Delhi District Court
Afsar Ali vs . Pritam Singh & Ors. on 23 December, 2020
IN THE COURT OF SH. M. K. NAGPAL :
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL :
PATIALA HOUSE COURTS, NEW DELHI
DAR No. 947/17
AFSAR ALI VS. PRITAM SINGH & ORS.
Afsar Ali
S/o Sh. Babu Ali
R/o R-84, Raghubir Nagar,
Tagore Garden, New Delhi.
.......Petitioner/Injured
Versus
1. Sh. Pritam Singh
S/o. Sh. Hari Chand
R/o. Village Firoj Pur, Namak, Tehsil Nuh,
District Mewat, Haryana.
2. Sh. Amit Khurana
S/o. Sh. Harbans Khurana
R/o. H. No. 963, Sector-4,
Gurugram, Haryana.
3. M/s Oriental Insurance Company Ltd.
Payal Cinema Commercial Complex,
Delhi Road, Sector-14, Gurugram, Haryana.
.....Respondents
DAR No. 948/17 SAMEER VS. PRITAM SINGH & ORS.
Sameer S/o Sh. Afsar Ali R/o R-84, Raghubir Nagar, Tagore Garden, New Delhi.
......Petitioner/Injured DAR Nos. 947/17, 948/17 & 949/17 Page no.1 of 35
1. Sh. Pritam Singh S/o. Sh. Hari Chand R/o. Village Firoj Pur, Namak, Tehsil Nuh, District Mewat, Haryana.
2. Sh. Amit Khurana S/o. Sh. Harbans Khurana R/o. H. No. 963, Sector-4, Gurugram, Haryana.
3. M/s Oriental Insurance Company Ltd.
Payal Cinema Commercial Complex, Delhi Road, Sector-14, Gurugram, Haryana.
.....Respondents DAR No. 949/17 SHABNAM BEGUM VS. PRITAM SINGH & ORS.
Shabnam Begum W/o Sh. Afsar Ali R/o R-84, Raghubir Nagar, Tagore Garden, New Delhi.
......Petitioner/Injured Versus
1. Sh. Pritam Singh S/o. Sh. Hari Chand R/o. Village Firoj Pur, Namak, Tehsil Nuh, District Mewat, Haryana.
2. Sh. Amit Khurana S/o. Sh. Harbans Khurana R/o. H. No. 963, Sector-4, Gurugram, Haryana.
3. M/s Oriental Insurance Company Ltd.
Payal Cinema Commercial Complex, Delhi Road, Sector-14, Gurugram, Haryana.
.....Respondents
DAR Nos. 947/17, 948/17 & 949/17 Page no.2 of 35
Date of filing of DARs : 11.11.2016
Date of framing of issues : 31.07.2017
Date of concluding arguments : 19.12.2020
Date of decision : 23.12.2020
AWARD/JUDGMENT
1. Since these three Detailed Accident Reports (DARs) are connected being arising out of the same accident, these are being taken up together for disposal.
2. D-947/17 (bearing institution No. 38259/16) is in respect of grievous injuries suffered by petitioner Afsar Ali, D-948/17 (bearing institution No. 38261/16) & D-949/17 (bearing institution No. 38260/16) are in respect of simple injuries suffered by his son Sameer and grievous injuries and permanent physical disability suffered by his wife Shabnam respectively.
3. The case of petitioners, in brief, is that on 16.03.2016, they were returning back to their residence in Raghubir Nagar, Tagore Garden, New Delhi after visiting the house of some relative at Jaitpur on a motorcycle bearing registration No. DL-3SBJ-6623 being driven by petitioner Afsar Ali. When their motorcycle had stopped at the red light of Brar Square, near pillar No. 14, Dhaula Kaun to Naraina side of road, one truck bearing registration No. HR-55R-6321 had suddenly hit their motorcycle from back side. As a result thereof, all the petitioners fell on road from their motorcycle and suffered injuries. On receiving information about accident on basis of a PCR call, the local police had reached there and had found the motorcycle of victims as well as the offending truck at the spot. The offending truck at the time of accident was being driven by R-1, who was also present at the spot at that time and was handed over to police. All the DAR Nos. 947/17, 948/17 & 949/17 Page no.3 of 35 petitioners were removed to DDU Hospital by the PCR officials, where their MLCs were prepared. Though, the nature of injuries suffered by petitioner Sameer of D-948/17 was declared to be simple, but the nature of injuries of other two petitioners was kept under observation and the same was subsequently declared as grievous and the injuries suffered by petitioner Shabnam of D-949/17 had even resulted into some permanent physical disability to her. It has been alleged that the above accident took place as the offending truck came being driven at a fast speed and in a rash and negligent manner.
4. These DARs were presented before this tribunal on 11.11.2016 and appearance on behalf of all the respondents was filed. Though, one power of attorney on behalf of respondent no. 2 was also filed, but they did not file any written statement/reply to these DARs despite being given sufficient time and opportunities and they had also subsequently stopped appearing in these proceedings.
5. R-3/Insurance Company had, however, filed its written statement/reply to the DARs and though they had admitted that on the day of accident the above offending truck was insured with them in the name of R-2, but it was their submission that their liability to pay compensation in the present case was only subject to terms and conditions of the said policy and the same stood violated as R-1 was not holding a valid and effective driving license at that time.
6. On 31.07.2017, all these DARs were formally consolidated for the purposes of trial and disposal as these arose out of the same accident and D-947/17 was made the lead case for the purposes of recording of evidence. The following consolidated issues were also framed on the same day for disposal of claims of petitioners :-
DAR Nos. 947/17, 948/17 & 949/17 Page no.4 of 35
1. Whether all three injured persons sustained injuries in the accident which occurred on 16.03.2016 at about 11.30 PM, at Brar Square Red Light Ring Road, Near Pillar No. 14, DK to Naraina side Road, Dhaula Kaun, New Delhi caused by rash and negligent driving of vehicle No. HR-55R-6321 driven by respondent no 1, owned by respondent no. 2 and insured with respondent no. 3?
OPP.
2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. I have heard the arguments advanced by Sh. Iqrar Ali Khan, Ld. Counsel for the petitioners through video conferencing and Sh. M. Shafiullah, Ld. Counsel for R-3/Insurance Company through video conferencing as well as physically. However, none has turned up on behalf of R-1 and R-2 to address any arguments. It has been observed that vide order dated 16.12.2019, R-1 and R-2 were even formally proceeded ex- parte in the matter as none on their behalf has been appearing in these matters since long.
8. My findings on the above issues are as under :-
ISSUE NO.1 It is well settled that the procedure followed for proceedings conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case. Reference in this regard can be made to the propositions of law laid down by the Hon'ble DAR Nos. 947/17, 948/17 & 949/17 Page no.5 of 35 Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in the subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096(Civil Appeal No.1082 of 2011).
9. Petitioners in support of their claim had examined on record total four witnesses and petitioners Afsar Ali, Shabnam and Sameer had themselves stepped into the witness box as PW1, PW2 and PW3 respectively and they had also examined one Dr. Sameek Bhattacharya, Professor Plastic Surgery of Dr. RML Hospital, New Delhi as PW4. Since PW4 Dr. Sameek Bhattacharya has nothing to do with the above accident or its manner, it is the testimony of petitioners only which matters for determination of the present issue.
10. Petitioners are found to have tendered on record their examinations-in-chief by way of their respective affidavits Ex. PW1/A, Ex. PW2/A and Ex. PW3/A and it has been observed that in the said affidavits, they all have made specific depositions regarding the factum as well as manner of the said accident. They all have stated specifically in the said affidavits that the above accident took place when their motorcycle had stopped at the above said red light and the offending truck came from their back side and had gone to hit their motorcycle back. They all have also specifically stated in the said affidavits that the truck came being driven at a very high speed, and in a rash and negligent manner and also without caring for traffic rules and norms etc. They have further deposed in their affidavits regarding the nature of injuries suffered by them and treatment taken therefor.
11. It has been observed that no cross examination of any of the DAR Nos. 947/17, 948/17 & 949/17 Page no.6 of 35 petitioners has been conducted by or on behalf of R-1 and R-2 as they had already stopped appearance in these matters after initial few dates. Though the petitioners are found to have been cross examined on behalf of R- 3/Insurance Company, but it has been further observed that even during their such cross examination nothing material could be extracted out from them which can make this tribunal to disbelieve or discard their testimony. The petitioners duly corroborate each other on these aspects and there is no reason or ground as to why this tribunal should not believe and act upon their testimonies as the same are found trustworthy and convincing.
12. Moreover, the oral testimony of petitioners is also found to be duly corroborated by the documentary evidence which has been led on record by petitioners in the form of records of above criminal case, which have been filed before this tribunal by the Investigating Officer (IO) as a part of DAR documents and have also been relied upon by all the petitioners as Ex. PW1/3 (colly), Ex. PW2/3 (colly) and Ex. PW3/3 (colly) respectively. These documents not only consist of a copy of FIR of the said case, but also copy of charge-sheet of said case, copy of site plan of place of accident, copies of seizure memos and mechanical inspection reports of two vehicles, copies of MLCs of all the petitioners and arrest memo of R-1 etc.
13. Moreover, it has also not been disputed that R-1 stands already charge-sheeted in the above criminal case for the offences punishable under Sections 279/337/338 IPC for causing grievous injuries on the persons of petitioners Afsar Ali and Shabnam and simple injuries to petitioner Sameer by his rash and negligent driving of the above said vehicle and this fact in itself is a strong circumstance to corroborate the case of petitioners.
14. Besides the above, R-1 was himself the best witness who could have challenged the testimonies of petitioners on record with regard to DAR Nos. 947/17, 948/17 & 949/17 Page no.7 of 35 manner of accident. However, as already discussed, what to say of leading any evidence in his defence he did not even care to file any formal reply to these DARs. Hence, in view of the above, an adverse inference can also be drawn against the respondents on this aspect, in view of law laid down in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
15. Thus, in view of the above discussion, it is held that the oral evidence led on record by petitioners is duly substantiated by the documentary evidence and it stands proved that the above accident resulting into grievous injuries on the persons of petitioners was caused due to the rash and negligent driving of the above offending vehicle bearing registration no. HR-55R-6321 by R-1, which was owned by R-2 and insured with R3 at the relevant time of accident. This issue is accordingly decided in favour of the petitioners and against the respondents.
ISSUES NO.2 & 316. As the issue no.1 has been proved in affirmative and in favour of the petitioners, the petitioners have become entitled to be compensated for the injuries suffered in above accident. However, the computation of compensation and liability to pay the same are still required to be decided.
17. In terms of provisions contained in Section 168 of the MV Act the compensation which is to be awarded by this tribunal is required to be 'just'. In the injury cases a claimant is entitled to two different kinds of compensations i.e. pecuniary as well as non-pecuniary damages. The pecuniary damages or special damages are those damages which are awarded and designed to make good the losses which are capable of being DAR Nos. 947/17, 948/17 & 949/17 Page no.8 of 35 calculated in terms of money and the object of awarding these damages is to indemnify the claimant for the expenses which he had already incurred or is likely to incur in respect of the injuries suffered by him in the accident. The non-pecuniary or general damages are those damages which are incapable of being assessed by arithmetical calculations. The pecuniary or special damages generally include the expenses incurred by the claimant towards his treatment, special diet, conveyance, cost of nursing/attendant, loss of income/earning capacity etc. and the non-pecuniary damages generally include the compensation for the mental or physical shock, pain and sufferings, loss of amenities of life, marriage prospects and disfiguration etc. The above categories falling under both the heads of compensation are not exhaustive in nature but only illustrative. It is also necessary to state here that no amount of money or compensation can put the injured/claimant exactly in the same position or place where he was before the accident and an effort is to be made only to reasonably compensate him or to put him almost in the same place or position where he could have been if the alleged accident had not taken place and this compensation is to be assessed in a fair, reasonable and equitable manner. The object of compensating him is also not to reward him or to make him rich in an unjust manner. It is also well settled that the 'just' compensation to be awarded to the claimant has to be calculated objectively and it may involve some guess work in calculating the different amounts which the claimant may be entitled under the different heads of compensation. Reference in this regard can be made some of the important judgments on the subject like the judgment in the case of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. AIR 1995, SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011)1 SCC 343.
DAR Nos. 947/17, 948/17 & 949/17 Page no.9 of 35
18. In light of the above legal propositions, the amount of compensation which can be considered to be 'just' in the opinion of this tribunal shall be as under:-
19. Compensation in D-947/17
(i) Medical or Treatment Expenses In his affidavit Ex. PW1/A, the petitioner Afsar Ali claims that he had suffered head injury in the above accident and he remained under treatment in DDU Hospital till 05.04.2016. Besides relying upon the DAR documents Ex. PW1/3 (colly), he has also tendered in evidence and relied upon a copy of his Aadhar card as Ex. PW1/1 and copy of his MLC and other treatment record as Ex. PW1/2 (colly). However, it has been observed that none of the documents being relied upon by him is a medical bill, invoice or payment receipts etc. showing any expenses borne by him on his treatment for the injuries suffered in above accident. Since under this head, the petitioner is to be reimbursed only for the actual medical expenses and further since it appears to this tribunal that all the treatment which the petitioner took was from the government hospital, he is held not entitled to any compensation under this head.
(ii) Loss of actual earnings On perusal of MLC of this petitioner tendered in evidence as a part of the documents Ex. PW1/2 (colly), it has been observed that he had reported in DDU Hospital after the accident with DAR Nos. 947/17, 948/17 & 949/17 Page no.10 of 35 history of loss of consciousness with single episode of vomiting and he was found to have suffered some abrasions only over left side of his face, chin etc. and besides some medications, he was also advised NCCT head. The observations made on his MLC further show that his NCCT examination report of head showed fracture of right zigomatic arch. As per the medical wikipedia, zigomatic arch or cheek bone is a part of skull formed by zigomatic process of the temporal bone (a bone extending forward from the side of skull over the opening of ear) and the nature of his injuries was given as grievous on the basis of above fracture injury, though these observations further show that for final report the petitioner was referred to CMO and the final opinion was to be given in consultation with Radiologist. The treatment record of petitioner tendered in evidence as Ex. PW1/2 (colly) though does not contain any further final opinion given about nature of his injuries, but it is manifest from the above observations made on his MLC that his NCCT examination revealed a fracture injury and hence, the nature of his injury can be taken by this tribunal as grievous even in the absence of any such final or further opinion.
The treatment record of petitioner further reflects that he did not remain hospitalized in DDU Hospital or any other hospital in connection with his treatment and he took treatment in OPD only in the said hospital and the last OPD prescription of petitioner issued by the said hospital is of date 05.04.2016. Even in his affidavit the petitioner claims that he took treatment till 05.04.2016. Thus, it can be seen that the treatment of petitioner continued for a period of around DAR Nos. 947/17, 948/17 & 949/17 Page no.11 of 35 one month only.
Further, the petitioner has also claimed in his affidavit that he was doing embroidery work and was earning Rs. 30,000/- per month at that time and as a result of injuries suffered in the above accident, he was not in a position to restart his work/business and he even became unemployed after the accident. However, the above depositions made by petitioner are apparently exaggerated as his treatment record does not corroborate it. He has also failed to bring in evidence any other satisfactory evidence to show that he was actually employed in embroidery work or was earning Rs. 30,000/- per month therefrom. He has even failed to bring on record any evidence showing his educational qualifications. Hence, in the absence of all such evidence, the claim of petitioner for compensation under this head is to be governed by the rates of minimum wages payable to unskilled workers in Delhi. On the basis of oral and documentary evidence led on record, this tribunal deems it just and reasonable to compensate him for a period of one month only for the loss of actual earnings resulting from the above said injuries. The minimum wages for unskilled workers in Delhi were Rs. 9,178/- pm at the relevant time of accident and hence, the petitioner is being awarded an amount of Rs.9,178/- under this head.
(iii) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
The petitioner in his affidavit Ex. PW1/A has claimed a lumpsum compensation of Rs. 1,00,000/- as financial losses and also against mental DAR Nos. 947/17, 948/17 & 949/17 Page no.12 of 35 pain and agony etc. resulting from the above injuries. However, on the basis of oral and documentary evidence brought on record regarding the nature and extent of his injuries and treatment taken therefor, this tribunal deems it just and reasonable to grant him only an amount of Rs.7,500/- each towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.5,000/- is also awarded to him towards the loss of amenities suffered during the said period of his treatment and immobility. Thus, he is awarded a total amount of Rs.20,000/- under this head.
(iv) Conveyance, Special Diet and Attendant Charges Though, the petitioner has also not led on record any specific evidence about the amounts spent or claimed under these heads, but still keeping in view the evidence led on record and taking note of these requirements, the petitioner is also being awarded an amount of Rs. 5,000/- each towards the requirements of special diet and conveyance and further an amount of Rs.10,000/- towards attendant charges for the gratuitous services which might have been rendered by his family members during the above said period of his treatment, hospitalization and immobility. Hence, a total amount of Rs.20,000/- is being awarded to him under this head. RELIEF The petitioner is thus awarded a sum of Rs. 49,178/- (Rupees Fourty Nine Thousand One Hundred Seventy Eight only) along with interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of DAR Nos. 947/17, 948/17 & 949/17 Page no.13 of 35 compensation.
RELEASE The entire awarded amount is directed to be released in his saving bank account bearing No. 13322421000037 being maintained with Oriental Bank of Commerce, GN-12, Shivaji Enclave, New Delhi having IFSC Code No. ORBC0101332. The concerned bank shall permit the petitioner to withdraw money from his above savings bank account by means of withdrawal forms or biometric authentication only.
20. Compensation in D-948/17 As already discussed, the petitioner Sameer of this case had suffered simple injuries only and on perusal of his MLC and other treatment record tendered in evidence as Ex. PW3/2 (colly) it is observed that he had only suffered a cut lacerated wound (CLW) on right side of his forehead and some abrasions. Neither he required any hospitalization nor he is found to have taken any further treatment in OPD from DDU Hospital or any other hospital or doctor. Likewise his father Afsar Ali, this petitioner has also not brought in evidence any proof of his medical expenses. Hence, on the basis of oral and documentary evidence led on record and taking note of all these factors, this petitioner is being awarded a lumpsum amount of Rs. 20,000/- only against loss of his notional earnings, mental and physical shock, pain and sufferings, loss of amenities, requirements of conveyance, special diet and attendant DAR Nos. 947/17, 948/17 & 949/17 Page no.14 of 35 charges etc. RELIEF The petitioner is thus awarded a lumpsum amount of Rs. 20,000/- (Rupees Twenty Thousand only) along with interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation. RELEASE The entire awarded amount is directed to be released into his savings account bearing no. 13322421000020 being maintained at Oriental Bank of Commerce, GN-12, Shivaji Enclave, New Delhi, having IFSC Code No. ORBC0101332. The concerned bank shall permit the petitioner to withdraw money from his above savings bank account by means of withdrawal forms or biometric authentication only.
21. Compensation in D-949/17
(i) Medical or Treatment Expenses Petitioner Shabnam through her affidavit Ex. PW2/A had also though tendered on record her MLC and other treatment record as Ex. PW2/2 (colly), but it is observed that even she has not brought in evidence any medical bill or payment receipt showing expenses of her treatment as a part of these documents or separately. Hence, she is also held not entitled to any amount of compensation under the DAR Nos. 947/17, 948/17 & 949/17 Page no.15 of 35 present head relating to her actual medical expenses.
(ii) Loss of actual earnings On perusal of her MLC and other treatment record tendered in evidence as Ex. PW2/2 (colly), it is observed that though she did not report any history of loss of consciousness, but as per the observations made in her discharge summary sheet issued by DDU Hospital and tendered as a part of these documents, she had suffered crush injury on her left hand and she remained hospitalized there from the time of accident itself till 21.04.2016. Thus, she had spent more than one month in hospital and she even underwent a surgery on her left hand under general anesthesia on 18.03.2016 for fixation of fracture injury suffered on her left hand. Even after her discharge, her treatment in the said hospital had continued till around August, 2016 as an OPD patient.
Further, PW4 Dr. Sameek Bhattacharya examined on record was the Chairman of the medical board of Dr. RML Hospital, which was constituted on directions of this tribunal for determination of permanent physical disability of this petitioner. This witness has proved on record the disability report of petitioner as Ex. PW4/A and as per him, the board had opined that the petitioner was having 80% permanent physical impairment in relation to her left hand as a result of the said injuries. The above disability report of petitioner is of date 29.01.2018 and as per the depositions made by this expert witness, since the above disability of petitioner is significant in relation to said limb, she will not be able to effectively use her left hand. The break up of disability DAR Nos. 947/17, 948/17 & 949/17 Page no.16 of 35 suffered by petitioner is also found recorded in this report as following :-
(i) Loss of Prehension -: 30%
(ii) Partial loss of sensation -: 20%
Pinch Poor
Grip Poor
(iii) Strength impaired :- 30%
On the basis of above break up, the overall physical disability of petitioner in respect to her left hand has been given as 80% due to lack of coordinate activity of said hand. There is no claim made on record by this petitioner or any of the other petitioners that she was doing any job or work at the time of accident and hence, she being a housewife is entitled to be compensated towards loss of her earnings on the basis of minimum wages fixed for semi skilled labourers in view of the settled law. On the basis of oral and documentary evidence led on record and keeping in view the nature and extent of her permanent disability, this tribunal deems it just and reasonable to compensate her for loss of her earnings for a period of one year as her claim for loss of future earnings resulting from the above disability will be discussed under a separate head. The minimum wages for semi skilled workers in Delhi were Rs. 10,140/- per month at the relevant time of accident and hence, the petitioner is being awarded an amount of Rs. 1,21,680/- (Rs.10,140 X 12) under this head pertaining to loss of her actual earnings.
(iii) Loss of future earnings due to disability It is well settled that the physical or mental disability and DAR Nos. 947/17, 948/17 & 949/17 Page no.17 of 35 functional disability of a person is not one and the same thing and functional disability of a person refers to his loss of earning capacity due to the said disability. This functional disability or loss of earning capacity of a person is required to be assessed separately by the claims tribunal with reference to the nature of work or profession etc. of the said person and the percentage of his permanent disability as given in his disability certificate and his functional disability can be much more or less than the given percentage of his disability as per the disability certificate.
The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it was held as under :-
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he DAR Nos. 947/17, 948/17 & 949/17 Page no.18 of 35 is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation''. "8.......What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings(by applying the standard multiplier method used to determine loss of dependency)."
The nature of injuries suffered by petitioner Shabnam, its extent and duration etc. have already been discussed in detail under the previous head. It has also been discussed that on the basis of break up of her disability, the overall permanent disability of petitioner in respect to her affected limb is given as 80% due to lack of coordinate activity of the said limb. There is no evidence or even claim made by petitioners that she was a left hander and thus even despite having suffered the above permanent disability resulting mainly from loss of grip and strength etc., she can still use her left hand for doing the household jobs and to assist herself in doing the said jobs with her right hand. Moreover, this tribunal is also cautious of the fact that many of the household works to be done by a housewife may not even require the use of left hand or require it to some nominal extent only. Thus, on the basis of oral and documentary evidence led on record and the legal position discussed above, the functional disability of petitioner resulting from the above accident is taken as 40%, i.e. half of the given percentage of her disability in respect to the said limb.
As per the Aadhar card of petitioner Shabnam tendered in DAR Nos. 947/17, 948/17 & 949/17 Page no.19 of 35 evidence Ex. PW2/1, she was 28 years old on 01.01.2018 and the accident took place on 16.03.2016. Thus, her age on the basis of above document comes to 36 years and around one and half month on the date of accident and hence, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Supreme Court in a recent judgment dated 31.10.2017 given in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, the multiplier of 15 is held applicable for calculating the loss of future earnings of the petitioner arising out of her above disability.
Further, the petitioner is also held entitled to 40% future prospectus in view of the law laid down by the Hon'ble Delhi High Court in the cases of Bajaj Alliance Gen. Insurance Co. Ltd. Vs. Rajeshwar Prasad & Ors., MACA 858/15 decided on 19.07.2017 and Faiyaz Ahmad Khan Vs. Chandra Pal Singh & Ors., MACA No.351/17 decided on 08.08.2017 as well as in the Constitution Bench Decision of the Hon'ble Supreme Court in case of Pranay Sethi (Supra) as she was aged below 40 years at the time of accident.
Thus, the loss of future earnings and prospects caused to the petitioner due to her above injury and permanent disability comes to Rs.10,22,112/- (Rs.10,140/- X 140/100 X 40/100 X 12 X 15) and the same is being awarded to her under this head.
(iv)Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
The nature of injuries and disability suffered by petitioner, its DAR Nos. 947/17, 948/17 & 949/17 Page no.20 of 35 extent and duration of her treatment etc. have already been discussed in detail. Though, it is not possible to exactly compensate her for the shock, pain and sufferings etc. which she had actually suffered because of the above injuries and disability, but as stated above, an effort has to be made to compensate her for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries and disability suffered by petitioner and duration of the treatment taken by him etc., an amount of Rs.20,000/- each is being awarded to her towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.10,000/- is also awarded to her towards the loss of amenities suffered during the said period of her treatment and immobility. Thus, she is awarded a total amount of Rs. 50,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges Though in her affidavit Ex. PW2/A the petitioner is silent with regard to the amounts spent towards conveyance, special diet and attendant charges, but still this tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with his treatment and hospitalization and also that of the special diet for her early recovery from the injuries suffered because of the above accident. Hence, an amount of Rs.5,000/- is being awarded to the petitioner towards conveyance and Rs. 10,000/- towards special diet.
Besides this, an amount of Rs.35,000/- towards attendant charges or the gratuitous services which might have been rendered by her family members during the above said period of her treatment, hospitalization and immobility is also awarded to her.
Hence, a total amount of Rs.50,000/- is being awarded to her under this head.
DAR Nos. 947/17, 948/17 & 949/17 Page no.21 of 35 RELIEF The petitioner is thus awarded a sum of Rs. 12,43,792/- (Rupees Twelve Lakhs Fourty Three Thousand Seven Hundred Ninety Two only) along with interest from the date of filing of DAR. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the above amount and calculations of compensation.
RELEASE Out of the awarded amount along with interest, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of 150 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 150 months in succession, as per the scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 passed in the said case. The amount of FDRs on maturity would be released in her savings/MACT Claims SB Account bearing No. 13322421000013, IFSC Code ORBC0101332, maintained with Oriental Bank of Commerce, GN-12, Shivaji Enclave, New Delhi and the remaining 10% amount is also directed to be released into her above said account, which can be withdrawn and utilized by the said petitioner.
To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier. However, the concerned bank (s) shall permit the petitioner to DAR Nos. 947/17, 948/17 & 949/17 Page no.22 of 35 withdraw money from his above savings bank account by means of withdrawal forms or biometric authentication.
The above disbursement to the petitioner is, however, subject to addition of future interest till deposits proportionately and also deduction of proportionate tax on the interest amount or amount of interim award, if any, to/from his above share.
The bank shall not permit any joint name (s) to be added in the savings bank account of the petitioner i.e. the above account (s) of the petitioner shall be individual account (s) and not a joint account (s).
The original fixed deposits be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amounts shall be released in account of the petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
The maturity amounts of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner.
No loan, advance or withdrawal or pre-mature discharge be allowed on the above saving account of the petitioner without permission of the Court.
Petitioner has already produced before this tribunal his original passbook with necessary endorsements to the effect that no cheque book shall be issued to his above said account and he has also filed copy thereof on record along with his aadhar card and PAN card. It DAR Nos. 947/17, 948/17 & 949/17 Page no.23 of 35 is directed that the concerned bank (s) shall not to issue any cheque book and/or debit card to the claimant in future also.
22. LIABILITY IN ALL THESE CASES As already discussed, R-3/Insurance Company had taken a plea of violation of terms and conditions of policy issued by them in respect of offending vehicle on the ground that R-1 was not holding a valid and effective driving license at the time of accident. To substantiate this defence, R-3 had also examined on record their Assistant Manager Sh. Abhishek Tripathi as R3W1 and this witness has tendered on record his examination-in-chief by way of an affidavit Ex. R3W1/1 and further relied upon the documents Ex. R3W1/A (colly), Ex. R3W2/B, Ex. R3W1/C1 & Ex. R3W1/C2 and Ex. R3W1/C3 & Ex. R3W1/C4, besides relying upon the DAR documents filed by the IO. R3W1/A is an attested copy of insurance policy of the offending vehicle, Ex. R3W1/B is a copy of notice under Order 12 Rule 8 CPC given on behalf of Insurance Company to R-1 and R-2 for producing certain documents, including driving license of R-1, Ex. R3W1/C1 and Ex. R3W1/C2 are its postal receipts and Ex. R3W1/C3 and Ex. R3W1/C4 are the postal track reports thereof.
In the above affidavit also, R3W1 has specifically deposed that R-1 was driving the offending truck without a valid driving licence and this fact is also evident from the contents of DAR and final report under Section 173 Cr.P.C. filed by IO/SHO against R-1 in the above said criminal case as R-1 was charge-sheeted for offences punishable under Sections 279/338/468/471 IPC. This deposition of R3W1 is found duly substantiated from records as it is observed from the contents of charge-sheet filed in the said case that though one driving licence bearing No. 46839/TV/T/2013 in DAR Nos. 947/17, 948/17 & 949/17 Page no.24 of 35 the name of R-1 was produced before IO during the course of investigation of said case, but on verification this driving licence was reported to be fake as no record thereof was found to be existing in the concerned transport authority of Tuensand, Nagaland. The original verification report dated 19.08.2016 obtained by IO from the concerned Transport Authority has also been duly filed on record as a part of the DAR documents and the same is per se admissible in evidence without its formal proof as per the provisions of Rule 7 of the Delhi MACT Rules, 2008.
Thus, it can be said that on the basis of above, R-1 was not holding a valid and effective driving licence at the time of accident to drive the offending truck and hence, the terms and conditions of insurance policy issued in respect of said vehicle stood violated and R-3/Insurance company has been able to prove on record that it has a statutory defence in terms of Section 149 of the MV Act to avoid their liability to pay compensation. However, still in view of the law laid down by the Hon'ble High Court in case Giriraj Vs. Viniti Kohli & Anr., MACA No. 639/19, decided on 23.09.2019, R-3/Insurance company is not entitled to a complete exoneration from its liability and it is only held entitled to a right of recovery of the award amount from R-2 i.e. owner of the offending vehicle as per the contract of insurance executed between them.
Thus, though all the respondents are otherwise held jointly and severally liable to pay the awarded amounts of compensation, but R- 3/Insurance Co. is held entitled to recovery rights of the awarded amounts of compensation in the present cases/DARs from R-2. However, R-3 being insurer of the offending vehicle is held first liable to deposit the awarded amounts in compliance of the present award and therefore, R-3 is directed to deposit the above award amounts with this tribunal or with the UCO DAR Nos. 947/17, 948/17 & 949/17 Page no.25 of 35 Bank, Patiala House Court Branch, alongwith interest @ 9% per annum from the date of filing of DARs by way of crossed cheques/DDs in name of the petitioners within 30 days from today. In case even after passage of 90 days from today R-3 fails to deposit this compensation with interest, in that event, R-3 shall be liable to pay interest @ 12% per annum for the period of delay beyond 90 days from today and in light of the judgment of the Hon'ble High Court of Delhi in case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of insurance company with a cost of Rs.5,000/-.
R-3 shall inform the petitioners and their counsel through registered post that the cheques of the awarded amounts are being deposited so as to facilitate them to collect their cheques.
23. The copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
24. Further Nazir is directed to maintain the record in Form VII as per the directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017.
25. The particulars of Form-V of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the above case on 15.12.2017, are as under:
1. Date of the accident 16.03.2016
2. Date of intimation of the accident by the Not given Investigation Officer to the Claims Tribunal.
3. Date of intimation of the accident by the Not given DAR Nos. 947/17, 948/17 & 949/17 Page no.26 of 35 Investigating Officer to the Insurance company.
4. Date of filing of Report under Section 173 Not given Cr.PC before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer before Claims 11.11.2016 Tribunal.
6. Date of service of DAR on the Insurance 11.11.2016 Company.
7. Date of service of DAR on the claimant(s). 11.11.2016
8. Whether DAR was complete in all respects? Yes
9. If not, state deficiencies in the DAR ......
10. Whether the police has verified the documents Yes file with DAR?
11. Whether there was any delay or deficiency on DARs have been filed the part of the Investigating Officer? If so, after about 8 months of whether any action/direction warranted? the accident.
12. Date of appointment of the Designated Officer Not given by the Insurance Company.
13. Name, address and contact number of the Not given Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the Insurance Company submitted his report within Yes 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of Legal offer not given the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Designated Officer of the No Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of the offer Legal offer not given of the Insurance Company.
18. Date of the award 23.12.2020
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open Yes savings bank account(s) near their place of DAR Nos. 947/17, 948/17 & 949/17 Page no.27 of 35 residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank 07.02.2018 not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced the passbook of their savings bank account near 16.12.2019 the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the All petitioners are Claimant(s) residents of R-84, Raghubir Nagar, Tagore Garden, New Delhi.
24. Details of savings bank account (s) of the P-1 = A/c No. claimant(s) and the address of the bank with 13322421000037, IFSC IFSC Code. Code ORBC0101332, Oriental Bank of Commerce, GN-12, Shivaji Enclave, New Delhi.
P-2 = A/c No. 13322421000020, IFSC Code ORBC0101332, Oriental Bank of Commerce, GN-12, Shivaji Enclave, New Delhi.
P-1 = A/c No. 13322421000013, IFSC Code ORBC0101332, Oriental Bank of Commerce, GN-12, Shivaji Enclave, New Delhi.
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
26. Whether the claimant(s) were examined at the Yes DAR Nos. 947/17, 948/17 & 949/17 Page no.28 of 35 time of passing of the award to ascertain his/their financial condition?
26. Files of above DARs be consigned to Records after necessary formalities. Separate files in these cases be prepared for compliance report and be put up on 30.03.2021. Digitally signed by MANOJ MANOJ KUMAR KUMAR NAGPAL Date: 2020.12.23 NAGPAL 16:39:30 +0530 Announced in the open court. (M.K.Nagpal) on 23.12.2020 PO/MACT, New Delhi Encl: SUMMARIES OF COMPUTATION OF AWARD AMOUNT IN THESE CASES DAR Nos. 947/17, 948/17 & 949/17 Page no.29 of 35 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB IN DAR No.947/17
1. Date of accident : 16.03.2016
2. Name of the injured : Afsar Ali
3. Age of the injured : 40 years
4. Occupation of the injured : Unskilled worker
5. Income of the injured : As per minimum wages in Delhi
6. Nature of injury : Grievous
7. Medical treatment taken by the injured : DDU Hospital
8. Period of hospitalization : Nil
9. Whether any permanent disability?: N.A.
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Nil
(ii) Expenditure on conveyance Rs. 5000/-
(iii) Expenditure on special diet Rs. 5000/-
(iv) Cost of nursing/attendant Rs. 10,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 9,178/-
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs. 7500/-
physical shock
(ii) Pain and suffering Rs. 7500/-
(iii) Loss of amenities of life Rs. 5,000/-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships,disappointment,frustration, mental stress, dejectment and DAR Nos. 947/17, 948/17 & 949/17 Page no.30 of 35 unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed Nil and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of earning Nil
relation to disability
(iv) Loss of future income Nil
14. Total Compensation Rs.49,178/-
15. Interest Awarded 9% p.a. from date of filing of
DAR till deposit within 30 days
and 12% p.a. thereafter.
16. Interest amount up to the date of Rs.18,225.50
award
17. Total amount including interest Rs.67,403.5
rounded off to Rs.67,500/-
18. Award amount released Entire amount released
19. Award amount kept in the FDRs Nil
20. Mode of disbursement of the award Through bank/cheque
amount to the claimant (s)
21. Next date for compliance of the 30.03.2021
award
MANOJ Digitally signed by
MANOJ KUMAR
KUMAR Date: 2020.12.23
NAGPAL
NAGPAL 16:39:49 +0530
(M.K. Nagpal)
PO/MACT, New Delhi
23.12.2020
DAR Nos. 947/17, 948/17 & 949/17 Page no.31 of 35
SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB IN DAR No.948/17 1 Date of accident : 16.03.2016 2 Name of the injured : Sameer 3 Age of the injured : 18 years 4 Occupation of the injured : Not considered 5 Income of the injured : Not considered 6 Nature of injury : Simple 7 Medical treatment taken by the injured : DDU Hospital 8 Period of hospitalization : Discharged on the same day 9 Whether any permanent disability?: N.A.
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment lump-sum amount
(ii) Expenditure on conveyance -do-
(iii) Expenditure on special diet -do-
(iv) Cost of nursing/attendant -do-
(v) Loss of earning capacity Nil
(vi) Loss of Income lump-sum amount
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and lump-sum amount
physical shock
(ii) Pain and suffering -do-
(iii) Loss of amenities of life -do-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships,disappointment,frustration, mental stress, dejectment and unhappiness in future life etc. DAR Nos. 947/17, 948/17 & 949/17 Page no.32 of 35
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed Nil and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of earning Nil
relation to disability
(iv) Loss of future income Nil
14. Total Compensation Rs.20,000/-
(lump-sum amount)
15. Interest Awarded 9% p.a. from date of filing of
DAR till deposit within 30 days
and 12% p.a. thereafter.
16. Interest amount up to the date of Rs.7412.05
award
17. Total amount including interest Rs.27,412.05
rounded off to Rs.27,500/-
18. Award amount released Entire amount released
19. Award amount kept in the FDRs Nil
20. Mode of disbursement of the award Through bank/cheque
amount to the claimant (s)
21. Next date for compliance of the 30.03.2021
award
Digitally signed by
MANOJ MANOJ KUMAR
KUMAR NAGPAL
Date: 2020.12.23
NAGPAL 16:39:16 +0530
(M.K. Nagpal)
PO/MACT, New Delhi
23.12.2020
DAR Nos. 947/17, 948/17 & 949/17 Page no.33 of 35
SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB IN DAR No.949/17 1 Date of accident : 16.03.2016 2 Name of the injured : Shabnam Begum 3 Age of the injured : 36 years and around one and half month 4 Occupation of the injured : Semi skilled worker 5 Income of the injured : Rs. 10,140/- per month 6 Nature of injury : Grievous 7 Medical treatment taken by the injured : DDU Hospital 8 Period of hospitalization : 16.03.2016 to 21.04.2016 9 Whether any permanent disability?: 80% permanent physical disability, but taken as 40%
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Nil
(ii) Expenditure on conveyance Rs. 5,000/-
(iii) Expenditure on special diet Rs. 10,000/-
(iv) Cost of nursing/attendant Rs. 35,000/-
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 1,21,680/-
(vii) Any other loss which may require Nil
any special treatment or aid to the
injured for the rest of his life
12. Non-pecuniary Loss:
(i) Compensation for mental and Rs. 20,000/-
physical shock
(ii) Pain and suffering Rs. 20,000/-
(iii) Loss of amenities of life Rs. 10,000/-
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships,disappointment,frustration, mental stress, dejectment and DAR Nos. 947/17, 948/17 & 949/17 Page no.34 of 35 unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed 80% permanent physical and nature of disability as permanent disability or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability.
(iii) Percentage of loss of earning 40% functional disability relation to disability
(iv) Loss of future income Rs. 10,22,112/-
14. Total Compensation Rs.12,43,792/-
15. Interest Awarded 9% p.a. from date of filing of DAR till deposit within 30 days and 12% p.a. thereafter.
16. Interest amount up to the date of Rs.4,60,952.72 award
17. Total amount including interest Rs.17,04,744.72 rounded off to Rs.17,05,000/-
18. Award amount released 10%
19. Award amount kept in the FDRs 90%
20. Mode of disbursement of the award Through bank/cheque amount to the claimant (s)
21. Next date for compliance of the 30.03.2021 award Digitally signed by MANOJ MANOJ KUMAR KUMAR NAGPAL Date: 2020.12.23 NAGPAL 16:38:57 +0530 (M.K. Nagpal) PO/MACT, New Delhi 23.12.2020 DAR Nos. 947/17, 948/17 & 949/17 Page no.35 of 35