Delhi District Court
Raghvendra Sharma vs . Sagar Singh & Ors. on 30 May, 2019
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:
RAGHVENDRA SHARMA VS. SAGAR SINGH & ORS.
MACP NO. 394/14
Sh. Raghavendra Sharma
S/o Sh. Ram Rakesh Pal Sharma
R/o X-227, Sarojini Nagar, New Delhi.
......Petitioner/Injured
Versus
1. Sh. Sagar Singh (Driver)
S/o Sh. Chanda Singh
R/o Village Jaint, PO Ram Nagar,
PS Tehsil Indora, District Kangra,
Himachal Pradesh.
2. Ms. Pooja Construction Company (Owner)
Through its Prop. Sh. Pradeep Kumar
R/o A-72, Ist Floor, C.R. Park,
New Delhi.
3. The National Insurance Company Ltd. (Insurer)
Jeevan Vikas Building, 2nd Floor, 30/31-A,
Asaf Ali Road, New Delhi-110002.
.....Respondents
Date of filing of DAR : 08.01.2014
Date of filing of claim petition : 18.03.2014
Date of framing of issues : 10.05.2014
Date of concluding arguments : 09.05.2019
MACP No. 394/14 Page no.1 of 23
Date of decision : 30.05.2019
AWARD/JUDGMENT
1. The claim for compensation raised in this petition relates to the injuries and permanent disability suffered by the petitioner in a road accident that took place on 13.09.2013 at about 11:15 pm, near Indira Niketan, Sarojini Nagar, New Delhi, regarding which FIR No. 302/2013 under Sections 279 & 337 IPC was registered at PS Sarojini Nagar. The offending vehicle involved this case is a JCB machine having registration no. HR 55P 1536, which at the time of accident was being allegedly driven by R-1, owned by R-2 and insured with R-3.
2. The case of petitioner, in brief, is that on the day of accident, he and his wife had both hired a TSR bearing registration no. DL 1RL 5856 from New Delhi Railway Station for their residence in Sarojini Nagar and on the way, the said TSR was hit by the offending JCB machine, which allegedly came from another road and took a sudden turn towards their TSR. The petitioner suffered injuries in the said accident and was taken to AIIMS Trauma Centre, New Delhi, where his MLC was prepared. On receipt of information about the above accident, the investigating officer (IO) reached there and recorded statement of wife of the petitioner and got the above case registered. However, the number of offending vehicle was not told by her to the police in her statement and the same appears to have been traced out later on during investigation. The petitioner has suffered 70% permanent physical disability in respect to his left lower limb as a result of this accident.
3. Detailed Accident Report (DAR) in respect of the above accident was filed before this tribunal on 08.01.2014 and this claim petition MACP No. 394/14 Page no.2 of 23 was also subsequently filed by the petitioner on 18.03.2014 and on the same day, the DAR was clubbed with the petition for further proceedings.
4. R-1 and R-2 both had filed their separate but identical replies to the petition and though it has not been disputed by both of them that R- 1 was the driver and R-2 was the owner of above JCB machine on the day of accident, but it is their case that their vehicle was not in motion and was stationed at the time of accident. They had also submitted that the above TSR hit from behind against their stationed vehicle.
5. R-3/insurance company in its reply had specifically admitted the fact that on the day of accident, the offending JCB machine was insured with them, but it is their submission that their liability to pay compensation is only as per the terms and conditions of insurance policy.
6. From pleadings of the parties, this tribunal had framed the following issues on 10.05.2014 for disposal of the present DAR :-
1. Whether the petitioner/injured sustained injuries in the accident which occurred on 13.09.2013 at about 11.15 p.m., at Sarojini Nagar, Near Indira Niketan, New Delhi caused by rash and negligent driving of vehicle no. HR-55P-1536 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3? OPP.
2. Whether the petitioner/injured is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. I have heard the arguments advanced by Sh. Rajiv Ranjan, Ld. Counsel for petitioner, Sh. Faisal Naseem, Ld. Counsel for R-1 and R-2 and Sh. Nikhil Tripathi, Ld. Counsel for R-3. The case record has also been perused. My issue-wise findings are as under :-
ISSUE No. 18. As stated above, the number of offending JCB machine was not stated in the FIR got registered by wife of the petitioner and it is also MACP No. 394/14 Page no.3 of 23 not disputed that the FIR was got registered during the same night as the accident took place on 13.09.2013 at around 11.15 pm and the FIR was recorded on 14.09.2013 at around 02.15 am. As per the documents of criminal case filed with the DAR, as well as this petition, the offending vehicle was seized in this case by the police on 06.10.2013, i.e. after around 3 weeks from the date of accident and it is the same date on which R-1 was arrested in the case. However, as already discussed above, R-1 and R-2 have both not disputed the involvement of offending vehicle in the above accident and it is also not disputed that R-1 was the driver employed on the said vehicle on the day of accident and vehicle was owned by R-2 and insured with R-3.
9. As far as the alleged rashness and negligence on the part of R-1 in driving the above JCB machine is concerned, it has already been discussed above that R-1 and R-2 in their replies have taken a plea and defence that their vehicle was not in motion and it was stationery at the time of accident and it is the TSR driver who had hit their stationery vehicle from behind. However, R-1 has not stepped into the witness box to substantiate his above defence. Moreover, his above defence is not acceptable in view of the documents of the above criminal case, which have been filed along with the DAR and which include copies of the FIR and charge-sheet of the said case, copy of site plan, copies of seizure memos and mechanical inspection reports of the two vehicles and MLC of the petitioner & other treatment record etc. The mechanical inspection report of the offending JCB machine does not show any damage on its rear side and rather it shows fresh damages corroborating the above manner of accident as the front wind screen of the said vehicle was found broken and even the rear side door glass and rear glass of the vehicle MACP No. 394/14 Page no.4 of 23 were found broken from the right side. Though the above mechanical inspection has been conducted on 07.10.2013, but there is no plea of respondents that the above damages to the vehicle were not caused in the said accident or that the same were caused in some other accident. Hence, the above defence of respondents has remained unsubstantiated. Apart from the above, the site plan of place of occurrence has also negated the version being given by the respondents. Moreover, the mere fact that R-1 stands already charge-sheeted in the above criminal case for offences punishable under Sections 279 & 337 IPC for causing grievous injuries on the person of petitioner by his rash and negligent driving of the above said JCB machine in itself is a circumstance to substantiate the case of petitioner in this regard.
10. Besides the above, the petitioner has himself stepped into the witness box to prove his case and tendered his examination-in-chief by way of an affidavit, in which he is found to have specifically deposed about the manner of said accident. He has specifically stated therein that when the TSR reached near Indira Niketan Sarojini Nagar at about 11.15 pm, the offending JCB suddenly turned and hit the TSR in a rash and negligent manner. Further, he also stated that it was being driven without following the traffic rules and regulations and without blowing any horn or dipper. He has further stated specifically that the said accident took place due to negligence of driver of the said JCB.
11. Though, the petitioner was cross examined at length on the above aspects by both the Ld. Counsels, but nothing material could be extracted from him to enable this Court to discard or disbelieve his testimony. Again, though some inconsistencies are found to have arisen during his cross examination on certain aspects, but the same can safely MACP No. 394/14 Page no.5 of 23 be ignored as the same can be attributed to the lapse of time or memory on part of the witness. Moreover, it is well settled that the onus placed upon the petitioner for proving his case before a Claims Tribunal is only as per the principle of preponderance of probabilities and not by the strict rules of evidence. Reference in this regard can be made to the prepositions 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 the 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 etc.
12. Therefore, in view of the above factual and legal discussion, it is held that the oral evidence led on record by the petitioner is duly substantiated by the documentary evidence and it stands proved by preponderance of probabilities that the above accident resulting into grievous injuries on the person of petitioner was caused due to the rash and negligent act of R-1 in driving the above JCB machine bearing registration no. HR 55P 1536, which was owned by R-2 and insured with R-3 at the relevant time of accident. This issue is accordingly decided in favour of the petitioner and against the respondents.
13. ISSUE NO.2 As the issue no.1 has been proved in affirmative and in favour of the petitioner, the petitioner has become entitled to be compensated for the injuries suffered in the above accident, but 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 MACP No. 394/14 Page no.6 of 23 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 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 MACP No. 394/14 Page no.7 of 23 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.
14. 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 petitioner has suffered grievous injuries resulting into 70% permanent physical disability to him due to the above accident. In his affidavit Ex. PW1/A, the petitioner has though claimed that he spent an amount of around Rs. 1,25,000/- on his treatment, but the original medical bills and payment receipts filed by him on record as Ex. PW1/3 (colly) are found to be totalling to a sum of Rs. 43,728/- only, excluding the physiotherapy charges which will be discussed under a separate head. Though, the petitioner is an official of Intelligence Bureau (IB) and was also a beneficiary of CGHS (appears to have been wrongly typed as ECHS in his cross examination), but there is nothing on record to show that he has claimed any reimbursement of amounts of the above bills and payment receipts from his office.
Hence, under this head, he is held entitled to the above said amount of Rs. 43,728/- towards his actual medical expenses.
(ii) Loss of actual earnings In his above affidavit Ex. PW1/A, the petitioner claims that he MACP No. 394/14 Page no.8 of 23 was advised bed rest for a period of 45 days from 26.09.2013 to 28.10.2013 and again for another 45 days, w.e.f. 10.11.2013 vide certificates Ex. PW1/6 and Ex. PW1/7. However, during his cross- examination, he has also stated that after his accident on 13.09.2013, he had joined his duties on 25.02.2014 only. He has even examined on record one Sh. Ram Prasad from his office as PW2 and this witness has brought in evidence the leave record of petitioner as Ex. PW2/B, along with the first page of service book of the petitioner. As per this record, the petitioner was continuously on leave, either medical/commuted leaves or on earned leaves from 14.09.2013 till 24.02.2014. Hence, under this head, the petitioner is held entitled to be reimbursed for the loss of earnings caused to him for this period from 14.09.2013 till 24.02.2014, i.e. 164 days.
In his above affidavit, the petitioner was though silent with regard to his salary at the time of accident, but he is also found to have tendered on record, inter-alia, his salary slip as Ex. PW1/5. As per this salary slip, the petitioner was drawing a salary of Rs.36,931/- per month at the time of accident. Hence, under this head, the petitioner is held entitled to the amount of Rs.2,01,890/- (rounded off) (Rs.36,931/30 X 164 days) towards the loss of his actual earnings taken on the basis of his above salary.
(iii) Loss of future earnings due to disability.
As per depositions made by the petitioner, he had suffered injuries on his left hip and left knee in the said accident and he remained hospitalized in AIIMS Trauma Centre w.e.f. 13.09.2013 to 25.09.2013 and during this period, he was operated upon his knee and left hip. The discharge summary of petitioner issued by AIIMS Trauma Centre shows MACP No. 394/14 Page no.9 of 23 that the petitioner was diagnosed to be having multiple fractures, i.e. "acetabulum lt with # patella and # lat. condyle lt femur" and during his above hospitalization period, the petitioner was operated in the said hospital on 15.09.2013 for fixation of his fracture injuries on patella and acetabulum and stainless steel implant was made in his left leg. The nature of injuries suffered by him was declared as grievous in view of the above fracture injuries.
It is also gathered from the records that the petitioner was reported to be having temporary disability of only 48.2% in relation to his left lower limb vide disability certificate dated 17.11.2014, but vide the subsequent disability report dated 28.01.2016 proved on record as Ex. PW5/1, he is stated to have suffered 70% permanent physical disability in relation to the said limb. This certificate stands duly proved on record from the depositions made by PW5 Dr. Vijay Sharma of AIIMS Trauma Centre, who was one of members of the said board. However, during his cross- examination, PW5 is found to have also stated that since the above disability of petitioner is only with respect to his left lower limb, he cannot tell as to what is the percentage of functional disability of the petitioner.
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 MACP No. 394/14 Page no.10 of 23 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 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 back to the present case, as already discussed above, the above percentage of permanent disability of petitioner is with respect to a particular limb only and not in respect to his whole body. However, PW6 Dr. Vijay Sharma has also stated that the petitioner will face problems in daily routine work and he will not be able to squat or run fast and will also require the assistance of a stick for his movements. Hence, keeping in view the law already discussed and the facts and MACP No. 394/14 Page no.11 of 23 circumstances of the present case, the functional disability of petitioner is being taken as 40% only.
Again, it has already been stated above that the petitioner is an employee of IB and in his affidavit, he has stated that at the time of accident he was working as Assistant Central Intelligence Officer (ACIO-
2), though he has further stated that he may not be getting promotion as Class I Officer as DCIO due to the said disability. However, he has also examined on record one witness Ms. Sonia Srivastava from his office and this witness has brought on record copies of the recruitment rules for the post of ACIO and DCIO as Mark PW3/A (colly). It has been specifically admitted by this witness that as per the promotion policy, there was no provision for debarring anyone for promotion on account of physical inability or disability. Hence, it emerges from the evidence led on record by the petitioner himself that he has not suffered any loss of job or promotional aspects due to the above accident.
Since the petitioner still continues to be in service and has also not suffered any promotional loss, he is not required to be compensated under this head with reference to the date of accident. However, in view of the law laid down in the case of Tata AIG General Insurance Company Ltd. Vs. Sh. Dipanjan Ghosh & Ors., MAC App. No. 44/2014 decided on 02.03.2016, New India Assurance Company Ltd. Vs. Rajender Prasad & Ors., MAC App. No. 58/2013, decided on 17.05.2016, Devinder Singh Vs. United India Insurance Company Ltd. and Ors., MAC App. No. 87/2008 decided on 01.06.2016, the petitioner is required to be compensated with reference to the date of his retirement and with the help of multiplier of 9 as is applicable with reference to the said date as he will certainly be at a disadvantageous position with MACP No. 394/14 Page no.12 of 23 respect to his post retirement employment etc. As already discussed above, the evidence has been led on record, inter-alia, with regard to salary being drawn by the petitioner at the time of accident only and no evidence has been led before this tribunal as to what would be his salary at the time when he retires from services. The gross salary of petitioner at the time of accident was Rs.36,931/- as already discussed above. During the course of his examination recorded by this tribunal on 21.05.2018 in terms of the directions given by the Hon'ble High Court on 11.01.2013 in MACA No.792/2006 titled as Oriental Insurance Co.Ltd. Vs Ranjit Pandey and Ors., the petitioner has stated his present salary to be around Rs.70,000/-.
In his affidavit Ex.PW1/A, the petitioner has claimed his age to be around 53 years at time of accident, i.e. 13.09.2013. In his election identity card Ex.PW1/1, his age as on 01.01.2014 is shown as 54 years. However, no document has been brought in evidence showing exact date of birth of the petitioner and even in his above examination, he has not told his date of birth or specific age. However, he is found to have placed on record a copy of his PAN card during the course of compliance of order of this tribunal dated 09.02.2018 passed in terms of the directions given by the Hon'ble Delhi High Court in its order dated 15.12.2019 in the case of Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors., FAO No. 842/2003, in which the date of birth of petitioner is found to be recorded as 08.12.1959 and going by this document, it means that the petitioner will retire from his services by the end of December, 2019.
As stated above, the above salary of Rs.36,931/- was for MACP No. 394/14 Page no.13 of 23 the month of October, 2013 only and thereafter, 7 th Pay Commission Report has also been implemented and salaries of the government employees stand increased considerably. Hence, the tentative salary of the deceased at the time of his retirement is being taken as Rs.70,000/-, as was claimed by him during his above examination, because it does not appear to be exaggerated by this tribunal. Hence, the annual salary of the petitioner comes to Rs.8,40,000/- (Rs.70,000/- X 12).
In view of the settled law on subject, only the tax liability of the petitioner, if any, is to be reduced from his above annual earnings as his 'income' means the actual income less than the tax paid, as was also approved in the case of Pranay Sethi (supra). As per the income tax slab for the relevant financial year, i.e. at the time of his retirement, an amount of Rs.73,320/- towards tax liability is required to be deduced from his earnings and hence, the net annual loss of earnings of the petitioner come to Rs.7,66,680/- (Rs.8,40,000/- - Rs.73,320/-).
Thus, the loss of future earnings caused to the petitioner due to his above disability comes to Rs.27,60,048/- (Rs.7,66,680/- X 40/100 X
9) and the same is being awarded to him under this head.
(iv) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
As discussed above, the petitioner had suffered multiple fractures of left hip bone and left knee etc. and he was even operated for fixation of the said fractures with the help of implants. The said injuries have also resulted in 70% permanent physical disability in respect to his left leg and his functional disability has been taken by this tribunal to be MACP No. 394/14 Page no.14 of 23 40%. He even could not attend his duties due to the said injuries for a period of more than five months. 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.40,000/- each is being awarded to him towards mental and physical shock & pain and sufferings and besides this, an amount of Rs. 20,000/- 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. 1,00,000/- under this head.
(v) Conveyance, Special Diet and Attendant Charges In his affidavit Ex. PW1/A, the petitioner has claimed that he had spent an amount of around Rs.1,00,000/- towards his conveyance and attendant charges. However, he has not filed on record any documentary evidence to substantiate even his above claims. But this tribunal can still take note of the requirement of conveyance for petitioner for visiting the hospital and doctors in connection with his treatment and also that of special diet for early recovery from the injuries suffered because of the above accident. Therefore, an amount of Rs. 20,000/- each is being awarded to the petitioner towards the requirements of conveyance and special diet. Besides this, the petitioner is also awarded an amount of Rs. 30,000/- towards attendant charges or the gratuitous services which might have been rendered by his family members during the tenure of his treatment period and immobility. Hence, a consolidated amount of Rs.70,000/- is being awarded to him under this head.
MACP No. 394/14 Page no.15 of 23 (vi) Cost of physiotherapy
The petitioner has also produced on record, inter-alia a certificate Ex. PW1/8 in respect of physiotherapy charges of Rs. 40,000/- borne by him in connection with his above treatment. He has also examined on record one witness namely PW4 Sh. Satish Sharma to substantiate his above claim. This witness has produced on record some educational certificates in the said field as Ex. PW4/A (colly) and has claimed that he used to take physiotherapy sessions of petitioner at his residence during the period from 10.10.2013 to 31.12.2013 @ Rs. 500/- per sitting/session and has issued the above certificate Ex.PW1/8 in this regard.
However, admittedly, this witness was not having and hence, has not produced in evidence any other document or records to show the physiotherapy sittings given by him to the petitioner or the payments made by the petitioner for the said sittings and in the absence of that, it is not safe to rely upon the above certificate only for granting the above said expenses to the petitioner. Still, since the petitioner had suffered multiple fracture injuries and remained confined to bed for considerable time, the requirement of physiotherapy can be felt by this tribunal and therefore, the petitioner is being awarded a lump-sum amount of Rs. 20,000/- towards his physiotherapy expenses also.
Issue No.3/Relief
15. The petitioner is thus awarded a sum of Rs.31,95,666/- (Rupees Thirty One Lacs Ninety Five Thousand and Six Hundred Sixty Six only) alongwith interest @ 9% per annum, from the date of filing of DAR till deposit within 30 days from today or till notice of deposit is given to the petitioners, whichever is earlier, and 12% per annum if the deposit is MACP No. 394/14 Page no.16 of 23 made beyond 30 days from today. 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.
16. RELEASE Out of the awarded amount, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in MACAD in the form of 130 monthly fixed deposit receipts (FDRs) payable in equal amounts for a period of 1 to 130 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 his savings/MACT Claims SB Account bearing no.90772610000089 being maintained at Syndicate Bank, DTC Depot, Sarojini Nagar, New Delhi having ISFC No. SYNB0009077. The remaining 10% amount is directed to be released into his above said account. 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 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 MACP No. 394/14 Page no.17 of 23 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 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 MACAD without permission of the Court.
17. LIABILITY Though, all the respondents are jointly and severally liable to pay the amount of compensation, but since R-3 has not proved any violation of the terms and conditions of insurance policy and further that R-3 being insurer of the offending vehicle, R-3 is directed to deposit the above awarded amount, alongwith upto date interest @ 9% per annum, by way of crossed cheque/DD in name of the petitioner with the UCO Bank, Patiala House Court Branch, New Delhi, within 30 days from today failing which it is 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 fails to deposit this compensation with proportionate interest, in that event, in light of the judgment of the Hon'ble High Court MACP No. 394/14 Page no.18 of 23 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 posts that the cheque/DD of the awarded amount is being deposited so as to facilitate him to collect his cheque/DD.
18. 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.
19. 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.
20. 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 13.09.2013
2. Date of intimation of the accident by Not given I.O. to the Claims Tribunal.
3. Date of intimation of the accident by Not given I.O. to the Insurance company.
4. Date of filing of Report u/s.173 Cr.PC Not given before the Metropolitan Magistrate.
5. Date of filing of Details Accident Report (DAR) by IO before Claims 08.01.2014 Tribunal.
6. Date of service of DAR on Insurance 08.01.2014 MACP No. 394/14 Page no.19 of 23 Company
7. Date of service of DAR on 08.01.2014 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?
11. Whether there was any delay or deficiency on the part of the DAR has been filed after around Investigating Officer? If so, whether 3 ½ months of the accident any action/direction warranted?
12. Date of appointment of Designated Not given Officer by the Insurance Company.
13. Name, address and contact number of the Designated Officer of Not given Insurance Co.
14. Whether the Designated Officer of the Insurance Company submitted his No report within 30 days of the DAR?
15. Whether the Insurance Company admitted the liability? If so, whether the Designated Officer of the Legal offer not given 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 Insurance Delay in filing reply 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 30.05.2019
19. Whether the award was passed with No the consent of the parties?
20. Whether the claimant(s) were directed to open savings bank Yes account(s) near their place of residence?
21. Date of order by which claimant(s) 09.02.2018 MACP No. 394/14 Page no.20 of 23 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/ debit card to claimants and make an endorsement to this effect on passbooks.
22. Date on which the claimant(s) produced the passbook of their 05.10.2018 savings bank account near the place of their residence alongwith endorsement, PAN & Adhaar Cards?
23. Permanent Residential Address of the R/o X-227, Sarojini Nagar, New Claimant(s) Delhi.
24. Details of savings bank account (s) of A/c No. 90772610000089 being the claimant(s) and the address of the maintained at Syndicate Bank, bank with IFSC Code. DTC Depot, Sarojini Nagar, New Delhi having ISFC No. SYNB0009077
25. Whether the claimant(s) savings bank account(s) is near his/her place of Yes residence?
26. Whether the claimant(s) were examined at the time of passing of Yes the award to ascertain his/their financial condition?
21. File be consigned to Records after necessary formalities. A separate file be prepared for compliance report and be put up on 06.09.2019. Digitally signed by MANOJ MANOJ KUMAR KUMAR NAGPAL NAGPAL Date:
2019.06.03 16:33:19 +0530 Announced in the open court. (M.K.Nagpal) on 30.05.2019 PO/MACT, New Delhi Encl: The summary of computation in the prescribed format MACP No. 394/14 Page no.21 of 23 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM-IVB Date of accident : 13.09.2013 Name of the injured : Raghavedra Sharma Age of the injured : Around 53 years at the time of accident Occupation of the injured : ACIO-2 with Intelligence Bureau Income of the injured : Rs.36,931/- and Rs.70,000/-
Nature of injury : Grievous
Medical treatment taken by the injured : AIIMS Trauma Centre
Period of hospitalization : 13.09.2013 to 25.09.2013
Whether any permanent disability? : 70% permanent physical disability in
respect to his left lower limb
10. Computation of Compensation
Sr.No. Heads Amount awarded
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 43,728.00
Expenditure of physiotherapy Rs. 20,000.00
(ii) Expenditure on conveyance Rs. 20,000.00
(iii) Expenditure on special diet Rs. 20,000.00
(iv) Cost of nursing/attendant Rs. 30,000.00
(v) Loss of earning capacity Nil
(vi) Loss of Income Rs.2,01,890.00
(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. 40,000.00
physical shock
(ii) Pain and suffering Rs. 40,000.00
(iii) Loss of amenities of life Rs. 20,000.00
(iv) Disfiguration Nil
(v) Loss of marriage prospects Nil
(vi) Loss of earning, inconvenience, Nil
hardships,disappointment,frustration, mental stress, dejectment and MACP No. 394/14 Page no.22 of 23 unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed 70% permanent physical disability and nature of disability as permanent in respect to his left lower limb 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.27,60,048.00
14. Total Compensation Rs.31,95,666.00
15. Interest Awarded 9% p.a. from date of filing of DAR i.e. 08.01.2014, till deposit within 30 days and 12% p.a. thereafter.
16. Interest amount up to the date of Rs.15,50,729.76 award
17. Total amount including interest Rs.47,46,395.76 rounded off to Rs.47,46,400/-
18. Award amount released 10% of the amount
19. Award amount kept in the FDRs/ 90% of the amount Motor Accident Claims Annuity Deposit (MACAD)
20. Mode of disbursement of the award Through bank amount to the claimant (s)
21. Next date for compliance of the 06.09.2019 award Digitally signed by MANOJ MANOJ KUMAR KUMAR NAGPAL NAGPAL Date:
2019.06.03 16:33:32 +0530 (M.K.Nagpal) PO/MACT, New Delhi 30.05.2019 MACP No. 394/14 Page no.23 of 23