IN THE COURT OF SHRI [ENTITY] PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL (WEST): DELHI Case NO.: 239/11 Unique ID No. 02401C0133752011 [ENTITY] s/o Sh Bhajan Lal R/o H. No. P-2/656/657, Sultanpuri, Delhi-110086 Petitioner VERSUS 1. Sh.[ENTITY] s/o Sh. Heera Lal R/o Village Peepal Khera, Tehsil Pahari, District Bharatpur,Rajasthan. (Driver) 2. Sh [ENTITY] s/o Sh. Heera Lal R/o 12/4, Patel Nagar, Bahadurgarh, Haryana 2nd Address: Sh. [ENTITY], FZ-95, Laxmi Park, Nangloi, Delhi -110041(Regd. owner) 3. Bajaj Allianz Generl Insurance Company Ltd. RG Tower, Second Floor, Netaji Subhash Place, Delhi ( insurer) Respondents
Date of Institution: 11/03/2011 Date of reserving order/judgment: 15/01/2013 Date of pronouncement : 02/02/2013 AWARD
1. This Judgment-cum-Award shall decide the petition under [SECTION] and [SECTION] of [ACT] as amended up to date (hereinafter referred as Act) filed by petitioner for grant of compensation for the injuries suffered by him in the road vehicular accident.
2. The case of the petitioner is that on 09/10/11 at about 2.45 p.m while the petitioner was alongwith his brother were present near Shri Ram Dharam Kanta, Rohtak Road, Delhi, in the meantime the offending vehicle a vehicle bearing No. HR-63B-1175(TATA-407) which was being driven by its driver/ respondent No.1 in rash and negligent manner hit the petitioner. Resultantly, the petitioner sustained grievous injuries. In total, the petitioner have claimed Rs. 1,20,00,000/- as compensation on account of the injuries sustained by minor injured in the accident.
3. The written statements was not filed by respondents No. 1 & 2 despite opportunities.
4. The written statement was filed by respondent no.3, insurance company wherein it was admitted that the offending vehicle was insured with it as on the date and time of accident but denied the other contents of the petition.
5. On the pleadings of the parties following issues arise were framed for consideration on 29/04/2011.
1.Whether the petitioner Sh [ENTITY] suffered injuries in an accident that took place on 09/01/2011 at about 2.45 p.m involving Tata-407(Tempo) bearing No. HR-62B-1175 driven by Sh. [ENTITY], owned by Sh [ENTITY] and insured with The Bajaj Allianz General Insurance Company td. OPP.
2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom?
3. Relief.
6. In order to establish its claim, the petitioner examined himself as PW-1; Dr. [ENTITY] as PW-2 who had proved as to disability; Sh. [ENTITY] as PW-3 and Sh. [ENTITY] as PW-4 had brought the record from Maharaja Agrasen Hospital as well as Inderprastha Apollo Hospital respectively. The respondents did not examine any witness in their defence.
7. I have thoroughly gone through the testimony of the witness and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the petitioners and the learned counsel for the respondents. My findings on various issues are as under :-
8. Since the present petition is under [SECTION] of [ACT], it was the bounden duty of the petitioner to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
9. The police has filed the Detailed Accident Report (DAR) on record pertaining to the case FIR no. 6/11, [ENTITY], u/[SECTION] [ACT].
10. The petitioner explained the mode and manner of the accident in her affidavit, Ex. PW1/A to the effect that on the date of accident while he was alongwith his brother were present near Shri Ram Dharam Kanta, Rohtak Road, Delhi, in the meantime the offending vehicle a vehicle bearing No. HR-63B-1175(TATA-407) which was being driven by its driver/ respondent No.1 in rash and negligent manner hit petitioner. The cross- examination carried on by the respondent No. 3 is not suggestive of anything which may discard the claim of the petitioner that the driver of the offending vehicle was rash and negligent at the time of accident.
11. To determine the negligence of the driver of the offending vehicle, 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 or the criminal record showing the competition 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 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.
12. Further recently the Hon'ble High of Delhi in [CASE NUMBER] in case titled as [PRECEDENT] decided on 23/07/2012 by Hon'ble Mr. Justice [ENTITY], 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."
13. Therefore, reading all the documents filed by the petitioner as a whole it is clear that respondent no. 1 was driving the vehicle in rash and negligent manner.
14. The issue no. 1 ,therefore, stands in favour of the petitioner and against the respondents.
NATURE OF INJURIES AND REIMBURSEMENT OF MEDICAL BILLS:
15. The discharge summary issued by Indraprastha Apollo Hospital, Ex. PW1/4 suggests that petitioner had got traumatic compressive cord with earlier fixation and complete paraplegia. The petitioner has filed the medical bills to the tune of Rs. 6,77,658/-. Therefore, I hereby award a sum of Rs. 6,78,000/- towards medical bills keeping in view the nature of injuries and medical bills placed on record.
COMPENSATION ON ACCOUNT OF DISABILITY& OTHER HEADS.
16. It is now settled law that it is the percentage of functional disability arising out of physical disability which matters while arising the compensation arising out of disability. On this aspect, I gain support from judgment titled as [PRECEDENT] wherein the Hon'ble Supreme Court dealt with the case of disability of an engineering student. The Supreme Court observed that while awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was as far as money is concerned. In para 9 of the report, the Supreme Court held as under:-
"9.We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered."
17. Further in [PRECEDENT], the Supreme Court emphasized that cases of serious injuries in motor vehicle accident are wrose than the death cases because the victim and his family suffers throughout life. Para 90 of the report is extracted hereunder:-
"90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-viz a family in greater distress vis-a-vis a family in a case of death. I n the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable ad the feeling of hurt , helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enourmous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
18. The Hon'ble Supreme Court of India in [PRECEDENT] also held as under:
"11. What requires to be assessed by the Tribunal is the effect of th 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 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]."
14. 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 hundred percent, 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 consequence 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 emolument, 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."
19. The disability certificate, Ex. PW2/1 issued by DDU Hospital suggests that petitioner had got Post Traumatic Frature D-11-12 Paraplegia Bladder & Bowel inrovement permanent disability of 100% in relation to both lower limb.
20. The PW-2 being one of the member of the Board was examined by the petitioner wherein he proved the disability certificate. He clarified certain court questions which are as under: -
Court Question:
Q Whether the 100% permanent disability in relation to both lower limbs will affect his movements?
Ans 100% disability in the lower limbs, there will no movement at all and the patient will remain on wheel chair or bed through out his life. He would not be able to support himself even on the crutches. Q Whether the petitioner will be able to pass stool and urine on his own or he will be required attendant?
Ans There is no motion below the waist part of the patient and the stability below waist part is nil. The patient has even lost bladder and bowel control and hence, he has become dependent on others for passing stool and urine.
Q Whether there are any chances of improvement in the conditions of the patient with the passage of his age?
Ans Absolutely not, Sir.
21. Ld. Counsel for insurance company vehemently argued that that since upper limbs of the petitioners are okay and there is no loss of 100% earning capacity of the petitioner and the functional disability accordingly be reduced.
22. I am also fortified by the view of the Hon'ble High Court of Delhi in case titled ' [ENTITY] Vs. Suresh Chand & Ors , FAO No. 445/2000 decided by Hon'ble Mr. Justice [ENTITY] on 03/08/2012, wherein it was held as under:-
"11. The Appellant's photograph on the disability certificate Ex.
P-70 and the another photograph on Trial Court record would simply reveal not only immense pain and suffering but humiliation which the Appellant has to suffer day in and day out when he walks to the Hospital with a tube just above his male organ and a catheter to pass urine. It is established that the Appellant cannot carry out any work whatsoever. The loss of earning capacity in his case would be 100%."
23. Keeping in view the testimony of the Doctor who have categorically stated that the patient will remain on wheel chair or bed through out his life and he will not be able to support himself even on th crutches, and further keeping in view the fact that there is no motion below the waist part and the stability below waist part is nil and considering all other factors as mentioned by PW-2 and further after gaining guidance from aforesaid from aforesaid judgment in [ENTITY]'s case, it appears to me that 100% permanent disability will entirely effect the earning capacity of the petitioner.
24. The Hon'ble High Court of Delhi in [ENTITY]'s case(supra) gave certain observation and awarded a sum which are detailed down as under:-
Sr. Compensation under various heads Awarded by this No. Court
1. Loss of Earning Capacity (on the salary of Rs. 3,43,137/-
matriculate)(1222/+ 30%(inflation)x 12x18)
2. Pain and suffering Rs. 1,50,000/-
3. Loss of Amenities Rs. 1,50,000/-
4. Disfigurement and Loss of Marriage Rs. 1,00,000/-
prospects
5. Special Diet upto the date of Award ( Rs. Rs. 50,000/-
25,000/-) Conveyance upto the date of Award
6. Future Conveyance Rs. 50,000/-
7. Future Special Diet Rs. 50,000/-
8. Future Treatment (including Rs. 80,000/- for Rs. 1,50,000/-
one surgery as per the estimate given by Apollo Hospital
9. Medical Treatment upto the date of the Rs. 50,000/-
award Total Rs. 10,93,137/-
25. In the present matter, the petitioner was stated to be in private service. The Income Tax Return filed by the petitioner immediately before the accident in the year 2010 suggests that the petitioner was having gross per annum income Rs. 2,15,240/-. The income tax paid by the petitioner is shown to be Rs. 500/-. The per annum income after deduction of income tax comes out to be Rs. 215240/- - Rs. 500/- = Rs. 2,14,740/-. For assessing the per month future income of petitioner on the basis of inflation trends etc., I am being guided by judgment of the Hon'ble Supreme Court in [CASE NUMBER] decided on 23/04/2012 in [PRECEDENT] & ors in which it was held that:-
"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 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".
26. Hence after averaging out, the annual income of deceased comes out to be Rs. 2,79,162/-(Rs. 2,14,740/- + 2,14,740/- x 30%).
27. The PAN card filed by the petitioner suggests the date of birth of petitioner as 15/07/1978. The date of accident 09/01/2011. Accordingly, the petitioner was 33 years as on the date of accident which the relevant multiplier 16 as mentioned in [ENTITY] Vs. DTC decided on 15.4.2009 in [CASE NUMBER]. Therefore, the total annual loss of earning capacity comes out to be Rs. 44,66,592/- =( Rs. 2,79,162/- X 16). In view of the aforesaid discussion, case laws and the circumstances of the case, I award him the compensation as tabulated hereunder:
Sr. Compensation under various heads Awarded by this No. Court
1. Loss of Earning Capacity (Rs.279164/- Rs. 44,66,592/-
+30%(inflation)x 16)
2. Pain and suffering Rs. 1,50,000/-
3. Loss of Amenities Rs. 1,50,000/-
4. Disfigurement and loss of enjoyment Rs. 1,00,000/-
5. Special Diet upto the date of Award ( Rs. Rs. 50,000/-
25,000/-) Conveyance upto the date of Award
6. Future Conveyance Rs. 50,000/-
7. Future Special Diet Rs. 50,000/-
8. Compensation towards medical bills. Rs. 6,78,000/-
Total Rs.56,94,592/- RELIEF:
28. I award Rs. 56,94,592/-(Rupees Fifty Six Lakhs Ninety Four Thousand Five Hundred Ninety Two Only) as compensation with interest at the rate of 7.5% per annum including interim award, if any from the date of filing the petition i.e., 11/03/2011 (DAR) 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.
29. Acting on the guidelines issued by Hon'ble Supreme Court of India [PRECEDENT] in order to avoid the money being frittered away, fifty percent(50%) 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. APPORTIONMENT OF LIABILITY:
30. 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. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay.
31. The Hon'ble High Court of Delhi in its latest judgment in [PRECEDENT] decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been re affirmed by Hon'ble Supreme Court of India in order dated 17.12.2009 in [CASE NUMBER] which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.18 of the judgment of the Hon'ble High court of Delhi runs as under:-
"19. To protect and preserve the compensation amount awarded to the families of the deceased victim special schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody. However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
32. It was further held in the judgment passed by Hon'ble High Court of Delhi in [ENTITY] case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. [ENTITY], Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09810433676) or to UCO Bank through Mr. [ENTITY], Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
33. 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 Court Complex Branch, Delhi 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.
34. 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 Court Complex Branch, Delhi for opening the account.
35. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 02/04/2013 ,to be fixed by insurance company.
Announced in the open court on 2nd of February, 2013 ([ENTITY]) PO: MACT (WEST): DELHI 21/01/2013 Present: None. Orders not ready. Put up for orders on 28/01/2013. ([ENTITY]) PO: MACT(WEST) : DELHI 28/01/2013 Present: None. Orders not ready. Put up for orders on 30/01/13. ([ENTITY]) PO: MACT(WEST) : DELHI 30/01/2013 Present: None. Order not ready. Put up for orders on 02/02/2013 ([ENTITY]) PO: MACT(WEST) : DELHI 02/02/13 Present: None.
Judgment announced vide separate sheets of even date.
File be consigned to Record Room.
A separate file be prepared for compliance report and put up the same on 02/04/2013, to be fixed by insurance company.
([ENTITY]) PO: MACT(WEST) : DELHI