IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL : (WEST-01):DELHI Case No. 45/10 1. Smt. [ENTITY] w/o Sh [ENTITY] 2. Sh [ENTITY] s/o Sh Kameshwar Prasad Both r/o Plot No. 252, Khasra No. 23/14, Parvesh Nagar, Mbuarakpur, New Delhi -110086 Permanent R/o Village Machhagra, P. S. Baniapur District Chhapra, Bihar Petitioners in the First Petition Case No. 223/10 Sh. [ENTITY] s/o Late Sh. Gyan Chand R/o H No. 938, Near Old Mandir, Vill. Karala, Panna Devi Wada, Delhi -110081 Petitioner in the Second Petition VERSUS 1. Sh. [ENTITY] s/o Sh. Preet Singh R/o L-87, Prem Nagar, Ph-II, Delhi -110081(Driver) 2. Sh. [ENTITY] s/o Sh. Dilip Singh R/o H. No. C-53, Camp No.2, Ph-II, Nangloi, Delhi (owner) 3. The [ENTITY] RO 1-F20, 1st Floor, United India Life Building, Connaught Circus, New Delhi -01 ( insurer) Respondents in both petitions
Consolidated case bearing Date of institution of both petition : 25/11/2009(AIR) Date of reserving judgment/order : 13/01/2016 Date of pronouncement : 22/01/2016 CONSOLIDATED JUDGMENT-CUM- AWARD:
1. By this judgment- cum- award, I shall dispose of both these petitions bearing [CASE NUMBER], (hereinafter called the first petition and the second petition respectively ), filed by the petitioners u/[SECTION] and [SECTION] [ACT] amended upto date ( hereinafter referred as 'Act'). The first petition has been filed by the parents of the bachelor deceased Sh. [ENTITY] and the second petition has been filed by the injured himself. Since both these petitions arise out of the same motor vehicle accident, they can be conveniently disposed of together.
2. Both these petitions were consolidated vide order dated 02/04/2014 and the first petition bearing No. 45/10 was ordered to be treated as lead case.
3. Brief facts of the first petition of the petitioners are that on 03/11/09 at about 21.15 hours while the deceased in the first petition was sitting on the extit gate's conductor seat of the Blue Line Bus bearing registration No. DL 1P-B-0546, route No 918 which was being driven by the respondent No.1, hit the standing DTC Bus bearing No. DL 1PA-6191 from the back side, resultantly the decesed sustained grievous injuries and died. The brief facts of the second petition of the injured/ petitioner are that on the date of accident petitioner alongwith sh. [ENTITY] and Driver [ENTITY] of recovery van No. DL 1PB-2795 had gone to attend the complaint of Bus No. DL 1PA-6191 of Nangloi Depot. It is further alleged that when injured after attaching the faulty bus with recovery van was coming out on the road, then the aforesaid offending vehicle No. DL 1PB-0546 which was being driven by its driver/ respondent No.1 in rash and negligent manner hit petitioner in the first petition, resulting he had sustained grevious injuries. In total, the petitioners in the first petition and petitioner in the second petition have claimed Rs. 15 Lacs each as Consolidated case bearing compensation.
4. Written statements have been filed by the respondent No.1 & 2 wherein they categorically denied the rash and negligent aspect and also denied the contents of the petition.
5. Written statement has been filed by the respondent No. 3/ insurance company wherein it was admitted that the offending vehicle was insured on the date and time of accident but categorically denied the contents of the same.
6. On the pleadings of the parties, following issues were framed in both the petitions separately on 05/09/2011.
ISSUES IN FIRST PETITION
1.Whether the deceased suffered fatal injuries in an accident that took place on 03/11/09 at about 9.15 p.m involving Bus bearing No. DL 1P/B-0546 driven by respondent No.1, owned by respondent No.2 and insured with responent No.3? OPP
2.Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3. Relief.
ISSUES IN SECOND PETITION
1.Whether the petitioner suffered injuries in an accident that took place on 03/11/09 at about 9.15 p.m involving Bus bearing No. DL 1P/B-0546 driven by respondent No.1, owned by respondent No.2 and insured with responent No.3? OPP
2.Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
7. In order to establish its claim, the petitioner in the second petition has examined Sh. [ENTITY], Clerk in DTC, Rohini as PW-1; Sh. [ENTITY], Record Clerk, Jaipur Golden Hospital as PW-2; Sh. [ENTITY], Medical Record, IN -Charge Sarol Hospital, as PW-3; petitioner in second petition Sh. Tejpal Consolidated case bearing Singh as PW4. The petitioner No. 1 in first petiton has examined himself as PW-5;
Dr. [ENTITY], Associate Professor, IHBAS as PW-6; and Dr. [ENTITY], Department of Neurology, Janak Puri Super Speciality Hospital as PW-7.
8. Ld. Counsel for petitioner has filed the judgment in [PRECEDENT]) and Ramveer Singh Vs. [ENTITY] Kumar & Ors, reported in 2014 ACJ 1090.
9. I have thoroughly gone through the testimony of the witnesses and perused the record. I have given thoughtful consideration to the arguments addressed by learned counsel for petitioner/ petitioners as well as Ld. Counel for for the insurance company. I have also gone through the judgments filed by the counsel for petitioner.
My findings on various issues are as under :-
ISSUE NO.1 IN BOTH PETITIONS
10. Since the present petition is under [SECTION] of [ACT], it was the bounden duty of the petitioners to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
11. The police has filed the Accident Information Report (AIR) on record i. e the copy of FIR etc of bearing No. 387/09; P. S. Punjabi Bagh; u/s [SECTION] [ACT].
12. On the aspect of negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in [PRECEDENT] wherein in the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under [SECTION] A [ACT] or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent.
It was further held that the proceedings under the [ACT] are not akin to the proceedings in a civil suit and hence strict rules of evidence are Consolidated case bearing not required to be followed in this regard.
Further, in [PRECEDENT] the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under [SECTION] and [SECTION] of the Act.
It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the [ACT]. This is because the chapter in the [ACT] dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High of Delhi in [CASE NUMBER] in case titled as [PRECEDENT] decided on 23/07/2012 had held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under [SECTION] of the [ACT] Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court [ENTITY] and Ors. V [ENTITY] [PRECEDENT] where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
Consolidated case bearing In the light of the law discussed above and after going through all the documents i.e. FIR; final report u/[SECTION] [ACT]; site plan and MLC of the petitioner in the second petition; post mortem of the deceased; copy of the driving license of driver of the offending vehicle; copy of permit, fitness certificate and insurance policy of the offending vehicle filed by the police in AIR as well as documents filed by the petitioners as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
The issue No:1,therefore, stands decided in favour of the petitioner/petitioners and against the respondents.
COMPENSATION IN FIRST PETITON ([CASE NUMBER])
13. The copy of the Conductor Licence Form placed on record suggests the date of birth of deceased as 30/12/1987. The date of accident is 03/11/2009. Accordingly, the deceased was 22 years as on the date of accident.
14. The deceased was conductor and was earning Rs. 9000/- at the time of accident. The petitioners has filed the Conductor Licence Form of the deceased on record. The petitioners have neither examined any witness from his employer to prove the salary record of the deceased nor filed any proof of his income on record. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the [ACT]. The date of accident was 03/11/2009 on which the minimum wages for skilled person for the relevant period were Rs. 4377/-.
15. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "[ENTITY] & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same.
Consolidated case bearing
16. I have taken care of the submissions of the Ld. Counsel for petitioners and have perused the record.
Initially, the Hon'ble Supreme Court of India in '[ENTITY] Vs National Insurance Company Ltd. & Ors' in [CASE NUMBER] decided on 23/04/2012 case had held as under:-
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in [ENTITY]'s case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of [ENTITY]'s Consolidated case bearing judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
However,in a case [ENTITY] & Ors (supra) decided by Three Hon'ble Judges bench of Hon'ble Supreme Court of India has laid down the age wise criteria for giving appreciation of future income. The relevant portion of the aforesaid judgment is reproduced as under:
11. Since, the court in [ENTITY]'s case (Supra) actually intended to follow the principle in the case of salaried persons as laid in [ENTITY]'s case (Supra) and to make it applicable also to self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In [ENTITY]'s case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in [ENTITY] (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased.
In [ENTITY]'s case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Consolidated case bearing Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
17. Ld. Counsel for respondent No.3 has vehemently argued that deceased is not entitled for any appreciation of income for the purpose of compensation towards future prospects.
18. On the other hand, Ld. Counsel for petitioners has argued that deceased is entitled for appreciation of income for the purpose of future prospects. He he has also relied upon judgment of Hon'ble High Court of Delhi in [CASE NUMBER] decided on 17/09/2013 in [PRECEDENT] while disposing of petition has held as under-:
"2. Learned counsel appearing on behalf of the appellants/ claimants has submitted that at the time of the accident, the deceased was 29 years of age and in view of the recent judgment of the Full Bench of the Supreme Court in the case of [ENTITY] and Ors. Vs. Rajbir Singh and Ors. 2013(6) SCALE 563, the appellants / claimants are entitled for 50% towards future prospects.
3. On the other hand, learned counsel appearing on behalf of the respondent/ Insurance Company while relying upon the case of Consolidated case bearing [PRECEDENT], and [ENTITY] & Ors. Vs. Madan Mohan & Anr delivered in [CASE NUMBER] on 02.4.2013 has submitted that in view of the above judgments since the deceased was not in permanent job, therefore, the appellants/ claimants are not entitled for any compensation on account of future prospects.
"4. The admitted fact is that every salary / income gets increase due to the inflation. Every person after sometime earns more than what he was earning earlier, therefore, in my considered opinion, in every case whether a person is in a Government job or in private job, his income keeps on escalating. It is immaterial whether he/ she is in permanent job or temporary. Earlier majority of the employment was in public sector but in the changed scenario majority of the people finds employment in private sector. Nowadays, people are very frequently changing their employment. That does not mean they do not have permanent employment."
5. Therefore, for granting future prospects, if it is taken into consideration that person working in the private organizations are nto entitled for the same, being not in permanent job, then claimants in such cases are not entitled for the increase towards his salary/ income. Hence, recently keeping all these facts into view, the Full Bench of the Supreme Court has decided the case of [ENTITY] and others(supra) as under:-
After discussing the law of precedents, regarding future prospects, the Hon'ble High Court of Delhi in a judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. [ENTITY] & Ors'in MACA 846/2011 decided on 30/09/13 has held as under:
Consolidated case bearing "26. While considering the case of [ENTITY], the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of [ENTITY] and [ENTITY], in turn the Apex Court extended the scope and ambit of [ENTITY] through [ENTITY]."
27. In view of above, this court is guided by the legal principles as set out in [ENTITY] and [ENTITY] in order to assess the just compensation as it is envisaged in [SECTION] of [ACT]. In [ENTITY], the Apex Court affirmed the findings of [ENTITY]; and in [ENTITY], the Hon'ble Supreme Court has agreed with the dictum of [ENTITY]. Specifically, for the assessment of future prospects in respect of the persons falling under the category of self- employment / fixed wages this court is guided by the dictum laid down in [ENTITY]. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of [ENTITY] and [ENTITY]."
Considering the abovesaid judgment, I am of the view, the income of the deceased is required to be appreciated for future prospects.
19. Since the deceased was 22 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in [ENTITY] (supra). Hence after averaging out, the income of deceased comes out to be Rs. 6565.5 p. ( Rs. 4377/- + 50% ).
20. As per the judgment of Hon'ble Supreme Court of India in [ENTITY] (supra) , 50% of the income of the deceased is directed to be deducted towards personal and living expenses as the deceased was bachelor and has left behind only one dependent as per aforesaid discussion. After deducting one- half towards personal expenses, the monthly loss of dependency comes out to be Consolidated case bearing Rs. 6565.5 p. less Rs. 3282.75 p.= Rs. 3282.75 p.
21. For the purpose of determining the multiplier in case of death of bachelor, the I am being guided directions to the Tribunals contained in the judgment of Hon'ble High Court of Delhi in a case titled as [PRECEDENT] in [CASE NUMBER] decided on 24/03/2014 wherein the age of the deceased is considered for applying multiplier in case of death of bachelor.
22. The age of the deceased has already been determined as 22 years as aforesaid as on the date of accident. In view of the aforesaid discussion, the age of the deceased is considered in case of death of bachelor in terms of aforesaid judgment in [ENTITY]), the appropriate multiplier applicable is 18, as mentioned in [ENTITY]'s judgment (Supra). Hence, the total loss of dependency comes out to ( Rs. 3282.75 p. x 12 x 18)= Rs. 7,09,074/- .
23. Regarding loss of love and affection, I am guided by the judgment of Hon'ble High Court of Delhi in its latest document in [CASE NUMBER] in case titled as '[PRECEDENT] ' decided on 26/09/12 by Hon'ble Mr. Justice [ENTITY] wherein it was held as under:-
"12. Loss of love and affection can never be measured in terms of money. Thus uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in [PRECEDENT] and in [PRECEDENT] granted only Rs. 25000/-( in total to all the claimants) under the head of loss of love and affection.
13. The compensation of Rs. 1,00,000/- towards love and affection is on the higher side. The same is reduced to Rs. 25,000/-"
24. In terms of the aforesaid judgment passed by the Hon'ble High Court of Delhi, I award Rs. 25,000/- towards love and affection; Rs. 25,000/- towards funeral charges ( in terms of judgment of Hon'ble Supreme Court of India in "[ENTITY] & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" decided on 12.04.2013 by three Hon'ble Judges) & Rs. 10,000/- towards loss of estate. Therefore, in total, I hereby award a sum of Rs. 7,69,074/- in favour of the petitioners and Consolidated case bearing against the respondents. Both petitioners are entitled for equal share in the award amount.
RELIEF / ISSUE NO.3
25. I award Rs. 7,69,074/- (Rupees Seven Lacs Sixty Nine Thousand Seventy Four Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 25/11/2009 (AIR) till the notice under [SECTION] is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several.
26. As per the guidelines issued by Hon'ble Supreme Court of India [PRECEDENT] in order to avoid the money being frittered away, 75% (Seventy Five Parcent) of the amount awarded to each petitioners No. 1& 2 shall be kept in FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Both petitioners can withdraw the interest quarterly from their FDRs.
27. Ld. Counsel for respondent No.2 has moved an application for returning the amount of Rs. 1,00,000/- which was deposited by him at the time of release of the offending vehicle at the time of superdari vide receipt No. 94086 dated 23/11/09 before the court of Sh.[ENTITY], M.M. Delhi. Ld. Counsel for respondent No.2 has further stated that claimants/ petitioners have already got encashed vide voucher No. 490 dated 30/11/2009. He has further stated that insurance company be directed to deduct the said amount from the award amount and return the same to respondent no.2.
27. Ld. Counsel for petitioner Sh. [ENTITY] has filed the reply to this application stating therein that the injured Sh. [ENTITY] has not received the said amount.
Consolidated case bearing
28. Accordingly, in terms of the para '9' of the judgment of Hon'ble High Court of Delhi in court on its own motion vs. [PRECEDENT] and considering the fact that petitioners in first petition has got encashed the said amount vide voucher no. 490 datedc 30/11/09, I order that the insurance company shall deduct the said amount of Rs. 1,00,000/- with intrest accordingly from the award amount and deposit a separate cheque in the name of owner before this court.
COMPENSATION IN SECOND PETITON ([CASE NUMBER])
29. Nature of injuries and reimbursement of medical bills As per the medical documents of the petitioner suggests that the petitioner had sustained Head and facial injuries; wound in thigh; stiching was also done in frontal region with Nasal area. The petitioner has spent Rs. 5,78,981.20 p on his treatment but he has got the bills reimbursed to the tune of Rs. 4,95,598/- from his department. The petitioner has claimed in his affidavit only Rs. 83,383/- towards medical expenses and the same has not been disputed by the respondents. Accordingly, I hereby grant total sum of Rs. 83,383/- to the claimant for medical expenses.
30 . Pain & sufferings It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case [PRECEDENT], date of decision: 2.2.2007, Delhi High Court by Hon'ble Mr. Justice [ENTITY] wherein it was held that:-
Consolidated case bearing "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
Duration of the treatment."
Keeping in view the said guidelines; in view the aforesaid observation made by this court and nature of injuries as elicited above, I hereby grant compensation of Rs. 1,00,000/- towards pain and sufferings.
31. Compensation for conveyance & special diet Though there is no cogent evidence on record for the money spent by the petitioner for conveyance, yet considering the nature of injuries suffered by the petitioner, his treatment papers on record and the material placed, I am of the opinion that petitioner must have spent some sum under this head. Petitioner is accordingly entitled for sum of Rs. 30,000/- for expenses incurred on special diet.
32. Compensation towards Loss of leave The copy of the Election Identity Card of the petitioner, Ex. PW4/1 suggests his age as 43 years as on 01/01/2008. The date of accident is 03/11/09. Accordingly, the petitioner was about 44 years on the date of accident.
33. The petitioner is stated to be Assistant Fiiter in DTC Department and was stated to be earning Rs. 17,000/- per month at the time of accident. The petitioner in his affidavit has stated that he could not attend his duty from 03/11/09 to 31/01/2011. The petitioner has examined PW-1 Sh. [ENTITY] who has proved the certificate regarding salary and leave record vide Ex. PW1/3(colly). The certificate of leave suggests that petitioner had remained on leave w.e. 04/11/2009 to 31/01/2011( near about 15 months). This documents also suggests that petitioner was getting salary of Rs. 19,825/- at the time of accident. After deducting the washing allowance from the gross salary, the net income of petitioner comes out to Consolidated case bearing be Rs. 19,765/-. Considering the nature of injuries and facts and circumstances, I hereby grant Rs. 1,50,000/- towards loss of leave.
34. Compensation towards loss of monthly increment The petitioner has stated that he has suffered Rs. 670/- per month in the basic pay till the date of his retirement. The petitioner has failed to prove this fact on record by leading evidence from his department. Hence, the petitioner is not entitled to get any compensation under this head.
35. Compensation on account of disability In order to prove the permanent disability certificate, the petitioner has examined PW-7 Dr. [ENTITY] who has proved the disability certificate, Ex. PW7/A. As per the permanent physical disability certificate Ex. PW7/A issued by Janak Puri Super Speciality Hospital Society, the petitioner has got 79% permanent physical disability in relation the whole body and it is a case of post RTA severe congnitive impairment . PW-7 has further deposed that meaning of post RTA severe congnitive impairment is ' difficulty in remembering things and execution of various activities with left mild hemiparesis.
36. It is now the settled law that it is the percentage of functional disability arising out of physical disability which matters while assessing the compensation arising out of disability. On this aspect, I gain support from judgment of Hon'ble Supreme Court in "[PRECEDENT] in which it was held as under:-
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss,that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent ( percentage ) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if Consolidated case bearing the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent ( percentage) of loss of earning capacity to the extent percentage of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment , the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation(See for example, the decisions of this court in [PRECEDENT] and [PRECEDENT], [PRECEDENT])"
37. Considering the disability certificate Ex. PW7/A which contains the physical permanent disability of 79% in relation to the whole body and also keeping in view the age of the petitioner as well as his nature of avocation as elicited above, this court is of the opinion that 79% physical disability as contained in disability certificate shall affect entirely upon his working capacity.
38. In order to assess the compensation on account of disability for those who should have suffer no loss of income, I am being guided by the judgment of Hon'ble High Court of Delhi in case titled as ' [PRECEDENT]' in MAC. [CASE NUMBER] decided on 14/03/2012.
39. I have taken care of the aforesaid judgments of Hon'ble Supreme Court as well as Hon'ble High Court of Delhi. The judgment relied upon by the counsel for insurer regarding the earning capacity was not directly dealing with the cases of government servants whereas this court has come across one judgment of Hon'ble High Court of Delhi titled as 'United India Insurance Co. Ltd Vs. [ENTITY] & Ors', reported in 2012(2) T.A.C dealing with government servant regarding earning capacity qua disability. The relevant portion of the [ENTITY]'s judgment is as under:-
Consolidated case bearing "9. Government employees whether retiring from a high post or a low post carry out their profession even after the date of superannuation provided he/ she possesses good health. The permanent disability in the left upper and lower limb to the extent of 28% would definitely affect his earning capacity . In the absence of any expert evidence led by the first Respondent, I would reduce the loss of earning capacity to 14% in respect of the whole body".
40. This court has already judged the affect of 79% permanent disability on his working capacity. Considering the aforesaid judgment of Hon'ble High Court of Delhi, I reduce the loss of earning capacity to half i.e. 40 % in respect of whole body.
41. The injured was around 44 years of age as on the date of accident for which the relevant multiplier 14 ( for the age group of 41 to 44 years) as mentioned in [ENTITY] Vs. DTC decided on 15.4.2009 in [CASE NUMBER]. Therefore, the total loss of earning capacity comes out to be Rs. 13,28,208/- = ( Rs. 19,765/- X 12 X 14 x 40/100). I also award a sum of Rs. 50,000/- to the petitioner for loss of amenities of life and enjoyment of life.
42. Compensation towards disfigurement . Considering the nature of injuries and his photographs Exs. PW4/6 and Ex. PW4/7 placed on record and 79% permanent physical disability in relation to his whole body, I hereby grant Rs. 1,00,000/- as compensation towards disfigurement.
Consolidated case bearing The total compensation is assessed as under:-
Treatment expenses: Rs. 83,383/- Pain and sufferings: Rs. 1,00,000/- Conveyance charges Special diet charges Rs. 30,000/- Loss of leave Rs. 1,50,000/- Compensation towards loss of increment. Nil Compensation on account of disability: Rs. 13,28,208/- Compensation toward loss of amenities of life and enjoyment of life Rs. 50,000/- Compensation on disfigurement Rs. 1,00,000/- Total: Rs. 18,41,591/-
43. The assessed compensation in the present case falls in excess of the amount claimed by the petitioner. In this context, I have gone through a judgment in case of ICICI Lombard General Insurance Co. Ltd. Vs. Smt. [ENTITY] & Ors, [CASE NUMBER] decided on 08/08/08, reported in [PRECEDENT], the Hon'ble Justice [ENTITY] held that under the provisions of the [ACT], there is no restriction that compensation could be awarded only upto the amount claimed by the claimant. But the only embargo is that it should "
just" compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence.
44. RELIEF:
I award Rs. 18,41,591/- (Rupees Eighteen Lacs Forty One Thousand Five Hundred Ninety One Only) as compensation with interest at the rate of 9% per annum including interim award, if any from the date of filing the petition i.e. 25/11/2009(AIR) till the notice under [SECTION] is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several.
Consolidated case bearing
45. Acting on the guidelines issued by Hon'ble Supreme Court of India [PRECEDENT] in order to avoid the money being frittered away, seventy five percent (75%) of the amount awarded to petitioner shall be kept in 5 FDRs of almost equal amount for a period of 1,2,3,4 & 5 years. No loan or advance shall be allowed against the said fixed deposit. Petitioner can withdraw the interest quarterly from the said FDRs.
46. The respondent No: 3 being the insurer, its liability is joint and several with other respondents. Accordingly, respondent No.3 is directed to deposit the award amount within a period of 30 days under the intimation to this court. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
47. The Hon'ble High Court of Delhi in its latest judgment in [CASE NUMBER] dated 13.1.2010 '[PRECEDENT]' have laid certain guidelines regarding depositing of award amount. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Branch in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report . It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Branch for opening the account.
48. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioner. However, in case the amount is ordered to be kept in the FDR, the said amount should not be Consolidated case bearing released unless the FDR is matured.
49. The parties are at liberty to contact in State Bank of India through its nodal officer Mr. [ENTITY], Relationship Manager, Tis Hazari Branch,Delhi (Mb: 9412341376 and Tel. No. 011-23987332) for their convenience. File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 22/03/2016.
Announced in the open court On 22th of Janunary, 2016 ( [ENTITY] ) Judge, MACT (WEST-01) Delhi 22/01/2016 Consolidated case bearing [CASE NUMBER] 13/01/2016 Present: None Orders not ready. Put up for orders on 22/01/2016. ([ENTITY]) (PO: MACT (WEST-01): DELHI 13/01/2016 22/01/2016 Present: None Consolidated Judgment in [CASE NUMBER] are announced separately. File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 22/03/2016.
([ENTITY]) (PO: MACT (WEST-01):
DELHI(22/01/2016) Consolidated case bearing