he was resident of Delhi at the time of accident. 13.8 In view of above said discussion and as he has not proved his income, profession and educational status, it would be appropriate to assess the income of the petitioner on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum AMIT Wages Act. The minimum wages of an unskilled worker were Rs. 7254/ BANSAL per month as on the date of accident.
Digitally signed by AMIT BANSAL Date:13.9 Petitioner has placed on record copy of his PAN card and 2020.07.02 Hem Chand Mishra vs Atar Singh Page 14 of29 13:58:47 +0530 Hem Chand Mishra vs Atar Singh Page 15 of 29 aadhar card which mention his date of birth as 01.01.1971. The date of accident is 02.12.2012. It would show that he was aged about 41 years & 11 months at the time of accident.
13.10 In the present case, the petitioner suffered permanent disability to the tune of 19% in relation to left lower limb with diagnosis of post traumatic stiffness of left ankle with LLD (Limb Length Discrepancy). PW2 Dr. Abhimanyu Singh also deposed while answering a court question that the petitioner could continue his work as a rickshaw puller with said permanent disability but he would feel pain and some difficulty. It is evident that with the above said permanent disability, the ability and efficiency of the petitioner to do his work of rickshaw puller would be reduced, however, the petitioner can continue his work with some difficulty and pain.
13.11 In view of above discussion and the injuries suffered by the petitioner with permanent disability, the functional disability of the petitioner in relation to his whole body and the effect of permanent disability on his actual earning capacity is taken as 10%.
14. Addition of Future Prospects.
14.1 In this regard, reference should be made to the latest Constitutional Bench Judgment of Hon'ble Supreme Court of India in case AMIT of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP BANSAL(Civil) No. 25590 of 2014, date of decision 31.10.2017, wherein, the Hon'ble Apex Court interalia held as under:.
Digitally signed by AMIT BANSAL Date: 2020.07.0261. In view of the aforesaid analysis, we proceed to record our 13:58:58 +0530 conclusions: Hem Chand Mishra vs Atar Singh Page 15 of29 Hem Chand Mishra vs Atar Singh Page 16 of 29
(i).........................................................................................
(ii) .....................................................................................
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30% , if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For the determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which AMIT we have reproduced hereinbefore.
BANSAL
(vi) The selection of multiplier shall be as indicated in the Digitally signed by AMIT Table in Sarla Verma read with paragraph 42 of that judgment.
BANSAL Date: 2020.07.02(vii) The age of the deceased should be the basis for applying 13:59:07 +0530 Hem Chand Mishra vs Atar Singh Page 16 of29 Hem Chand Mishra vs Atar Singh Page 17 of 29 the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and future expenses should be Rs. 15,000/, Rs. 40,000/ and Rs. 15,000/ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. "
(.... Emphasis Supplied) 14.2 Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 & Prem Chand vs Shamim Husain & Ors, MAC.APP. 1003/2017 decided on October 11,2018 by Hon'ble Delhi High Court. 14.3 The Hon'ble Delhi High Court in the case of Sanjay Oberoi (Supra) after referring to the judgment of the constitution bench of Hon'ble Supreme Court of India in case of National Insurance Company Limited vs. Pranay Sethi & Ors, SLP (Civil) No. 25590 of 2014, date of decision 31.10.2017 granted element of future prospects of increase in the income in a case where the income of the petitioner was notionally assessed on the basis of minimum wages with functional disability @ 10%.
14.4 In the case in hand, the petitioner was self employed and thus while determining his income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just AMIT compensation under Section 168 of M.V. Act.
BANSAL
14.5 The age of the petitioner, as discussed above, in the present
Digitally signed
by AMIT
BANSAL case was about 41 years & 11 months and he was self employed. In view
Date: 2020.07.02
13:59:14 +0530
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of paragraph no. 61 (iv) of above said judgment in Pranay Sethi (Supra), the petitioner would be entitled to an addition of 25% of the established income as he was between the age group of 40 to 50 years at the time of his accident.
14.6 The monthly income of petitioner is thus calculated as Rs. 7254/ +25% of 7254/ which comes to Rs. 7254/+ Rs.1813/ (after rounding of) = Rs.9067/.
14.7 The age of petitioner at the time of accident was about 41 years & 11 months. In the said circumstances, the relevant multiplier of "14" is to be adopted as per judgment in case of Sarla Verma vs Delhi Transport Corporation, 2009 ACJ 1298 which has been upheld in paragraph no. 61(vi) in case of Pranay Sethi (Supra).
14.8 The compensation is accordingly assessed towards loss of earning capacity at Rs. 1,52,325/ (after rounding of) [(Rs.9067/per month x12 months x 14 (age multiplier) x 10/100(functional disability)].
15. Loss of Amenities of Life.
15.1 The discharge summary of Safdarjung hospital, New Delhi which is the part of treatment record Ex. PW1/A (colly) would show that petitioner suffered segmental fracture bone tibia with impending compartment syndrome..
15.2 PW2/Dr. Abhimanyu Singh has proved the disability certificate AMIT of petitioner as Ex. PW2/A (colly). He deposed that as per the disability BANSAL certificate, the patient suffered 19% permanent disability in relation to left Digitally signed by AMIT BANSAL lower limb with diagnosis of post traumatic stiffness of left ankle with LLD Date: 2020.07.02 (Limb Length Discrepancy). He deposed that the patient would feel mild 13:59:24 +0530 Hem Chand Mishra vs Atar Singh Page 18 of29 Hem Chand Mishra vs Atar Singh Page 19 of 29 pain and difficulty while squatting on the floor, taking turns, walking on plain surface and slope.
15.3 In view of the said discussion, above mentioned grievous injuries suffered by him, his permanent disability and taking the probable period of treatment for about 4 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
16. Pain and Suffering 16.1 The discharge summary of Safdarjung hospital, New Delhi which is the part of treatment record Ex. PW1/A (colly) would show that petitioner suffered segmental fracture bone tibia with impending compartment syndrome..
16.2 PW2/Dr. Abhimanyu Singh has proved the disability certificate of petitioner as Ex. PW2/A (colly). He deposed that as per the disability certificate, the patient suffered 19% permanent disability in relation to left lower limb with diagnosis of post traumatic stiffness of left ankle with LLD (Limb Length Discrepancy). He deposed that the patient would feel mild pain and difficulty while squatting on the floor, taking turns, walking on plain surface and slope.
16.3 In view of the said discussion, above mentioned grievous injuries suffered by him, his permanent disability and taking the probable period of treatment for about 4 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
AMIT 17 Loss of Income
BANSAL
17.1 As discussed above, the monthly income of petitioner has been
Digitally signed
by AMIT
BANSAL taken as Rs. 7254/ p.m at the time of accident. As per record, the
Date: 2020.07.02
13:59:33 +0530
Hem Chand Mishra vs Atar Singh Page 19 of29
Hem Chand Mishra vs Atar Singh Page 20 of 29
probable period of treatment of petitioner was about 4 months. Therefore, loss of income of Rs. 29,016/ (Rs. 7254/x4 months) is granted for 4 months.
18. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 3,44,484/ which is tabulated as below: Sl. No Compensation Award amount
1. Pain and suffering Rs. 50,000/ 2 Special diet & Conveyance Rs. 30,000/
3. Attendant Charges Rs 30,000/
4. Medical Expenses Rs. 3143/
5. Loss of income Rs. 29,016/
6. Loss of Earning/disability Rs. 1,52,325/
7. Loss of amenities of life Rs. 50,000/ Total Rs. 3,44,484/ Rounded of to Rs. 3,44,500/ ( Rupees Three Lakhs Forty Four Thousand Five hundred only) 19.1 The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 21.08.2014 till realisation of the compensation amount (Petitioner is not entitled to interest from 19.07.2017 till 26.03.2019 because the order sheet dated 19.07.2017 would show that it was directed that the petitioner would not be entitled to interest from 19.07.2017 till he concluded his evidence which he ultimately concluded on 26.03.2019). The said interest @ 9% p.a. was AMIT awarded on the award amount by the Hon'ble Apex Court in case BANSAL Municipal Corporation of Delhi vs. Association of Victims of Uphaar Digitally signed by AMIT BANSAL Tragedy, 2012 ACJ 48 (SC) .
Date: 2020.07.0213:59:42 +0530Hem Chand Mishra vs Atar Singh Page 20 of29 Hem Chand Mishra vs Atar Singh Page 21 of 29 19.2 The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
20. Liability 20.1 In the case in hand, the Oriental Insurance co./R3 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. As per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law. 20.2. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., Oriental Insurance co/R3 is directed to deposit the awarded amount of Rs. 3,44,500/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocates and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is AMIT further directed to keep the said amount in fixed deposit in its own name till BANSAL the claimant approach the bank for disbursement, so that the awarded Digitally signed by AMIT BANSAL amount starts earning interest from the date of clearance of the cheque.
Date: 2020.07.02 13:59:50 +0530 Hem Chand Mishra vs Atar Singh Page 21 of29
Hem Chand Mishra vs Atar Singh Page 22 of 29
APPORTIONMENT
21. Statement of petitioner in terms of clause 29 MCTAP was recorded on 30.01.2020 regarding his savings bank a/c with endorsement of MACT claims SB A/c, no loan, cheque book & ATM/debit card. I have heard the petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: 21.1 Keeping in view the facts and circumstances of the case, said statement of the petitioner/injured and clause 32 of MCTAP regarding protection of the award amount, it is hereby directed that on realization, an amount of Rs. 50,000/ be released to him in his MACT Claims SB A/c no.520101258169707 with Corporation Bannk, Asaf Ali road branch, , Delhi as per rules i.e. the branch near his place of residence (as mentioned in statement recorded under clause 29 MCTAP) and remaining amount be kept in Motor Accident Claims Annuity Account (MACAD) so that the maximum benefits can be availed by the petitioner. In case, the AMIT BANSALMACAD scheme has not become fully operational in the concerned bank, till the time the same becomes fully operational, the remaining amount be Digitally signed by kept in 18 FDRs of equal amount for a period of one month to 18 months AMIT BANSAL Date:
respectively with cumulative interest without the facility of advance, 2020.07.02 13:59:59 +0530 Hem Chand Mishra vs Atar Singh Page 22 of29 Hem Chand Mishra vs Atar Singh Page 23 of 29 loan and premature withdrawal without the prior permission of the Tribunal.
21.2 The aforesaid award amount shall be disbursed to the claimant
(s) through the Motor Accidents Claims Tribunal Annuity Deposit (MACAD) Scheme formulated by Hon'ble Delhi High Court vide order dated 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 AMIT Clearing System (ECS) in the saving bank account of the claimant(s) BANSAL near the place of their residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be Digitally signed by AMIT BANSAL allowed on the fixed deposits without permission of the court.
Date: 2020.07.02 14:00:20 +0530Hem Chand Mishra vs Atar Singh Page 23 of29 Hem Chand Mishra vs Atar Singh Page 24 of 29
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the court and claimant(s) shall produce the passbook with the necessary endorsement before the court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the pass book(s) of the claimant(s) is sufficient compliance of clause (g) above.
22. Relief 22.1 As discussed above, Oriental Insurance co/R3 is directed to deposit the award amount of Rs. 3,44,500/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 21.08.2014 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days (Petitioner is not entitled to interest from 19.07.2017 till 26.03.2019 because the order sheet dated 19.07.2017 would show that it AMIT BANSALwas directed that the petitioner would not be entitled to interest from 19.07.2017 till he concluded his evidence which he ultimately concluded Digitally signed by AMIT BANSAL Date: on 26.03.2019) from today under intimation of deposition of the awarded 2020.07.02 14:00:30 +0530 Hem Chand Mishra vs Atar Singh Page 24 of29 Hem Chand Mishra vs Atar Singh Page 25 of 29 amount to be given by R3 to the petitioner and his advocate failing which the R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
22.2 R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimants and complete details in respect of calculations of interest etc in the court within 30 days from today. 22.3 A copy of this judgment/award be sent to respondent no. 3 for compliance within the granted time.
22.4 Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
In terms of directions contained in the order dated 07.12.2018 and subsequent order dated 22.02.2019 of Hon'ble Mr. Justice J.R. Midha in the case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors., FAO 842/2003, the copy of the award be also sent by the Ahlmad of the court to Mr. Rajan Singh, Assistant General Manager, State Bank of India (as per the list of nodal officers of 21 banks of Indian Bank's Association as circulated to the Motor Accident Claims Tribunal vide above mentioned order dated 22.02.2019 of Hon'ble Delhi High Court) who is the Nodal Officer with contact details (022 22741336/9414048606) {other detailsPersonal Banking Business Unit (LIMA) 13th Floor, State Bank Bhawan, Madame Cama Road, Nariman AMIT Point, Mumbai400021} through email ([email protected]) through BANSAL the computer branch of Rohini Courts, Delhi. Ahlmad of the court is directed to take immediate steps in that regard.
Digitally signed by AMIT BANSAL Date:2020.07.02 Hem Chand Mishra vs Atar Singh Page 25 of29 14:00:40 +0530 Hem Chand Mishra vs Atar Singh Page 26 of 29 22.5 A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of petitioner was also recorded on 30.01.2020 wherein he stated that he was entitled to exemption from deduction of TDS and that he would submit form 15G to insurance co. so that no TDS is deducted.
23. Form IVB which has been duly filled in has also been attached herewith. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules.
Digitally
signed by
AMIT BANSAL
AMIT Date:
BANSAL 2020.07.02
14:00:49
+0530
Announced in open court (AMIT BANSAL)
On 02nd July 2020 PO MACT N/W
Rohini Courts, Delhi.
Hem Chand Mishra vs Atar Singh Page 26 of29
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FORM - IV B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 02.12.2012
2. Name of injured Hem Chander Mishra
3. Age of the injured: 41 years 11 months at the time of accident.
4. Occupation of the injured: Minimum Wages/self employed
5. Income of the injured. 9067/
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 4 months
8. Period of hospitalization: about 2 days.
9. Whether any permanent disability ? If yes, give details.
19% permanent disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 3143/
(ii) Expenditure on conveyance Rs. 15,000/
(iii) Expenditure on special diet Rs. 15,000/
(iv) Cost of nursing/attendant Rs. 30,000/ Digitally signed by AMIT
(v) Loss of earning capacity Rs. 1,52,235/ AMIT BANSAL BANSAL Date:
(vi) Loss of income Rs. 29,016/ 2020.07.02 14:01:01
(vii) Any other loss which may require +0530 Hem Chand Mishra vs Atar Singh Page 27 of29 Hem Chand Mishra vs Atar Singh Page 28 of 29 any special treatment or aid to the injured for the rest of his life
12. NonPecuniary Loss:
(I) Compensation for mental and
physical shock
(ii) Pain and suffering Rs. 50,000/
(iii) Loss of amenities of life Rs. 50,000/
(iv) Disfiguration
(v) Loss of marriage prospects
(vi) Loss of earning, inconvenience,
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed 19% and nature of disability as permanent or temporary Digitally
(ii) Loss of amenities or loss of signed by AMIT expectation of life span on account AMIT BANSAL of disability BANSAL Date:
2020.07.02 14:01:11
(iii) Percentage of loss of earning 10% +0530 capacity in relation of disability
(iv) Loss of future income - (Income X Rs. 1,52,325/ %Earning capacity X Multiplier) (Rs. 7254/ Hem Chand Mishra vs Atar Singh Page 28 of29 Hem Chand Mishra vs Atar Singh Page 29 of 29 x25%x12x14x10%)
14. TOTAL COMPENSATION Rs. 3,44,500/ (after rounding of)
15. INTEREST AWARDED 9% (Petitioner is not entitled to interest from 19.07.2017 till 26.03.2019)
16. Interest amount up to the date of Rs. 1,31,769/ award
17. Total amount including interest Rs. 4,76,269/
18. Award amount released Rs. 50,000/
19. Award amount kept in FDRs Rs. 4,26,269/
20. Mode of disbursement of the award As per award and in terms amount to the claimant (s) of clause 29 of MCTAP (Clause29)
21. Next date for compliance of the 07.08.2020 award. (Clause 31) Digitally signed by AMIT AMIT BANSAL BANSAL Date:
2020.07.02 14:01:19 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
02.07.2020
Hem Chand Mishra vs Atar Singh Page 29 of29