IN THE COURT OF SH SANJAY SHARMA, PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL : EAST DISTRICT : KARKARDOOMA COURTS : DELHI MAC No. D-11207/16 Unique Case I.D. No.: 0240 2C00 3573 2014 [ENTITY] S/o Sh. Ram Chandra Mishra R/o D-6, Y-1, Vasant Kunj, Delhi-110070 MAC No. D-11208/16 Unique Case I.D. No.: 0240 2C00 3574 2014 [ENTITY] S/o Late Rama Kant Tiwari R/o Ward No. 10, Vill. Dumrao Nagar, District Dumrao, Buxar, Bihar-802119 MAC No. D-11210/16 Unique Case I.D. No.: 0240 2C00 3575 2014 [ENTITY] S/o Sh. Bijuli Mahto R/o 3/10, Block No. 3, Trilokpuri, Delhi-110091 Petitioners VERSUS 1. [ENTITY] S/o Sh. Om Prakash R/o H. No. B-10, Vishwakarma Park, Laxmi Nagar, Delhi-110092 Driver 2. Smt. [ENTITY] S/o Sh. Sanjay Joseph R/o 118-D, Pocket-C, Mayur Vihar, Phase-II, Delhi-110091 Owner 3. [ENTITY] 315, 3rd Floor, Aggarwal City Wall, Pitampura, Delhi Insurer Respondents DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.1of26 Date of Institution : 30.01.2014 Date of Arguments : 17.02.2018 Date of Judgment : 17.03.2018 JUDGEMENT
PLEADINGS:
1. [ENTITY] and [ENTITY] were traveling in a three-wheeler scooter bearing registration No. DL 1 RM 3925 (TSR) driven by Mr. [ENTITY] on NH-24, 200 meters before Khelgaon flyover, in front of PWD office, in the area of PS Pandav Nagar, at 01.45 a.m. on 01.01.2014 when [ENTITY] car bearing registration No. DL 2C AL 0802 (the car), allegedly driven by the respondent No. 1 in high speed, had hit the TSR from behind and due to the impact, the TSR overturned and then, it had hit TATA Indica car make Vista bearing registration No. DL 1 YC 9531. Consequently, [ENTITY], [ENTITY] and [ENTITY] suffered grievous injuries and permanent disablement.
2. [ENTITY], [ENTITY] and [ENTITY] (collectively, the petitioners / claimants) instituted accident claim cases in the wake of Detailed Accident Reports (DAR) submitted by [ENTITY] under [SECTION] of the [ACT] on the basis of evidence collected during investigation of FIR No. 01/14, initially, registered under [SECTION] of the [ACT] at PS Pandav Nagar impleading, inter alia, the driver and owner of the car as the respondent No. 1 and 2. The respondent No. 3 is the insurer of the car.
3. The respondent No. 1 and 2 have not filed written statement.
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4. The respondent No. 3 / insurer, in its written statement, conceded that the car was insured in the name of [ENTITY] / the respondent No. 2 with it. It pleaded breach of terms and conditions of the insurance policy on the ground that the respondent No. 1 was not holding a valid and effective driving license at the time of the accident. It pleaded that the respondent No. 1 is prosecuted under [SECTION] of [ACT]. It also pleaded that the respondent No. 1 is also prosecuted under [SECTION] of [ACT] for driving the car under the influence of alcohol. It denied its liability to pay compensation to the petitioners and sought exoneration. ISSUES:
5. On the pleadings, similar issues, in all the accident claim cases, were framed:
(i) Whether the claimant has suffered injuries in road side accident on 01.01.2014 involving vehicle i.e. [ENTITY] Car bearing registration No. DL 2C AL 0802 being driven allegedly in a rash and negligent manner by the respondent No. 1?
(ii) To what amount of compensation, if any, the petitioner is entitled to and from whom?
(iii) Relief PETITIONER'S EVIDENCE:
D-11207/16:
6. [ENTITY], in his accident claim case vide D- 11207/16, appeared as PW-1. He filed evidence by way of affidavit Ex.PW1/A. He deposed about the manner of accident. He relied on detailed accident report (DAR) Ex.PW1/1, medical bills Ex.PW1/2, treatment record Ex.PW1/3, PAN card Ex.PW1/4 and academic certificates Ex.PW1/5.
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7. PW-2 [ENTITY], Manager (Marketing), Kosmos Super Speciality Hospital, Anand Vihar, Delhi proved treatment record Ex.PW2/1 and final bill Ex.PW2/2 in respect of [ENTITY].
8. PW-3 [ENTITY], Tax Assistant, Income Tax Office, Gorakhpur, U.P. brought the record pertaining to income tax returns submitted by [ENTITY]. He furnished forwarding letter addressed to the tribunal by Sh. [ENTITY], Income Tax Officer, Ward 2 (2), Gorakhpur Ex.PW3/1. He proved income tax returns submitted by [ENTITY] for the assessment years 2010-11, 2011-12 and 2012-13 Ex.PW3/2 (colly.)
9. PW-4 Dr. [ENTITY], Specialist (Orthopedics), Dr. [ENTITY], Karkardooma, Delhi, proved disability certificate Ex.PW4/A in respect of [ENTITY]. D-11208/16:
10. [ENTITY], in his accident claim case vide D- 11208/16, appeared as PW-1. He filed evidence by way of affidavit Ex.PW1/A. He deposed about the mode of accident. He relied on detailed accident report (DAR) Ex.PW1/1, medical bills Ex.PW1/2, treatment record Ex.PW1/3, voter card Ex.PW1/4, academic certificates Ex.PW1/5, PAN card Ex.PW1/6 and income tax returns for the assessment years 2010-11, 2012-13 and 2013-14 Ex.PW1/7.
11. PW-2 [ENTITY], Manager (Marketing), Kosmos Super Speciality Hospital, Anand Vihar, Delhi proved treatment record Ex.PW2/1 and final bill Ex.PW2/2 in respect of [ENTITY].
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12. PW-3 [ENTITY], Tax Assistant, ITO, Gorakhpur, U.P. brought income tax returns submitted by [ENTITY]. He furnished forwarding letter addressed to the tribunal by Sh. [ENTITY], Income Tax Officer, Ward 2 (2), Gorakhpur Ex.PW3/1. He proved income tax returns submitted by [ENTITY] for the assessment years 2010-11, 2012-13 and 2013-14 Ex.PW3/2 (colly).
13. PW-4 Dr. [ENTITY], Specialist (Orthopedics), Dr. [ENTITY], Karkardooma, Delhi proved disability certificate Ex.PW4/A in respect of [ENTITY]. D-11210/16:
14. [ENTITY], in his accident claim case vide D-11210/16, appeared as PW-1. He filed evidence by way of affidavit Ex.PW1/A. He deposed about the mode of accident. He relied on OPD cards Ex.PW1/1, his driving license Ex.PW1/2, PSV badge Ex.PW1/3, criminal case record Ex.PW1/4 and copy of previous driving license Mark 'A'.
15. PW-2 Dr. [ENTITY], Specialist (Orthopedics), Lal Bahadur Shastri Hospital, Khichripur, Delhi proved disability certificate Ex.PW2/A in respect of [ENTITY]. RESPONDENT'S EVIDENCE:
16. The respondent No. 3 / insurer examined R3W1 [ENTITY], Transport Department, IP Estate, New Delhi. He proved [CASE NUMBER] (new number) and C02051999106140 (Old number) issued in the name of the respondent No. 1 on 16.04.1993 for the category of LMV (NT) and motorcycle and endorsed for LMV (T) and TSR on 19.02.1994 Ex. R3W1/1 (colly).
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17. The respondent No. 3 / insurer examined [ENTITY], Manager (Legal), [ENTITY] as R3W2. He deposed, on the strength of affidavit Ex.R3W2/A. He proved a copy of insurance policy Ex.R3W2/1, Notice under [SECTION] [ACT] Ex.R3W2/2 and postal receipts Ex.R3W2/3.
TRIBUNAL WITNESS:
18. The respondent No. 1, vide order dated 21.02.2017, moved an application under [SECTION] [ACT] to prove [CASE NUMBER] issued in his name on 30.07.2012 by Licensing Authority, Allahabad for the category of LMV (NT) and Motorcycle. The tribunal sought verification of the said driving license through PS Pandav Nagar. Licensing Officer, Motor Vehicle Department, Allahabad, U.P. verified that the said driving license was issued in the name of the respondent No. 1. However, it was reported that the documents furnished with application for issuance of the said driving license were weeded out. The tribunal summoned the Licensing Authority, Allahabad, U.P. along with relevant notification relating to weeding out of the said driving license.
19. Court Witness 1: [ENTITY], Regional Inspector, (Technical), ARTO, Allahabad, U.P. stated that [CASE NUMBER] was issued in the name of the respondent No. 1 by his office. He stated that documents pertaining to issuance of learner's license were weeded out pursuant to Government Notification dated 29.06.1994 on 28.11.2014. He stated that application for issuance of permanent license is not traceable as it was lost during shifting of office.
DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.6of26 FINAL ARGUMENTS:
20. I have heard arguments of Ms. [ENTITY], Advocate for the petitioners namely [ENTITY] and [ENTITY], Sh. [ENTITY], Advocate for the respondent No. 1 and 2, and Sh. [ENTITY], Advocate for the respondent No. 3 / insurer and examined the evidence, oral and documentary.
ISSUE NO. 1:
21. The issue No. 1 relate to rash and negligent driving of the car by the respondent No. 1.
22. In an action for compensation founded on the principle of fault liability under [SECTION] of [ACT], the burden to prove negligence is upon of the petitioner. (Ref:
[PRECEDENT]). The petitioner must prove not only the involvement of the offending vehicle but also negligence on the part of the driver.
23. In a claim under tort liability, the standard of proof of culpability is not akin to a criminal case. The petitioner is not obliged to adduce evidence to prove negligence of the driver of the offending vehicle beyond reasonable doubts. The evidence is judged on the touchstone of test of preponderance of probabilities.
24. [ENTITY], in his accident claim vide D- 11207/16, appeared as PW-1. He deposed, on the strength of affidavit Ex.PW1/A, the sequence of events leading to the accident. He deposed that 01.01.2014 at 01.45 a.m., he along with his friend [ENTITY] was traveling in [CASE NUMBER].
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25. PW-1 [ENTITY] categorically deposed that when they reached at NH-24, in front of PWD office, near Khelgaon flyover, car bearing registration No. DL 2C AL 0802 driven by the respondent No. 1 in high speed came from behind and hit the TSR. In his cross-examination conducted by counsel for the respondent No. 1 and 2, he stated that the TSR might have been driven at a moderate speed around 40 kilometers per hour. He stated hard hit from behind and severity of impact suggest that the car was being driven in high speed. In his cross-examination conducted by counsel for the respondent No. 3 / insurer, he stated that he had seen the registration number of the offending vehicle. He stated that the car had hit the TSR from behind. He stated that the car was not in moving condition as it had suffered damage. On examination of the evidence, it is evident that the evidence of PW-1 [ENTITY] remained unshaken. There is no reason to disbelieve him.
26. [ENTITY], in his accident claim vide D- 11208/16, deposed, on the strength of affidavit Ex.PW1/A, the sequence of events leading to the occurrence. He materially corroborated PW-1 [ENTITY] on the aspect of rash and negligent driving of the car. In his cross-examination conducted by counsel for the respondent No. 1 and 2, he stated that one of the passengers of the TSR namely [ENTITY] was thrown out of the car. In cross-examination conducted by the respondent No. 3, he stated that he was conscious after the accident and he had seen the registration number of the car. He stated that the car had hit the TSR from behind. He stated that the car remained there as it suffered damage and it was not in moving condition.
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27. [ENTITY], in his accident claim vide D- 11210/16, deposed, on the strength of affidavit Ex.PW1/A, the manner of the accident. He deposed that on 01.01.2014 at about 01.45 a.m., he was moving with passengers in TSR bearing registration No. DL 1RM 3925 on correct side of road and when he reached at NH-24, in front of PWD office, near Khelgaon flyover, a Swift car bearing registration No. DL 2C AL 0802 driven by the respondent No. 1 in high speed had hit the TSR from behind and as a result of the impact, the TSR turned turtle. He was not cross-examined by the respondent No. 1 and
2. In his cross-examination conducted by the respondent No. 3, he denied the suggestion that he was hit by Indica car bearing registration No. DL 1YC 9531 and that the TSR collided against the barricades and thereafter, it was hit by the car. He stated that the TSR turned turtle and he fell down on the left side and thereafter, the TSR collided against the barricades.
28. It is evident that the respondents have not disputed the accident. They have disputed the manner of the accident. From the evidence of the petitioners, it is proved that the respondent No. 1 was driving the car in high speed and while driving so, he had hit the TSR on its rear side. The speed of the car can be judged from the fact that due to the impact, the TSR turned turtle. The car, TSR and another car bearing registration No. DL 1YC 9531 were seized from the place of accident in accidental condition. The corresponding criminal case was registered promptly at 3.40 a.m. on 01.01.2014 within 2 hours from the time of the accident. The respondent No. 1 alongwith car was apprehended from the place of accident.
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29. In the case of [PRECEDENT] decided on 19.04.2016, that the TSR was hit by the fast moving car from behind. Hon'ble High Court of Delhi observed that 'In the given sequence of events, the burden of explaining as to why the appellant was not in a position to avoid collision against a motor vehicle moving in front was on the appellant.
30. In the case of [PRECEDENT] decided on 06.05.2016, the offending vehicle had hit the motorcycle from behind while both were moving in the same direction. Hon'ble High Court of Delhi observed that 'In a collision of this nature, the burden of explaining as to why the accident occurred in the manner shown would primarily lie on the motor vehicle which was in the rear'.
31. In THE [PRECEDENT] decided on 12.05.2016, the motorcycle was hit by the bus from rear side. Hon'ble Delhi High Court observed that 'The negligence on the part of the driver of bus is inherent in the sequence of events proved by evidence. Therefore, finding returned by the tribunal in this regard does not call for any interference'.
32. The respondent No. 1 neither stated nor deposed as to why he could not avoid the collision. He was not examined by the respondent No. 3 / insurer to elicit anything to the contrary. The respondents have failed to discharge their burden. In these circumstances, the inference of negligent driving of the car by the respondent No. 1 is bound to be drawn.
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33. According to MLC, [ENTITY] was examined in the casualty of Lal Bahadur Shastri Hospital, Khichripur, Delhi- 110091 as a case of road traffic accident (RTA) on 01.01.2014 at 02.15 a.m. He had pain in lower back with tenderness. He was found to have sustained 'traumatic paraparisis with compressed fracture D12 with ankylospondylosis'. He was found to have suffered permanent disability to the extent of 15% in relation to spine vide disability certificate Ex.PW4/A.
34. According to MLC, [ENTITY] was examined in the casualty of Lal Bahadur Shastri Hospital, Kichripur, Delhi- 110091 as a case of road traffic accident (RTA) on 01.01.2014 at 02.10 a.m. He had lacerated wound over bridge of nose and tenderness over thoracic region back. He was found to have sustained 'fracture phalynx left hand with fracture D3 vertebrae'. He suffered permanent disability to the extent of 15% in relation to spine vide disability certificate Ex.PW4/A.
35. According to MLC, [ENTITY] was examined in the casualty of Lal Bahadur Shastri Hospital, Kichripur, Delhi-110091 as a case of road traffic accident (RTA) on 01.01.2014 at 02.20 a.m. He had pain in right shoulder with tenderness and lacerated wound over bridge of nose and tenderness over thoracic back. He was found to have sustained 'fracture proximal humerus right and fracture acetabulum right'.
36. It is, therefore, proved that the petitioners suffered injuries in a motor vehicle accident caused by rash and negligent driving of the car by the respondent No. 1.
37. Accordingly, issue No. 1 is decided in favour of the petitioner and against the respondents.
DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.11of ISSUE NO. 2:
38. The petitioners suffered grievous injuries and consequent, permanent disability in the accident arising out of rash and negligent driving of the car by the respondent No. 1. They are entitled to just and reasonable compensation. PAIN AND SUFFERING:
39. According to treatment record Ex.PW2/1, [ENTITY] was examined to have suffered 'traumatic paraparisis with compressed fracture D-12 with ankylospondylosis'. He received treatment as an indoor patient from 01.01.2014 to 08.01.2014 in Kosmos Superspeciality Hospital, Anand Vihar, Delhi-110092. He was examined to have suffered permanent disability to the extent of 15% in relation to spine.
40. According to treatment record Ex.PW2/1, [ENTITY] was examined to have suffered 'fracture D-3 vertebrae with soft tissue injury'. He received treatment as an indoor patient from 01.01.2014 to 07.01.2014 in Kosmos Superspeciality Hospital, Anand Vihar, Delhi-110092. He was examined to have suffered permanent disability to the extent of 15% in relation to spine.
41. According to treatment record Ex.PW1/1, [ENTITY] was examined to have suffered 'fracture right proximal humerus with fracture acetabulum right'. He received treatment as an outdoor patient from 01.01.2014 to 07.07.2014 in Lal Bahadur Shastri Hospital, Khichripur, Delhi-110091. He was examined to have suffered permanent disability to the extent of 9% in relation to right upper limb.
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42. In view of the nature of injuries and prolonged treatment, the petitioners deserves to be awarded an amount of Rs. 75,000/- each towards pain and suffering. MEDICAL EXPENSES:
43. [ENTITY] proved medical expenses in the sum of Rs. 1,69,477/- vide medical bills Ex.PW1/2. Accordingly, [ENTITY] is awarded an amount of Rs. 1,70,000/- towards medical expenses.
44. [ENTITY] proved medical expenses in the sum of Rs. 33,361/- vide medical bills Ex.PW1/2. Accordingly, [ENTITY] is awarded an amount of Rs. 35,000/- towards medical expenses.
45. [ENTITY] received treatment from Lal Bahadur Shastri Hospital, Khichripur, Delhi-110091. He has not proved medical expenses. He received treatment from the said hospital till July, 2014. [ENTITY] is awarded an amount of Rs. 5,000/- (without bills) towards medical expenses. LOSS OF INCOME:
46. [ENTITY], in his affidavit Ex.PW1/A, stated that he was running a coaching centre for imparting coaching to the students of 11th and 12th standard aspiring for engineering and medical career. He stated that he was earning Rs. 2,55,502/- p.a. and due to the injury, he could not work.
47. PW-3 [ENTITY], Tax Assistant, Income Tax Office, Gorakhpur, U.P. proved income tax returns submitted by [ENTITY] for the assessment years 2010-11, 2011-12 and 2012-13 Ex.PW3/2 (colly).
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48. Income tax return for the assessment year 2012-13 Ex.PW3/2 (colly) was filed on 31.12.2012. It can be considered for assessment of income of [ENTITY]. According to income tax return for the assessment year 2012-13, 'profit and gain from business or profession' was Rs. 2,51,520/-. An amount of Rs. 3,982/- was earned from other sources. However, the sources are not defined. Therefore, annual income of [ENTITY] is considered as Rs. 2,51,520/-.
49. [ENTITY], in his affidavit Ex.PW1/A, has not stated the period during which he could not work for gain due to the injury sustained by him. According to treatment record Ex.PW1/3, he was discharged from Kosmos Superspeciality Hospital on 08.01.2014. His condition was stable at the time of his discharge. Thereafter, he visited the said hospital on 09.02.2014 and 08.03.2014. He also received treatment from Smirk Dental Clinic and Diagnostics, Laxmi Nagar, Delhi and Aggarwal Streets Dental Clinic, Vaishali, Ghaziabad, U.P. since 08.03.2014 to 05.04.2014. Accordingly, he deserves to be granted loss of income for three months.
50. Accordingly, [ENTITY] is awarded (2,51,520 / 12 x 3) 62,880/- (rounded of) Rs. 63,000/- towards loss of income for three months.
51. [ENTITY], in his affidavit Ex.PW1/A, stated that he was running a coaching centre for imparting coaching to the students of 11th and 12th standard aspiring for engineering and medical career. He stated that he was earning Rs. 20,000/- p.m. He stated that he could not work due to the injury suffered by him.
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52. PW-3 [ENTITY], Tax Assistant, Income Tax Office, Gorakhpur, U.P. proved income tax returns submitted by [ENTITY] for the assessment years 2010-11, 2012-13 and 2013-14 Ex.PW3/2 (colly). Income tax return for the assessment year 2012-13 and 2013-14 Ex.PW3/2 (colly) were filed on 12.03.2014. Income tax return for the assessment year 2012-13 filed on 12.03.2014 discloses gross annual income as Rs. 2,75,870/-. An amount of Rs. 1,00,000/- was exempted under [SECTION] of the [ACT]. Thus, net annual income of [ENTITY] is computed as Rs. 2,75,870/-.
53. [ENTITY], in his affidavit Ex.PW1/A, has not stated the period during which he could not work for gain due to the injury sustained by him. According to treatment record Ex.PW1/3, he was discharged from Kosmos Superspeciality Hospital on 07.01.2014. His condition was stable at the time of his discharge. In view of the nature of the injury and prolonged treatment, [ENTITY] deserves to be granted loss of income for three months. Accordingly, he is awarded (2,75,870 / 12 x 3) 68,967.5/- (rounded of) Rs. 69,000/- towards loss of income for three months.
54. [ENTITY], in his affidavit Ex.PW1/A, stated that he is a TSR driver and he could not work due to the injury sustained by him in the accident. He stated that he was earning Rs. 15,000/- per month. He has not led any evidence to prove his earning. He placed a copy of commercial driving license Ex.PW1/2. He has not stated the period during which he could not work for gain due to the injury suffered by him. DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.15of
55. According to treatment record Ex.PW1/1, [ENTITY] suffered 'fracture right proximal humerus with fracture acetabulum right'. He received treatment as an outdoor patient till 04.07.2014. He deserves to be granted loss of income for six months. In the absence of any proof of income, his income is notionally assessed at Rs. 9,802/-, it being minimum wages as payable to a skilled worker at the relevant time.
56. [ENTITY] is awarded (9,802 x 6) 58,812/- (rounded off) Rs. 59,000/- towards loss of income for six months.
LOSS OF FUTURE INCOME:
57. [ENTITY], in his affidavit Ex.PW1/A, stated that he was running a coaching centre for imparting coaching to the students of 11th and 12th standard for IIT and PMT. However, he has not led any evidence to prove that he was running any coaching centre. He proved academic certificates Ex.PW1/5. He has done B.Sc in 1st division from DDU, Gorakhpur University, Gorakhpur, U.P. PW-4 Dr. [ENTITY], Specialist (Orthopaedics), Dr. [ENTITY], Karkardooma, Delhi-110032 proved disability certificate Ex.PW4/A. His permanent physical disability is assessed to the extent of 15% in relation to spine due to fracture of D12 vertebrae. PW-4 Dr. [ENTITY] stated that [ENTITY] will have difficulty in standing for long duration i.e. after 2-3 hrs. He stated that he would be having discomfort in sitting for long hours. He would have stiffness in his back with the change of weather.
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58. In view of the nature of avocation of [ENTITY] and probable impact of the physical disability on his working capacity, his functional disability is assessed as 10%.
59. [ENTITY] was about 29 years at the time of the accident. His age is mentioned as 28.04.1985 in PAN card Ex.PW1/4. Therefore, multiplier of 17 as applicable to age group between 26-30 years would apply. [ENTITY] was below 40 years. He is self-employed. Following the dispensation in the judgment of a Constitution Bench of the Supreme Court rendered on 31.10.2017 in [CASE NUMBER], [PRECEDENT]., there shall be addition of income to the extent of 40%. Thus, the loss of future income due to disability is computed as [2,51,520 x 140 / 100 x 10 / 100 x 17] 5,98,617.6 (rounded of) Rs. 5,99,000/-.
60. [ENTITY], in his affidavit Ex.PW1/A, stated that he was running a coaching centre for imparting coaching to the students of 11th and 12th standard for IIT and PMT. However, he has not led any evidence to prove that he was running any coaching centre. He proved academic certificates Ex.PW1/5. He has done B.Sc (Mechanical) from Patna University, Bihar. PW-4 Dr. [ENTITY], Specialist (Orthopaedics), Dr. [ENTITY], Karkardooma, Delhi-110032 proved disability certificate Ex.PW4/A. His permanent physical disability is assessed to the extent of 15% in relation to spine due to fracture of D3 vertebrae. PW-4 Dr. [ENTITY] stated that [ENTITY] will have difficulty in standing for long duration i.e. after 2-3 hrs. DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.17of
61. In view of the nature of avocation of [ENTITY] and probable impact of the physical disability on his working capacity, his functional disability is assessed as 10%.
62. [ENTITY] was 35 years and 6 months. His age is mentioned as 03.06.1978 in PAN card Ex.PW1/6. Therefore, multiplier of 15 as applicable to age group between 36-40 years would apply. [ENTITY] was below 40 years. He is self-employed. Following the dispensation in the judgment of a Constitution Bench of the Supreme Court rendered on 31.10.2017 in [CASE NUMBER], [PRECEDENT]., there shall be addition of income to the extent of 40%. Thus, the loss of future income due to disability is computed as [2,75,870 x 140 / 100 x 10 / 100 x 15] 5,79,327 (rounded of) Rs. 5,80,000/-.
63. [ENTITY], in his affidavit Ex.PW1/A, stated that he is a TSR driver. He suffered 'fracture right proximal humerus with fracture acetabulum right'. PW-2 Dr. [ENTITY], Jr. Specialist (Orthopaedics), LBS Hospital, Khichripur, Delhi stated that [ENTITY] has complete range of motion at shoulder level. He stated that he has full range of motion at elbow and wrist joint. He proved disability certificate Ex.PW2/A and assessment-sheet Ex.PW2/B. He stated the disability was assessed on account of muscle weakness at shoulder and elbow level. He stated that there will not be any impact on the capacity of [ENTITY] to work as a TSR driver. He stated that he can drive TSR or any other vehicle without any difficulty. Therefore, [ENTITY] is not entitled to loss of future income. DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.18of LOSS OF AMENITIES:
64. [ENTITY] suffered 'traumatic paraparisis with compressed fracture D-12 with ankylospondylosis'. PW-4 Dr. [ENTITY] stated that the petitioner will have difficulty in standing for long duration i.e. after 2-3 hrs. He stated that the petitioner will have discomfort in sitting for long duration. He stated that the petitioner will be having problem in bending, lifting heavy weights and stiffness in his back with the change of weather. He stated that the petitioner would have discomfort in enjoyment of life. In that view, [ENTITY] is awarded an amount of Rs. 50,000/- towards loss of amenities.
65. [ENTITY] suffered 'fracture phalynx left hand with fracture D3 vertebrae'. PW-4 Dr. [ENTITY] stated that the petitioner will have difficulty in standing for long duration i.e. after 2-3 hrs. He stated that the petitioner will have discomfort in sitting for long duration. He stated that the petitioner will be having problem in bending, lifting heavy weights and stiffness in his back with the change of weather. He stated that the petitioner would have discomfort in enjoyment of life. In that view, [ENTITY] is awarded an amount of Rs. 50,000/- towards loss of amenities.
66. [ENTITY] suffered 'fracture right proximal humerus with fracture acetabulum right'. PW-2 Dr. [ENTITY], Specialist (Orthopaedics), LBS Hospital, Delhi stated that the petitioner had healed fracture proximal humerus right. He stated that the petitioner will be able to enjoy all amenities of life without any problem. Therefore, he is not entitled to compensation for loss of amenities. DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.19of SPECIAL DIET AND CONVEYANCE:
67. The petitioners have not led any evidence to prove that they were prescribed any special diet. They have not led any evidence that they purchased protein rich or nutritious diet. They have not led any evidence that they engaged any conveyance and incurred expenses thereon. However, in view of the nature of injury and prolonged treatment, they are awarded Rs.5,000/- each towards special diet and conveyance. ATTENDANT CHARGES:
68. The petitioners have claimed that they engaged an attendant and paid Rs. 8,000/- per month. They have not led any evidence to prove that any attendant had to be engaged or expenditure incurred on such account during treatment or thereafter. In these circumstances, there is no case made out for any attendant charges to be added. ([PRECEDENT] decided on 26.04.2016).
D-11207/16:
69. The compensation awarded to the petitioner / [ENTITY] is computed, as under:
Sl.No. Headwisecompensation Amount 1. Painandsuffering Rs.75,000/ 2. Medicalexpenses Rs.1,70,000/ 3. Lossofincome Rs.63,000/ 4. Lossoffutureincome Rs.5,99,000/ 5. Lossofamenities Rs.50,000/ 6. Specialdietandconveyance Rs.10,000/ Total Rs.9,67,000/ DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.20of D-11208/16:
70. The compensation awarded to the petitioner / [ENTITY] is computed, as under:
Sl.No. Headwisecompensation Amount 1. Painandsuffering Rs.75,000/ 2. Medicalexpenses Rs.35,000/ 3. Lossofincome Rs.69,000/ 4. Lossoffutureincome Rs.5,80,000/ 5. Lossofamenities Rs.50,000/ 6. Specialdietandconveyance Rs.10,000/ Total Rs.8,19,000/ D-11210/16:
71. The compensation awarded to the petitioner / [ENTITY] is computed, as under:
Sl.No. Headwisecompensation Amount 1. Painandsuffering Rs.75,000/ 2. Medicalexpenses Rs.5,000/ 3. Lossofincome Rs.59,000/ 4. Specialdietandconveyance Rs.10,000/ Total Rs.1,49,000/ LIABILITY:
72. The respondent No. 3 / insurer pleaded breach of terms and conditions of insurance policy on the ground that the respondent No. 1 was not holding a valid driving license. It examined R3W1 [ENTITY], Transport Department, IP Estate, New Delhi and R3W2 [ENTITY], Manager (Legal) in support of its contention. It relied on the statement of the respondent No. 1, recorded on 29.02.2016, that his driving license has expired and not valid on 31.12.2013. DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.21of
73. Ld. Counsel for the respondent No. 3 / insurer stated that R3W1 [ENTITY] proved that [CASE NUMBER] in the name of the respondent No. 1 was not valid on 01.01.2014 as it expired on 15.04.2013. He stated that [CASE NUMBER] issued in the name of the respondent No. 1 is a fake license as the respondent No. 2, as per verification report, never resided at the address mentioned therein. He stated that the respondent No. 3 / insurer is not liable to pay the compensation to the petitioner and it must be exonerated.
74. Ld. Counsel for the respondent No. 1 and 2 submitted that [CASE NUMBER] expired on 15.04.2013 but it was renewed on 05.02.2014. He submitted that Court Witness 1 [ENTITY], Regional Inspector, RTO, Allahabad, U.P. proved that [CASE NUMBER] was issued in the name of the respondent No. 1 and it was valid on the date of the accident.
75. On thoughtful consideration, the Tribunal is of the opinion that there is no breach of any term and condition of insurance policy. [ENTITY], Regional Inspector, RTO, Allahabad, U.P. proved [CASE NUMBER] Ex.CW1/A in the name of the respondent No. 1 for LMV (NT) and motorcycle having validity from 30.07.2012 to 18.01.2024. He proved that the documents pertaining to issuance of learner's license were weeded out in terms of Government Notification dated 29.06.2014 on 28.11.2014. The car in question is a light motor vehicle. Therefore, the respondent No. 1 was in possession of a valid driving license to drive the car on the date of the accident.
DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.22of AWARD D-11207/16:
76. [ENTITY] is awarded compensation in the sum of Rs. 9,67,000/- alongwith interest @ 9% per annum from the date of filing of the petition (30.01.2014) till the date of award. The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petitioner till realization. [See: judgment dated 22.02.2016 in [PRECEDENT].]
77. An amount of Rs. 67,000/- alongwith accrued interest will be released to the petitioner and balance amount of Rs. 9,00,000/- will be secured in the following manner:
Amount of FDR Period of FDR Rs. 50,000/- 1 month Rs. 50,000/- 2 months Rs. 50,000/- 3 months Rs. 50,000/- 4 months Rs. 50,000/- 5 months Rs. 50,000/- 6 months Rs. 50,000/- 7 months Rs. 50,000/- 8 months Rs. 50,000/- 9 months Rs. 50,000/- 10 months Rs. 50,000/- 11 months Rs. 50,000/- 12 months Rs. 50,000/- 13 months Rs. 50,000/- 14 months Rs. 50,000/- 15 months Rs. 50,000/- 16 months Rs. 50,000/- 17 months Rs. 50,000/- 18 months DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.23of D-11208/16:
78. [ENTITY] is awarded compensation in the sum of Rs. 8,19,000/- alongwith interest @ 9% per annum from the date of filing of the petition (30.01.2014) till the date of award. The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petitioner till realization. [See: judgment dated 22.02.2016 in [PRECEDENT].]
79. An amount of Rs. 69,000/- alongwith accrued interest will be released to the petitioner and balance amount of Rs. 7,50,000/- will be secured in the following manner:
Amount of FDR Period of FDR Rs. 50,000/- 1 month Rs. 50,000/- 2 months Rs. 50,000/- 3 months Rs. 50,000/- 4 months Rs. 50,000/- 5 months Rs. 50,000/- 6 months Rs. 50,000/- 7 months Rs. 50,000/- 8 months Rs. 50,000/- 9 months Rs. 50,000/- 10 months Rs. 50,000/- 11 months Rs. 50,000/- 12 months Rs. 50,000/- 13 months Rs. 50,000/- 14 months Rs. 50,000/- 15 months DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.24of D-11210/16:
80. [ENTITY] is awarded compensation in the sum of Rs. 1,49,000/- alongwith interest @ 9% per annum from the date of filing of the petition (30.01.2014) till the date of award. The respondent No. 3 / insurer shall deposit the award amount with the tribunal within 30 days and otherwise, the award amount will carry interest @ 9% per annum from the date of filing of the petitioner till realization. [See: judgment dated 22.02.2016 in [PRECEDENT].]
81. An amount of Rs. 49,000/- alongwith accrued interest will be released to the petitioner and balance amount of Rs. 1,00,000/- will be secured in the following manner:
Amount of FDR Period of FDR Rs. 50,000/- 3 months Rs. 50,000/- 6 months
82. Copy of award be supplied to the petitioners and the respondent No. 3 / insurer for compliance. File be consigned to record room.
Announced in the open Court Sh. [ENTITY] Dated: 17th March, 2018 Presiding Officer MACT (East) Karkardooma Court, Delhi SANJAY SHARMA SHARMA Date: 2018.03.17 18:07:08 +0530 DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.25of 17.03.2018 Present: Sh.[ENTITY],Advocateforthepetitioner.
Sh[ENTITY],AdvocateforR1andR2. Sh.[ENTITY],AdvocateforR3/InsuranceCo.
Videseparatejudgment,awardispassed. Tocomeupfor complianceon16.05.2018.
[ENTITY] DARNo.:11208/2016[ENTITY]KumarTiwarivs[ENTITY]&Ors.26of