Delhi District Court
Dhirender vs . Dharam Singh on 17 August, 2020
FIVE YEARS OLD MATTER
IN THE COURT OF SH. M. K. NAGPAL : PRESIDING
OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
Dhirender Vs. Dharam Singh
MACP No. 71/2015
Sh. Dhirender
S/o. Late Sh. Suraj Deen
R/o. Servant Quarter No.99,
Lodhi Estate, New Delhi.
......Petitioner/Injured
Versus
Sh. Dharam Singh
S/o. Sh. Dhani Ram
R/o. D-107, D-Block,
DDA Flats, New Ranjit Nagar,
New Delhi.
.....Respondent
Date of filing of DAR : 02.12.2014
Date of filing of petition : 03.07.2015
Date of framing of issues : 26.08.2015
Date of concluding arguments : 31.07.2020
Date of decision : 17.08.2020
AWARD/JUDGMENT
1. The claim for compensation raised in the present petition relates to injuries and disability suffered by the petitioner in an accident that took place on 01.04.2014, at around 8.30pm, opposite Kothi Nos. 8 & 9 at Zakir Hussain Marg, New Delhi, regarding which one FIR No. 113/14, under Sections 279/337 IPC was registered at PS Tilak Marg. The offending vehicle MACP No. 71/2015 Page no.1 of 24 implicated in this case is a scooter bearing registration no. DL-4SNC-2438, which at the relevant time of accident was being driven and owned by the respondent. However, the said vehicle was not insured at that time.
2. The case of petitioner, in brief, is that on the day of accident, he was working as a clerk/peon in the office of some advocate in Delhi High Court and after finishing his work, he was returning back to his house with his one colleague Mukesh on his bicycle and when he reached at the above place of accident, his bicycle was hit by the offending scooter which came from Nizammudin side. It is alleged that the scooter was being driven by the respondent at very fast speed and in a rash and negligent manner and the same had hit the front wheel of his bicycle as well as the petitioner and his colleague and they both fell on road and suffered injuries. Petitioner was removed to Dr. RML hospital by the PCR officials and his MLC was prepared. It was found on conclusion of his medical examination that he had suffered fractures of both bones of his left leg, i.e. tibia and fibula, and hence, the nature of his injuries was declared as grievous. Subsequently, his permanent disability was also got determined from the medical board of the said hospital and it was reported that he had suffered 10.5% permanent physical impairment (PPI) in relation to his left lower limb.
3. One Detailed Accident Report (DAR) in respect of the above accident was filed before this tribunal on 02.12.2014 and this petition also came to be filed subsequently on behalf of the petitioner on 03.07.2015 and on the same day, the DAR file was directed to be clubbed with this petition for further proceedings.
4. Respondent in his reply to the DAR has though admitted the above accident, but it is his case that the said accident did not take place due to his fault and rather, it took place due to fault or negligence of the petitioner himself as the petitioner was crossing road midway and without caring for the MACP No. 71/2015 Page no.2 of 24 traffic on road and traffic rules. He further claimed that he was driving his scooter with care and caution and he even tried to avoid the accident and save the petitioner, but he could not succeed and his scooter collided with cycle of the petitioner. He also claimed that even he had suffered injuries in the said accident.
5. In his further reply filed to the claim petition also, the respondent had made similar submissions while alleging that amount of compensation claimed by the petitioner is exaggerated.
6. From pleadings of the parties, one of the Ld. Predecessors of this tribunal had framed the following issues on 26.08.2015:-
1. Whether the injured Sh. Dhirender sustained injuries in the accident which occurred on 01.04.2014 at about 08.30 PM at Dr. Zakir Hussain Marg, Near Kothi No. 8-9, New Delhi caused by rash and negligent driving of vehicle No. DL-4SNC-2438 driven and owned by respondent no 1, and insured with respondent no. 2? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. It is necessary to mention here that the issue no.1 framed above was found to be defective as the offending scooter was not only being driven by respondent at the relevant time of accident, but it was also owned by him, though the same was not insured and hence, there was only one respondent in this case. Hence, the said issue has been corrected vide order 06.08.2020 by this tribunal and since the above correction/modification of issue was formal in nature and there was no requirement of leading of any fresh/further evidence, the matter has been proceeded further.
8. I have heard the arguments advanced by Sh. Yogender Kumar, Ld. Counsel for the petitioner and Sh. T.A. Siddiqui, Ld. Counsel for the respondent through video conferencing on Cisco Webex. I have also perused MACP No. 71/2015 Page no.3 of 24 the entire material available on record as well as the written submissions/arguments filed on behalf of both the parties. My issue-wise findings are as under:-
9. ISSUE NO.1 It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
10. The petitioner in support of his case had examined on record total two witnesses and besides examining himself as PW1, he had examined one Dr. Shipra Chaudhary, Assistant Professor, Department of PMR, PGMIER & Dr. RML Hospital, New Delhi as PW2. She was a member of the disability board of said hospital constituted on the directions of this tribunal and had only proved on record the disability certificate of petitioner. Hence, it is only the testimony of petitioner himself which is relevant for determination of the alleged rash and negligent driving of offending vehicle on the part of respondent and resulting into the above accident.
MACP No. 71/2015 Page no.4 of 24
11. Coming to testimony of the petitioner, it is found that he has tendered on record his examination-in-chief by way of an affidavit Ex. CW1/A and in the said affidavit he has claimed that at the time of accident, he was going to his home with his colleague Mukesh after finishing work in the Delhi High Court and when they reached infront of Kothi nos. 8 & 9 at Zakir Hussain Marg, then all of a sudden, the offending scooter came from Nizamuddin side in a most rash and negligent manner and being driven over speed and the same had hit on front wheel of his bicycle as well as both of them. He also deposed in the said affidavit that as a result thereof, they both fell down on road and unfortunately, he had suffered grievous injuries in the said accident as his left leg was badly fractured. He further claimed that he had already undergone two operations on his left leg in the above hospital. He had also tendered on record various documents as Ex.CW1/1 to Ex. CW1/74 and Marks A to C, besides exhibiting his claim petition as Ex.CW1/B. The above documents mainly consist of his treatment record and medical bills, copy of FIR and one notice under Section 160 & 175 of Cr.P.C. issued in the name of above Mukesh for joining of investigation.
12. During the course of his cross examination conducted by Ld. Counsel for the respondent on 09.07.2016, he had also denied the suggestions given to him to the effect that he sustained injuries in the above accident due to his own negligence as he was on wrong side of the road and was crossing it midway and without caring for the traffic on road and the same did not take place due to rash and negligent driving on the part of respondent.
13. To counter the testimony of petitioner, respondent had also himself stepped into the witness box as RW1 and tendered on record his examination-in-chief by way of an affidavit Ex.RW1/A and also got exhibited some documents as Ex.RW1/1 to Ex.RW1/5, which consist of certified copies MACP No. 71/2015 Page no.5 of 24 of charge-sheet and FIR of the above criminal case, site plan of place of accident, mechanical inspection report of offending scooter and his MLC. During his cross examination, he had also denied the suggestions given by Ld. Counsel for petitioner that the above accident took place due to his rash and negligent driving and that he was driving his scooter at a speed of 60-70 kmph.
14. Thus, it is clear from the above that this is not a case where the testimony of petitioner made about manner of accident has gone unchallenged or uncontroverted and rather, the same stands duly challenged on record by the counter statement of respondent. Though, it has already been discussed above that the onus of proof placed upon a claimant in these proceedings is not as strict as that is required in a criminal prosecution or even in a regular civil matter, but still the claimant has to establish atleast by principle preponderance of probabilities that the accident took place due to rash and negligent driving of driver of the offending vehicle only and not because of his own negligence or contributory negligence.
15. In the present case, when the evidence led on record is appreciated in light of the above, this tribunal has no hesitation to conclude that the above accident did not take place due to exclusive rash and negligent driving of offending scooter by the respondent and the petitioner himself is also to be equally blamed and held responsible for the same as he was crossing the road from a place where there was no red light or zebra crossing. During cross examination of petitioner conducted by Ld. Counsel for the respondent with regard to manner of accident, the petitioner admitted that the version of accident stated by him in FIR, which was registered on his own statement, was different from what has been stated by him in his above affidavit. Even the respondent has relied upon contents of the above FIR and tendered in evidence a certified copy thereof and on perusal of the FIR, it has MACP No. 71/2015 Page no.6 of 24 been observed that at the relevant time of accident, the petitioner was crossing road while holding his bicycle in his hands and after he had crossed the divider on road, a scooter coming from the side of Nizamuddin had gone to hit the front wheel of his bicycle resulting into fall of the petitioner as well as his bicycle on road and injuries on his person.
16. Though, it does not make any difference as to whether the offending scooter had hit him directly or not or had hit only his bicycle, if it is proved that the above accident took place due to rashness and negligence of the scooterist, but here a genuine question has arisen as to where the said accident took place due to fault of the scooterist or the petitioner or due to fault of both of the parties. As already discussed, the documentary evidence on record clearly shows that the petitioner himself was also at fault as he was attempting to cross the road while holding his bicycle in his hands and that too from a place not ear marked for crossing of the pedestrians and it is only in this process that he was hit by the offending scooter. It has also come on record during his cross examination that red light from the place of accident was not at much distance as according to him it was at a distance of approximately 50 feet from the place of accident, whereas according to a suggestion given to him by Ld. Counsel for respondent the same was at a distance of 15-20 feet. Though the respondent is also found to have denied a suggestion given to him by Ld. Counsel for the petitioner during his cross examination that the speed of offending scooter was around 60-70 kmph and he claimed it to be 30-40 kmph only, but the depositions made by him during his cross examination suggest that he had just started proceeding towards India Gate from the above red light and even though it was a night time, he should also have taken notice of the petitioner crossing road with his bicycle and should have stopped his scooter prior to the said accident. Thus, even the respondent is to be blamed for the said accident and hence, going by the MACP No. 71/2015 Page no.7 of 24 oral and documentary evidence led on record, this tribunal comes to a conclusion that the above accident took place due to rash and negligent driving of the said scooter by respondent as well as because of negligence of the petitioner himself in crossing the road with a bicycle in his hands from a place nor ear marked for the said purpose and also without taking note of the traffic conditions on road and contribution of none of them in causing the above accident is less than the other. Therefore, it is held that they both were equally responsible for the said accident in the ratio of 50:50. This issue is thus decided accordingly.
17. ISSUE NO. 2In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/ attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or MACP No. 71/2015 Page no.8 of 24 compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made on some of important judgments on the subject like the judgment in the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995 SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343.
In light of above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
(i) Medical or Treatment Expenses As stated above, the petitioner has suffered grievous injury in above accident in the form of fracture of both bones of his left leg, i.e. tibia and fibula. His treatment record brought in evidence also shows that he had undergone two surgeries on his affected leg, i.e. one for fixation of fractures and second for removal of screws. His treatment had lasted for more than 1½ years. As already discussed, the documents tendered on record by the petitioner as Ex.CW1/1 to CW1/74 mainly consist of his treatment record, medical bills and payment receipts. Though the petitioner is silent in his affidavit Ex.CW1/A regarding expenses incurred by him on his treatment, but MACP No. 71/2015 Page no.9 of 24 the original medical bills and payment receipts tendered by him on record as a part of the above documents are found to be totaling to a sum of Rs.28,175.80. Though Ld. Counsel for respondent has objected to most of these medical bills and payment receipts on ground that the same are not backed by proper prescriptions, but it appears that the Ld. Defence Counsel has not taken note of the above long treatment record of petitioner, which mainly consists of his visits as an OPD patient in Dr. RML Hospital and spreads over a period of around 1½ years from the date of accident. It is observed that the above medical bills and payment receipts brought in evidence by petitioner are in conformity with his treatment record and hence, under this head, the petitioner is held entitled to above amount of Rs.28,176/- (rounded off) as his actual medical or treatment expenses.
(ii) Loss of actual earnings As discussed in the preceding paragraph, the treatment record of petitioner spreads over more than 1½ years and it also includes one discharge summary issued by RML Hospital regarding his admission in the said hospital on date of accident itself i.e. 01.04.2014 and discharge on 07.04.2020. As per this discharge summary, no surgical process on affected leg of petitioner had taken place during the said period and the petitioner was only treated by conservative methods. However, his treatment record further reflects that he was subjected to a surgery subsequently on 15.07.2014 in the same hospital for fixation of the above fracture injury of major bones of his left leg and reference of this surgery is found mentioned in a letter of his treating doctor Ex.CW1/57 and also his OPD cards Ex.CW1/60 and Ex. CW1/61 etc. Further, his OPD card dated 26.02.2015 Ex.CW1/4 shows that he was again subjected to another surgery for removal of screws used for fixing of his bones in the earlier surgery on that very day and even this surgery was done under general anesthesia. As per his OPD slip dated 01.10.2015 Ex.CW1/64, he MACP No. 71/2015 Page no.10 of 24 was still visiting in OPD of the said hospital in connection with treatment of his injured leg and was even adviced some X-ray examinations on that day. It is also a matter of record that ultimately, as a result of above injuries, the petitioner had suffered PPI to the extent of 10.5% in relation of the said leg and his disability was determined by the medical board in September, 2018 only as an application in this regard was moved by the petitioner at a subsequent stage, when the matter was to be fixed for final arguments after conclusion of RE. Hence, keeping in view the oral and documentary evidence brought on record and the other attending facts and circumstances and especially the nature of job or work of petitioner claimed on record, this tribunal deems it just and reasonable to compensate him for loss of his actual earnings atleast for a period of 2 years.
Coming to earnings of petitioner at the relevant time of accident, in his affidavit Ex.CW1/A he has claimed that he was working as a peon/clerk in the office of some Advocate (s) in Delhi High Court and he was being paid Rs.8,000/- pm by the said Advocate (s). To substantiate his above claim, he is also found to have tendered in evidence one certificate Ex. CW1/1 given by Sh. O.P. Agarwal and Sh. Yogender Kumar, Advocates and as per this certificate also, the petitioner was working with them and was being paid the above said amount as salary. However, the petitioner has not produced as a witness before this tribunal any of the above two Advocates to further substantiate his claim and hence, Ld. Counsel for the respondent had no opportunity to test the veracity of above claim of the petitioner in this regard.
Further, as per depositions made by him in the above affidavit, the petitioner has also claimed that besides being working as a clerk in the office of Advocates, he was having a good knowledge of cooking and was doing part time job of cooking food in parties/functions etc. Even his this claim has remained unsubstantiated and it also does not appeal to conscious of this MACP No. 71/2015 Page no.11 of 24 tribunal because job of a clerk of an Advocate, and that too of a High Court Advocate, is a very busy job and it could have hardly left any time for petitioner to attend such parties or functions. This fact can also be seen from the records itself, as the above accident took place at around 8.30pm, when the petitioner had just started going back to his residence after finishing work of his office. Moreover, there is also nothing on record to show that the petitioner was having any special or expert knowledge in the field of cooking.
Hence, this tribunal has no option except to resort to the rate of minimum wages for unskilled workers, which were in force in Delhi at the relevant time. However, it is observed that even the rate of minimum wages for an unskilled worker in Delhi at the relevant time was Rs.8,554/- pm and hence, even despite the above discussion and lack of some documentary or other satisfactory evidence on record regarding earnings of the petitioner, he is held entitled to be compensated for loss of his earnings at the above said rate of Rs.8,554/- pm. Therefore, under this head, the petitioner is being awarded an amount of Rs.2,05,296/- (Rs.8,554/- X 24) under this head pertaining to loss of his actual earnings.
(iii) Loss of future earnings due to disability It is well settled that the physical disability and functional disability of a person are not one and the same things and functional disability of a person refers to his loss of earning capacity due to the said disability. This functional disability or loss of earning capacity of a person is required to be assessed separately by the claims tribunal with reference to nature of work or profession etc. of the said person and it has no reference to the percentage of permanent disability given in his disability certificate. The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble MACP No. 71/2015 Page no.12 of 24 Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it was held as under :-
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''.
"8.......What requires to be assessed by the Tribunal is the effect of 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 terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method MACP No. 71/2015 Page no.13 of 24 used to determine loss of dependency)."
Coming back to the present case, it has already been discussed above that both bones of left leg of petitioner got fractured in the above accident and he underwent two surgeries on his affected leg and his treatment had continued for a period of around 1½ - 2 years. He has also been held entitled to loss of earnings for a period of two years under the preceding head. His PPI in respect of the said leg has been given as 10.5% and his disability certificate stands duly proved on record as Ex.PW2/A during the depositions made by PW2 Dr. Shipra Chaudhary. As per this witness also, the petitioner is a case of fracture of tibia and fibula left side (operated) and the witness had denied the suggestion given to her by Ld. Counsel for respondent to the effect that day to day life of petitioner will not be effected by the above disability. Rather, she specifically stated on record that it will be effected as per the disability percentage and requirement of involvement of the affected limb in his day to day activities.
It has already been discussed above that at the relevant time of accident, the petitioner was working as a clerk in the office of an Advocate (s) and it can be seen that job of a clerk of an advocate involves too much physical work as he has not only to visit different offices/branches of the courts in connection with administrative works of his office, like filing of cases or miscellaneous applications, purchase of stamp duty and stationery etc. for filing purposes and visit to the seat/chamber of typists etc., but he is also supposed to accompany the Advocates to different courts while holding the files/briefs. Hence, the submission made by Ld. Counsel for the respondent cannot be accepted that in the present case the functional disability of petitioner has to be taken at or around 50% of the given percentage of petitioner's PPI, i.e. 50% of 10.5%, but it has to be taken even more than that MACP No. 71/2015 Page no.14 of 24 the above given percentage of his PPI. Thus, keeping in view the nature of work being down by petitioner at the relevant time of accident, his treatment records, the other attending facts and circumstances and the legal position already discussed above, the functional disability of petitioner is being taken as 20%.
Coming to age of the petitioner at the relevant time of accident, though the petitioner has not formally exhibited on record any document to show his date of birth or age at that time, but it is observed that copies of his election and aadhar cards were filed by him on record along with other documents. Since both these documents are issued by the Government authorities and the same are found to have been issued prior to date of accident, the same are being considered for ascertainment of his age. In aadhar card, the year of birth of petitioner is found mentioned as 1968 and going by the same, his age at the relevant time of accident comes to 46 years and around 3 months and in his election identity card his age as on 01.01.2008 is found stated as 39 years and as per this document, his age at that time comes to 45 years and 3 months.
To resolve this conflicting age of petitioner, this tribunal is also taking into consideration copies of the fresh aadhar and PAN cards of the petitioner, which he himself has filed on record subsequently for the purposes of release and disbursement of amount of compensation and in both these documents, the date of birth of petitioner is found recorded as 09.09.1968. As per these documents, age of the petitioner at the relevant time of accident comes to 45 years and more than 6 months. In view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Supreme Court in a recent judgment dated 31.10.2017 given in the case of National Insurance MACP No. 71/2015 Page no.15 of 24 Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014 multiplier of '14' is applicable for the age group between 41 to 45 years and multiplier of '13' is applicable for the age group of 46 to 50 years. Since the age of petitioner was between 45 to 46 years at that time, provisions of law laid by the Hon'ble Delhi High Court in the case of New India Assurance Co. Ltd. Vs. Harsh Wardhan & Ors., MAC App. No. 521/2008 decided on 20.07.2017 are helpful in this case, which say that nearest multiplier as per age is to be applied and hence, since age of the petitioner in this case was more than 45½ years at the time of accident, multiplier of '13' is held applicable in the present case.
Further, the petitioner is also held entitled to 25% future prospects in view of law laid down by the Hon'ble Delhi High Court in the cases of Bajaj Alliance Gen. Insurance Co. Ltd. Vs. Rajeshwar Prasad & Ors., MACA 858/15 decided on 19.07.2017 and Faiyaz Ahmad Khan Vs. Chandra Pal Singh & Ors., MACA No.351/17 decided on 08.08.2017 as well as in the Constitution Bench Decision of the Hon'ble Supreme Court in case of Pranay Sethi (Supra) as he was aged between 40-50 at the time of accident.
Thus, the loss of future earnings and prospects caused to the petitioner due to his above injury and permanent disability comes to Rs. 3,33,606/- (rounded off) (Rs.8,554/- X 125/100 X 20/100 X 12 X 13) and the same is being awarded to him under this head.
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
As discussed above, the petitioner had suffered grievous injuries in the above accident resulting into 10.5% PPI in relation to his left lower limb and his functional disability has been taken by this tribunal as 20%. His treatment had continued for a considerable time and his actual loss of MACP No. 71/2015 Page no.16 of 24 earnings has been taken equivalent to a period of 2 years. Though, it is not possible to exactly compensate him for the shock, pain and sufferings etc. which he had actually suffered because of the above injuries and disability, but as stated above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the treatment taken by him etc., an amount of Rs.40,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.20,000/- is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs. 1,00,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges In his above affidavit Ex.CW1/A, which has been tendered in evidence on 09.06.2016, the petitioner claimed that till date he has already spent an Rs.10,000/- on conveyance for visiting the doctors and his expenses on conveyance were still continuing. Since it has already been discussed above that the petitioner had remained under treatment for a considerable time and he had been visiting the doctors in OPDs of Dr. RML Hospital on regular intervals, this tribunal deems it just and reasonable to grant him an amount of Rs.30,000/- towards conveyance charges and another amount of Rs.10,000/- towards the requirement of special diet for his early recovery from injuries suffered because of the above accident.
Besides this, since treatment of the petitioner continued for a long period and he had undergone surgeries twice, the requirement of an attendant for taking care of him during the period when he was not able to do the things on his own is also felt by this tribunal and an amount of Rs.40,000/- towards attendant charges or the gratuitous services which might have been rendered by his family members during the above said period of his MACP No. 71/2015 Page no.17 of 24 treatment, hospitalization and immobility is also granted to him.
Hence, a total amount of Rs.80,000/- is being awarded to him under this head.
(vi) Repair of bicycle In his above affidavit Ex.CW1/A, the petitioner has also claimed that he has spent an amount of around Rs.2500/- on repair of his bicycle. However, he has not led on record any evidence to substantiate his above claim. Hence, he is held not entitled to any amount under this head. Issue No.3/Relief
18. The petitioner is thus though otherwise held entitled to a sum of Rs.7,47,078/- (Rs.28,176 + 2,05,296 + 3,33,606 + 1,00,000 + 80,000) as compensation from the respondent in this case, but after deducting 50% therefrom on account of his contributory negligence, he is being awarded an amount of Rs.3,73,539/- (Rupees Three Lacs Seventy Three Thousand Five Hundred Thirty Nine only) only along with interest. However, it is directed that the amount of interim award, if any, and interest for the suspended period, i.e. from 26.08.2015 (from the date of framing of issues) till 24.07.2017 (till conclusion of PE), in terms of order of this tribunal dated 16.11.2015 is to be excluded from the above amount and calculations of compensation.
19. RELEASE Out of the awarded amount, 80% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the form of 30 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 30 months in succession. The amount of FDRs on maturity would be released in his savings account bearing no. A/c No. 18580110093160 being maintained at UCO Bank, Patiala House Courts, New Delhi having IFSC Code No. UCBA0001858. The remaining 20% amount is also directed to be released MACP No. 71/2015 Page no.18 of 24 into his above said account, which can be withdrawn and utilized by the petitioner.
To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier. However, the concerned bank shall permit the petitioner to withdraw money from his above savings bank account by means of withdrawal forms or biometric authentication.
The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any.
The bank shall not permit any joint name (s) to be added in the savings bank account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amounts shall be released in account of the petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner.
No loan, advance or withdrawal or pre-mature discharge be allowed on MACAD without permission of the Court.
Petitioner has already produced before this tribunal his original passbook with necessary endorsements to the effect that no cheque book shall be issued to his above said account and he has also filed copy thereof MACP No. 71/2015 Page no.19 of 24 on record alongwith his aadhar card and PAN card. It is directed that the concerned bank (s) shall not to issue any cheque book and/or debit card to the claimant in future also. However, the concerned bank shall permit the petitioner to withdraw money from his savings bank account by means of a withdrawal form or biometric authentication.
20. LIABILITY Since the offending vehicle was being driven and owned by the respondent himself and it was not insured at the time of accident, he is directed to deposit the above award amount with UCO Bank, Patiala House Court Branch, along with interest @ 9% per annum, by way of crossed cheques/DDs in name of the petitioners within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. Respondent shall inform the petitioner and his counsel through registered posts that the cheque of the awarded amount is being deposited so as to facilitate him to collect his cheque.
21. A copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
22. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
23 The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:-
1. Date of the accident 01.04.2014
2. Date of intimation of the accident by the Not given MACP No. 71/2015 Page no.20 of 24 Investigation Officer to the Claims Tribunal.
3. Date of intimation of the accident by the Investigating Officer to the Insurance Not given company.
4. Date of filing of Report under Section 173 Not given Cr.PC before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer before 02.12.2014 Claims Tribunal.
6. Date of service of DAR on the Insurance Uninsured vehicle Company.
7. Date of service of DAR on the claimant(s). 02.12.2014
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR ......
10. Whether the police has verified the Yes documents file with DAR?
11. Whether there was any delay or deficiency DAR has been filed after on the part of the Investigating Officer? If about 7 months of the so, whether any action/direction accident warranted?
12. Date of appointment of the Designated Uninsured vehicle Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of the Insurance -do-
Company.
14. Whether the Designated Officer of the Insurance Company submitted his report -do-
within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly -do-
computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated -do-
Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of the
-do-
offer of the Insurance Company.
MACP No. 71/2015 Page no.21 of 24
18. Date of the award 17.08.2020
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near their Yes place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the 23.07.2018 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 passbook of their savings bank account near the place of their residence 13.12.2019 along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o. Servant Quarter No.99, Claimant(s) Lodhi Estate, New Delhi.
24. Details of savings bank account (s) of the A/c No. 18580110093160 claimant(s) and the address of the bank being maintained at UCO with IFSC Code. Bank, Patiala House Courts, New Delhi having IFSC Code No. UCBA0001858.
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
24. File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on 20.11.2020.
Announced in the open court. (M.K. Nagpal) on 17.08.2020 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP No. 71/2015 Page no.22 of 24 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB Date of accident :01.04.2014 Name of the injured :Dhirender Age of the injured :45 years and more than 6 months at the time of accident Occupation of the injured : Unskilled worker Income of the injured : As per minimum wages Nature of injury : Grievous Medical treatment taken by the injured : Dr. RML Hospital Period of hospitalization : 01.04.2014 to 07.04.2014 Whether any permanent disability? : 10.5% PPI in relation to left lower limb
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 28,176.00
(ii) Expenditure on conveyance Rs. 30,000.00
(iii) Expenditure on special diet Rs. 10,000.00
(iv) Cost of nursing/attendant Rs. 40,000.00
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 2,05,296.00
(vii) Any other loss which may require any Nil special treatment or aid to the injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and physical Rs. 40,000.00 shock
(ii) Pain and suffering Rs. 40,000.00
(iii) Loss of amenities of life Rs. 20,000.00
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil hardships,disappointment,frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of MACP No. 71/2015 Page no.23 of 24 earning capacity
(i) Percentage of disability assessed and 10.5% PPI in relation to left nature of disability as permanent or lower limb temporary
(ii) Loss of amenities or loss of NA expectation of life span on account of disability.
(iii) Percentage of loss of earning relation 20% functional disability
to disability
(iv) Loss of future income Rs. 3,33,606/-
14. Total Compensation Rs.3,73,539/- (50% of total
amount Rs.7,47,078/-
deducted towards
contributory negligence)
15. Interest Awarded 9% p.a. from date of filing of
DAR till deposit within 30
days and 12% pa thereafter.
However, interest for the
suspended period, i.e from
16.11.15 till 24.07.17, is
being excluded.
16. Interest amount up to the date of Rs.1,35,118.78
award
17. Total amount including interest Rs.5,08,657.78 rounded off
to Rs. 5,09,000/-
18. Award amount released 20% of the amount
19. Award amount kept in the FDRs 80% of the amount
20. Mode of disbursement of the award Through bank
amount to the claimant (s)
21. Next date for compliance of the award 20.11.2020
(M.K. Nagpal)
PO/MACT, New Delhi
17.08.2020
MACP No. 71/2015 Page no.24 of 24