Delhi District Court
Sh. Baldev Dass Sharma vs Mrs. Priyanka Roy (Driver) on 13 September, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER:MOTOR ACCIDENTS CLAIMS TRIBUNALII,
DWARKA COURTS, NEW DELHI
MACT NO. 120/11/07
IN THE MATTER OF :
1. Sh. Baldev Dass Sharma
S/o Sh. Laxman Prashad Sharma
R/o C404, Plot No. 15
Sector5, Dholadhar Apartments
Dwarka, Delhi110075.
......Petitioner
Versus
1. Mrs. Priyanka Roy (Driver)
W/o Sh. Pranay Kumar Roy
R/o B502, Defence Society Apartment
Plot No. 33, Sector4
Dwarka, Delhi110075.
2. Sh. Pravav Kumar Roy (Owner)
S/o Sh. Pankaj Narain Roy
R/o B502, Defence Society Apartment
Plot No. 33, Sector4
Dwarka, Delhi110075.
3. M/s. ICICI Lombard General Ins. Co. Ltd. (Insurer)
ICICI Bank Tower, BandraKurla Complex
Mumbai400051 (Regd. Office)
M/s. ICICI Lombard General Insurance Co. Ltd.
Zenith House, Keshavrao Khandye Marg.
Opp. Race Course, Mahalaxmi
Mumbai400034 (Mailing Address)
M/s. ICICI Lombard General Insurance Co. Ltd.
Birla Tower, 5th Floor
MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 1 of 21
25, Barakhamba Road
New Delhi110001. (Branch Office)
.........Respondents
FILED ON : 17.02.2007
RESERVED ON : 12.09.2012
DECIDED ON : 13.09.2012
: J U D G M E N T :
1. This is a claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent no. 1 is the driver, Respondent no. 2 is the owner and Respondent no. 3 is the insurer of the offending vehicle.
3. It is stated in the claim petition that on 07.03.06, at about 1.00 p.m., injured/petitioner was in the process of crossing the road of Sector5 and 6, opposite Brindawan Apartments, Sector6, Dwarka, Delhi when suddenly and abruptly, a car bearing registration no. DL3CAM0833 Make Ford Fiesta, being driven by respondent no. 1 at a shooting speed, in a rash and negligent manner, without following traffic norms, without blowing any horn and without caring for the pedestrians on the road, came from Sector6 and Sector10 side and straight away hit/struck against the petitioner who was on foot.
4. It is stated that petitioner was removed to DDU Hospital by PCR Van where MLC was prepared.
5. It is stated that the unfortunate accident took place due to rash, careless and negligent driving of respondent no. 1 which could have been avoided by presence of mind, careful MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 2 of 21 and cautious approach of respondent no. 1.
6. It is stated that petitioner was enjoying a retired life but now petitioner has lost an income of Rs. 12,000/ per month from tuitions which he was taking at home.
7. In these circumstances, petitioner has claimed a sum of Rs. 9,25,000/ under following heads:
1. Pecuniary Damages:
a) Medicines, treatments etc. (still continued) : Rs. 4,50,000/
b) Nursing attendant : Rs. 50,000/
c) Rich high protein diet : Rs. 20,000/
d) Conveyance : Rs. 17,000/
e) Loss of work : Rs. 78,000/
2. Non Pecuniary Damages:
a) Permanent disability : Rs. 1,00,000/
b) Mental torture, Physical Pain & agony : Rs. 50,000/
c) Hardships, inconveniences etc.: Rs. 40,000/
d) Loss of social life/enjoyment : Rs. 45,000/
f) General Damages : Rs. 75,000/ Total : Rs. 9,25,000/
8. Respondent no. 1 has stated in her written statement that at the time of accident she was coming back to her home from the market of Sector 6 and 11, Dwarka, New Delhi; she was driving the car bearing no. DL3CAM0833 carefully and with due diligence; as soon as respondent no. 1 crossed the traffic signal and covered a distance of about 30 mtr, she spotted the claimant jumping in front of her car from the pavement.
9. Respondent no. 1 has stated that the claimant MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 3 of 21 ostensibly was trying to cross the road without following mandatory middle line. She has stated that when claimant suddenly jumped in front of her car she applied brakes immediately. She has stated that her quick reaction and timely act saved the life of claimant. She has stated that even after taking every precaution, the car made a contact with the claimant and consequently claimant received injuries.
10. Respondent no. 1 has stated that in this whole episode she was nowhere negligent or careless and rather acted as a responsible citizen and has shown presence of mind to prevent what could have been a disaster.
11. Rest of the contentions of claim petition were denied.
12. Respondent no. 2, the owner of the vehicle has stated that the vehicle is duly insured with respondent no. 3 and liability if any to pay compensation is of respondent no. 3.
13. Respondent no. 3 in its written statement has stated that it has no liability since the insured vehicle was being driven by respondent no. 1 without permission of insurer and contrary to the terms of insurance policy.
14. It is also stated that the factum that the respondent no. 1 was holding a valid driving license be proved because no document has been submitted in this regard.
15. Rest of the contentions of claim petition were denied.
16. From the pleadings of parties, following issues were framed: MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 4 of 21
1) Whether injured Baldev Dass had received injuries in motor vehicle accident due to rash and negligent driving of vehicle No. DL3CAN0833 by R.1 owned by R.2 and insured with R.3 on 7.3.2006. OPP
2) If issue No.1 is proved in affirmative whether petitioner are entitle for any compensation if yes from whom and to what amount? OPP
3) Relief.
17. Sh. Pyara Singh, Medical Record Supervisor of Sir Ganga Ram Hospital was examined as PW1. This witness proved discharge summary alongwith treatment given to petitioner as Ex. PW1/A and bill bearing no. 0188604 raised by the hospital authorities for treatment given to petitioner was exhibited as Ex. PW1/B.
18. As per discharge summary, the diagnosis of Ganga Ram Hospital with regard to injuries suffered by petitioner is RTA with Polytrauma with diffuse axonal injury. The clinical history is recorded as under: "63years old male, neither HTN nor DM, was admitted with alleged history of RTA on 07.03.06 at around 1.30 p.m. following which he became unconscious and ENT bleed present, was taken to DDA Hospital by PCR van (MLC no: 5401) where his CT head was done which revealed diffuse axonal injury and bleed in left lateral ventricle. After that patient shifted to Safdarjang Hospital and thereafter shifted to SGRH for further treatment."
19. Petitioner had remained admitted in this hospital from 07.03.04 to 26.04.04 and operation performed was MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 5 of 21 Release of FTG of left eyebrow scar under local anesthesia on 13.04.06. Investigations revealed as under: "CT head plain - revealed diffuse axonal injury with small bleed in left lateral ventricle with fracture left wall of orbit, left temporo frontal region and of ethmoid sinus."
20. The hospital course is recorded as under: "Patient was admitted in the ICU and put on ventilatory support. Conservative management started, patient was subsequently tracheostomised. After a few days, patient was shifted to HDU showed gradual neurological recovery and was thereafter shifted to the room on Tpiece. 15.04.06, patient tracheostomy tube was removed with no signs of any respiratory distress.
He is now being discharge in a stable condition, conscious, obeys simple command hemiparesis, tracheostomy closed and on external male catheter."
21. As per Ex. PW1/B, which is bill of Sir Ganga Ram Hospital, petitioner has paid a sum of Rs. 3,99,068/ for his treatment in the said hospital.
22. Second witness examined by petitioner is Sh. Om Prakash. He is Record Clerk of DDU Hospital. He produced MLC bearing no. 5401 which was exhibited as Ex. PW2/A.
23. Third witness examined was Ct. Dharampal as PW3 who proved FIR No. 196/06 registered at P.S. Dwarka and was exhibited as Ex. PW3/A.
24. Fourth witness examined on behalf of petitioner was one Dr. Neeraj Kumar of Tirupati Poly Clinic, Dwarka. He MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 6 of 21 has given physiotherapy treatment to the petitioner. He deposed that petitioner has responded to the treatment administered to him. However, considering his present physical condition he still requires some more sessions of physiotherapy.
25. In cross examination, he deposed that he cannot tell without seeing his records as to when petitioner came to him for the first time for treatment. He could not tell whether petitioner had come a year back or more than that. He deposed that petitioner was suffering from paralysis of left side of his body when petitioner contacted him.
26. PW4 stated that he has given regular exercise sessions to the petitioner on daily basis and he was raising monthly bills for the sessions given to the petitioner. He stated that he was charging Rs. 500/ per day from the petitioner. He stated that petitioner has suffered paralytic attack due to trauma sustained by him from the injuries suffered in the accident. He could not give exact idea of the number of sessions which petitioner required to recover from paralytic attack.
27. Fifth witness examined was petitioner himself who filed his short evidence by way of affidavit.
28. Petitioner stated in his evidence by way of affidavit that he has suffered with an accident on 07.03.06 and received grievous and serious injuries. He has stated that after the said accident he was treated by various doctors of various hospitals and he has become a permanently disabled person because of MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 7 of 21 this accident.
29. He has stated that he was earning Rs. 12,000/ per month from tuitions before accident.
30. In cross examination, petitioner deposed that he is a retired person and he is a pensioner and is getting pension even today. He was not registered with any tuition bureau. He has stated that he does not remember whether he used to maintain any record with respect to his income from tuitions.
31. Sh. Sandeep Sharma, son of the petitioner entered in the witness box as PW6. He has stated similar facts in his evidence by way of affidavit as were already stated by petitioner in the claim petition. Medical prescriptions were proved as Ex. PW6/A and medical bills as Ex. PW6/B. Disability certificate was proved as Ex. PW6/C.
32. In cross examination, PW6 deposed that he is not an eye witness; his father is retired from MTNL Office; his father was an income tax payee and used to file income tax returns; he was filing his return at the time of his death (this appears to be a typographical error and the reference appears to be the date of accident rather then death). He stated that his father must be maintaining records of his income which he was getting by giving tuitions to children.
33. PW6 deposed that he was giving Rs. 3000/ to the attendant in cash. He stated that he does not know whether his father used to mention the income in his income tax return which he was getting by giving tuitions to the children. He denied a suggestion that his father was not earing any MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 8 of 21 income from tuitions.
34. Sh. Sandeep Sharma again entered witness box second time as he was given permission to lead additional evidence. He proved bills worth Rs. 2,99,600/ for the treatment of his father as Ex. PW6/D (colly.) and receipts of physiotherapist attending the petitioner were additionally proved as Ex. PW6/E.
35. In cross examination, he stated that his father can communicate but does not understand questions put to him. Physiotherapist comes to their house twice a day to attend petitioner everyday. He denied a suggestion that the bills of physiotherapist are not genuine or that his father is in a position to appear in the witness box but is deliberately not appearing as a witness in this case.
36. Seventh witness examined by petitioner was Dr. Anuj Mittal of Deen Dayal Upadhyay Hospital. He deposed that on instructions of this Tribunal, M.S. of DDU Hospital had constituted a Medical Board to medically examine petitioner.
37. PW7 was a member of the said Medical Board which had opined that due to injuries resulted in this accident, petitioner is suffering from left hemiparesis and he sustained 50% permanent disability with respect to whole body. The disability certificate was already proved as Ex. PW6/C.
38. In cross examination, he deposed that he was not a treating doctor and patient was never admitted in Deen Dayal Upadhyay Hospital. However, he reaffirmed that he himself MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 9 of 21 being member of the Board had physically examined petitioner and his condition before forming this opinion.
39. Eighth witness examined on behalf of petitioner was H.C. Manpal. He stated in his statement that on 07.03.06 he was posted at P.S. Dwarka and on said date he was on Beat Duty. At about 1.00 p.m., on the said date he saw a person on the main road passing in between Sector 5 and 6, Dwarka when he saw a Ford Fiesta Car bearing registration no. DL3C AM0833 coming from the side of Sector10, Dwarka in a rash and negligent manner.
40. PW8 deposed that he noticed a pedestrian crossing the road, the driver of the said car while driving the said car hit the pedestrian.
41. PW8 deposed that he signaled the driver of the car to stop the car and a female driving the car who revealed her name as Priyanka Roy on inquiry was found to be the driver.
42. PW8 stated that Investigating Officer ASI Ved mantar came at the spot and recorded his statement on the basis of which FIR No. 196/06 was registered at P.S. Dwarka and said FIR was already exhibited as Ex. PW3/A.
43. PW8 deposed that the accident had taken place due to negligent driving of Priyanka Roy, driver of the offending vehicle.
44. In cross examination, PW8 deposed that at the time of accident he was moving in the direction from which the offending car was coming; he was on foot; injured was crossing the road from the side of bus stop and there was no MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 10 of 21 zebra crossing. He admitted that on the central verge some shrubs are planted. He denied a suggestion that accident had taken place due to negligence of injured and also denied that the injured had come in front of the car suddenly.
45. PW8 deposed that the speed of the car may be around 60 km per hour at the time of accident.
46. No witness was examined on behalf of respondents.
47. Arguments were addressed by Sh. Manoj Rai, learned Counsel for petitioner, Sh. Gautam Kumar, learned Counsel for R1 and R2 and Sh. Mehtab Singh, learned Counsel for insurance company.
48. In the arguments, counsel for insurance company mainly questioned genuineness of physiotherapy bills.
49. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
50. Burden of proving this issue is on the petitioner.
51. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
52. This is sine qua non for getting the relief.
53. Petitioner has suffered 50% permanent disability as he is suffering from left hemiparesis.
54. Hemiparasis is partial paralysis affecting only one MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 11 of 21 part of the body. That explains the reason why petitioner has given a brief evidence by way of affidavit.
55. However, petitioner has examined PW8 H.C. Manpal who is an eye witness and has stated categorically that the accident had taken place due to negligent driving of driver of offending vehicle.
56. To a suggestion given to him by counsel for the driver of offending vehicle that the accident had taken place because petitioner had come in front of the car suddenly, he replied that injured was an old person and was walking very slowly. Therefore, it was not possible for him to come in front of a car suddenly.
57. For reasons best known to her, driver of offending vehicle has not entered in the witness box to prove her innocence.
58. Therefore, testimony of PW8 that the accident was caused by offending vehicle bearing registration no. DL3C AM0833 and the allegations that this vehicle was being driven rashly and negligently has gone unrebutted.
59. There is no reason not to return a finding of rash and negligent driving against respondent no. 1 in this scenario.
60. Moreover, police after investigation in the matter has filed charge sheet against respondent no. 1 which is also evidence of rash and negligent driving by respondent no. 1.
61. It is settled law that the test of negligence in a claim petition is of preponderance of probabilities and not beyond MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 12 of 21 all reasonable doubts as is in the case of a criminal trial.
62. In the case of National Insurance Co. Ltd. v. Vijay Laxmi & Ors. MAC APP. No. 375/06 dated 05.07.12 the Hon'ble High Court of Delhi has held as under: "8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, the Supreme Court held that in a petition under Section 166 of the Act, the Claimants were merely to establish their case on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim Petition under the Motor Vehicles Act. Para 15 of the report is extracted hereunder: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
9. The report in Bimla Devi (Supra) was relied on by the Supreme Court in its latest judgments in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646."
63. Therefore, this issue is decided in favour of petitioner and against the respondents. ISSUE NO. 2:
64. In the case of Raj Kumar v. Ajay Kumar & Anr. ACJ 2011 (Vol. I), following principles were laid down by the Hon'ble Supreme Court for determining compensation MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 13 of 21 payable to road traffic accident victims:
(i) The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. 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 equatable manner.
(ii) Compensation payable in injury
cases is payable under two heads. They are
pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).
(iii) In routine personal injury cases compensation is awarded only under heads (i),
(ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads
(ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 14 of 2165. As per Ex. PW2/A, which is the MLC prepared at Deen Dayal Upadhyay Hospital, petitioner has suffered dangerous injuries.
66. As per diagnosis of Ganga Ram Hospital, petitioner has suffered polytrauma with diffuse axonal injury. He had became unconscious at the time of accident and in a condition of ENT bleeding was taken to Deen Dayal Upadhyay Hospital where his C.T. Head revealed diffuse axonal injury and bleed in left lateral ventricle.
67. Petitioner was admitted in ICU and put on ventilatory support. He underwent tracheostomy.
68. He had undergone release of FTG of left eyebrow scar under local anesthesia.
69. He had a long admission in the hospital from 07.03.06 to 26.04.06. He was discharged on external male catheter.
70. Petitioner has suffered 50% disability being a case of hemiparesis. He is advised limb and chest physiotherapy three times a day.
71. Therefore, for Pain and Suffering, petitioner is given a compensation of Rs. 1,25,000/.
72. Petitioner has made a payment of Rs. 3,99,068/ for his treatment at Sir Ganga Ram Hospital. This is evidence from Ex. PW1/B. Petitioner is entitled to this compensation towards Cost of Treatment.
73. Bills for purchase of medicines etc. are worth Rs.
MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 15 of 2168,907/. Petitioner is given this compensation for Purchase of Medicines.
74. There are other bills for doctor's consultations for home visits, purchase of wheel chair, walker etc. worth Rs. 28,976/. Petitioner is also entitled to this sum for expenses referred above.
75. Considering the nature of injuries suffered by the petitioner he is given a compensation of Rs. 25,000/ for Special Diet and Rs. 10,000/ for Conveyance.
76. Half body of the petitioner is partially paralyzed. That shows that he cannot perform his day to day activities without the assistance of an attendant.
77. Even if gratuitous services were rendered by a family member of the petitioner, even then petitioner is to be compensated for services of an attendant as he was constrained to take the help of an attendant due to this accident. Reliance can be placed on Narain Bahadur v. Sumeet Gupta & Anr. MAC APP. No. 762/11 dated 04.07.12 passed by Hon'ble High Court of Delhi where reference was made to DTC v. Lalita AIR 1981 Delhi 558.
78. The date of accident is 07.03.06. Minimum rates of wages payable to an unskilled workmen at that time were Rs. 3271/ per month.
79. Age of petitioner at the time of accident was 63 years. He has to be compensated for charges of an attendant for the rest of his life. Therefore, on the basis of judgment of Hon'ble Supreme Court in the case of Sarla Verma v. DTC 2009 MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 16 of 21 (6) Scale 129, atleast for a period of seven years petitioner will need assistance of an attendant.
80. Thus calculated, petitioner would be entitled to a compensation of Rs. 2,74,764/ towards Attendant Charges (i.e. Rs. 3271/ x 12 x 7).
81. Petitioner has put up a case that he was earning Rs. 12,000/ per month from tuitions. There is no evidence in this regard. There is no evidence about educational qualifications of the petitioner. There is no evidence about the post from which petitioner had retired. Therefore, for loss of earnings in future, compensation can be assessed on the basis of minimum rates of wages payable to an unskilled workmen in Delhi which were Rs. 3271/ per month at the time of accident.
82. PW7 has stated in his evidence that petitioner has sustained 50% permanent disability with respect to whole body. In this case, loss of earning capacity has to be considered as 100% instead of 50% because a person suffering from paralysis effecting one side of the body is not expected to do any job and earn anything. Therefore, loss of wages due to this disability would be 100%.
83. Again applying a multiplier of 7, petitioner is entitled to a compensation of Rs. 2,74,764/ for Loss of Earnings in Future.
84. At the time of discharge, petitioner was advised limb and chest physiotherapy three times a day.
85. Benefits of physiotherapy for a patient suffering from hemiparesis are as under: MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 17 of 21 "Hemiparesis literally means 'half paralysed' in latin. The term refers to a medical condition wherein a patient suffers partial paralysis on one side of the body. This condition is after the result of a stroke or some other attack on the brain cells. Physiotherapy for hemiparesis seeks to help restore motor function in these patients by helping them re learn everyday tasks, such as walking and feeding themselves. The benefits of physiotherapy for hemiparesis include partial or full recovery of motor function, restoration of normal pathways, and an improved quality of life.
Patients with hemiparesis most often suffer a stroke before experiencing the condition. Car accidents, the onset of dementia, and brain diseases can also cause this condition. In most cases of hemiparesis, the patient still has some motor function on the affected side of the body. The amount of motor function often varies, ranging from a loss of fine skills to very little speed or economy of movement. Physiotherapy for hemiparesis seeks to restore these losses with basic exercises that strengthen the effected limbs and stimulate the effected side of the brain."
86. Petitioner has examined the Physiotherapist who was giving physiotherapy sessions to the petitioner. This witness, PW4, has stated that petitioner has responded to the treatment administered to him. However, considering his present physical conditions he still requires sessions of physiotherapy.
87. PW4 has stated that he was charging Rs. 500/ per day for physiotherapy from the petitioner.
88. There are receipts of Rs. 7,35,000/ which was given by petitioner to PW4 Dr. Neeraj Kumar for physiotherapy.
MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 18 of 2189. The last receipt is of 01.01.12.
90. The date of accident is 07.03.06. Although, in the discharge summary of Sir Ganga Ram Hospital it is stated that petitioner be given physiotherapy thrice a day but petitioner has not examined any doctor to show that even after six years of the accident petitioner still needed physiotherapy for improvement in his condition.
91. Therefore, as against a bill of Rs. 7,35,000/ for physiotherapy, only 50% of the same is granted in favour of petitioner which is Rs. 3,67,500/. Therefore, for Physiotherapy Charges, petitioner is given a compensation of Rs. 3,67,500/.
92. Additionally petitioner is granted a compensation of Rs. 50,000/ for Loss of Amenities of Life.
93. Therefore, total compensation payable to petitioner would be Rs. 16,33,979/ which will be paid with interest @ 9% p.a. from the date of filing of this claim petition which is 17.02.2007 till its deposit in the Tribunal.
94. For granting interest @ 9% p.a. reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors. MAC APP. 997/11 dated 19.03.12 where in para 72 and 73 the Hon'ble High Court has held as under:
72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 19 of 21 the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount.
95. In the case of Sheela Devi & Anr. Vs. Naib Singh & Ors. : MAC Appeal No. 91/05 dated 11.05.2012 the Hon'ble High Court has held as under: "7. The Claims Tribunal has awarded interest @ 6% per annum which is on a lower side. The Apex Court has awarded interest @ 9% per annum, in the recent case of MCD V. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100. Following the judgment of the Apex Court, the rate of interest is enhanced from 6% per annum to 9% per annum."
96. Insurance company has not proved any defence. Therefore, compensation is to be paid by insurance company which be paid within 30 days from today under intimation to the petitioner by registered post.
97. The compensation would be deposited directly by insurance company with State Bank of India, Dwarka Court, New Delhi in the name of SBI A/c. Baldev Dass Sharma.
98. Out of this, 50% of compensation shall be released in favour of petitioner as he has already incurred a huge amount on his treatment in Sir Ganga Ram Hospital, Special Diet, Conveyance, physiotherapy and misc. expenses. The MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 20 of 21 remaining 50% of compensation would be deposited in 5 FDRs for a period 1 to 5 years and petitioner would be given monthly interest on these deposits in his Saving Bank Account regularly.
99. No loan or advance will be given against this deposit.
100. Original FDRs will be retained by the bank and photocopies will be given to the petitioner.
101. Pass Book will also be given to the petitioner.
102. FDR will not be encashed prematurely without leave of this Court.
103. Petitioner shall be at liberty to get their FDRs and Saving Bank Accounts transferred to any nationalised bank of their choice subject to similar terms and conditions as are noted herein above.
104. Petitioner shall cooperate with the bank by providing requisite documents and by completing required formalities for opening Saving Bank and FDR Accounts.
105. Copy of award be given dasti to all the parties.
106. A copy of this award be also sent to State Bank of India, Dwarka Court, New Delhi.
107. File be consigned to record room.
Announced in the Open Court.
On the 13th day of September, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
MACT No. 120/11/07 Sh. Baldev Dass Sharma v. Mrs. Priyanka Roy & Ors. Page 21 of 21