Delhi District Court
Waseem vs Raju on 29 January, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 471/2021
FIR no. 2352/2018
PS Indirapuram, Ghaziabad
U/s 279/338/427 IPC
CNR No.: DLSE01-006457-2021
Waseem Vs. Raju & Ors.
Waseem
S/o Anwar
R/o H. No. 411, Peer Bauddin Hapur
Distt. Hapur, Uttar Pradesh.
Present address: C-155, Alpha 1st Greater
Noida, Distt. Gautam Budh Nagar.
.....Petitioner
Versus
1. Raju
S/o Sh. Premraj
R/o H. No. 380, Gali no.6,
Jwala Nagar, Shahdra, Delhi.
.....R-1/ Driver
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 1 of 38
2. Gajadar Kumar
S/o Parsadilal
R/o H. NO. 335 B, Nyay Khand-1,
Indirapuram, Ghaziabad, New Delhi.
.....R-2/ Owner
3. Tata AIG Gen. Ins. Co. Ltd.
721, 7th Floor, DLF Tower B
Jamia Nagar, Sought Delhi.
....R-3/ Insurance Co.
Date of accident : 04.09.2018
Date of filing of petition : 07.09.2021
Date of Decision : 29.01.2025
AWARD
1. This is a claim petition filed under Section 166 and 140
M.V. Act on 07.09.2021 by Sh. Waseem (hereinafter called the
claimant/ injured) on account of injuries suffered by him in a
Road Traffic Accident (RTA) with vehicle (Car) bearing Reg. No.
UP 14AZ 6386 (hereinafter referred as offending vehicle), driven
by Sh. Raju (hereinafter called R-1/ driver), owned by Sh.
Gajadar Kumar (hereinafter called R-2/ Owner), & insured with
M/s Tata AIG Gen. Ins. Co. Ltd. (hereinafter referred as
Insurance Company).
BRIEF FACTS AS ALLEGED IN THE PETITION:
2. On 04.09.2018 at about 9:00 PM, the injured, Waseem,
was riding as a pillion on a scooty (bearing Registration number
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 2 of 38
UP 37J 6799) driven by Irshad. While traveling towards the
village of Makanpur, when they reached on Kala Patthar Road,
alleged offending vehicle suddenly turned onto the road and
collided with their scooty. As a result, the scooty was damaged,
and Waseem sustained serious injuries. FIR was subsequently
registered, and investigation was initiated. R-1 / driver of the
offending vehicle has been charge sheeted under the relevant
provisions of law.
3. It is stated that injured was 21 years old at the time of
accident and used to make his living as fruit seller at
Indirapuram, Ghaziabad, earning Rs. 20,000/- per month. A
compensation amount of Rs.24 Lakhs @ 12% interest per annum
on account of injuries sustained by claimant has been sought.
Proceedings:
4. Notice of the claim petition was issued to the respondents.
In response, counsel for Respondent No.1 appeared on
27.05.2025. However, no further appearances were made on
behalf of R-1 thereafter. Respondent No.2 failed to appear
despite being served through substituted means. Consequently,
both R-1 and R-2 were proceeded against ex parte as per the
order dated 17.08.2023.
5. Reply, however, filed on behalf of Respondent No. 3
wherein it is asserted that the claim petition is not maintainable
due to lack of territorial jurisdiction. It is further contended that
the accident occurred solely due to the negligence of the rider of
the scooty involved. Additionally, it is alleged that the FIR was
lodged after an unexplained delay of two days. Other general
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 3 of 38
defenses have also been raised.
Issues:
6. From the pleadings of parties, following issues were
framed order dated 17.08.2023:
i)Whether the injured suffered injuries in a road traffic accident on
04.09.2018 due to rash and negligent driving of vehicle bearing no.
UP 14AZ 6386 driven by R-1, owned by R-2 and insured with R-3?
OPP.
ii). Whether the injured is entitled to any compensation, if so, to what
extent and from whom?OPP
iii). Relief.
Disability Assessment:
7. Disability Assessment Report dated 09.08.2023 was
received with 08% permanent physical impairment in relation to
right lower limb.
Evidence:
8. Matter was then listed for Petitioner's Evidence. PW-1
Waseem tendered his evidentiary affidavit as Ex.PW1/A. He
relied upon following documents:
Mark A- FIR dated 06.09.2018
Mark B- Site plan
Mark C- Charge Sheet
Mark D- MLC dated 04.09.2018
Ex.PW1/1- Medical bills and treatment records
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 4 of 38
Ex.PW1/2- Copy of Aadhar Card
Ex.PW1/3- Copy of PAN Card.
PW-1 was further cross examined by counsel for Insurance
Company.
9. PW-2 Sh. Sovinder Singh was examined as summoned
witness. He brought summoned record i.e. medical bills and
treatment records of injured Waseem Ex.PW2/1 (colly). He was
also cross examined by counsel for Insurance Company.
10. Petitioner's Evidence was closed upon request of counsel
for claimant. No evidence was led by any of the respondents.
Matter was thereafter listed for final arguments.
Arguments:
11. Final Arguments were addressed by the contesting
counsels. The counsel for the claimant contended that the injured
was aged about 21 years at the time of the accident and was
earning Rs. 20,000 per month as a fruit seller. It was further
argued that the injured suffered permanent impairment due to
severe injuries caused by the rash and negligent driving of the
offending vehicle. Consequently, the counsel prayed for
compensation to be awarded in favor of the claimant in
accordance with the applicable legal provisions. Written
Submissions also filed on behalf of claimant side along with
Financial Statement. Counsel for claimant also relied upon
following judgments:
a) Laxmi Narain Vs. Trilochan Singh & Ors. FAO no. 289/99
b) Rudra Vs. Divisional Manager, National Insurance Company Ltd. & Ors.
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 5 of 38
Civil Appeal No. 2695/2011.
c) Aabid Khan Vs. Dinesh & Ors. (2024) 4 SCR 264
d) Erudhya Priya Vs. State Express Transport Corporation Ltd Civil Appeal
no. 2811-2812 of 2020
e) Raj Kumar Vs. Ajay Kumar & Anr. Civil Appeal No. 8981 of 2010
12. None for appeared on behalf of R-1 & 2 to address their
arguments.
13. Counsel for R-3/ Insurance Company argued that the
accident occurred on account of negligence of the petitioner
himself admitting that offending vehicle was validly insured on
the date of accident. It is also argued that FIR in the present case
was lodged after an unexplained delay of 2 days. It is also argued
that claimant has not filed any proof of his earnings. She has also
argued that only 50% of the permanent disability assessed should
be taken as disability of the whole body which comes out to be
merely, 4%, which is negligible and cannot result in any
functional disability.
14. On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
Issue No.1
i)Whether the injured suffered injuries in a road traffic accident on
04.09.2018 due to rash and negligent driving of vehicle bearing no.
UP 14AZ 6386 driven by R-1, owned by R-2 and insured with R-3?
OPP.
15. What is required to be ascertained is whether rash and
negligent driving of offending vehicle was responsible for
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 6 of 38
sustaining injury by injured.
16. PW-1 injured person affirmed in his affidavit that the
offending vehicle dashed into the scooty at Kala Patthar Road
when it had taken a turn while the scooty was being driven at a
slow speed on the correct side of the road. He also affirmed that
the scooty was being driven by Irshad while he was sitting as
pillion on the said scooty. In cross examination by counsel for
insurance company, he stated that they were travelling from Niti
Khand and were going straight on NH -24 towards Makanpur
Village when the accident happened. He asserted that Irshad,
driver of the scooty had valid DL at the time of accident. He
stated that the offending vehicle was behind their scooty, also
plying towards the same side. He also stated that there is a
divider between the incoming and outgoing traffic on each side
of the road at NH 24 and two vehicles can ply on each side of the
road. He also stated that scooty was being plied on the left lane
of the road and the offending vehicle was also in the same lane
behind the scooty and collided with it from its front left side on
the rear side of the scooty. He stated that his statement was
recorded by the police two days after the accident. He declined
the suggestion that accident took place due to negligence of
Irshad. He stated that he was not in a position to confirm whether
the offending vehicle was to go straight or was to take a turn. He
declined the suggestion that the accident did not take place on
account of rash and negligent driving of R-1 driven by R-1. He
also confirmed that the site plan was not prepared at his instance.
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 7 of 38
The accident, as per the record happened on 04.09.2018 in
the late evening whereas the complaint was made by Irshad on
05.09.2018 at about 09.00 PM, on the basis of which FIR was
registered on 06.09.2018. The complaint made by Irshad who
was the prime witness of the matter, contained the relevant and
crucial details about the accident including the identification /
registration and make of the offending vehicle. Injured himself
has been examined as a witness and has been extensively cross
examined on the mode and manner of the accident. There is no
reason to doubt his affirmation that the accidental scooty was
being driven within speed limits on the correct side of the road.
He has vividly explained as to how the offending car being plied
behind the scooty ended up ramming into the scooty ahead
causing damage to the scooty as well as injuries to the scooty
riders. Any factual inconsistencies could not be elicited so as to
put his affirmation in doubt. There is no contrary evidence led on
behalf of any of the respondents to question the case set up on
behalf of claimants. R-1 always had an opportunity to contest the
matter, however, not even a feeble attempt has been made to
barely deny the allegations made in the petition.
17. As such, in view of the above analysis of material on
record, evidence proved on record, charge-sheet against R-1, it is
held that the accident was caused by rash and negligent driving
of the offending vehicle and the issue No.1 is decided
accordingly, in favour of the petitioner.
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 8 of 38
ISSUE NO. 2
"Whether the injured is entitled to any
compensation, if so, to what extent and from whom?
OPP"
"The determination of quantum must be liberal, not
niggardly since the law values life and limb in a free
country in generous scales"
{as observed by Hon'ble Supreme Court of India in the
case of Concord of India Insurance Company Limited Vs.
Nirmala Devi (1979 )4SCC 365}
18. Sec. 168 MV Act enjoins the Claim Tribunals to hold an
inquiry into the claim to determine the compensation payable and
pass an award. Relevant portion of Section 168 MV Act is
reproduced hereunder for ready reference:
"(1) Award of the Claims Tribunal.--On receipt of an
application for compensation made under section 166, the
Claims Tribunal shall, after giving notice of the application to
the insurer and after giving the parties (including the insurer) an
opportunity of being heard, hold an inquiry into the claim or, as
the case may be, each of the claims and, subject to the
provisions of section 162 may make an award determining the
amount of compensation which appears to it to be just and
specifying the person or persons to whom compensation shall be
paid and in making the award the Claims Tribunal shall specify
the amount which shall be paid by the insurer or owner or driver
of the vehicle involved in the accident or by all or any of them,
as the case may be: Provided that where such application makes
a claim for compensation under section 140 in respect of the
death or permanent disablement of any person, such claim and
any other claim (whether made in such application or otherwise)
for compensation in respect of such death or permanent
disablement shall be disposed of in accordance with the
provisions of Chapter X.
.
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 9 of 38 .
.
19. "....Money cannot renew a physical frame that has been battered." {as observed in the case of H. West and Son Limited Vs. Shephard 1958 -65 ACJ 504 (HL, England)}. It recognizes that the physical damage caused once cannot be fully undone. Something which remains as an indelible permanent signs of an unfortunate incident cannot be balanced merely by paying some monetary compensation. The process of damage and the ugly scars left on physical body and mental self, navigating through the entire process post accident and the unintended but compulsory turns that it brings in the course of life is indeed painful and traumatic. It is also required to be underlined that the damage is not restricted to the tangible injuries visible on the body of the injured rather catapults the lives of his family members also.
20. The assessment or grant of compensation is a small attempt to render assistance to the injured to navigate through the hairpin unanticipated sudden and traumatic turn in order to bring some elbow space for him to move towards stability and normalcy to the extent possible. The underlying principle remains thus to make good the damage so far as possible as equivalent in money.
21. Section 168 MV Act puts an obligation over Tribunal to assess 'just' compensation with the object of putting the sufferer in the same position as nearly as possible as he would have been MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 10 of 38 if he had not sustained the wrong. It is worthwhile to reproduce certain observations made by Karnataka High Court in the case of K. Narasimha Murthy v. Oriental Insurance Co. Ltd ILR 2004 KAR 2471 as referred and relied in the case of Rekha Jain Vs. National Insurance Company Limited Civil Appeal No. 5370- 5372 of 2013 which enumerates the milestones to be kept in mind by the Tribunal in an endevour to assess just compensation, at the same time acknowledging that any amount of money cannot compensate fully an injured man or completely renew a shattered human physical frame as under:
"16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries."
22. It is also settled that the monetary assessment is a methodology known to law as social and legal security to a victim even though the nature of injuries and the individual ramifications might vary in different cases, therefore, it is understandable that one remedy cannot heal all. Further, the loss is in the nature of deprivation and it is unlike a personal asset with a price tag which can be simply awarded and therefore, complete accuracy in making such assessment is not humanly possible. The endevour is thus to make an assessment as best and MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 11 of 38 as fair as possible under the given circumstance. The uncertainty of bringing justness to an assessment has been recognized, still holding that substantial damages must be awarded. The observations made by Lord Halsbury in the case of Mediana In re 1900 AC 113 (HL) give valuable insights into the aspect and reproduced as under:
"......Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in money counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident....... But nevertheless the law recognises that as a topic upon which damages may be given"
23. The uncertainty involved has also been recognized by Hon'ble Supreme Court of India in the case of Rekha Jain (supra) where observations of Lord Blacburn in the case of Livingstone Vs. Rawyards Coal Company (1880) 5 APP CAS 25 were referred as under:
".......where any injury is to be compensated by damages, in settling the sum of money to be given... you should as nearly as possible get at that sum of money which will put the party who has been injured.. in the same position as he would have been if he had not sustained the wrong...."
24. It is further observed by their Lordship in the case of Rekha Jain (supra) as follows:
"41.....Besides, the Court is well advised to remember that the measures of damages in all these cases 'should be such as to enable even a tortfeasor to say that he had amply MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 12 of 38 atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing' is quite opposite to be kept in mind by the Court in assessing compensation in personal injury cases."
25. It is also settled that the compensation is not granted only for the physical injury but for the entire loss which results from the injury in an endevour to place the victim in a position as close as possible as prior to the accident (support drawn from National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 also in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343). It is also settled as held in catena of judgments that the Motor Vehicles Act is a beneficial piece of legislation and the object of the Tribunal ought to be to assist the injured persons, (support drawn from Helen C Rebello (Mrs) & Ors. v. Maharashtra State Road Transport Corporation and Anr (1999) 1 SCC 90).
26. It is settled that an injured is required to be compensated for his inability to lead full life, his inability to enjoy those natural amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned (support drawn from C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376 as further referred and relied in the case of Raj Kumar (supra) and then in a recent pronouncement of Sidram Vs Divisonal Manager United India Insurance Company & Anr SLP (Civil) No.19277 of 2018).
27. What is required of the Tribunal is to attempt objective MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 13 of 38 assessment of damages as nearly as possible without fanciful or whimsical speculation even though, some conjecture specially in reference of the nature of disability and it consequence would be inevitable. {support drawn from Raj Kumar (supra) as referred and relied in Sidram (supra)}.
28. Observing that a measure of damages cannot be arrived with precise mathematical calculations and that much depends upon peculiar facts and circumstances of any matter, Hon'ble Supreme Court of India elaborated upon the expression "which appears to it to be just" in the case of Divisional Controller, KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197.
29. The observations made by Hon'ble Supreme Court of India in the case of K. Suresh Vs. New India Assurance Company Limited (2012) 12 SCC 274 provide valuable insights into the factors to be weighed by the Tribunal for determination of quantum of compensation. The relevant extract of which is reproduced as under:
"10. It is noteworthy to state that an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad- based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation"
should be inhered."
30. The compensation has been broadly delineated as pecuniary and non pecuniary in the case of R. D. Hattangadi Vs. Pest MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 14 of 38 Control India Pvt Ltd. 1995 AIR 755, it is worthwhile to reproduce certain observations made therein:
"9....while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial;
(iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
31. The issue of determination of compensation in a personal injury matter was extensively deliberated by Hon'ble Supreme Court of India in the case of Raj Kumar (supra) Relevant extract of the aforesaid judgment are reproduced hereunder for further discussion:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 15 of 38 disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)
(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses-- Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non- pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)
(a). We are concerned with that assessment in this case.
PECUNIARY DAMAGES Damages under pecuniary heads primarily involves reimbursement of actual amount spent on account of injury suffered in an accident to undo the monetary loss, suffered by the MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 16 of 38 claimant, as ascertainable from the evidence on record. Given hereunder are various heads under which compensation for pecuniary damages is assessed:
(i) Expenditure on Medical Treatment: Immediately after the accident, Injured was admitted to Avantika Hospital, Indirapuram, Ghaziabad and was treated as an inpatient for 3 days and subsequently remained on medical treatment for about 1 year. He sustained 8% permanent physical impairment in relation to his right lower limb. He deposed that he spent Rs. 2 lakhs on his treatment. He has filed summary of medical bills totalling Rs.
47,894/-. Claimant also summoned PW2 who placed on record attested medical bills and treatment records as Ex.PW2/1 (colly). He stated that the payment of medical bills was done in cash. Sundry / miscellaneous expenses cannot be ruled out during the admission in the hospital and subsequently also. Accordingly, injured is awarded 52,894/- (Rs.47,894/- + Rs. 5,000/-) towards expenditure on medical treatment.
(ii) Expenditure on Conveyance: Claimant has deposed that he has spent more than Rs. 25,000/- on expenses. However, apart from medical bills, any other bills related to conveyance/ transportation has not been filed. It is evident that the deceased suffered grievous injuries with disability in his lower limb and that is why he was not in a state of free unrestricted mobility that he could undertake hospital visits on his own without appropriate vehicular arrangements. The family members of the injured would also have to necessarily make hospital visits to attend the injured during hospitalization/ OPD visits. As such, an amount of MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 17 of 38 Rs. 20,000/- is awarded towards the head of conveyance.
(iii) Expenditure on Special Diet: Claimant has deposed that he has spent more than Rs. 50,000/- on his special diet. However, apart from medical bills, any other bills related to special diet have not been filed. However, considering the nature of injuries, an amount of Rs. 20,000/- is awarded to injured towards expenditure on special diet.
(iv) Expenditure for attendant: PW-1 deposed that he was unable to do any work during one year period of recovery and therefore had to be dependent upon a formal attendant or his family members attending to him. Considering the nature of injuries sustained by injured, it cannot be stated that he was on his own and did not need any assistance. An amount of Rs. 20,000/- is thus awarded awarded towards expenditure for attendant charges.
v.(a) Loss of earning during the period of treatment: PW-1 deposed that he was working as fruit seller in Indirapuram, Ghaziabad and earning Rs. 20,000/- per month. However, any document pertaining to his income or employment has not been filed and he so admitted this in his cross examination. He has also not filed any educational qualification document. As per his Aadhar Card (Ex.PW1/2) he was resident of Hapur, Uttar Pradesh. As such minimum wages for an unskilled worker applicable at the time of accident in Uttar Pradesh is accepted to be his monthly earning which was 7,613/-.
v(b) Further, as per Discharge Summary Ex.PW1/5 (colly) mentions that the injured was discharged after 3 days of MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 18 of 38 hospitalization on 06.09.2018. During cross examination, he stated that he visited the doctor regularly for a period of 3 months after the accident and did not visit any doctor post that. There are no documents to support any medical consultation or any prescription advising any bed rest for months post accident. It can thus be inferred that the injured would not have been in a position to resume his work to earn living for a period of 3 months post accident.
Loss of earning during period of treatment is thus calculated to be Rs. 7,613/- x 3 = Rs.22,839/-
(vi) Loss of future earning: It is settled that a person is required to be compensated not just for the physical injury but also for the loss he has suffered as well as the loss which he might entail for the rest of his life on account of those injuries which he sustained in the accident. This necessarily means that he is required to be compensated for his inability to lead a full life, his inability to enjoy normal amenities, which he would have enjoyed but for the injury, his inability to earn as much as he used to earn or could have earned. (Support drawn from the judgment titled as C. K. Subramania Iyer v. T. Kunhikuttan Nair (1969) 3 SCC 64.
(vii) Disability Assessment Report dated 09.08.2023 was received with 08% permanent physical impairment in relation to right lower limb.
(viii) Before proceeding further, it is important to understand as to what disability means and also types thereof. This aspect has MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 19 of 38 been delved into by Hon'ble SC in Raj Kumar (supra):
"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
(ix) The term 'disability' means the decrements to the functional efficacy of body of injured whereas 'functioning' encompass all the body functions and activities for an independent life. Functional disability is to determine the extent of loss or extent of restrictive functionality considering the nature of activities required to be necessarily performed in efficient discharge of duties and the limb effected. This computes the extent of adverse effect of physical disability upon the functional efficacy of an injured person, in turn adversely impacting his earning capacity. The process entails understanding and enumerating the skill set required for performing specific MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 20 of 38 activities. To sum up, functional disability basically measures the extent of ability having been compromised to carry out basic everyday tasks or even more complex tasks required for and independent living. The limitations may occur on account of disability in the personal sphere, in the social sphere and in the occupational sphere. In the personal sphere it may encompass the daily activities of a person, his body function and his involvement in basis life situations. At the societal level, it could mean difficulty in involvement and participation in social and community activities interfering the interpersonal interaction and relationship adversely impacting the civic life. When disability restricts the vocation or employment avenues to make earning for his living, it falls in the category of disability in the occupational sphere. The disability might occur on account of age or any illness and in the case at hand by way of an accident. A person living a normal life in particular set of circumstance and making his living by engaging in any work has suffered disability which might impead his daily life activities, both on a personal and social scale and might also impact his ability to continue earning as much as before and his future employment avenues.
(x) What is thus required to be assessed is the effect and impact of disability upon the working efficiency of injured and whether it would adversely impact his earning capabilities in future. It is settled that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity.
(xi) Hon'ble SC laid down certain guidelines for the Tribunal MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 21 of 38 to be able to arrive at an objective figure to quantify the loss for the purpose of computing the compensation in the judgment of Raj Kumar (supra). Relevant extracts of this judgment for the purpose of further discussion are reproduced hereunder:
"Assessment of future loss of earnings due to permanent disability
9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has 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 cannot obviously exceed 100%.
10. 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, the 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.
11. What requires to be assessed by the Tribunal is the effect of MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 22 of 38 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 terms 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 the 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 Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the 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.
13. 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 disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 23 of 38 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 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.
.
.
.
.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
(xii) Further in the case of "Mohan Soni v Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC), the question at hand was deliberated and following observations as relevant in the context were made:
"In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 24 of 38 person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.
(xiii) The question of assessment of impact of disability on the earning capacity has been dealt in several cases but it is understood that each case has to be evaluated on its contextual dynamics established by way of evidence at hand. It brings us to a question whether extent of permanent disability as medically determined can simply be taken to be the extent of functional disability and hence, the loss of earning capacity. It has been held in various pronouncements of Hon'ble Supreme Court of India and Hon'ble High Court that equating the two as a criteria would result in an inobjective and absurd compensation. There however, might be certain cases where the two would correspond to each other but it cannot be mechanically applied rather requires evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
(xiv) In the present case, the injured asserted himself to be a vegetable vendor in Indirapuram. In Additional Written Arguments filed by counsel for claimant, it is mentioned that the MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 25 of 38 petitioner is no longer able to drive the motorcycle because of disability and has to be dependent upon others even for basic travel. Further, he is no longer able to be a mobile fruit vendor moving from one sector to another to enhance his economic productivity. Per contra, counsel for insurance company disputed the same arguing that there cannot be any functional disability for a mere 4% of disability of the whole body. The arguments set out by counsel for petitioner cannot be ignored considering the nature of work that the injured was performing to make his living. It is necessary trait of his avocation that he would be required to rush to the market to procure fruits and then to reach out to customer to sell those fruits and would require to load and unload fruit crates on his cart also in a daily routine and now that mobility and flexibility on account of the disability suffered in his right lower limb would evidently be impeded. Therefore, it cannot be stated that his earning capacity or efficiency would not be adversely affected on account of disability. Given the substantial impact on his ability to undertake field-oriented work, his functional disability in respect of his earning capacity is assessed as 8%.
(xv) Future Prospect: It is settled that future prospect (as laid down in the well considered judgment of National Insurance Company Vs. Pranay Sethi (2017) 16 SCC 680) shall be payable, not only in fatal cases but also in the case of permanent disability.
(Support drawn from Pappu Deo Yadav v. Naresh Kumar & Ors., AIR 2020 SC 4424).
(xvi) PW-1 has filed his Aadhar Card on record as per which his MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 26 of 38 date of birth is 01.01.1997, therefore, his age as on the date of accident was about 21 years and 8. Since the injured was below the age of 40 years (at the time of accident) and was employed on a fixed salary, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 40 % upon application of category of ''self-employed or on a fixed salary''.
(xvii) Multiplier: The multiplier method was coined by Hon'ble Supreme Court of India in the case of Sarla Verma v Delhi Transport Corporation & Anr. Civil Appeal No. 3483 of 2008, decided on 15.04.2009 to ascertain the future loss of income in relation to the age of the deceased, in order to bring about the uniformity and consistency in determination of compensation payable in fatal and serious injuries matters. Relevant observations with respect to the multiplier method in the abovementioned case read as under:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
(xviii) The standard multiplier method was directed to be applied not only to ascertain the loss of dependancy in fatal accident case but also to determine future loss of earning in serious disability matters as well {as laid in the case of Raj Kumar (supra)}. In a recent Judgment of Pappu Dev Yadav MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 27 of 38 (supra), Hon'ble Supreme Court of India relied upon and reiterated the principles laid in various judgments passed by it in the case of Sr. Antony @ Antony Swamy v Managing Director KSRTC, Civil Appeal No. 2551 of 2018 and held that stereotypical or myopic approach must be avoided and pragmatic reality of life must be taken into account to determine the impact of extent of disability upon the income generating capacity of victim.
(xix) The income of the injured per annum as determined upon appreciation of evidence, thus, forms the multiplicand. A table of multiplier with reference to the age was laid down by Hon'ble Supreme Court of India in the case of Sarla Verma (supra); as per which, the appropriate multiplier, applicable in this case would be 18 (for age group between upto 25 years).
(xx) In view of the above discussion of law, the calculation under future loss of income in the present case is as under:
(a) Annual income (Rs. 7,613/- x 12) = Rs.91,356/-
(b) Future prospect (40% of Rs 91,356/-) = Rs. 36,542/-
__________________
(c) Total = Rs.1,27,898/-
(d) Thus, Multiplicand = Rs.1,27,898/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 28 of 38 Percentage of Functional Disability (Multiplicand X Multiplier).
08% (Rs.1,27,898/-X 18) = Rs. 1,84,173/-
NON-PECUNIARY LOSS
(xxi) Injured is entitled to both, pecuniary as well as non-
pecuniary damages. As the name suggests pecuniary damages are designed to make good the pecuniary loss which can be ascertained in terms of money whereas non pecuniary damages are general damages to compensate the injured for mental and physical shock, pain, suffering, loss of expectation of life, inconvenience, hardship, frustration, stress, dejectment and unhappiness suffered by him on account of injuries sustained in the accident. It takes into account all the aspects of a normal life which deluded injured on account of accident. Given the nature of heads covered, it is bound to involve guess work on the part of Tribunal involving some hypothetical consideration as well, primarily considering the special circumstances of the injured and the effect of those upon his future life.
(xxii) Regarding non-pecuniary loss, following was stated in Halsbury's Laws of England, 4 th Edition, Vol. 12 (page 446):
"Non-pecuniary loss: the pattern: Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 29 of 38 reflected in the actual amount of the award.
(As also referred in the case of Sidram.....................)
7. In Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667, the Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups:
pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non- pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.
8. In Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.
(referred and relied in the case of A. Rupin Manohar Through Sh. S. Anandha vs Mohd. Ansari & Ors. 605/2015 passed by Hon'ble Delhi High Court) (xxiii) To sum up, compensation under non-pecuniary heads involves objective assessment of the damages in a bid to undo the loss, the injured would incur on account of his inability to a normal life and earn as much as he would, but for the injuries sustained. The whole idea behind assessment for damages for compensation is to put the claimant in the same position in so far as money can. The very nature of these damages, compulsorily involves some guesswork and hypothetical considerations, however, efforts should be made to adjudicate these on the basis of objective parameters rather than guided by subjective MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 30 of 38 sympathy. The nature and severity of injury, the age, nature of disability are some of those parameters. Given hereunder are various heads under which compensation for non-pecuniary loss (general damages) is assessed:
(xxiv) Damages for pain, suffering and trauma on account of injuries: The mental and physical loss cannot always be arithmetically computed in terms of money. These form the intangible losses suffered by injured for no fault of his. Although any form of human suffering cannot be equated in money, however, the object remains to compensate in so far as the money can compensate. Certain observations made by the Supreme Court of India in R. D. Hattangadi are relevant in the context:
"10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame."
(xxv) Certain factors were also laid down for consideration in the case of The Divisional Controller, KSRTC vs Mahadeva Shetty And Anr Appeal (Civil) 5453 of 2003 further relied in the case of Sidram (supra) for awarding compensation for pain and suffering. The observations made in the aforesaid case as relevant MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 31 of 38 to the context are reproduced hereunder:
"113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)] (xxvi) Hon'ble Supreme Court of India in the case of K. Suresh (supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 32 of 38 dignity. (as relied in the case of Jagdish Vs. Mohan AIR 2018 SUPREME COURT 1347, by Hon'ble Supreme Court of India).
(xxvii) Injured suffered grievous injuries which led to 16% permanent physical impairment in relation to his left lower limb. He must have suffered immense physical, mental and emotional trauma for what he was compelled to undergo on account of injuries sustained in the accident. There is no measure with the court to quantify the pain and suffering of the injured, however, an attempt is being made to compensate in terms of money for the agony he must have suffered. Therefore, an amount of Rs. 60,000/- is awarded to the injured against pain, suffering and and trauma sustained in the accident.
(xxviii) Loss of amenities of life: It compensates the victim on account of his inability to enjoy the basic amenities of life as any other normal person can, taking into account the age and the deprivation he would have to undergo and suffer due to injuries. Considering the nature of injuries suffered by claimant, an amount of Rs. 20,000/- is awarded towards loss of amenities.
32. The compensation awarded against pecuniary and non- pecuniary damages under various heads is being sequentially put in a tabulated form hereunder for ease of reference to all concerned:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : As Rs. 52,894/-
discussed above.
(ii) Expenditure on Conveyance : As Rs. 20,000/-
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 33 of 38
discussed above.
(iii) Expenditure on special diet : As Rs.20,000/-
discussed above.
(iv) Cost of nursing / attendant : Rs.20,000/-
(v) Loss of earning during the period of Rs.22,839/-
treatment:
(vi) Loss of Future Income Rs. 1,84,173/-
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 60,000/-
trauma on account of injuries:
(ii) Loss of amenities of life Rs. 20,000/-
3 Total Compensation Rs.3,99,906/-
Deduction, if any, Nil
Total Compensation after deduction Rs.3,99,906/-
Interest As directed
below
33. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty, learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 34 of 38 awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MV Act 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
34. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 35 of 38 per annum is deemed fit and accordingly granted in the present case.
35. The total compensation shall be payable to the claimant along with to simple interest @9% p.a. from the date of filing of DAR till actual realization of Award amount/compensation.
LIABILITY
36. Insurance Company has conceded valid and effective Insurance Policy on the date of accident and has not raised any statutory defence. It has already been held that accident occurred on account of rash and negligent driving of offending vehicle. It is settled that Insurance Company is responsible to indemnify owner / insured for vicarious liability incurred by tort feaser. Therefore, such principal award amount/compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of claim petition till actual realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
37. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 00000042706870765 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any to the petitioner.
MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 36 of 38 MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
38. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
APPORTIONMENT OF AMOUNT
39. Whole of award amount is released in favour of injured in his bank account near his place of residence.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 04.09.2018 2 Name of injured Waseem 3 Age of the injured 21 years and 8 months MACT No.: 471/2021 Waseem Vs. Raju & ors. Page No. 37 of 38 4 Occupation of the Not proved injured 5 Income of the injured Rs. 7,613/- as per minimum wages.
6 Nature injury Grievous injury and disability 7 Medical treatment taken As per record.
by the injured:
8 Period of As per record.
Hospitalization 9 Whether any permanent 8% permanent disability disability?
40. Copy of this award be given to the parties free of cost. The copy of award be also sent to the Ld. Secretary DLSA and concerned criminal court.
Digitally
signed by
SHELLY
SHELLY ARORA
Announced in the open court ARORA Date:
2025.01.29
on 29.01.2025 16:42:01
+0530
Shelly Arora
PO (MACT)-02, SE/Saket/Delhi
29.01.2025
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