[ENTITY] vs. [ENTITY] & ors. IN THE COURT OF SH. [ENTITY], JUDGE, MACT-1 (CENTRAL), THC, DELHI. MACT No.357489/16 (Old No. 200/2014) Unique Case ID No. DLCT01-002513-2014 Sh. [ENTITY] S/o Sh. Gurmail Singh R/o VPO Pipal wala, PS Model Town, Distt. Hoshiyarpur, Punjab. Petitioners VERSUS 1. Sh. [ENTITY] S/o Sh. Meghraj R/o 1950, Gali Kumharo wali, Malka Ganj, Delhi. Respondent No.1
(Driver/owner)
2. Smt. [ENTITY] (Since deceased through her husband) Sh. [ENTITY] S/o Late Sh. Diwan Chand, R/o O-2, First Floor, Malka Ganj, Delhi-110007.
Respondent No.2 (Insurer) [ENTITY] vs. [ENTITY] & ors.
Date of filing of DAR : 05.06.2014 Arguments heard on : 15.05.2019 Date of passing of Award : 29.05.2019
Present: Sh. [ENTITY], Advocate, counsel for the petitioner Sh. [ENTITY], Advocate, counsel for respondent no. 1.
Sh. [ENTITY], Advocate, counsel for LR of respondent no. 2.
FORM- V COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 22.12.2013
2. Date of intimation of the accident by 02.01.2014 the Investigating Officer to the Claims Tribunal.
3. Date of intimation of the accident by Not mentioned in the the Investigating Officer to the DAR Insurance Company.
4. Date of filing of Report under [SECTION] mentioned in the 173 [ACT] before the Metropolitan DAR Magistrate.
5. Date of filing of Detailed Accident 05.06.2014 Information Report (DAR) by the Investigating Officer before Claims Tribunal.
6. Date of service of DAR on the No Insurance Insurance Company.
[ENTITY] vs. [ENTITY] & ors.
7. Date of service of DAR on the 05.06.2014 claimant(s).
8. Whether DAR was complete in all Yes respects?
9. If not, whether deficiencies in the -
DAR removed later on?
10. Whether the police has verified the Yes documents filed with DAR?
11. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/ direction warranted?
12. Date of appointment of the Designated NA Officer by the Insurance Company.
13. Name, address and contact number NA of the Designated Officer of the Insurance Company.
14. Whether the Designated Officer of the Insurance Company submitted his NA report within 30 days of the DAR?
(Clause 22)
15. Whether the Insurance Company NA admitted the liability? If so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law.
16. Whether there was any delay or NA deficiency on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant(s) to -
the offer of the Insurance Company.
18. Date of the award 29.05.2019
19. Whether the award was passed with No the consent of the parties?
[ENTITY] vs. [ENTITY] & ors.
20. Whether the claimant(s) were directed Yes to open savings bank account(s) near their place of residence?
21. Date of order by which claimant(s) were directed to open savings bank account(s) near his place of residence 08.03.2019 and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s).
22. Date on which the claimant(s) produced the passbook of their Passbook savings bank account near the place produced but of their residence along with the without endorsement, PAN Card and Adhaar endorsement Card?
23. Permanent Residential Address of the As mentioned in Claimant(s) DAR
24. Details of savings bank account(s) of Ac. no.
the claimant(s) and the address of the 051001000016978 bank with [ACT]. Indian Overseas Bank Hoshiyar Pur, Pubjab.
[ACT]:
I0BA0000510
25. Whether the claimant(s) savings bank Yes account(s) is near his place of residence?
26 Whether the claimant(s) were 29.04.2019 examined at the time of passing of the award to ascertain his/their financial condition?
27. Account number, MICR number, IFSC SBI, [ACT], name and branch of the bank of Complex the Claims Tribunal in which the award Branch Code No. amount is to be deposited/transferred 00726 MICR-110002126 IFSC-SBIN0000726 [ENTITY] vs. [ENTITY] & ors.
A W A R D:-
1. Detailed Accident Report (hereinafter referred to as DAR) has been filed in respect of an FIR No. 464/2013 for the offence punishable under [SECTION] [ACT] PS I. P. Estate, Delhi in a motor vehicular accident that took place on 22.12.2013 within the jurisdiction of PS I. P. Estate, Delhi.
2. Facts in brief as emerged from the DAR are that on 22.12.2013 petitioner alongwith his friend [ENTITY] was returning from Palika Bazar, Connaught Place in his maruti car bearing registration No. DL-4CE-6142. Car was being driven by his friend [ENTITY]. It was alleged that at about 8:20 PM when they reached I. P. Flyover, Ring Road, Sarai Kale Khan, their car broke down. Consequently, they stopped the car towards extreme right side of the road to check the car and switched on the back light and opened the bonnet of car. In the mean time, at about 8:30 PM, offending Omni car bearing registration No. DL-4CK-1027 came from behind at very high speed in a rash and negligent manner and struck their stationary car. It was alleged that due to the forceful impact of the offending car, he and his friend [ENTITY] sustained multiple injuries. Petitioner sustained 35% temporary disability in relation to left lower limb, which is likely to be improved with treatment.
(i) It was alleged that at the time of accident, [ENTITY] vs. [ENTITY] & ors.
offending car was being driven by respondent no. 1 and same was registered in the name respondent no.2. During inquiry, it was revealed that car was not insured.
(ii) During pendency of inquiry, registered owner of the offending car died, accordingly, her LR was impleaded vide order dated 30.05.2018.
3. The DAR is contended by both the respondents by filing their separate reply.
(i) Respondent no. 1 in his reply submitted that the accident in question had taken place due to the contributory negligence on the part of petitioner also.
(ii) Respondent no. 2 in her reply took a plea that she had sold the said car to one [ENTITY] on 14.07.2009 after executing all necessary documents, accordingly, she was not liable to pay any compensation. After the death of respondent no.2, her husband filed a fresh reply wherein he took a plea that since respondent no.1 had purchased the offending car from [ENTITY], he himself became the owner, thus, he is not liable to pay any compensation. It was further submitted that IO in his chargesheet also disclosed that [ENTITY] sold the car to [ENTITY] on 14.07.2009, who sold the same to [ENTITY]. It was further submitted that since [ENTITY] had purchased the car from her own savings and he had not inherited any property after the demise [ENTITY] vs. [ENTITY] & ors.
of his wife, he is not liable to pay any compensation to the petitioner.
4. Vide order dated 25.07.2015 following issues were framed :-
(1) Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 22.12.2013 within the jurisdiction of PS I. P. Estate due to rash and negligent driving of maruti van bearing registration No. DL-4CK-1027 by respondent [ENTITY]?
(2) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom ?
(3) Relief.
5. In order to prove their case, petitioner examined following witnesses:-
PW1 Sh. [ENTITY], petitioner PW2 Sh. [ENTITY], Clerk from Surya Ortho & Trauma Center, proved the medical record of injured PW3 Sh. [ENTITY], salesman, U.K Medicos, Faridabad, Haryana, proved medical bills of injured
(i) In rebuttal, respondent no.1 examined the following witnesses:
[ENTITY] vs. [ENTITY] & ors.
R1W1 [ENTITY], respondent no.1 himself R1W2 Sh. [ENTITY], one of the occupants of the petitioner's car
R1W3 Sh. [ENTITY], Asst. Ahlmad in the court of Sh. [ENTITY], Ld. M.M
(ii) Respondent No.2 examined himself as R2W1.
7. On culmination of evidence led by both the parties, statement of petitioner regarding financial status was recorded on 29.04.2019 clause 27 of [CASE NUMBER] titled [PRECEDENT]. decided by Hon`ble High Court of Delhi on December 07, 2018 wherein he submitted that his monthly expenses is ` 10,000/-.
(i) Vide order dated 28.01.2016, petitioner was disqualified to claim interest w.e.f 28.01.2016 till he takes steps in terms of order dated 30.10.2015, which he took only on 05.04.2016. Thereafter, vide order dated 11.10.2017, petitioner was again disqualified to claim interest w.e.f 11.10.2017 till he takes steps to bring the LRs of respondent no.2, which he took only on 26.03.2018. Vide order dated 25.10.2018, petitioner was again disqualified to claim w.e.f 25.10.2018 till he concludes evidence, which he concluded [ENTITY] vs. [ENTITY] & ors.
only on 04.01.2019. Thereafter, vide order dated 08.03.2019, petitioner was again disqualified to claim interest w.e.f 04.02.2019 till the receipt of report of disability certificate, which was received only on 29.04.2019. Accordingly, petitioner was disqualified to claim interest w.e.f 28.01.2016 to 05.04.2016; 11.10.2017 to 26.03.2018; 25.10.2018 to 4.01.2019 and 04.02.2019 to 29.04.2019.
8. I have heard rival submissions advanced by counsel for petitioner and respondent no.1, perused the record carefully and gave my thoughtful consideration to their contentions. Since none was present on behalf of respondent no.2, he was permitted to file written submissions if any, within 02 days but he failed to avail the said opportunity. However, due weightage is given to the pleas taken by him during inquiry.
9. My issue-wise findings are as under :-
Issue No. 1:-
Whether the petitioner had suffered grievous injuries in road traffic accident which took place on 22.12.2013 within the jurisdiction of PS I. P. Estate due to rash and negligent driving of maruti van bearing registration No. DL-4CK-1027 by respondent [ENTITY]?
[ENTITY] vs. [ENTITY] & ors.
submitted that the accident in question had taken place due to the sole rash and negligence of petitioner as they parked their broke down car in the center of road without taking necessary precautions. Consequently, offending car which was coming from behind at normal speed rammed into the rear portion of the car of petitioner. It was further argued that if it is held that the accident had not taken place due to sole rashness or negligence of petitioner, petitioner cannot escape from the fact that there was a contributory negligence on his part also as petitioner failed to take appropriate precaution when their car broke down in the middle of road.
(i) Per contra, counsel appearing for petitioner refuted the said contentions by vehemently arguing that there is no iota of evidence that the accident had taken place either due to the sole rash or negligent act of petitioner or there was any contributory negligence on his part. It was fur-
ther submitted that PW1 in his examination-in-chief categori- cally stated that when their car was broke down, they had switched on the front and rear indicator of the car to give signal to vehicles coming from behind that their car was not in mo- tion, but since the offending car was being driven at high speed in a rash and negligent manner, respondent No. 1 did not see the indicator and rammed the offending car in the rear portion of their broke down car.
(ii) In this regard, testimony of PW1, R1W1 and R1W2 are relevant.
[ENTITY] vs. [ENTITY] & ors.
11. From the submissions of counsel for parties, first question emerges whether the accident had taken place in the middle of road as alleged by the counsel for the respondents or in the extreme right lane as alleged by the counsel for petitioner.
(i) PW1 denied the suggestion that the car was in the middle of road at the time of accident. In this regard, the site plan is also relevant.
(ii) Perusal of site plan reveals that the accident had taken place in the extreme right lane of the road. During inquiry, respondents failed to adduce any contrary evidence to the site plan. Even the site plan was not disputed by the respondents during inquiry. In these circumstances, this Tribunal has no reason to disbelieve the site plan. Accordingly, it is held that the accident in question had taken place in the extreme right lane and not in the middle of the road.
(iii) Admittedly, accident in question had taken place on 22.12.2013 at about 08:30 PM. Fog is common fact in the month of December. R1W1 in his cross-examination testified that on the day of accident, there was heavy fog on the road and due to that reason, he could not see whether the car was in motion or in a stationary position. During cross- examination, even no suggestion was given to respondent No. [ENTITY] vs. [ENTITY] & ors.
1 that there was no fog or visibility was good at the time of accident. In these circumstances, this Tribunal has no reason to disbelieve the testimony of R1W1 to the extent that there was heavy fog on the road at the time of accident.
12. Now, question arises whether petitioner had taken appropriate precautions when their car was broken down all of sudden.
(i) PW1 in his examination-in-chief testified that when their car broke down at the extreme right lane, they switched on front and rear indicator and thereafter, opened the bonnet to check the car. Though the testimony of PW1 to that extent was not challenged during the cross-examination but perusal of charge-sheet reveals that this fact was not stated by the petitioner before the police. Rather, petitioner only stated before the police that he had switched on the back light of the car. Assuming that the back light means parking light, but question arises whether the said precaution was sufficient considering the fact that the accident had taken place in the night of 22nd December, which is one of the shortest day of the year.
(ii) It is admitted case of petitioner that they had not taken any precaution except to switch on the parking light. As already stated that R1W1 in his cross-examination categorically stated that there was heavy fog on that day. In these circumstances, I am of the considered opinion that the [ENTITY] vs. [ENTITY] & ors.
step taken by the petitioner cannot be considered as sufficient precaution. Admittedly, neither the petitioner nor his friend had put broke down signal on the road nor they had given any sig- nal to the traffic coming from behind either from torch of their mobile phone or by any other means. In these circumstances, I am of the considered opinion that the precautions taken by petitioner and his friend was not sufficient enough. No doubt, petitioner was not driving the car prior to the accident but since car broke down and he was one of the occupants of the car, it was also his duty to take appropriate steps to give proper signal to the traffic coming from behind.
(iii) R1W2 in his deposition categorically stated that though six persons were travelling in the offending car but only their driver i.e. respondent No. 1 sustained injury whereas no other occupants of their car sustained any injury. Had the offending car was being driven at very high speed as alleged by the petitioner, it is quite improbable that other occupants of the car would not have sustained any injury. This shows that the offending car must be driven at normal speed. Though R1W1 testified that at the time of accident, car was being driven at the speed of 30-40 Km/ per hour, since the permissible speed of LMV in Delhi is between 50-60 Km/h depending on the width of road, it cannot be said that the car was being driven at very high speed. However, since it is ad- mitted case of respondent No. 1 that there was heavy fog on that day, it was the duty of respondent No. 1 to be more [ENTITY] vs. [ENTITY] & ors.
vigilant while driving the car but it appears that he was not so vigilant. Thus, it cannot be said that there was no negligence on his part.
(iv) In view of the foregoing discussion, I am of the considered opinion that the accident in question had taken place due to the contributory negligence of respondent No. 1 as well as petitioner also.
(v) Considering the facts and circumstances of the case, contributory negligence on the part of petitioner is assessed at 50%. In other words, 50% of award amount shall be liable to be deducted. Accordingly, Issue No. 1 is decided in favour of petitioner and against the respondents.
Issue No.2:
Whether the petitioner is entitled to any compensation? if so, to what amount and from whom?
13. As per discharge summary Ex.PW1/2, petitioner remained admitted at Surya Ortho & Trauma Centre w.e.f. 23.12.2013 to 06.01.2014. During his admission, he had undergone surgery as he sustained multiple fractures. Thereafter, he remained admitted w.e.f. 07.01.2014 to 28.01.2014, thereafter w.e.f 04.02.2014 to 06.02.2014 and then w.e.f. 21.08.2014 to 25.08.2014. He also sustained 35% [ENTITY] vs. [ENTITY] & ors.
temporary disability in relation to left lower limb, which is likely to be improved with treatment.
Income of the petitioner:-
(i) Learned counsel appearing for petitioner fairly contended that since petitioner failed to produce any cogent evidence to prove his income, his income is liable to be assessed as per minimum wages applicable to unskilled workers. Since at the relevant time, minimum wages for unskilled workers was ` 8,086/- per month, income of petitioner is assessed at ` 8,086/- per month.
(a). Loss of Income:
(i) As per record, petitioner remained under treatment till 25.08.2014. Thus, it can safely be culled out that he may not be able to join his work atleast for 8-9 months.
Accordingly, loss of income for 09 months amounting to ` 72,774/- (` 8,086/- X 9) is awarded to him towards loss of income.
(b) Expenditure on Medical Treatment:
(i) Leaned counsel for petitioner filed a chart of medical bills showing that petitioner has incurred a sum of ` 3,17,296/- on his treatment. From the said amount, ` 2,31,750/- was incurred for getting treatment as indoor [ENTITY] vs. [ENTITY] & ors.
patient whereas ` 85,546/- was incurred on medicines and getting treatment as outdoor patient.
(ii) PW2 proved the indoor bills, which are Ex. PW2/A. Though an attempt was made to create a doubt over the said bills, but nothing could be extracted, which may help the respondents to show that the bills are false and fabricated. Even during inquiry, respondents failed to adduce any contrary evidence to the medical bills Ex.PW2/A. Accordingly, I am of the considered opinion that petitioner is entitled for reimbursement of ` 2,31,750/-, which he incurred in getting treatment as indoor patient.
(iii) Petitioner also examined PW3 Sh. [ENTITY], salesman, U.K Medicos who proved the bills for the period 22.12.2013 to 12.12.2016. Though petitioner claimed a sum of ` 85,546/- but total of said bills come to ` 56,938/-.
(iv) No doubt, petitioner has filed treatment record only upto August 2014 whereas he has filed medical bills till 10.02.2016. But since the bills had been proved by the employee of Medical Store and during inquiry, no cogent evidence has been led, which raise any suspicion over the said bills, I am of the considered opinion that petitioner is entitled for said bills.
(v) In view of above, a sum of ` 2,88,688/- (` 2,31,750 + ` 85,546/-) is awarded to the petitioner [ENTITY] vs. [ENTITY] & ors.
towards medical bills.
(c) CONVEYANCE CHARGES:
(i) Admittedly, petitioner remained admitted in the hospital 04 times during the period 23.12.2013 to 25.08.2014 and he had undergone surgery. Thus, it can safely be culled out that he must have incurred substantial amount on conveyance. Considering the facts and circumstances of the case and duration of treatment, a sum of ` 15,000/- is awarded to him under this head.
(d) SPECIAL DIET: (i) Though no special diet was prescribed by
the doctor at the time of discharge, but considering the fact that he sustained fracture and undergone surgery, it can safely be culled out that petitioner must have taken some special diet for the purpose of fast recovery. Considering the facts and circumstances of the case and duration of treatment, a sum of ` 20,000/- is awarded to him under this head.
(e) NURSING/ATTENDANT CHARGES: (i) Since petitioner sustained multiple fractures
and remained admitted in the hospital 04 times during the period w.e.f 23.12.2013 to 25.08.2014 and had undergone [ENTITY] vs. [ENTITY] & ors.
surgery, it can safely be culled out that petitioner must be attended either by a paid attendant or a family member for a substantial period. Considering the facts and circumstances of the case, a sum of ` 25,000/- is awarded to him under this head.
Loss of earning capacity due to disability:
(i) Learned counsel appearing for petitioner contended that since petitioner sustained 35% temporary disability in relation to his right lower limb, he is entitled for loss of earning capacity due to disability caused to him in the accident.
(ii) Per contra counsel appearing for respondent no.1 refuted the said contention by arguing that since petitioner sustained only temporary disability, which is likely to be improved with treatment, petitioner is not entitled for any loss of earning capacity due to disability.
(iii) Before dealing with the contention raised by the counsel, I deem it appropriate to refer the judgment [PRECEDENT] where a question arose before the Apex Court whether the claimant is entitled for loss of earning capacity equal to the loss of disability or the loss of earning capacity shall be calculated on the basis of approximate loss of capacity to the injured due to disability. The relevant paras are reproduced as [ENTITY] vs. [ENTITY] & ors.
under:-
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to particular limb. When a disability certificate states that the injured had suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. 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 [ENTITY] vs. [ENTITY] & ors.
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 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 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 term of money, to arrive at the future loss of earning (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 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.
9. Therefore, the Tribunal has to first decide whether there is any permanent [ENTITY] vs. [ENTITY] & ors.
disability and if so the extent of such permanent disability. This means that Tribunal should consider and decide with reference to the evidence: (I) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (sic disability) (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his age. The third step is to find out whether (I) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and [ENTITY] vs. [ENTITY] & ors.
functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 %. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be 100%, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequences of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may, therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future [ENTITY] vs. [ENTITY] & ors.
earning capacity of 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
(emphasis supplied)
(iv) In the light of aforesaid case law, I proceed to examine the facts of case at hand.
(v) Since petitioner sustained only temporary disability in relation to his right lower limb, which is likely to be improved with treatment, in view of above the law laid down in the above said case, I am of the considered opinion that petitioner is not entitled for any loss of earning capacity due to temporary disability caused to him in the accident. Accordingly, no compensation is awarded to him under this head.
COMPENSATION UNDER NON-PECUNIARY HEADS:-
Mental and Physical Shock
(i) As already stated that petitioner met with an accident when he was returning to his home alongwith his friend. Due to the accident, he not only sustained multiple fractures but also sustained 35% temporary disability in relation to his right lower limb. Besides that he had to undergo surgery and remained under treatment for a long period. Thus, [ENTITY] vs. [ENTITY] & ors.
it can safely be culled out that injured must have suffered acute mental and physical shock not only at the time of accident but even thereafter. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 60,000/- is awarded to him under this head.
Pain and suffering :-
(i) From the above, it can also safely be culled out that injured must have also suffered acute pain and suffering not only at the time of accident but even thereafter.
Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 30,000/- is awarded to him under this head.
Loss of inconvenience/hardship/disappointment/mental stress etc:
(i) Since petitioner sustained 35% temporary disability in relation to his right lower limb, it can safely be culled out that petitioner must have faced lot of inconvenience, hardship and mental stress for a considerable period. Though it is difficult to quantify the said loss in monetary terms, yet considering the facts and circumstances of the case, a sum of ` 50,000/- is awarded to him under this head.
Loss of amenities of Life:-
(i) Since petitioner sustained 35% temporary [ENTITY] vs. [ENTITY] & ors.
disability in relation to his right lower limb and remained admitted in the hospital for more than 40 days, it can safely be culled out that petitioner must have also suffered some loss of amenities of life. Considering the facts and circumstances of the case, a sum of ` 25,000/- is awarded to him under this head.
14. As discussed above, the overall compensation is tabulated as under:-
NAME OF HEAD AMOUNT (In ` ) Loss of income 72,774/- Medical Expenses 2,88,688/- Conveyance charges 15,000/- Special Diet 20,000/- Attendant Charges 25,000/- Mental and physical shock 60,000/- Pain and suffering 30,000/- Loss of inconvenience/hardship/ 50,000/- disappointment/mental stress Loss of amenities of life 25,000/- Total 5,86,462/- Less contributory Negligence 50% of total 2,93,231/- award amount Total 2,93,231/-
[ENTITY] vs. [ENTITY] & ors.
Round off :- ` 2,94,000/-
(Rupees Two Lac & Nineteen Four Thousands Only)
(i) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of the DAR i.e. 05.06.2014 (except for the period w.e.f 28.01.2016 to 05.04.2016; 11.10.2017 to 26.03.2018; 25.10.2018 to 4.01.2019 and 04.02.2019 to 29.04.2019) till realization of award amount.
15. DISBURSEMENT:-
(i) Petitioner's statement was recorded on 29.04.2019 in terms of clause 27 of [CASE NUMBER] titled [PRECEDENT]. decided by Hon`ble High Court of Delhi on December 07, 2018 wherein he submitted that his monthly expenses is ` 10,000/-.
(ii) In view of the statement of petitioner, on realization of award amount, a sum of ` 94,000/- plus entire interest be released to him from his share and the balance amount of ` 2,00,000/- lac in terms of the directions contained in [CASE NUMBER] dated December 07, 2018, shall be put in 10 monthly fixed deposits in his name in a MACAD account of equal amount of ` 20,000/- each for a period of 01 month to 10 months. Besides the [ENTITY] vs. [ENTITY] & ors.
above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank near the place of his residence without the facility of cheque book and ATM card. It is clarified that the amount shall be released to him only on submitting the copy of passbook of such saving account with endorsement of the bank that no cheque book facility and ATM card has been issued or if has been issued, same has been withdrawn and same shall not be issued without the prior permission of this Tribunal. However, petitioner shall have liberty to seek the release of ` 29,400/- from the bank located within the jurisdiction of this Tribunal itself.
16. The above FDRs shall be prepared with the following conditions as enumerated by the Hon`ble High Court in [PRECEDENT] decided on December 07, 2018:-
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit account of the claimant i.e. saving bank account of the claimant shall be individual saving bank account and shall not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
[ENTITY] vs. [ENTITY] & ors.
(iii) The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant near the place of his residence.
(iv) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of his residence.
(v) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(vi) The concerned bank shall not issue any cheque book and/or debit card to claimant. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimant so that no debit card be issued in respect of the account of claimant from any other branch of the bank.
(vii) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
17. In compliance of the directions given by Hon`ble High court in [CASE NUMBER] dated December 15, 2017, Summary of the Award in the prescribed format- IV B is as under:-
[ENTITY] vs. [ENTITY] & ors.
SUMMARY OF AWARD (i) Date of accident 22.12.2013 (ii) Name of the injured [ENTITY] (iii) Age of the injured 28+ Years (iv) Occupation of the injured Not proved (v) Income of the injured ` 8,068/- per month (vi) Nature of injury Grievous (vii) Medical treatment taken by Ortho & Trauma Center the injured (viii) Period of hospitalization 40 days (ix) Whether any permanent 35% temporary disability in relation to his right lower disability? If yes, give details: limb 10. COMPUTATION OF COMPENSATION S.No. Heads Awarded by the Tribunal (IN `) 11. Pecuniary Loss: (i) Expenditure on treatment 2,88,688 (ii) Expenditure on conveyance 15,000 (iii) Expenditure on special diet 20,000 (iv) Cost of nursing/attendant 25,000 (v) Loss of earning capacity Nil (vi) Loss of income 72,774 (vii) Any other loss which may require any special treatment or aid to the injured NA for the rest of his life Non-Pecuniary Loss: 12. (i) Compensation for mental and physical 60,000/- shock (ii) Pain and suffering 30,000/-
[ENTITY] vs. [ENTITY] & ors.
(iii) Loss of amenities of life 25,000/-
(iv) Disfiguration NA (v) Loss of marriage prospects NA (vi) Loss of earning, inconvenience, 50,000
hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.
(vii) Less contributory negligence 50% 2,93,231/-
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and 35% temporary nature of disability as permanent or disability in relation temporary to his right lower limb
(ii) Loss of amenities or loss of -
expectation of life span on account of disability
(iii) Percentage of loss of earning capacity NA in relation to disability
(iv) Loss of future Income-(Income x% NA Earning Capacity x Multiplier) 14 (Total Compensation (Rounded off) 2,94,000/-
Less 50% Contributory negligence i.e. ` 5,84,462 - 2,93,231
15. INTEREST AWARDED 9%
16. Interest amount upto the date of award 74,867/-
(3 years 09 month 29 days)
17. Total amount including interest 3,68,867/-
18. Award amount release As mentioned in para no. 15
19. Award amount kept in FDRs As mentioned in para no. 15
20. Mode of disbursement of the award as mentioned in
21. Next date for compliance of the award. 12.07.2019 (Clause 31.) [ENTITY] vs. [ENTITY] & ors.
LIABILITY TO PAY:-
18. Respondent No.2 took two fold plea to avoid his liability; firstly that since his wife [ENTITY] had sold the offending car to [ENTITY] on 14.07.2009 from whom, respondent no.1 purchased the same. Thus, his wife ceased to be owner of the car, he is not entitled to pay any compensation. Secondly, since his wife purchased the car from her own personal savings and after her death, he has not inherited any estate, he is not liable to pay any compensation to the petitioner.
(i) Per contra, counsel appearing for petitioner refuted the said contentions by arguing that Smt. [ENTITY] was a housewife whereas her husband [ENTITY] is working in Delhi police as HC and since deceased [ENTITY] was having no sources of income, it can safely be culled out that [ENTITY] must have purchased the car in the name of his wife, thus, after the death of [ENTITY], her husband [ENTITY] cannot escape from his liability.
(ii) In this regard, testimony of R2W1 is relevant.
It is admitted case of [ENTITY] that his wife [ENTITY] (since deceased) was the registered owner of the offending car. During her life time, she had sold the said car to [ENTITY] s/o [ENTITY] who further sold the car to [ENTITY]. It is admitted case of [ENTITY] that the car was not got [ENTITY] vs. [ENTITY] & ors.
transferred by [ENTITY] in the name of buyer. Since the car was registered in the name of [ENTITY] on the day of accident in terms of [SECTION] of [ACT], [ENTITY] was owner of the car for all purposes as mentioned in the [ACT].
19. Now question arises whether [ENTITY] had any source of income to buy the said car or not?
(i) It is admitted case of [ENTITY] that his wife was a house wife and she had no source of income. However, he testified that his wife purchased the car from her own savings, but he failed to explain the nature of savings. Since [ENTITY] is working in Delhi Police as HC and being public servant, he was supposed to inform his office that his wife had acquired movable property even from her personal savings, but he failed to do so on flimsy ground that he was not aware of the said service rules. Needless to say that ignorance of law is no excuse. He also admitted that when the car was purchased, his wife was having only learning licence and since his children were minor, they were not holding any licence. Since he was holding the licence, he also used to drive the car. Since he failed to explain the nature of savings and source of income of his wife, presumption shall be drawn that he had purchased the car in the name of his wife and he also used to drive the car. Thus, for all practical purposes he was the owner of the said car. Assuming that car was purchased by his wife from her own savings but since it is [ENTITY] vs. [ENTITY] & ors.
admitted case of [ENTITY] that his wife sold the car during her life time, it means that after the death of his wife, he must have inherited the said sale consideration including her istridhan. It is pertinent to state that during inquiry, [ENTITY] failed to produce any cogent evidence to show that his wife was not having any movable assets including istridhan. Since it is admitted case of [ENTITY] that his wife purchased the car from her own savings, it establishes that she was having movable assets and after her death, same must have been inherited by [ENTITY] being her husband. Thus, in these circumstances, I do not find any substance in the plea of [ENTITY] that since his wife purchased the car from her savings and he has not inherited any assets after her death, he is not liable to pay compensation to the petitioner.
(i) Since the offending car was being driven by respondent no.1 and same was registered in the name of respondent no.2, [ENTITY] (since deceased), respondent no.1 and [ENTITY] being LR of [ENTITY] shall also jointly and severally liable to pay compensation to the petitioner.
(ii) In view of the aforesaid discussion, Issue No.2 is decided in favour of petitioner and against the respondents.
[ENTITY] vs. [ENTITY] & ors.
RELIEF:
19. Since the offending vehicle was being driven by respondent no.1 and registered in the name of respondent no. 2 [ENTITY] (since expired), respondent no.1 and LR of respondent no.2 are directed to deposit a sum of ` 2,94,000/- with interest @ 9 % per annum from the date of filing of DAR i.e. 05.06.2014 (except for the period w.e.f 28.01.2016 to 05.04.2016; 11.10.2017 to 26.03.2018; 25.10.2018 to 4.01.2019 and 04.02.2019 to 29.04.2019) till realization of the award amount with the Bank as men-
tioned in the award within 30 days under intimation to the petitioner failing which insurance company shall be liable to pay interest @ 12 % per annum for the period of delay beyond 30 days.
(i). Driver, registered and insurer of the offending vehicle are also directed to place on record the proof of deposit of the award amount, proof of delivery of notice in respect of deposit of the amount to the petitioner/claimant and complete detail in respect of calculation of interest etc. within 30 days from today.
(ii) A copy of this judgment be sent to the respondent No. 1 & 2 for compliance within the time granted. Respondents are further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect [ENTITY] vs. [ENTITY] & ors.
to the deposit of the compensation amount within 15 days of the deposit with the interest upto date of intimation of deposit to the claimant with a copy to his counsel Sh. [ENTITY], Advocate, Chamber No. K-144, [ENTITY], Tis Hazari Court, Delhi. Mob. 9711203441
(iii) [ENTITY] is directed to place a report on record on 12.07.2019 in the event of non-receipt/deposit of the compensation amount within the time granted.
(iv) Copy of the award be also sent to the nodal officer of the Central Bank of Judge-01, his email:-
[emailprotected]/[emailprotected]
(v) In terms of clause 31 & 32 of the judgment titled [PRECEDENT].
decided by Hon`ble High Court on December 12, 2014, copy of this award be sent to the concerned court of Ld. Metropolitan Magistrate and Secretary DLSA, Central District for information and necessary action.
(v) File be consigned to Record Room.
Announced in open court on this 29th day of May, 2019 ([ENTITY]) Judge, MACT-1 (Central), [ENTITY] Date: 2019.05.30 10:47:21 +0530