Delhi District Court
48714 Smt. Badal vs Rampal Page 1 Of 23 on 8 October, 2018
48714 Smt. Badal vs Rampal Page 1 of 23
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 5058016
MACT PETITION No. : 48714
UNIQUE ID No. : DLNW010013272014
Smt.Badal W/o Sh. Munni Lal
R/o Jhuggi No. 19, Nehru Camp, Haiderpur, Delhi.
........ Petitioner
Vs.
1. Sh. Rampal S/o Rohtash
R/o J967, Jahangirpuri, Delhi.
....... Driver/R1
2. Sh. Krishan S/o Chander Bhan
R/o 76, Mohammadpur, Ramjanpur, Delhi.
...... Owner/R2
3. United India Insurance Co. Ltd.
P1920, Padav Nagar, Mayur Vihar, Delhi.
..... Insurance co/R3
Other details
DATE OF INSTITUTION : 17.11.2014
DATE OF RESERVING JUDGMENT : 06.10.2018
DATE OF PRONOUNCEMENT : 08.10.2018
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 CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
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1. Date of the accident 28.08.2014
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2. Date of intimation of the accident by the 29.08.2014
investigating officer to the Claims Tribunal
(Clause 2)
3. Date of intimation of the accident by the 07.11.2014
investigating officer to the insurance company.
(Clause 2)
4. Date of filing of Report under section 173 Not mentioned in the
Cr.P.C. before the Metropolitan Magistrate DAR
(Clause 10)
5. Date of filing of Detailed Accident Information 17.11.2014
Report (DAR) by the investigating Officer before
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance 07.11.2014
Company (Clause 11)
7. Date of service of DAR on the claimant (s). 17.11.2014
(Clause 11)
8. Whether DAR was complete in all respects? Yes
(Clause 16)
9. If not, whether deficiencies in the DAR removed N/A
later on?
10. Whether the police has verified the documents Yes.
filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on No.
the part of the Investigating Officer? If so,
whether any action/direction warranted?
12. Date of appointment of the Designated Officer 07.11.2014
by the insurance Company. (Clause20)
13. Name, address and contact number of the Sh. Gurmeet Singh,
Designated Officer of the Insurance Company. Advocate
(Clause 20)
14. Whether the designated Officer of the Insurance No.
Company submitted his report within 30 days of
the DAR? (Clause 20)
15. Whether the insurance company admitted the No.
liability? If so, whether the Designated Officer of
the insurance company fairly computed the
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on N/A
the part of the Designated Officer of the
Insurance Company? If so, whether any
action/direction warranted?
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17. Date of response of the claimant (s) to the offer Legal offer given.
of the Insurance Company .(Clause 24)
18. Date of the Award 08.10.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 10.04.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 29.08.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner Smt.
claimant(s) and the address of the bank with Badalsavings bank
IFSC Code (Clause 27) a/c no. 37233621088
with State Bank of
India, Narela Branch,
Delhi,
IFSC : SBIN0021402
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
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 Detailed Accident Report (hereinafter referred to as DAR) was filed in this case on 17.11.2014 with reference to FIR No. 650/11 U/s 279/338 IPC PS Maurya Enclave in respect of grievous hurt sustained by the petitioner Smt. Badal in a road accident on 28.08.14 at about 9:00 pm at bus stand RU block outer ring road, Pitampura, Delhi. The ld. Predecessor of this court vide order dated 17.11.2014 treated the same as petition u/s 166(4) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act').
2. Brief facts of the case as mentioned in the DAR/file are that on 28.08.2014 petitioner along with Smt. Somwati and Ajay were standing at RU Block bus stand outer ring road, Pitampura while waiting for a bus. At about 9:00 pm at the above said bus stand, when petitioner tried to board a RTV bus bearing registration no. DLIVA9620 (hereinafter referred to as "offending vehicle" ) then suddenly respondent no. 1 Rampal (driver of the offending vehicle) started the bus with a sudden jerk. Due to said impact, the petitioner whose one foot was on the foot board of the bus and another foot was on the road fell down on the road, her left leg got crushed under the rear wheel of the said bus and she sustained grievous injuries. It has been mentioned that petitioner was admitted in Santom Hospital, Delhi, where she was treated. The FIR no.650/14 PS Maurya Enclave was registered u/s 279/338 IPC.
3. The record would show that Sh.Rampal/R1/driver and Sh. Krishan/R2 owner of the offending vehicle did not file any written statement and ultimately were proceeded against exparte vide order dated 09.10.2017.
4. United India Insurance Co/R3 has filed its legal offer of Rs. 83,516/ which was not accepted by the petitioner. It was further mentioned that the offending vehicle was insured with R3 vide policy bearing no. 2215043114P100930010 valid from 08.05.2014 to 07.05.2015 i.e. covering the date of accident 28.08.2014.
48714 Smt. Badal vs Rampal Page 5 of 23 48714 Smt. Badal vs Rampal Page 6 of 235. From the pleadings of the parties, the following issues were framed by learned Predecessor of this court vide order dated 11.04.2017 :
1. Whether Smt. Badal received injuries due to rash and negligent driving of RTV bearing registration no. DL1VA9620 by its driver at bus stand RU block, outer ring road, Pitampura, Delhi?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
The petitioner/injured in support of her case has examined herself as PW1, Sh. Ajay (eye witness) as PW2, Sh. Kapil Kaushik, Dy. Manager Store, Endolite India Ltd as PW3 and Dr. Meenakshi Sidhar, Chairman Disability Board, Dr. BSA as PW4.
The record would show that respondents have not examined any witness in support of their case.
It is pertinent to note that vide statement recorded on 29.08.2018, the petitioner/Smt. Badal stated that she did not want to get herself examined by the committee formed by the Hon'ble Delhi High Court in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003, order dated 09.03.2018 and did not want any compensation under the head of artificial limb. She made the said statement in the presence of her counsel.
6. I have heard arguments addressed on behalf of ld counsel for petitioner and ld counsel for insurance co/R3 and have carefully perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
7. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
The petitioner/injured has examined herself as PW1. She has filed her evidence by way of affidavit as Ex. PW1/A. She has proved her 48714 Smt. Badal vs Rampal Page 6 of 23 48714 Smt. Badal vs Rampal Page 7 of 23 OPD card as Ex. PW1/1 (colly), medical bills as Ex. PW1/2 (colly), copy of her aadhar card as Ex. PW1/3, the permanent disability certificate as Ex. PW1/5, estimate of artificial limb is Ex. PW1/6 and the entire DAR as Ex. PW1/7 (colly).
She deposed in her evidence by way of affidavit Ex. PW1/A that on 28.08.2014 she along with Smt. Somwati and Ajay were standing at RU Block bus stand outer ring road, Pitampura while waiting for a bus. She deposed that at about 9:00 pm at the above said bus stand, when she tried to board a RTV bus bearing registration no. DL IVA9620 (offending vehicle ) then suddenly respondent no. 1 Rampal started his bus with a sudden jerk. She deposed that due to said impact, she whose one foot was on the foot board of the bus and another foot was on the road fell down on the road, her left leg got crushed under the rear wheel of the said bus and she sustained grievous injuries.
PW1 was not cross examined on behalf of R1 and R2 and her cross examination by R1 and R2 was nil, opportunity given. R1 shall thus be deemed to admit the above said testimony of PW1 to the effect that the case accident was caused by offending vehicle being driven by him in a rash and negligent manner.
PW1 was cross examined on behalf of insurance co/R3 wherein she inter alia denied the suggestion that the said accident had occurred due to her own negligence. She volunteered that it was the fault of the driver of the offending vehicle who was in hurry to drive the same during the process when she was boarding the bus. Petitioner has also examined Sh. Ajay Gupta as PW2 (eye witness) who has tendered his evidence by way of affidavit as Ex. PW2/A. He deposed on the lines of the testimony of the petitioner. He deposed that his statement was recorded by the police.
PW2 was cross examined only on behalf of insurance co/R3, wherein he inter alia deposed that the police had recorded his 48714 Smt. Badal vs Rampal Page 7 of 23 48714 Smt. Badal vs Rampal Page 8 of 23 statement, however, he had not called the police after the accident. He deposed that on the date of accident, he along with petitioner and his sister were waiting at the bus stop wherein R1 made the bus to halt and in the meantime when they were getting inside the bus, the driver hurriedly started the bus. He deposed that he was behind the petitioner, petitioner was in the process of climbing the bus when the driver started the bus and as a result of which she fell down and her left foot came under the tyre of the bus. He denied the suggestions that he was not present at the spot at the time of accident or that he was making a false statement to facilitate the petitioner to take compensation in the present case. He admitted that the bus came and halted at the proper spot of bus stop and it was hardly a distance of two steps. He deposed that petitioner was climbing the bus when driver started the bus at a fast speed, however, he could not say as to what speed the driver started the bus. He deposed that the conductor who was sitting inside the bus had not given instructions to the driver to halt the bus since somebody had fallen down. He deposed that after the accident, the driver had halted the bus at a distance of about 15 feet. He deposed that lot of people had gathered at the place of incident and that he did not recollect as to whether the police had recorded the statement of any public person gathered at the spot. He deposed that police had prepared the site plan in his presence. He admitted that the site plan was the copy of the site plan which was prepared by the IO in his presence. He volunteered that they were standing towards the bus stop of RU block for proceedings towards Haiderpur. Nothing material has come on record in cross examination of PW1 and PW2 to shake their version regarding the manner in which the said accident was caused by R1 while driving the above said offending vehicle in a rash and negligent manner.
In the facts and circumstances, the copies of FIR and charge sheet u/s 279/338 IPC against respondent no. 1 can also be looked into 48714 Smt. Badal vs Rampal Page 8 of 23 48714 Smt. Badal vs Rampal Page 9 of 23 to determine the negligence on the part of respondent no. 1. There is thus nothing on record to suggest even remotely that R1 did not cause the said accident in the manner as deposed on behalf of the petitioner. Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material as placed on record and in view of above discussion, there is no reason to disbelieve the version of the petitioner and hence, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent no.1.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
8. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
Petitioner has filed her evidence by way of affidavit as Ex. PW1/A. She deposed that due to the accident, she sustained grievous injuries on her left leg and all parts of her body. She deposed that she was removed to Santom hospital, Prashant Vihar, Delhi, thereafter she was referred to Dr. BSA hospital, Delhi on 28.08.14 where the concerned doctor diagnosed that her left leg had crush injury above knee to toe and thereafter she was referred to Safdarjung hospital on 29.08.2014 where the concerned doctor diagnosed her as exposed bone and soft tissue left leg. She deposed that her left leg was amputated on dated 03.09.2014 by doctor of Safdarjung Hospital, Delhi.
Petitioner has examined Dr. Meenakshi Sidhar, Chairperson Disability Board, Dr. BSA hospital as PW4 who has proved the disability certificate of petitioner as Ex. PW1/5. She deposed that as per the disability certificate, the patient suffered 80% permanent disability in relation to left lower limb. She 48714 Smt. Badal vs Rampal Page 9 of 23 48714 Smt. Badal vs Rampal Page 10 of 23 deposed that it would not be possible for the patient to continue to work as maid servant due to amputation of her left lower limb above the knee.
She was cross examined only on behalf of insurance co/R3 wherein she deposed that the disability certificate as Ex. PW1/5 was prepared after board examination of the patient and it was signed by the doctors as per their availability. She was put a question during her cross examination by the ld counsel for insurance co. that can the petitioner who was working as a maid continue to work as such after using an artificial limb, to which PW4 (a doctor) replied that it would depend upon the quality of artificial limb and the petitioner would not be able to work as a maid as by artificial limb she could only walk but would not be having the mobility of kneeling down etc. which would be required while working as a maid.
Accordingly, the petitioner is entitled to following compensation: A Medical Expenses.
The petitioner has placed on record medical bills which have been proved as Ex. PW1/2 (colly) and same comes to Rs.10,772/. Therefore, Rs. 10,772/ are granted to the petitioner under this head. B. Special Diet and conveyance PW1/petitioner deposed in her evidence by way of affidavit that she had spent Rs. 50,000/ on conveyance and Rs. 40,000/ on special diet. During cross examination she deposed that she had not filed any document with regard to the prescriptions by a doctor for special/rich protein diet and details of expenses incurred in conveyance which she had mentioned in her affidavit in Para no. 4. Petitioner suffered grievous injury with 80% permanent disability in relation to her left lower limb and suffered above knee amputation of left lower limb. In view of above said discussion and taking the probable period of treatment for about 10 months, a lump sum amount of Rs. 50,000/ is granted under the said head.
C. Attendant Charges PW1/petitioner deposed in her evidence by way of affidavit that she had spent Rs. 40,000/ on attendant charges. During cross 48714 Smt. Badal vs Rampal Page 10 of 23 48714 Smt. Badal vs Rampal Page 11 of 23 examination, she deposed that she had neither filed on record any proof of amount being paid to a personal servant/attendant nor any details of his name and address was given. Petitioner has neither examined any witness to prove the expenditure on attendant charges nor proved any bill in that regard. Petitioner suffered grievous injury with 80% permanent disability in relation to her left lower limb and suffered above knee amputation of left lower limb. It seems that petitioner must have required an attendant to look after during her treatment. In view of above said discussion and taking the probable period of treatment for about 10 months, a lump sum amount of Rs. 40,000/ is granted under the said head.
D. Loss of future earning capacity due to disability Petitioner suffered 80% permanent disability in relation to her left lower limb and suffered above knee amputation of left lower limb. PW4 has proved the disability certificate of petitioner as Ex. PW1/5. PW4 Dr. Meenakshi Sidhar deposed that it would not be possible for the petitioner to continue to work as a maid servant due to amputation of her left lower limb above the knee. In her cross examination by insurance co/R3, she further deposed that petitioner would not be able to work a maid as by artificial limb she could only walk but would not be having the mobility of kneeling down etc. which would be required while working as a maid.
The Hon'ble Delhi High Court in the recent order in case of Rajesh Tyagi & Ors vs Jaibir Singh & Ors, FAO 842/2003, date of order 09.03.2018 has inter alia held as follows:
"6.4 The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, education and other factors. 6.5. Ascertainment of the effect of the permanent disability on the actual earning capacity involves 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 48714 Smt. Badal vs Rampal Page 11 of 23 48714 Smt. Badal vs Rampal Page 12 of 23 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 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."
Petitioner in her affidavit Ex. PW1/A has deposed that she was doing private service as maid servant and was earning Rs. 12,000/ per month. She has admitted in her cross examination that she has neither placed on record any proof regarding source of her income nor had placed on record any details of places, houses where she had been doing household work.
In view of above discussion, petitioner has failed to prove her monthly income as stated in her affidavit. In view of above she be treated as an unskilled worker.
The copy of aadhar card of petitioner is on record which mentions her date of birth as 01.01.1965 which shows that she was aged about 49 years 7 months at the time of accident.
PW4 has deposed that the patient would not be able to work as a maid as by artificial limb she could only walk but would not be having the mobility of kneeling down etc which would be required while working as a maid.
It seems that the petitioner would be able to do her work as a maid which she was earlier doing but she can do work which requires only sitting and can earn her livelihood but to a very lesser extent.
48714 Smt. Badal vs Rampal Page 12 of 23 48714 Smt. Badal vs Rampal Page 13 of 23In view of above discussion, the injuries suffered by the petitioner and her nature of work, the functional disability of the petitioner in relation to her whole body and the effect of permanent disability on her actual earning capacity is taken as 80%. In view of above said discussion, it would be appropriate to assess the income of the deceased on the basis of minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act. The minimum wages of an unskilled worker at the relevant time on the date of accident was Rs. 8554/ p.m. Accordingly, it would be reasonable and just to consider the income of petitioner as Rs. 8554/ per month on the date of accident in question.
E. Addition of Future Prospects.
In this regard, reference should be made to the latest Constitutional Bench Judgment 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, wherein, the Hon'ble Apex Court interalia held as under:.
61. In view of the aforesaid analysis, we proceed to record our conclusions:
(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 48714 Smt. Badal vs Rampal Page 13 of 23 48714 Smt. Badal vs Rampal Page 14 of 23 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 we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying 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) Refence is also made to the case of Sanjay Oberoi vs Manoj Bageriya, MAC APPEAL 829/2011 decided on 03.11.2017 by Hon'ble Delhi High Court.
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 48714 Smt. Badal vs Rampal Page 14 of 23 48714 Smt. Badal vs Rampal Page 15 of 23 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%.
In the case in hand, the petitioner was self employed and thus while determining her income for computing compensation, future prospects have to be added to fall within the ambit and sweep of just compensation under Section 168 of M.V. Act.
The age of the petitioner, as discussed above, in the present case was about 49 years and 7 months and she was self employed. In view 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 she was between the age group of 40 to 50 years at the time of her accident.
The monthly income of petitioner is thus calculated as 8554/ +25% of 8554/ which comes to Rs. 8554/+ Rs. 2138/ (after rounding of)= Rs. 10,692/.
The age of petitioner at the time of accident was about 49 years and 7 months the relevant multiplier of "13" 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). Accordingly, the relevant multiplier would be "13" as per judgment in case of Sarla Verma (Supra) which has been upheld in paragraph no. 61 (vi) in case of Pranay Sethi (Supra).
The compensation is accordingly assessed towards loss of earning capacity at Rs. 13,34,361/ [(Rs. 10,692/per month x12 months x 13 (age multiplier) x 80/100(functional disability)]. F. Loss of Amenities of Life.
As discussed above, the petitioner suffered grievous injury 48714 Smt. Badal vs Rampal Page 15 of 23 48714 Smt. Badal vs Rampal Page 16 of 23 and above mentioned permanent physical disability with above knee amputation of left lower limb. In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about 10 months, a lump sum amount of Rs. 70,000/ is granted under the said head.
G. Pain and Suffering As discussed above, the petitioner suffered grievous injury and above mentioned permanent physical disability with above knee amputation of left lower limb. In view of the said discussion, above mentioned injuries suffered by him and taking the probable period of treatment for about 10 months, a lump sum amount of Rs. 70,000/ is granted under the said head.
H. Loss of Income As discussed above, her monthly income has been taken as Rs. 8554/ p.m at the time of accident. As per record, the probable period of treatment of petitioner was about 10 months. Therefore, loss of income of Rs. 85,540/ (Rs. 8554/x10 months) is granted for 8 months.
I. Artificial limb.
Petitioner has given her statement on 29.08.2018 that she did not want to get herself examined by the committee formed by the Hon'ble Delhi High Court in case of Rajesh Tyagi vs Jaibir Singh, FAO 842/2003 order dated 09.03.2018 and did not want any compensation under the head of artificial limb.
In view of her abovesaid statement, the evidence of PW3 Sh. Kapil Kaushik, Dy. Manager Store, Endolite India Ltd, shall not help the petitioner in this case and nothing is granted under the head of artificial limb. For the said reason, the testimony of PW3 is also not being discussed in detail.
9. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 16,60,673/ which is tabulated as below: 48714 Smt. Badal vs Rampal Page 16 of 23 48714 Smt. Badal vs Rampal Page 17 of 23 Sl. No Compensation Award amount
1. Pain and suffering Rs. 70,000/ 2 Special diet & Conveyance Rs. 50,000/
3. Attendant Charges Rs 40,000/
4. Medical Expenses Rs. 10,772/
5. Loss of income Rs. 85,540/
6. Loss of Earning/disability Rs. 13,34,361/
7. Loss of amenities of life Rs. 70,000/ Total Rs. 16,60,673/ Rounded of to Rs. 16,61,000/ ( Rupees Sixteen Lakhs Sixty One Thousand only) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of DAR/petition i.e. w.e.f 17.11.2014 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
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.
10. Liability In the case in hand, the United India Insurance co/R3 has not been able to show anything on record that R1 and R2, who were the driver and owner of the offending vehicle were not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law. Since the offending vehicle was duly insured with the insurance company/R3, hence R2 is liable to pay the entire compensation amount to the petitioner as per law.
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 48714 Smt. Badal vs Rampal Page 17 of 23 48714 Smt. Badal vs Rampal Page 18 of 23 case of Rajesh Tyagi Vs. Jaibir Singh and Ors., United India Insurance co/R3 is directed to deposit the awarded amount of Rs. 16,61,000/ 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 advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
APPORTIONMENT
11. Statement of wife of petitioner in terms of clause 27 MCTAP was recorded. 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: Further, an amount of Rs. 1,50,000/ be released to petitioner in cash in her saving bank a/c no. 37233621088 with State Bank of India, Narela branch, Delhi i.e. the branch near her place of residence as mentioned in her statement recorded under clause 27 MCTAP with necessary endorsement regarding no cheque book and debit card in terms of orders of Hon'ble Mr. Justice J.R. Midha in FAO No. 842/2013 dated 15.12.2017 and 18.01.2018 and remaining amount be kept in 84 FDRs of equal amount for a period of one month to 84 months respectively with cumulative interest without the facility of advance, loan and premature withdrawal without the prior 48714 Smt. Badal vs Rampal Page 18 of 23 48714 Smt. Badal vs Rampal Page 19 of 23 permission of the Tribunal.
It shall be subject to the following further conditions and directions in terms of order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in case of Sobat Singh vs Ramesh Chandra Gupta and case of Rajesh Tyagi vs Jaibir Singh, MAC.APP . 422/2009 and FAO 842/2003 :
(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 maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
(e) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without permission of the court.
(f) The concerned Bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
(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.
48714 Smt. Badal vs Rampal Page 19 of 23 48714 Smt. Badal vs Rampal Page 20 of 2312. Relief United India Insurance co/R3 is directed to deposit the award amount of 16,61,000/ with interest @ 9% per annum from the date of filing of DAR/petition i.e. 17.11.2014 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under intimation of deposition of the awarded amount to be given by R3/insurance to the petitioner and his advocate failing which the United India Insurance co/R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
United India Insurance co/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 claimant and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to R3 for compliance within the granted time. Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
13. 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 wherein she had stated that petitioner was entitled to exemption from deduction of TDS and that he would submit form 15G to the insurance co. so that no TDS is deducted.
14. Form IVB has also been attached herewith. File be consigned to 48714 Smt. Badal vs Rampal Page 20 of 23 48714 Smt. Badal vs Rampal Page 21 of 23 record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. The insurance co./R3 is also directed to obtain the copy of PAN card of the petitioner from the record. Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.10.08 15:34:33 +0530 Announced in open court (AMIT BANSAL) on 08th October 2018 PO MACT N/W Rohini Courts, Delhi.
48714 Smt. Badal vs Rampal Page 21 of 23 48714 Smt. Badal vs Rampal Page 22 of 23FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 28.08.2014
2. Name of injured Smt. Badal
3. Age of the injured 49 years
4. Occupation of the injured: Self Employed/labouri
5. Income of the injured. 10,692/ per month
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 10 months
8. Period of hospitalization: 7 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 80% permanent disability.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 10,772/
(ii) Expenditure on conveyance Rs. 25,000/
(iii) Expenditure on special diet Rs. 25,000/
(iv) Cost of nursing/attendant Rs. 40,000/
(v) Loss of earning capacity Rs. 13,34,361/
(vi) Loss of income Rs. 85,540/
(vii) Any other loss which may require 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. 70,000/
(iii) Loss of amenities of life Rs. 70,000/
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(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 and 80% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 80% relation of disability
(iv) Loss of future income - (Income X 13,34,361/ %Earning capacity X Multiplier) (8554+25% of 8554x12x13x80%)
14. TOTAL COMPENSATION Rs. 16,61,000/
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 5,73,040/
17. Total amount including interest Rs. 22,34,040/
18. Award amount released Rs. 1,50,000/
19. Award amount kept in FDRs Rs. 20,84,040/
20. Mode of disbursement of the award As per award and in terms of amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 26.11.2018 (Clause 31) Digitally signed by AMIT AMIT BANSAL BANSAL Date:
2018.10.08 15:34:52 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
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