Delhi District Court
Sh. Manoj Kumar vs Sh. Dheeraj Kumar (Driver-Cum-Owner) on 11 July, 2018
IN THE COURT OF SH. RAJ KUMAR
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
(WEST-01):DELHI
New MACT Case No. 477876/16
Sh. Manoj Kumar
S/o Sh. Rameshwar Dass
aged about 29 years
R/o House No.344, Prem Nagar, Z-Block,
Kashmeri Colony, Khaira Village,
Delhi
...... Petitioner
VERSUS
1. Sh. Dheeraj Kumar (Driver-cum-Owner)
S/o Sh. Leela Ram
R/o WZ-50-B, Tihar Camp,
Near Subhash Nagar Metro Station,
Delhi-110018
2. The Reliance General Insurance Company Ltd. (Insurer)
C-1, 3rd Floor, Near Krishna Park,
Beside Janakpuri West Metro Station,
New Delhi-110058
....... Respondents
Date of Institution : 22.09.2016
Date of reserving order/judgment : 05.07.2018
Date of pronouncement : 11.07.2018
A W A R D:
FORM-V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 06.06.2016 New MACT Case No. 477876/16 Page 1/28
2. Date of intimation of the accident by the Not mentioned Investigation Officer to the Claims Tribunal. (Clause 2)
3. Date of Intimation of the accident by the Not mentioned Investigating Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section Not mentioned 173 Cr. P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident DAR was not filed in the Information Report (DAR) by the present matter as the Investigating Officer before Claims present matter pertains Tribunal. (Clause 10) to Out of Station
6. Date of service of DAR on the N.A. Insurance Company. (Clause 11)
7. Date of service of DAR on the claimant N.A.
(s). (Clause 11)
8. Whether DAR was complete in all N.A. respects? (Clause 16)
9. If not, whether deficiencies in the DAR ---
removed later on?
10. Whether the police has verified the N.A. documents filed with DAR? (Clause 4)
11. Whether there was any delay or N.A. deficiency on the part of the Investigating Officer ? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated Not mentioned Officer by the Insurance Company.
(Clause 20)
13. Name, address and contact number of Not mentioned the Designated Officer of the Insurance Company. (Clause 20)
14. Whether the Designated Officer of the Legal offer was not filed Insurance Company submitted his by the insurance report within 30 days of the DAR? company (Clause 22)
15. Whether the Insurance Company No New MACT Case No. 477876/16 Page 2/28 admitted the 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 N.A. deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to Legal offer was not filed the offer of the Insurance Company. by the insurer (Clause 24)
18. Date of the award 11.07.2018
19. Whether the award was passed with Yes the consent of the parties? (Clause 22)
20. Whether the claimant (s) were directed Yes to open savings bank account (s) near their place of residence? (Clause 18)
21. Date of order by which claimant (s) 17.01.2018 were directed to open savings bank account (s) near his place of residence and produce PAN Card and Adhaar 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 11.07.2018 the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card? (Clause
18)
23. Permanent Residential Address of the R/o House No.344, Prem Claimant(s) (Clause 27) Nagar,Z-Block, Kashmeri Colony, Khaira Village, Delhi
24. Details of savings bank account(s) of A/C No.50180006752346 New MACT Case No. 477876/16 Page 3/28 the claimant(s) and the address of the of Bandhan Bank, 1668, bank with IFSC Code. (Clause 27) C-1, Thana Road, Najafgarh, New Delhi IFSC Code:
BDBL0001883
25. Whether the claimant(s) savings bank Yes account (s) in near his place of residence? (Clause 27)
26. Whether the claimant (s) were Yes examined at the time of passing of the award to ascertain his/their financial condition? (Clause 27)
1. Vide this Judgment-cum-Award, I shall decide the petition under Section 166 and 140 of Motor Vehicle Act 1988 as amended up to date (hereinafter referred to as the 'Act') filed by petitioner Sh. Manoj Kumar for grant of compensation for the injuries suffered by him in the road vehicular accident.
2. Brief facts of the case of the petitioner are that on 06.06.2016 at about 09:00 AM, the petitioner left his house on Motorcycle bearing No. DL-4S-NC-2162 for going to his office in Sushant Lok, Gurgaon. It has been further stated that at about 10.00AM when the petitioner reached at Service Lane near IFFCO Chowk, Gurgaon, the offending car bearing no. DL-1RTA-5248 Maruti Wagon-R which was being driven by respondent No.1 at a very high speed and in a rash and negligent manner arrived and hit the petitioner from left side. It has been further stated that due to the forceful impact, the petitioner fell down on the road and sustained grievous/dangerous injuries especially on his left leg and other injuries. It has been further stated that the petitioner was removed to Alpine Hospital, Sector-15, Plot No.2, Gurgaon on 06.06.2016 vide MLR No. 007 and thereafter, he was removed to DDU Hospital, New Delhi vide C.R. No. 31678 from 06.06.2016 till New MACT Case No. 477876/16 Page 4/28 07.06.2016 and thereafter, the petitioner received treatment from Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi-60 from 07.06.2016till 27.07.2016. It has been further stated that the petitioner was again admitted in Sir Ganga Ram Hospital w.e.f. 02.09.2016 to 03.09.2016 for surgery. It has been further stated that the petitioner has still not recovered and he is still under regular checkups and treatments from Doctors of Sir Ganga Ram Hospital.
3. It has been further stated that as a result of the abovesaid accident, FIR No. 382/16 PS DLF Gurgaon u/s 279/338 IPC was registered against the respondent No.1.
4. It has been further stated that the petitioner is a well qualified person. It has been further stated that the petitioner is diploma holder from Board of Technical Education Delhi in Chemical Engineering and B.Tech from IP University, Delhi in Electronics & Communication Engineering. It has been further stated that the petitioner was working as Android Application Developer in Obino MNC Manna Health Care Pvt. Ltd. at Sushant Lok Gurgaon. It has been further stated that family of the petitioner has already spent approximately Rs.8,04,168/- on the treatment of the petitioner after borrowing the money on interest and a huge amount is likely to be incurred on the further treatment and operation of the petitioner. It has been further stated that the petitioner had to go to U.S.A. for service purpose. It has been further stated that the petitioner had interview in embassy on 02.06.2016 and other formalities had to be completed, but now due to the accident, the petitioner is unable to go to U.S.A.
5. The petitioner has claimed compensation under various heads and in total the petitioner has claimed the amount of Rs.
New MACT Case No. 477876/16 Page 5/2830,00,000/- (Rupees Thirty Lacs Only) along with the interest.
6. It has been further stated that the respondent no.1 being the driver-cum-owner of the offending vehicle and the respondent No. 2 being the Insurer of the offending vehicle are jointly and severally liable to pay the compensation to the petitioner.
7. Written statement has not been filed on record by the respondents No.1.
8. Written statement has been filed on record by the insurance company wherein it has been stated that there was no negligence on the part of the respondent No.1. It has been further stated that the petitioner himself was negligent in as much as he turned on the wrong side and collided with the respondent No.1. It has been admitted that alleged offending vehicle bearing No. DL- 1RTA-5248 was insured with it vide policy No. 13152523380008152 for the period commencing from 12.03.2016 uptp 11.03.2017. It has been prayed that the present claim petition be dismissed.
9. From the pleadings of the parties, following issues were framed by this Tribunal on 06.04.2017:-
1. Whether the injured Manoj Kumar received grievous injuries in the accident that took place on 06.06.2014 at about 10 am near Service Road, IFFCO Chowk, Gurgaon, Haryana due to rash and negligent driving of Car bearing No. DL-
1RTA-5248 by the respondent No.1 Sh.
Dheeraj Kumar, insured with respondent No.2 i.e. the Reliance General Insurance Co. Ltd. ? OPP.
2. Whether the petitioner is entitled to compensation, if so, at what amount and from whom? OPP
3. Relief.
New MACT Case No. 477876/16 Page 6/2810. In order to establish his claim, the petitioner has examined himself as PW-1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by him in the present claim petition. He has filed on record his affidavits as Ex. PW1/A & Ex. PW1/B;copy of his DL as Ex. CW1/1 (OSR); copy of his RC as Ex. CW1/2; medical bills as Ex. CW1/3 (colly) along with bill summary as Mark A; Attested copy of FIR as EX. CW1/4; attested copy of site plan as Ex. CW1/5; attested copy of arrest memo as Ex. CW1/6; attested copy of DL of respondent No.1 as Ex. CW1/7; attested copy of RC of respondent no.1 as Ex. CW1/8; attested copy of permit and fitness of the offending vehicle as Ex. CW1/9( colly); attested copy Insurance policy of the offending vehicle as Ex. CW1/10; education documents as Ex. CW1/11 (colly); letter of offer and employment, details of remuneration as Ex. CW1/12(colly), medical document for abroad as Ex CW1/13; another bill summary as Mark B (in affidavit, Ex. CW1/14 colly) of the bills already Ex. CW1/3 (colly); travelling bills as Ex. CW1/15 (colly) and estimate letter dated 24.10.2017 as Ex. CW1/16.
11. In the cross examination done by ld. Counsel for the insurance company, PW-1 has stated that he was driving his motorcycle in the service lane at the time of accident. PW-1 has further stated that the offending car was coming on the main road at the time of accident. PW-1 has admitted it to be correct that the car was on its correct path/lane on the main road. PW-1 has further stated that when he saw the Wagon-R bearing No. DL-1RTA-5248, it was very close to his motorcycle. PW-1 has admitted it to be correct that it was not allowed for him to go to service lane after coming down from the flyover. PW-1 has also admitted it to be correct that he cannot tell the speed of the Wagon-R which hit his New MACT Case No. 477876/16 Page 7/28 motorcycle.
12. PW-1 has further stated that at the time of accident, he was employed with Manna Healthcare Pvt. Ltd. PW-1 has further stated that Obino is the name of an Android Application which is product of his company. PW-1 has further stated that Obino application is related to Diet Coach, health coach etc. as per his knowledge. PW-1 has further stated that his job was to develop android applications. PW-1 has admitted it to be correct that he had to do his job while sitting in the office. PW-1 has stated that his job did not require him to move around in the field. PW-1 has admitted it to be correct that he was on probation at the time of accident. PW-1 has further stated that he has not been terminated by his employer, however, he is not getting salary. PW-1 has further stated that after the accident, he got Rs.60,000/- approximately from his employer as a help. PW-1 has further stated that he did not have any medical reimbursement facility from his employer. PW-1 has further stated that he did not have any medi claim policy.
13. The petitioner has further filed on record his affidavit as Ex. PW1/C; the medical bill dated 30.01.2018 for the amount of Rs.510/- issued by Sir Ganga Ram Hospital, the bill bearing No. 401 dated 30.01.2018 issued by Bharat Surgical for the amount of Rs.700/-, the bill bearing No. 5353 dated 31.01.2018 issued by Fair Deal Mediways for the amount of Rs.2952.40/-, the bill dated 31.01.2018 issued by Rajouri Medicos for the amount of Rs.1682/-, the bill dated 20.03.2018 issued by Sir Ganga Ram Hospital for the amount of Rs.310/-, the bill dated 20.03.2018 issued by Sir Ganga Ram hospital for the amount of Rs.190/- and the bill dated 20.03.2018 issued by Narayan Das Drugs Store for the amount of New MACT Case No. 477876/16 Page 8/28 Rs.427/- together with the bill summary for the total amount of Rs.6771.40 as Ex. PW1/X (colly); the bill dated 17.04.2018 issued by D Pharmacy for a mount of Rs.453/- as Ex. PW1/X1; the bill dated 17.04.2018 issued by Sir Ganga Ram Hospital for the amount of Rs.310/- as Ex. PW1/X2; the seven discharge summaries filed along with the affidavit as Ex. PW1/C as Ex. PW1/X3(colly).
14. PW-1 has not been cross examined on his affidavit Ex. PW1/C.
15. The petitioner has further examined Dr. Praveen Chaudhary, Senior Resident, Department of Orthopedic, Sir Ganga Ram Hospital, New Delhi as PW-2 who has stated that Mr. Manoj Kumar was admitted in their hospital on 07.06.2016. PW-2 has further stated that he was operated on left leg in their hospital on 07.06.2016. PW-1 has further stated that he was again operated on 14.06.2016 and 23.06.2016 and was discharged on 27.07.2016 as per record.
16. In the cross examination done by Ld. Counsel for the insurance company, PW-2 has stated that he was not the treating doctor of the petitioner Sh. Manoj Kumar.
17. The petitioner has further examined Dr. Naresh Chandra from Guru Govind Singh Government Hospital as PW-3 and this witness has proved on record the disability certificate of the petitioner which has been exhibited as Ex. PW3/1. PW-3 has further stated that the petitioner was having 59% permanent disability in relation to his left lower limb.
18. In the cross examination, PW-3 has stated that he has never treated the injured. PW-3 has further stated that there is no guidelines which converts the disability differently in relation to New MACT Case No. 477876/16 Page 9/28 whole body if the disability assessed is in relation to a particular limb. PW-3 has further stated that to some extent, the injured will have problem in working while sitting as there is stiffness of knee and ankle joint both.
19. Respondents have not led any evidence in their defence.
20. I have gone through the testimony of the witnesses; entire material available on record. I have also given my thoughtful consideration to the arguments addressed by the Ld. counsels for the parties. The petitioner has also been examined under the MCTAP and I have considered the statement of the petitioner under MCTAP as well.
My findings on various issues are as under :-
ISSUE NO. 121. The present petition has been filed by the petitioner u/s 166 & 140 M. V. Act and the onus is upon the petitioner to prove the rash and negligent act of the respondent No.1.
22. The petitioner has examined himself as PW-1 and he has well explained the mode and manner of accident. He has reaffirmed and reiterated the averments made in his petition. During his entire cross examination, nothing has come out so as to discredit his testimony.
23. During the course of arguments, Ld. Counsel for the insurance company has vehemently argued that the petitioner i.e. PW-1 in his cross examination has admitted that he was in the service lane at the time of the accident and the offending vehicle was on the correct side of the road and that is why PW-1 must be New MACT Case No. 477876/16 Page 10/28 held guilty of contributory negligence.
24. It has to be seen that the respondent No.1 who is the driver-cum-owner of the offending vehicle has not led any evidence in the present matter. It is true that PW-1 in the cross examination has admitted that he was in the service lane at the time of accident but he has not stated that on account of his negligence, the accident in question took place. Rather, PW-1 has denied the suggestion that there was no negligence on the part of the driver of the Wagon-R. PW-1 has further denied the suggestion that the accident took place as he was taking a turn towards service lane, where it was not allowed. Since, no evidence has been led at all by the respondent No.1, to my mind, the plea of contributory negligence as has been raised by the Ld. Counsel for the insurance company is not sustainable. I have no hesitation to hold that the respondents have utterly failed to prove on record that the accident in question was caused on account of the negligence of the petitioner or that the same was not caused on account of the negligence of respondent No.1.
25. In the present case, as per the case of the petitioner, FIR No. 382/16 dated 06.06.2016 PS DLF Gurgaon u/s 279/338 IPC was registered against the respondent No.1.
26. In Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors (2009) 13 SC 530, in Kaushnumma Beum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, in National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ 287, it has been held that the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit New MACT Case No. 477876/16 Page 11/28 and hence, strict rules of evidence are not applicable.
27. In the light of the abovesaid discussion, to my mind, the petitioner has been able to prove issue No.1 in his favour and accordingly, the issue No.1 is decided in favour of the petitioner and against the respondents.
ISSUE NO.2/COMPENSATION :-
28. Nature of injuries and reimbursement of medical bills The petitioner has filed on record his discharge summaries in the form of Ex. PW1/X3(colly). Perusal of Ex. PW1/X3(colly) reveals that the petitioner was admitted in Sir Ganga Ram Hospital w.e.f. 20.06.2016 to 27.07.2016, 02.09.2016 to 03.09.2016, 22.11.2016 to 23.11.2016, 10.03.2017 to 20.04.2017, 29.06.2017 to 30.06.2017, 01.07.2017 to 03.07.2017, 12.12.2017 to 19.12.2017.
The petitioner has filed on record his original medical bills as Ex. CW1/3 along with bill summary to the tune of Rs.804168/- and another bill summary along with original medical bills to the tune of Rs.3,35,616.50. The petitioner has also filed on record medical bill summary along with medical bills to the tune of Rs.6771.40 in the form of Ex. PW1/X, medicine bill of Rs.453/- in the form of Ex. PW1/X1 and bill of Rs.310/- in the form of Ex. PW1/X2. The petitioner has also filed on record another medical bill summary along with original medical bills to the tune of Rs.17,504/-
The total bills come to Rs.11,64,823/- (after rounding off Rs.11,64,822.9/-) (Rs. 8,04,168/- + Rs.335616.50 + Rs.6771.40 + Rs.453/- + Rs.310/- + Rs.17,504/-). The bills placed on record by PW-1 have not been controverted. Rather, PW-1 has not been cross examined at all on his additional affidavit. As such, to my New MACT Case No. 477876/16 Page 12/28 mind, the petitioner has been able to prove that he is entitled for a sum of Rs. 11,64,823/- under this head.
29. Compensation towards future treatment The petitioner has filed on record the estimate of future treatment in the form of Ex. CW1/16 but the petitioner has failed to examine anyone from the hospital to prove Ex. CW1/16.
In the recent judgment dated 06.03.2018 passed in Civil Appeal No. 2217/2018, arising out of SLP (C) No. 7739 of 2017 titled as Jagdish vs. Mohan & Ors., the Ld. MACT Court had granted a compensation of Rs.1281228/- to the petitioner Sh. Jagdish who was 24 years of age and who met with an accident which took place on 24.11.2011. He suffered 90% disability in both his hands. In appeal, the Hon'ble High Court of Delhi enhanced the compensation by Rs.219000/-. In further appeal to the Hon'ble Supreme Court, the Hon'ble Supreme Court granted the total compensation of Rs.2538308/- along with the interest. The Hon'ble Supreme Court of India granted an amount of Rs. 3 lacs towards future medical expenses to the injured and held that the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being.
Keeping in view the entirety of the facts and circumstances in the present matter, keeping in view the disability certificate of the petitioner and keeping in view the ratio of the abovestated authority of the Hon'ble Supreme Court of India, I hereby award an amount of Rs. 50,000/- to the petitioner on account of future treatment.
30. Pain & sufferings New MACT Case No. 477876/16 Page 13/28 It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as it varies from case to case. Judicial notice can be taken of the fact that since the petitioner had got injuries as above, he might have suffered acute pain and sufferings owing to the said injuries.
It has to be seen that the Hon'ble High Court of Delhi in the orders dated 10.04.2017 passed in MAC Appeal No. 359/2009 titled as Oriental Insurance Co. Ltd. vs. Manjeet Singh & ors and MAC Appeal no. 407/2011 titled as Manjeet Singh vs. oriental Insurance Co. Ltd. has granted the compensation for pain and suffering at Rs. 1,00,000 after enhancing the same from Rs. 50,000/- awarded by the Tribunal and the compensation for loss of amenities of life was also enhanced to Rs.1,00,000/- from Rs.50,000/- awarded by the Tribunal.
In the abovestated authority titled as Jagdish vs. Mohan & Ors., the Hon'ble Supreme Court of India has granted a sum of Rs.2 lacs on account of pain, suffering and loss of amenities.
Considering the nature of injuries, duration of the treatment of the petitioner in the hospital and the disability suffered by the petitioner as mentioned in the disability certificate as elicited above and the ratio of the authorities cited herein above, I hereby grant compensation of Rs. 1,00,000/- towards pain and sufferings.
31. Compensation for conveyance & special diet The petitioner has filed on record the bill summary of Uber Travel Details along with travelling bills in the form of Ex. CW1/15(colly). The petitioner has also filed on record the additional travelling bills of Uber Cab to the tune of Rs.2061.46 but the petitioner has failed to examine anyone to prove these bills.
New MACT Case No. 477876/16 Page 14/28Though there is no cogent evidence on record for the money spent by the petitioner on special diet, yet considering the nature of injuries suffered by the petitioner and duration of his treatment in the hospitals, I am of the opinion that petitioner must have spent some sum under this head. Hence, I hereby grant compensation of Rs. 20,000/- for expenses incurred on special diet and Rs.20,000/- towards conveyance.
32. Compensation towards attendant charges Though, there is no cogent evidence on record for the money spent by the petitioner for attendant, yet considering the nature of injuries suffered by the petitioner and the duration of the treatment of the petitioner in the hospital, I am of the opinion that petitioner must have spent some sum under this head. Hence, I hereby grant compensation of Rs. 20,000/- towards attendant charges.
33. Compensation towards loss of income during treatment period The petitioner has filed on record the copy of his Driving Licence as Ex. CW1/1 in which, the date of birth of the petitioner has been mentioned as 20.12.1988. The accident took place on 06.06.2016. Accordingly, the petitioner was about 28 years of age on the date of accident.
In the claim petition, the petitioner has claimed that at the time of accident, the petitioner was working as Android Application Developer with Obino MNC Manna Health Care Pvt. Ltd. and earning Rs.15,000/- per month. In order to prove his employment, the petitioner has filed on record his letter of offer and employment, details of remuneration as Ex. CW1/12(colly). But New MACT Case No. 477876/16 Page 15/28 petitioner has failed to examine anyone from the side of his employer. Accordingly, the petitioner has utterly failed to prove on his record his letter of offer and employment and his remuneration also.
As such, the income of the petitioner can very well be assessed on the basis of the chart available in the Minimum Wages Act of a Graduate person. The date of accident was 06.06.2016 on which the minimum wages for a Graduate person for the relevant period were Rs. 12,662/- per month.
Considering the facts and circumstances as well as nature of injuries and treatment period of the petitioner, the court is of the opinion that petitioner could not have worked for about 18 months. Accordingly, I hereby grant compensation for a sum of Rs. 2,27,916/- (Rs. 12,662/- x 18) towards loss of income during treatment period.
34. Compensation on account of disability This Tribunal has received the disability certificate of the petitioner from Guru Govind Singh Govt. Hospital. In the disability certificate, it has been specifically mentioned that the petitioner has suffered 59% permanent disability in relation to his left lower limb.
In the disability certificate, it has been categorically mentioned that the condition of the petitioner is non-progressive and not likely to improve.
During the course of arguments, Ld. Counsel for the insurance company has vehemently argued that the job of the petitioner is a sitting job and in his statement recorded by this Court under MCTAP on 05.07.2018, the petitioner has admitted that he has joined a company namely Zomato Media Pvt. Ltd. in June, New MACT Case No. 477876/16 Page 16/28 2018 and he is getting the annual package of Rs.3.25 lacs which is better than the previous package. ld. Counsel for the insurance company has relied upon the authority titled as "Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ" and has argued that there is no functional disability in the present case of the petitioner.
Whereas on the other hand, Ld. Counsel for the petitioner has vehemently argued that the functional disability of the petitioner has to be taken as 59% which has been mentioned in the disability certificate of the petitioner.
In the case in hand, in the disability certificate, the permanent disability of the petitioner has been mentioned as 59% in relation to left lower limb which is non progressive and not likely to improve. As there has been discussed herein above, duration of the treatment of the petitioner is very long. PW-2 Dr. Praveen Chaudhary from Sir Ganga Ram Hospital, in his testimony has deposed that the petitioner was operated several times. PW-3 Dr. Naresh Chandra who has issued the disability certificate in the cross examination has stated that to some extent, the injured will have problem in working while sitting as there is stiffness of knee and ankle joint both.
As such, in the light of the testimony of PW-2 & PW-3 and in the entirety of the facts, I am not inclined to accept the arguments of ld. Counsel for the insurance company that there is no functional disability of the petitioner in the present matter despite the fact that the petitioner has joined some other company at an annual package of Rs.3.25 lacs.
It has to be seen that the Hon'ble supreme Court in the case titled as Palraj vs. Divisional Controllor Civil Appeal No. 7430/2010 has taken the loss of earning capacity @ 35% when the New MACT Case No. 477876/16 Page 17/28 injured was suffering permanent disability of 65%.
It is now the settled law that it is the percentage of functional disability arising out of physical disability which matters while assessing the compensation arising out of disability. On this aspect, I gain support from judgment of Hon'ble Supreme Court in "Raj Kumar Vs. Ajay Kumar & Ors, reported as 2011 ACJ" I in which it was held as under:-
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss,that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent ( percentage ) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent ( percentage) of loss of earning capacity to the extent percentage of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment , the Tribunal may find that percentage of loss of earning capacity New MACT Case No. 477876/16 Page 18/28 as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation(See for example, the decisions of this court in Arvind Kumar Mishra V New India Assurance Co. Ltd.- 2010(10) SCALE 298 and Yadava Kumar V. DM., National Insurance Co. Ltd. -2010(8) SCLE 567)"
But at the same time, it has to be seen that the Hon'ble Supreme Court of India in the authority cited as AIR 2018 SC 1347 titled as Jagdish vs. Mohan & Ors. Has held that the compensation which is to be awarded must be realistic recompense and in accordance with the enforceable rights as intrinsic to human dignity.
Keeping in view the nature of the job of the petitioner and the ratio of the abovesaid authorities, to my mind, the functional disability of the petitioner in the case in hand has to be taken as 40%.
The Hon'ble Apex Court of the land in the latest judgment which has arisen out of SLP (Civil) No. 25590 of 2014 titled as National Insurance Company Limited vs. Praney Sethi & ors decided on 31.10.2017 has held as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santos Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sara Verna, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier New MACT Case No. 477876/16 Page 19/28 point of time, the decision in Rajesh is not a binding precedent.
(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 self-employed 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 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 funeral 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."
The Hon'ble High Court of Delhi in MAC Appeal No. 798/2011 titled as Bajaj Allianz General Insurance company Ltd. vs. Pooja & ors decided on 02.11.2017 has held that even in the cases where the income of the deceased is calculated on the basis of the minimum wages, the benefit of future prospects is to be given in accordance with the abovesaid guidelines issued by the Hon'ble New MACT Case No. 477876/16 Page 20/28 Supreme Court of India in the abovestated authority as per the rule applicable to self employed or privately employed persons.
Going by the ratio of the abovestated two authorities, the multiplier has to be selected as per the age of the injured which is 28 years in the case in hand, accordingly, the multiplier of 17 as per Sarla Verma vs. DTC 2009 ACJ 1298 SC shall be applicable.
An addition of 40% on account of the future prospects has to be given as the age of the injured was 17 years. Accordingly, the monthly income of the injured has to be calculated as Rs.17,727/- (Rs.12,662/- + Rs.5065/- after rounding off from 5064.8 which is 40% of Rs.12,662/-).
In these circumstances, the total loss of earning capacity comes out to Rs. 14,46,523/- (after rounding off Rs. 14,46,523.2) ( Rs. 17,727/- x 12 x 17 x 40/100).
35. Compensation towards loss of amenities of life.
Considering the facts and circumstances of the present facts; the nature of injuries suffered by the petitioner as elicited above, I hereby grant compensation of Rs. 25,000/- on account of loss of amenities of life.
In the circumstances of the case, I award him the compensation as tabulated hereunder:-
S No. Heads of Compensation Amount
1. Reimbursement of medical Rs.11,64,823/-
expenses
2 Compensation on account of Rs.50,000/-
future treatment
3. Pain and Suffering Rs.1,00,000/-
New MACT Case No. 477876/16 Page 21/28
4. Conveyance & special diet Rs.20,000/- and
Rs.20,000/-
(special diet)
5. Attendant charges Rs.20,000/-
5. Loss of Income during Rs. 2,27,916/-
treatment period
6. Compensation on account of Rs. 14,46,523/-
disability
7. Loss of amenities of life Rs.25,000/-
Total Rs. 30,74,262/-
R E L I E F:-
36. I hereby pass an award of Rs.30,74,262/- (Rupees Thirty Lacs Seventy Four Thousand Two Hundred and Sixty Two Only) as compensation with interest at the rate of 9% per annum from the date of filing the DAR/claim petition i.e. w.e.f. 22.09.2016 in favour of the petitioner and against the respondents.
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the Petitioners.
HEARD ON THE FINANCIAL STATUS OF THE CLAIMANT BEFORE PASSING OF THE AWARD AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
37. The petitioner has also been examined under MCTAP on 05.07.2018 and his statement has also been considered by this Tribunal.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
New MACT Case No. 477876/16 Page 22/2838. The respondent No.1 being the driver-cum-owner of the offending and respondent No.2 being the insurer are jointly and severally liable to pay the award amount.
39. This Tribunal is in receipt of the letter dated 08.11.2017 from Delhi State Legal Services Authority, which is annexed with the latest MCTAP as approved by the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi in Para no. 28 of new MCTAP has held as under:-
"Para no. 28 The Claims Tribunal shall, depending upon the financial status and financial need of the claimant (s), release such amount as may be considered necessary and direct the remaining amount to be kept in fixed deposits in phased manner (for example, if a sum of Rs.5,50,000/- has been awarded to the claimant, Rs.50,000/- may be released immediately and the remaining amount of Rs. 5,00,000/- may be kept in 10 fixed deposits of Rs.50,000/- each for a periods of six months, one year, one and half years, two years and so on till five years or one year, two years, three years and so on till ten years). The Claims Tribunal may also consider imposing following Fresh suit received by way of assignment conditions with respect to the fixed deposits:-
(i) The interest on the fixed deposits be paid monthly to the Claimant(s).
(ii) The monthly interest be credited automatically in the saving account of the claimant (s).
(iii) Original fixed deposit receipts be retained by the bank in safe custody. However, a passbook of the FDRs be given to the claimant (s) along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the savings bank account of the Claimant(s).New MACT Case No. 477876/16 Page 23/28
(iv) No cheque book be issued to the claimant (s) without permission of the Court. However, a photo identity card be issued to the claimant (s) and the withdrawal be permitted upon production of the identity card.
(v) No loan, advance or withdrawal be allowed on the fixed deposits without permission of the Court.
(vi) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of the victim.
(vii) Half yearly statement of account be filed by the Bank in the Tribunal".
Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi, the respondent no.2/insurance company is directed to deposit the amount of Rs.30,74,262/- (Rupees Thirty Lacs Seventy Four Thousand Two Hundred and Sixty Two Only) as stated herein above with SBI, Tis Hazari Courts, Delhi, out of which the amount of Rs. 3,74,262/- (Rupees Three Lacs Seventy Four Thousand Two Hundred and Sixty Two Only) shall be released to the petitioner keeping in view the submissions of the Ld. Counsel for the petitioner and that of the respondents as well and in the entirety of the facts.
The rest of the amount of Rs. 27,00,000/- (Rupees Twenty Seven Lacs) shall be kept in 54 equal FDR's for an amount of Rs. 50,000/- each for a period of six month, one year, one and a half years, two years, two and a half years, three years and so on with cumulative interest in favour of the petitioner.
The abovesaid conditions as laid down in MCTAP shall be adhered to by SBI, Tis Hazari Courts, Delhi in respect to the FDR's.
New MACT Case No. 477876/16 Page 24/28APPORTIONMENT OF LIABILITY
40. Since the offending vehicle, was admittedly insured with the respondent No.2, the respondent No.2/Insurance company is hereby directed to deposit the award amount in favour of the petitioner with SBI, Tis Hazari Courts, Delhi within a period of 30 days from the date of passing of this award together with the interest as stated herein above under the intimation to this court and under intimation to the petitioner as well. In case of any delay, it shall be liable to pay interest at the rate of 12% per annum for the period of delay.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 23.08.2018.
A copy of this award be given to the insurance company as well as to the petitioner free of cost.
A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP). Digitally signed RAJ by RAJ KUMAR Date:
KUMAR 2018.07.16
Announced in the open court 13:02:44 +0530
On 11th of July, 2018 ( RAJ KUMAR )
P.O.MACT (WEST-01)
Delhi (11.07.2018)
New MACT Case No. 477876/16 Page 25/28
FORM-IVB
SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASE
1. Date of accident : 06.06.2016
2. Name of the injured : Sh. Manoj Kumar
3. Age of the injured : 28 years at the time of accident
4. Occupation of the injured : Android Application Developer
5. Income of the injured : Rs.12,662/- as per Minimum Wages
6. Nature of injury : Grievous
7. Medical treatment taken : The petitioner taken w.e.f.
06.06.2016 to till date
8. Period of Hospitalization : w.e.f 06.06.2016to 7.06.2016, 20.06.2016 to 27.07.2016, 02.09.2016 to 03.09.2016, 22.11.2016 to 23.11.2016, 10.03.2017 to 20.04.2017, 29.06.2017 to 30.06.2017, 01.07.2017 to 03.07.2017 and 12.12.2017 to 19.12.2017.
9. Whether any permanent disability ?
If yes, give details : Disability certificate containing 59% permanent disability in relation to his left lower limb New MACT Case No. 477876/16 Page 26/28
10. Computation of Compensation S. No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs.11,64,823/-
(ii) Expenditure on Rs.20,000/-
conveyance
(iii) Expenditure on special diet Rs.20,000/-
(iv) Cost of nursing/attendant Rs.20,000/-
(v) Loss of earning capacity Rs. 14,46,523/-
(vi) Loss of Income Rs. 2,27,916/-
(vii) Any other loss which may Rs.50,000/- towards future treatment
require any special
treatment or aid to the
injured for the rest of his
life
12. Non-Pecunicary Loss:
(i) Compensation for mental NIL
and physical shock
(ii) Pain and suffering Rs. 1,00,000/-
(iii) Loss of amenities of life Rs. 25,000/-
(iv) Disfiguration
(v) Loss of marriage N.A.
prospects
(vi) Loss of earning, N.A.
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 In the present case the petitioner has assessed and nature of suffered 59% permanent disability in disability as permanent or relation to his left lower limb temporary New MACT Case No. 477876/16 Page 27/28 Functional disability of the petitioner to the extent of 40% has been taken into account.
(ii) Loss of amenities or loss N/A
of expectation of life span
on account of disability
(iii) Percentage of loss of Functional disability of the petitioner to
earning capacity in relation
the extent of 40% has been taken into
to disability
account.
(iv) Loss of future income - Rs. 14,46,523/-
(Income x% Earning (Rs.17,727/-x12 x17x 40/100)
Capacity x Multiplier)
14. TOTAL COMPENSATION Rs. 30,74,262/-
15. INTEREST AWARDED 9% per annum
16. Interest amount up to the Rs. 4,98,798.8 (1 year 9 months and 19
date of award days)
17. Total amount including Rs. 35,73,060.8
interest
18. Award amount released Rs. 3,74,262/-
19. Award amount kept in Rs.27,00,000/-
FDRs
20. Mode of disbursement of Mentioned in the award
the award amount to the
claimant (s). (Clause 29)
21. Next date for compliance 23.08.2018
of the award. (Clause 31)
RAJ KUMAR Digitally signed by RAJ KUMAR
Date: 2018.07.16 13:03:10 +0530
( RAJ KUMAR )
P.O. MACT (WEST-01)
Delhi 11.07.2018
New MACT Case No. 477876/16 Page 28/28
New MACT Case No. 477876/16
11.07.2018
Present None
Award has been passed separately.
File be consigned to Record Room.
A separate file be prepared for compliance report by the Nazir and put up the same on 23.08.2018 A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
( RAJ KUMAR ) P.O. MACT (WEST-01) Delhi 11.07.2018 New MACT Case No. 477876/16 Page 29/28