Delhi District Court
Deepak vs . Satya & Ors. on 29 October, 2020
More than Five Years Old Matter
IN THE COURT OF SH. M. K. NAGPAL : PRESIDING OFFICER:MOTOR
ACCIDENT CLAIMS TRIBUNAL
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
Deepak Vs. Satya & Ors.
MACP/Suit No. 01/2015 (also having no. MACP No.182/16)
Sh. Deepak
S/o Sh. Ramesh Chand
R/o. 30/58, Gali Rangrejan, Raja Ki Mandi,
Agra, U.P.
Presently at:-
22/273, Trilokpuri, Delhi.
......Petitioner/claimant
Versus
1. Sh. Satya
S/o. Sh. Prabhat
R/o. H. No. D-188, Sector-24,
Rohini, New Delhi.
2. M/s. Sunworld Travel
Proprietor:-
Sh. Sunil Kumar
S/o. Sh. Chandan Singh
R/o. H. No. 239/18, Shanti Nagar,
Gurugram, Haryana.
3. M/s. Bajaj Allianz General Insurance Co. Ltd.
Through its Zonal Officer
6th Floor, 93 Ashoka Bhawan,
Nehru Place, New Delhi.
.....Respondents
Date of filing of DAR : 10.11.2014
Date of filing of petition : 05.01.2015
Date of framing of issues : 29.01.2015 & 05.01.2016
MACP No. 01/2015 Page no.1 of 29
Date of concluding arguments : 01.10.2020
Date of decision : 29.10.2020
AWARD/JUDGMENT
1. The claim for compensation raised in this petition pertains to injuries and permanent disability suffered by petitioner in a road accident that took place on 09.07.2014 at about 10.30 pm, near Ring Road - Bhairo Road red light, on road leading towards Sarai Kale Khan, regarding which one FIR No. 242/14, under Sections 279/337 IPC was registered at PS Tilak Marg. The offending vehicle involved in this case is a car of make Etios Liva bearing registration no. HR-55S-4948, which was being driven by respondent no.1 (R-
1), owned by respondent no.2 (R-2) and insured with respondent no.3 (R-3) at the relevant time of accident.
2. The case of petitioner, briefly stated, is that on the above said date and time, he was driving his scooty bearing registration no. DL-13S-TC- 0097 with his friend Sh. Gajender Pal Singh on pillion and they both were returning from R.K. Ashram Marg side to the residence of Gajender Pal Singh in Indirapuram, Vaishali, Ghaziabad, U.P. and when their scooty had just passed below the railway bridge on Bhairo Marg and they were on road diverting towards Sarai Kale Khan, their scooty was hit from behind by the above offending car being driven by R-1 at a fast speed and in a rash and negligent manner. As a result thereof, both riders of scooty fell on road and suffered injuries. They were removed to Dr. RML Hospital by the PCR officials and though the friend of petitioner was declared fit to give a statement, but the petitioner was declared unfit for statement being unconscious. However, even friend of petitioner did not give any statement to police on that day and gave it only on the next day when the above criminal case came to be registered at PS Tilak Marg on basis of his said statement.
MACP No. 01/2015 Page no.2 of 29 The nature of injuries suffered by friend of petitioner was though declared to be simple, but injuries suffered by petitioner were subsequently opined to be dangerous to his life and the same had also resulted into 60% physical and mental permanent disability to him in respect to his whole body. It has been alleged that on the date of accident, the offending car was owned by R-2 and insured with R-3.
3. Two Detailed Accident Reports (DARs) bearing numbers D- 438/14 and D-439/14 qua the injuries suffered by petitioner herein and his friend Gajender Pal Singh respectively were filed before this tribunal on 10.11.2014. This claim petition seeking compensation of Rs.36,00,000/- also came to be filed subsequently on behalf of petitioner on 05.01.2015 and on the same date, the DAR qua him was clubbed with this petition for further proceedings.
4. R-1 & R-2 had both filed their separate but identical replies to this claim petition through the same counsel and though in the said replies they had not denied the facts that on the above date of accident the offending vehicle was being driven by R-1 and owned by R-2, but they had denied any accident between their car and scooty of the petitioner. They had also denied the alleged rash and negligent manner of driving of the car on part of R-1, while claiming surprisingly that it was the petitioner himself who was driving his scooty at a fast speed and in a rash and zig zag manner. They had also denied the other averments made by petitioner in support of his claim for the above amount of compensation. They had further specifically pleaded that their car was duly insured with R-3 on the date of accident and R-1 was having a valid licence to drive the same.
5. R-3/Insurance Co. had also filed its reply to the DAR/claim petition while taking a statutory defence that the offending car was being driven by R-1 on the day of accident without a valid and effective driving MACP No. 01/2015 Page no.3 of 29 licence (DL). However, it had not disputed the fact that it was insured with them in name of R-2 at the relevant time of accident.
6. It has observed from records that proceedings in both the above DARs were conducted separately and after the DAR file of petitioner herein was clubbed with his present claim petition, one of the Ld. Predecessors of this tribunal had framed the following issues for disposal of this claim petition on 29.01.2015 on the basis of pleadings of parties:-
1. Whether Sh.Deepak sustained injuries in the accident which occurred on 09.7.2014 at about 10.30 PM at Ring Road, Bairon Road Red Light towards Sarai Kalen Khan Road, New Delhi caused by rash and negligent driving of vehicle No.HR-55S-4948 being driven by respondent no 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. Though after framing of issues the matter was fixed for evidence of petitioner, but it is gathered from order sheets that no evidence was led by him for a period of around one year and reasons for the same were that the treatment of petitioner was still continuing and some settlement talks between him and R-1 & R-2 also stood initiated. It is also gathered from records that subsequently proceedings in this petition and DAR No. D-439/14 qua the injured Gajender Pal Singh were again conducted together and vide order dated 05.01.2016 passed by another Ld. Predecessor of this tribunal, both these matters were consolidated for the purposes of trial and decision and while making this petition/suit to be the leading case for the purposes of recording of evidence, the following consolidated issues were again framed for disposal of these two matters:-
1. Whether Sh.Deepak (petitioner in suit no.1/15) and Sh.
Gajendra Pal Singh (injured in suit no. D-439/14)sustained injuries in the accident which occurred on 09.7.2014 at about 10.30 PM at MACP No. 01/2015 Page no.4 of 29 Ring Road, Bairon Road Red Light towards Sarai Kalen Khan Road, New Delhi caused by rash and negligent driving of vehicle No.HR- 55S-4948 being driven by respondent no 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
8. It has been revealed by the court staff on inquiry that the claim for compensation of injured Gajender Pal Singh stood subsequently settled between him and R-1 & R-2 on a compromise/settlement arrived between them in the Mediation Centre, PHC, New Delhi on 30.11.2016, though no settlement could be arrived at between R-1 & R-2 and the petitioner of this case as per the proceedings dated 04.01.2017 conducted in the Mediation Centre, PHC, New Delhi vide which the matter was referred back to this tribunal for further proceedings.
9. From perusal of records, it is also found that an interim award for a sum of Rs.25,000/- has also been passed in favour of petitioner vide order dated 03.05.2019.
10. I have heard the arguments advanced by Sh. Manoj Goel, Ld. Counsel for petitioner, Sh. Rahul Prashar, Advocate on behalf of Sh. Praveer Singh, Ld. Counsel for R-2 and Ms. Anjali Sharma, Ld. Counsel for R- 3/Insurance Co. Ld. Counsel for petitioner addressed the arguments physically and Ld. Counsels for R-2 & R-3 have addressed the same through video conferencing on Cisco Webex. However, none has turned up on behalf of R-1 to address any arguments. I have also perused the entire material available on record. My issue-wise findings are as under:-
11. ISSUE NO.1 It is well settled that the procedure followed for proceedings MACP No. 01/2015 Page no.5 of 29 conducted by an accident tribunal is similar to that followed by a civil court and in civil matters the facts are required to be established by preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubts as are required in a criminal prosecution. The burden of proof in a civil case is never as heavy as that is required in a criminal case, but in a claim petition under the Motor Vehicles Act, this burden is infact even lesser than that in a civil case.
Reference in this regard can be made to the propositions of law laid down by the Hon'ble Supreme Court in the case of Bimla Devi and others Vs. Himachal Road Transport Corporation and others, reported in (2009) 13 SC 530, which were reiterated in subsequent judgment in the case of Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and also recently in another case Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors., 2018 Law Suit (SC) 303.
12. Though the petitioner has examined on record total four witnesses, including himself, but it is observed that only his testimony matters for determination of the present issue as the other three witnesses examined by him have deposed in respect to his employment or disability etc. and they had nothing to say about the accident or manner thereof. The petitioner is found to have tendered on record his examination-in-chief by way of two affidavits Ex.PW1/1 and Ex.PW1/B on 28.03.2016 and 25.04.2017 respectively and his second affidavit Ex.PW1/B was permitted to be tendered on record by way of his additional evidence in terms of the order dated 12.01.2017 passed by the Ld. Predecessor of this tribunal when cross examination of petitioner was still in progress.
13. In his both affidavits, the petitioner has specifically stated on record that their scooty was hit by the offending car from behind and the offending car came to be driven at a very fast speed and in a rash, negligent MACP No. 01/2015 Page no.6 of 29 and zig zag manner. He has also deposed in these affidavits regarding the nature of injuries suffered by him, tenure of his treatment and the facts affecting his claim for compensation under different heads. The petitioner is though found to have been cross examined by Ld. Counsel for R-3 on 28.03.2016 itself, but it has been observed that the entire cross examination of petitioner conducted by her was confined only to the claims made by petitioner for compensation under different heads. Even during his such cross examination, the petitioner specifically stated on record that his scooty was hit by the offending car from behind.
14. The cross examination of petitioner on behalf of R-1 & R-2 was deferred on 28.03.2016 on request of Ld. Proxy Counsel appearing on behalf of said respondents and by the next date of examination of petitioner, i.e. 25.07.2017, R-1 had engaged Ms. Deepika as his fresh counsel. But even on this date, neither R-1 nor the new counsel of R-1 had cross examined the petitioner despite having been given an opportunity for the same. However, the petitioner was duly cross examined by Ld. Counsel for R-2 on that date, but even during his such cross examination nothing could be extracted out from him to make his testimony unworthy of acceptance or to be doubtful. Though during his such cross examination, it has come on record that the petitioner could not see the number of offending car at the time of accident and he was told so by the pillion rider or some other public person, but his these depositions do not adversely effect his claim or veracity of his statement for the reason that the number of offending car is found stated in the FIR itself, which came to be registered on the basis of statement made by his pillion rider. Again, the petitioner was nowhere suggested by Ld. Counsel for R-2 that no accident took place between scooty of petitioner and the offending car or that it took place due to rash or zig zag driving of petitioner himself and not because of the rash and negligent driving of offending car on the part of MACP No. 01/2015 Page no.7 of 29 R-1.
15. Moreover, the oral testimony of petitioner on this aspect is also found duly substantiated from records of the above criminal case registered about this accident, which have been filed with DAR by the IO and have not been disputed by the parties. These documents not only include copies of the FIR and charge-sheet of the said case, but also copies of the site plan of place of accident, copies of seizure memos of the two vehicles and their mechanical inspection reports, copies of MLCs of the two injured and arrest memo of R-1 etc. It is observed that offending vehicle was though seized by the IO in above criminal cases after more than 20 days of the date of accident, but still fresh and substantial damages on front portion of car were found to be there. These documents also clearly show that R-1 stood already charge-sheeted in the above criminal case for offences punishable, inter-alia, under Sections 279/338 IPC for causing grievous hurt on the person of petitioner by his rash and negligent driving of the said car and the same in itself is a strong circumstance to corroborate the testimony of petitioner on above aspects.
16. Apart from above, R-1 was the best witness who could have countered or challenged the case of petitioner with regard to manner of the said accident. However, after filing his reply, he has not properly contested the present inquiry and has not even cross examined the petitioner, what to say of leading evidence in his defence to show that the accident did not take place in the manner as stated by petitioner. Hence, an adverse inference can also be drawn against the respondents on this aspect, in view of the law laid down in case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh, reported in 2009 (3) AD (Delhi) 310.
17. Therefore, in view of the above discussion, it is held that the oral evidence led on record by petitioner on this issue is duly substantiated by MACP No. 01/2015 Page no.8 of 29 documentary evidence and it stands proved that the above accident resulting into grievous injuries on the person of petitioner took place due to rash and negligent driving of the above offending car bearing registration no. HR-55S- 4948, which was being driven by R-1, owned by R-2 and insured with R-3 at the relevant time of accident. Hence, this issue is accordingly decided in favour of the petitioner and against the respondents.
18. ISSUE NO.2 As the issue no.1 has been proved in affirmative and in favour of petitioner, the petitioner has 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.
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 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 MACP No. 01/2015 Page no.9 of 29 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 on some of important judgments on the subject like the judgment in the case of R. D. Hattangadi Vs. Pest Control (India) Pvt. Ltd., AIR 1995, SC 755, Arvind Kumar Mishra Vs. New India Assurance Company Limited, (2010) 10 SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr., (2011)1 SCC 343.
In light of 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:-
(i) Medical or Treatment Expenses As stated above, the injuries suffered by petitioner in above accident were subsequently declared to be dangerous to his life and the same had resulted into 60% permanent physical and mental disability to him in respect to his whole body. His medical record reflects that his treatment continued for a considerable time and he underwent two major surgeries on his head. The petitioner through his above affidavits Ex.PW1/1 and Ex.PW1/B is found to have tendered on record, inter-alia, his medical bills and payment receipts as Ex.PW1/5 (colly) and Ex.PW1/8 (colly) and the same are found to MACP No. 01/2015 Page no.10 of 29 be totaling to Rs.64,428/- (Rs.26,839 + 37,589). Since the above medical bills and payment receipts produced by petitioner on record are found to be in consonance with his treatment record, he is held entitled to the above amount of Rs.64,428/- as his actual medical expenses under the present head.
(ii) Loss of actual earnings In his above affidavit Ex.PW1/1, the petitioner claims that at the relevant time of accident he used to perform work of a mechanic/electrician in two shops of car accessories, namely M/s. Kar Kool, Exclusive Range of Car Accessories at 12-13, R.K. Ashram Marg, New Delhi and M/s. Car Aids, 5-7, R.K. Ashram Marg, New Delhi and was earning an amount of Rs.15,000/- pm from the said job. To substantiate his above claims, he has also examined on record PW4 Sh. Jugnu Dhawan and this witness has claimed himself to be the proprietor of M/s. Kar Kool and his father to be the proprietor of the other shop in name of M/s. Car Aids. As per this witness also, the petitioner was working as a mechanic/electrician with them on their above said shops on payment of Rs.500/- per day. However, this witness or the petitioner has failed to produce on record any document showing the above employment or earnings of petitioner or even any document to show that the petitioner had done any degree or diploma in the field of mechanic/electronics/electrician or he had undergone any specialized training in this regard. Even the petitioner has specifically admitted these facts on record during his cross examination and the payment of Rs.500/- per day to petitioner is also claimed to have been made in cash only. Hence, in the absence of there being any satisfactory evidence on record on these aspects, this tribunal is not in a position to accept the above claims of petitioner regarding his employment and earnings.
The petitioner claims himself to be 10th class pass and his this claim is found duly substantiated from contents of his provisional certificate for passing secondary school examination from National Institute of Open MACP No. 01/2015 Page no.11 of 29 Schooling, a copy of which has been brought on record by him as Ex.PW1/4. Hence, in view of above, the petitioner is held entitled to be compensated for his loss of earnings at the rate of minimum wages for a 10th class pass/ matriculate and the same were Rs.9,802/- at the relevant time of accident in NCT of Delhi as it is clear from the copy of his election identity card Ex.PW1/2 and his driving licence Ex.PW1/3 issued by a transport authority of Delhi that he was a resident of the given address of Trilokpuri, Delhi at the time of accident.
As stated above, the petitioner or PW4 have failed to produce on record any documentary evidence in respect of employment or earnings of petitioner. Hence, no document could also have been produced on record by them regarding the period of leaves or period during which the petitioner was not able to do any job or work. However, the treatment record of petitioner brought in evidence shows that his treatment had continued considerably for a long time and he underwent two major surgeries on his head in RML Hospital during the course of his admissions in above hospital from 10.07.2014 to 20.07.2014 and 07.07.2015 to 14.07.2015. Even thereafter, he was advised to follow up his treatment in OPD and injuries suffered by him in the above accident included severe head injuries, besides the dental and injuries to ear. Hence, keeping in view the nature of injuries suffered by petitioner, duration and extent of his treatment, this tribunal deems it just and reasonable to compensate him for loss of his actual earnings atleast for a period of 2 years, i.e. for 24 months.
Therefore, the petitioner is being awarded an amount of Rs.2,35,248/- (Rs.9,802/- X 24) under this head pertaining to loss of his actual earnings.
(iii) Loss of future earnings due to disability It is well settled that the physical disability and functional MACP No. 01/2015 Page no.12 of 29 disability of a person are not one and the same things and functional disability of a person refers to his loss of earning capacity due to the said disability. This functional disability or loss of earning capacity of a person is required to be assessed separately by the claims tribunal with reference to nature of work or profession etc. of the said person and it has no reference to the percentage of permanent disability given in his disability certificate. The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it was held as under :-
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The MACP No. 01/2015 Page no.13 of 29 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)."
Coming to facts of the present case, as already discussed above, the petitioner had suffered severe head injuries in the above accident and his treatment record reflects that he was brought to RML Hospital in unconscious condition and he was declared unfit to make the statement on that day. The petitioner is found to have tendered on record his original discharge summaries of RML Hospital regarding his admission there on above two occasions as Mark A and Mark C respectively and he is also further found to have tendered on record his other treatment record in the form of OPD cards as Ex.PW1/7 (colly). PW2 Sh. Raj Kumar, Record Clerk of Dr. RML Hospital has also brought in evidence the complete treatment record of petitioner, including the above two discharge summaries as Ex.PW2/1 (colly).
The above treatment record of petitioner reflects that during the course of his first hospitalization w.e.f. 10.07.2014 to 20.07.2014, he underwent a head surgery called 'left FTP flap craniotomy with evacuation of SDH with left temporal contusion with Lax Duraplasty with 6 patch' as his NCCT Head revealed multiple contusions in bilateral frontal lobe and left temporal lobe. In his affidavit Ex.PW1/1, the petitioner has claimed that after his discharge from the above hospital, he reported for his neurology MACP No. 01/2015 Page no.14 of 29 problems to Dr. Arvind Kumar Agarwal of Naval Kishore Nursing Home at Agra on 02.08.2014, Dr. Rajeev Pachauri of Ritika Centre, Agra for his ENT problems on 03.08.2014 and Dr. Ajay Kumar Aggarwal of Dental Health Clinic & Implant Centre, Agra for treatment of his jaw on 07.08.2014. Besides these, he also remained hospitalized in one Rainbow Hospital at Agra from 08.08.2014 to 10.08.2014 and is found to have tendered on record his original discharge summary of this hospital as Mark B, which shows that he was declared LAMA as his attendants insisted for his discharge on the ground that either he would be treated at home or shifted to some other place. Further, his discharge summary of Dr. RML Hospital regarding his second hospitalization from 07.07.2015 to 14.07.2015 shows that the petitioner underwent his second major surgery on head called 'cranioplasty' for removal of scalp bone defect caused because of the first surgery.
PW3 Dr. L. N. Gupta, Professor, M.S. Surgery, MCH (Neuro), PGD (DP & R) Consultant & HOD Neurosurgery, Dr. RML Hospital was the member of medical board constituted on directions of this tribunal, which had examined the petitioner for determination of his permanent disability and gave its report Ex.PW3/1. This report has been duly proved on record by this witness. As per him, the petitioner was an operated case of head injury resulting into left side facial weakness with sensory loss and left hemiparasis like minimum paralysis and the petitioner had also developed moderate dysfuction in memory. He also stated on record that the above disability report of petitioner was given after thorough examination of his treatment record, assessment in the PMR Department of Dr. RML Hospital and neuro- phsycological assessment in the Psychiatric Department. He further stated on record that physical and mental disability of petitioner was determined by them to be 60% in respect to his whole body and this fact is also found specifically stated in the said report. He also stated in clear and specific MACP No. 01/2015 Page no.15 of 29 terms that the above disability of petitioner was to stay permanently as a period of 3 years stood already expired since petitioner suffered the above injuries.
PW3 is found to have been extensively cross examined by Ld. Counsel for R-2, besides his cross examination conducted by Ld. Counsel for R-3. He has also stated specifically on record during his cross examination that besides being Chairperson of the above medical board, the petitioner was treated in their hospital under his direct supervision as he was Head of the Department as well as Head of Unit Neurosurgery-I at the time when petitioner was first brought to their hospital. Though discharge summary of petitioner was not found to be bearing his signatures, but the witness has duly identified signatures of Dr. Zambre Sourabh Mukund on the said discharge summary, while saying that this doctor was working as a Senior Resident in his unit at that time. Though it has also come out during his cross examination that the disability report Ex.PW3/1 was not bearing signatures of the other two doctors of board, but the same is not found detrimental to the case of petitioner because according to PW3, the other two members of board, i.e. Dr.Yawar Shoaib Ali, Assistant Professor, Neurosurgery and Dr. Amit Dagar, Assistant Professor, Neurosurgery, could not sign the same as their tenure in hospital was over by that time. He also denied the suggestions given to him that the disability report of petitioner does not bear signatures of the other two members as they were not in agreement to the findings given in above report or that disability percentage of petitioner was given by them intentionally on a higher side to help him and also that the disability report was issued by him under duress and hence, the same was incorrect. There is no reason or ground made out before this tribunal to take or infer any such view or possibility thereof.
Further, though in reply to questions put by Ld. Counsel for R-2, MACP No. 01/2015 Page no.16 of 29 PW3 also stated on record that he cannot say if the petitioner was born with any physical or mental limitation or not for the reason that the petitioner was not known to him prior to assessment of disability, but in reply to a court query the witness has also specifically stated on record that the above disability suffered by petitioner was possible as a result of injuries which were found reflected in his discharge summary and other papers available on record. Hence, there is sufficient oral and documentary evidence available before this tribunal to show that the above disability, physical as well as mental, was suffered by petitioner only as a result of the injuries suffered in the said accident. As already discussed, the petitioner had suffered 60% permanent disability as a result of above injuries and his this disability has been opined to be physical as well as mental and in relation to his whole body. Though in the disability report Ex.PW3/1, it is found stated that the above disability is likely to be permanent, but PW3 had clarified on record that now it is to remain permanently.
In light of above, it is the contention of Ld. Counsels for R-2 & R- 3 that functional disability of the petitioner has to be taken as only 30%, i.e. half of the above percentage of disability given in his disability report, as per certain judicial pronouncements on the subject, whereas Ld. Counsel for petitioner has argued that the same be taken as 100% because due to above disability the petitioner will not be able to do any physical or mental work. He has also drawn attention of this tribunal towards the depositions of PW3 that as on the date of his examination, the petitioner was even not able to do his day to day activities and further the reply given by PW3 to a court query that due to above mental disability, the petitioner cannot even find fault in electrical system of a car or to do any skilled job or work.
However, this tribunal is unable to accept the above submissions made by Ld Counsel for petitioner for certain reasons. This is so because it MACP No. 01/2015 Page no.17 of 29 has already been discussed above that the petitioner has failed to prove on record by any satisfactory evidence that he was actually doing any such job or work involving application of mind. Further, PW3 is also found to have stated on record that with some rehabilitation training, the petitioner can learn to do his day to day activities on his own and even this tribunal is of the considered opinion that despite having the above disability, the petitioner can be able to do certain jobs or works involving physical work on command and not involving much application of mind. Thus, keeping in view the above factual discussion, nature and extent of injuries suffered by petitioner and the legal position already discussed above, this tribunal deems it just and reasonable to take functional disability of petitioner equivalent to the percentage of his permanent disability as mentioned in the disability report Ex.PW3/1, i.e. at 60%.
Coming to age of petitioner at the relevant time of accident, he has shown himself to be aged around 25 years in his affidavit Ex.PW1/1 and besides this, he is also found to have tendered on record copies of his election identity card, driving licence and provisional certificate for passing out senior secondary school examination as Ex.PW1/2, Ex.PW1/3 and Ex.PW1/4 respectively. It is observed that in election identity card of the petitioner, his age as on 01.01.2009 is found stated as 19 years and going by this document, his age as on the relevant date of accident comes to 25 years and over 6 months, which may attract the nearest multiplier of 17 as per the multiplier system approved by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and even upheld by the Constitution Bench of the Hon'ble Supreme Court in judgment dated 31.10.2017 given in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014 and as interpreted and applied by the Hon'ble High Court in the case of New India MACP No. 01/2015 Page no.18 of 29 Assurance Co. Ltd. Vs. Harsh Wardhan & Ors., MAC App. No. 521/2008 decided on 20.07.2017. In the other two documents Ex.PW1/3 and Ex.PW1/4, date of birth of petitioner is also found to have been mentioned. But here again, there is some contradiction on record as two different dates of his birth, i.e. 24.07.1989 and 21.10.1989 respectively have come on record through these documents. However, despite the above contradiction, age of petitioner at the time of accident as per these documents comes to be less than 25 years and hence, on the basis of oral and documentary evidence led on record, age of petitioner at the relevant time of accident is being considered to be below 25 years and multiplier of 18 is held applicable for calculating loss of future earnings arising out of his above disability.
Further, the petitioner is also held entitled to 40% future prospects in view of law laid down by the Hon'ble Delhi High Court in the cases of Bajaj Alliance Gen. Insurance Co. Ltd. Vs. Rajeshwar Prasad & Ors., MACA 858/15 decided on 19.07.2017 and Faiyaz Ahmad Khan Vs. Chandra Pal Singh & Ors., MACA No.351/17 decided on 08.08.2017 as well as in the Constitution Bench Decision of the Hon'ble Supreme Court in case of Pranay Sethi (Supra) as he was below 40 years at the time of accident and nature of his job was temporary.
Thus, loss of future earnings and prospects caused to the petitioner due to his above injury and permanent disability comes to Rs. 17,78,475/- (rounded off) (Rs.9,802 X 140/100 X 60/100 X 12 X 18) and the same is being awarded to him under this head.
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
The nature and extent of injuries suffered by petitioner and the duration of his treatment have already been discussed above in detail. His treatment had continued for a considerable time and his actual loss of MACP No. 01/2015 Page no.19 of 29 earnings has been taken equivalent to a period of 2 years. Though, it is not possible to exactly compensate him for the shock, pain and sufferings etc. which he had actually suffered because of the above injuries and disability, but as stated above, an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries suffered by petitioner and duration of the treatment taken by him etc., an amount of Rs.1,00,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs.50,000/- 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. 2,50,000/- under this head.
(v) Conveyance and Special Diet and Attendant Charges In his affidavit Ex.PW1/B, the petitioner has claimed that he has spent an amount of Rs.50,000/- towards conveyance and another amount of Rs.1,50,000/- towards special diet. However, the petitioner has failed to lead on record any documentary or other corroborative evidence to substantiate his above claims. But still this tribunal can very well take note of the requirement of conveyance for him for frequently visiting the hospitals and doctors in connection with his treatment and also that of special diet for his early recovery from the injuries suffered because of above accident. Hence, an amount of Rs.50,000/- towards the requirement of conveyance and another amount of Rs.25,000/- towards the requirement of special diet is also being granted to him.
Besides the above, petitioner has also claimed in his second affidavit Ex.PW1/B that he had hired an attendant for taking care of him at a salary of Rs.6,000/- per month for a period of 10 months, but he has failed to lead on record any other evidence to substantiate his these claims. However, still this tribunal can take note of the above requirement and while also MACP No. 01/2015 Page no.20 of 29 considering the depositions made by PW3 that till the time of determination of disability of petitioner vide report Ex.PW3/1, which has been received by this tribunal vide letter dated 19.05.2017 of the Medical Superintendent of above said hospital, the petitioner was not in a condition even to do his day to day activities, this tribunal deems it just and reasonable to grant him a lump-sum amount of Rs.2,00,000/- towards the requirement of an attendant or for the gratuitous service which might have been performed by his family members during the period of his treatment and immobility .
Thus, under this head an amount of Rs.2,75,000/- is granted to the petitioner.
(vi) Loss of prospects of marriage Keeping in view the percentage and nature of permanent disability suffered by petitioner, an inference can also be drawn that his marriage prospects are very bleak and he will certainly have difficulties in finding a suitable match and hence, a lump-sum amount of Rs.5,00,000/- is also awarded to him under this head.
Issue No.3/Relief
19. The petitioner is thus held entitled to an amount of Rs. 31,03,151/- only (Rs. 64,428 + 2,35,248 + 17,78,475 + 2,50,000 + 2,75,000 + 5,00,000) (Rupees Thirty One Lacs and Three Thousand One Hundred and Fifty One only) along with interest. However, it is directed that the amount of interim award granted by this tribunal vide order dated 03.05.2019 and interest for the suspended period, if any, be excluded from the above amount and calculations of compensation.
20. RELEASE Out of the awarded amount, 10% amount is directed to be released into his in his savings/MACT Claims SB Account bearing no. 39229442613 being maintained at State Bank of India, Himmatpuri Branch, MACP No. 01/2015 Page no.21 of 29 Trilokpuri, New Delhi having IFSC No. SBIN0004838. The remaining 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of 250 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 250 months in succession, as per 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 his above said account. The amounts so released in his above said account can be withdrawn and utilized by the petitioner.
To facilitate deposits in the above scheme and disbursement of the awarded amount, the petitioner shall also open a savings bank account in the UCO Bank, Patiala House Court, New Delhi, if not opened earlier.
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 amount.
The bank shall not permit any joint name (s) to be added in the savings bank account or MACAD scheme 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 MACP No. 01/2015 Page no.22 of 29 TDS be credited by Electronic Clearing System (ECS) in the above account of the petitioner.
No loan, advance or withdrawal or pre-mature discharge be allowed on MACAD without permission of the Court.
Petitioner has already produced before this tribunal his original passbook with necessary endorsements to the effect that no cheque book shall be issued to his above said account and he has also filed copy thereof on record alongwith his aadhar card and PAN card. It is directed that the concerned bank (s) shall not to issue any cheque book and/or debit card to the claimant in future also. However, the concerned bank shall permit the petitioner to withdraw money from his above savings bank account by means of withdrawal forms or biometric authentication.
21. LIABILITY As already discussed above, R-3/Insurance Co. in its reply had raised a statutory defence to escape their liability on ground that as on the date of accident, R-1 was not holding any valid and effective licence to drive the above offending car. On perusal of records, it is also found that along with his written statement/reply, R-1 has placed on record a photocopy of one DL in his name, which is shown to have been issued by the Transport Authority of Agra, UP on 27.05.2009 and it was valid till 25.05.2015 for driving LMV and heavy category of vehicles, besides motorcycle. Though R-1 has failed to summon any record from the concerned transport authority at Agra in respect of his above DL, but it was the responsibility of R-3 to prove on record its above statutory defence or the fact that above DL of R-1 was not a valid DL for driving the above offending car, which R-3 has failed to do. It appears that for this reason, Ld. Counsel for R-3 has not raised the issue of validity of DL of R-1 during the course of final arguments. Though the word 'commercial' is not specifically found written in the copy of DL of R-1 with LMV category of MACP No. 01/2015 Page no.23 of 29 vehicles, but in view of the judgment given by the Hon'ble Supreme Court in the case of Mukund Devgan Vs. Oriental Insurance Co. Ltd., 2017 ACJ 2011 the licence of R-1 has to be considered valid for driving the offending car as it was laid down in this case that a person holding a LMV Non Transport category of licence is also competent to drive a transport vehicle or omnibus etc., the gross vehicle weight of which does not exceed 7500 kg or even the tractor or road-roller etc. upto that weight because according to Section 2 (21) of the MV Act, these vehicles fall in the category of a 'light motor vehicle' as their weight does not exceed 7500 kg. Moreover, keeping in view the fact that R-1 was even competent to drive the heavy category of motor vehicles, the above DL of R-1 is held to be valid.
Hence, though all the respondents are otherwise held jointly and severally liable to pay the awarded amount of compensation, but since R-3 has failed to prove any statutory violation of terms and conditions of insurance policy on the part of R-2, R-3 being insurer of the offending vehicle is directed to deposit the awarded amount with UCO Bank, Patiala House Court Branch, alongwith interest @ 9% per annum, by way of crossed cheque/DD in name of the petitioner within 30 days from today failing which it will be liable to pay interest at the rate of 12% per annum for the period of delay. In case even after passage of 90 days from today, R-3/Insurance Co. fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-.
R-3 shall inform the petitioner and his counsel through registered post that the cheque of the awarded amounts is being deposited so as to facilitate him to collect his cheques.
MACP No. 01/2015 Page no.24 of 29
22. A copy of this award be given to the parties free of cost. Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
23. 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.
24. 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 09.07.2014
2. Date of intimation of the accident by the Investigation Officer to the Claims Not given Tribunal.
3. Date of intimation of the accident by the Investigating Officer to the Insurance Not given company.
4. Date of filing of Report under Section 173 Cr.PC before the Metropolitan Not given Magistrate.
5. Date of filing of Details Accident Report (DAR) by the Investigating Officer before 10.11.2014 Claims Tribunal.
6. Date of service of DAR on the Insurance
-do-
Company.
7. Date of service of DAR on the
-do-
claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, state deficiencies in the DAR ......
10. Whether the police has verified the Yes documents file with DAR?
MACP No. 01/2015 Page no.25 of 29
11. Whether there was any delay or DAR has been filed after deficiency on the part of the Investigating about 4 months of the Officer? If so, whether any accident action/direction warranted?
12. Date of appointment of the Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of the Insurance -do-
Company.
14. Whether the Designated Officer of the Insurance Company submitted his report No within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Insurance Legal offer not given Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or deficiencies on the part of the Delay in filing reply Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) of Legal offer not given the offer of the Insurance Company.
18. Date of the award 29.10.2020
19. Whether the award was passed with the No consent of the parties?
20. Whether the claimant(s) were directed to open savings bank account(s) near their Yes place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the 30.05.2018 direction to the bank not issue any cheque book/debit card to the claimant
(s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced 15.10.2020 the passbook of their savings bank MACP No. 01/2015 Page no.26 of 29 account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
23. Permanent Residential Address of the R/o. 30/58, Gali Rangrejan, Claimant(s) Raja Ki Mandi, Agra, U.P. Presently at:-
22/273, Trilokpuri, Delhi.
24. Details of savings bank account (s) of the A/c No. 39229442613 being claimant(s) and the address of the bank maintained at State Bank of with IFSC Code. India, Himmatpuri Branch, Trilokpuri, New Delhi having IFSC No. SBIN0004838.
25. Whether the claimant(s) savings bank account(s) is near his place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of the award to Yes ascertain his/their financial condition?
25. File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on 01.02.2021.
Announced in the open court. (M.K. Nagpal) on 29.10.2020 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP No. 01/2015 Page no.27 of 29 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB
1. Date of accident :09.07.2014
2. Name of the injured :Deepak
3. Age of the injured :Less than 25 years at the time of accident
4. Occupation of the injured : Matriculate
5. Income of the injured : As per minimum wages
6. Nature of injury : Grievous
7. Medical treatment taken by the injured : Dr. RML Hospital, Rainbow Hospital and some private clinics
8. Period of hospitalization : 10.7.14 to 20.7.14, 8.8.14 to 10.08.14 & 7.7.15 to 14.7.15
9. Whether any permanent disability? : 60% Permanent physical and mental disability in respect to his whole body.
10. Computation of Compensation Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs.64,428.00
(ii) Expenditure on conveyance Rs. 50,000.00
(iii) Expenditure on special diet Rs. 25,000.00
(iv) Cost of nursing/attendant Rs. 2,00,000.00
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs. 2,35,248
(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. 1,00,000.00 physical shock
(ii) Pain and suffering Rs. 1,00,000.00
(iii) Loss of amenities of life Rs. 50,000.00
(iv) Disfiguration Nil
(v) Loss of marriage prospects Rs.5,00,000.00
(vi) Loss of earning, inconvenience, Nil MACP No. 01/2015 Page no.28 of 29 hardships,disappointment,frustration, mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed 60% permanent physical and nature of disability as permanent and mental disability or temporary respect to his whole body.
(ii) Loss of amenities or loss of NA
expectation of life span on account
of disability.
(iii) Percentage of loss of earning 60% functional disability, i.e.
relation to disability equivalent to percentage of
permanent disability
(iv) Loss of future income Rs.17,78,475.00
14. Total Compensation Rs.31,03,151.00
(including the amount of
interim award)
15. Interest Awarded 9% p.a. from date of filing of
DAR till deposit within 30
days and 12% pa thereafter.
16. Interest amount up to the date of Rs.16,68,049.93
award
17. Total amount including interest Rs. 47,71,200/- rounded
off
18. Award amount released 10% of the amount
19. Award amount kept in the FDRs 90% of the amount
20. Mode of disbursement of the award Through bank
amount to the claimant (s)
21. Next date for compliance of the 01.02.2021
award
(M.K. Nagpal)
PO/MACT, New Delhi
29.10.2020
MACP No. 01/2015 Page no.29 of 29