Delhi District Court
Kamlesh vs Shamshuddin Habib on 21 August, 2025
IN THE COURT OF SHRI SUDEEP RAJ SAINI
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL-02
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
In the matter of:
Kamlesh vs. Shamshuddin Habib & Ors.
MACT No. 102/2022
Kamlesh
S/o Sh. Sugan Lal
R/o R-3, B-10, Mohan Garden
Uttam Nagar, West Delhi, Delhi-110059. ....Petitioner
VERSUS
1. Shamshuddin Habib (Driver)
S/o Sh. Abdul Habib
R/o Ward No. 6, Indira Nagar
Domariaganj, Dumeria Gang, Siddharthnagar
Uttar Pradesh-272189.
2. Mohd. Aiyaj Hussain (Owner)
S/o Shahjad Husain
R/o H. No. 518, Dhorramafi
ANO (Nagla Dhaurramafi Hadi Nagar)
Police Station Quarsi, Tehsil Koil, Aligarh
Uttar Pradesh-202001.
3. HDFC Ergo General Insurance Company Ltd. (Insurer)
having its registered and corporate office at:
1st Floor, HDFC House, 165/166 Backbay Reclamation
H.T. Parekh Marg, Churchgate, Mumbai-400 020.
....Respondents
Date of institution : 04.03.2022
Date of concluding arguments : 19.08.2025
Date of decision : 21.08.2025
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 1 of 30
AWARD
1. The present Detailed Accident Report (hereafter "DAR") was filed by the investigating officer, HC Dipti Singh, in FIR number 463 dated 26.05.2021 lodged at police station Bindapur under Sections 279/337 of IPC regarding injuries suffered by the petitioner, Sh. Kamlesh, in a road accident. The DAR was treated as a claim petition under Section 166(4) of the M V Act, 1988 (hereafter "M V Act"). The respondent no. 1, Sh. Shamshuddin Habib, is the driver and the respondent no. 2, Mohd. Aiyaj Hussain, is the owner of the alleged offending motorcycle bearing registration no. UP 81BW 1808. The respondent no. 3, HDFC Ergo General Insurance Company Ltd., is the insurer of the said motorcycle.
DAR
2. As per the claims made in the DAR, Ms. Geeta, sister of the petitioner, was employed as a cook in certain households situated at Kiran Garden. On 26.05.2021, in the afternoon, after completing her work, she was returning home from Kiran Garden via Uttam Nagar-Najafgarh Road, accompanied by her brother, the petitioner, Sh. Kamlesh S/o Sh. Sugan Lal, on a motorcycle bearing registration no. DL 4SCS 1865. The said motorcycle was being driven by the petitioner, while Ms. Geeta was seated as a pillion rider. At about 2:30 p.m., when they reached near Metro Pillar no. 736, a yellow- coloured motorcycle bearing registration no. UP 81BW 1808, being driven at a high speed and in a rash and negligent manner, came from the wrong side and hit their motorcycle. As a result, the petitioner and his sister fell down. The petitioner sustained injuries to his hand and head, while Ms. Geeta suffered injuries to her left hand and right leg. The driver of the offending motorcycle fled from the spot.
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 2 of 30 Ms. Geeta called her sibling, Sh. Rakesh S/o Sh. Nanak Chand, who reached the spot and thereafter removed the petitioner and Ms. Geeta in an auto-rickshaw to Guru Gobind Singh Hospital, New Delhi for treatment. During investigation, upon obtaining the medical opinion on MLC no. 71143, the injuries sustained by the petitioner in the accident were found to be grievous. Accordingly, the offence under Sections 279/337 of IPC was converted to Sections 279/338 of IPC.
Defence of the Respondents
3. Notice of the DAR was served on the respondents.
The respondent nos. 1 and 2 have filed a joint written statement, wherein they have contended that the accident occurred due to the negligence of the petitioner who was driving the motorcycle bearing registration no. DL 4SCS 1865. They have further claimed that, at the time of the accident, respondent no. 1 was holding a valid and effective driving licence bearing no. UP5520190007538, issued by the Licensing Authority, Siddharthnagar, Uttar Pradesh. It is also claimed that the alleged offending vehicle was insured with respondent no. 3. The respondent no. 3 has filed its written statement wherein it has admitted that the offending motorcycle was insured with it at the time of the accident. However, it has denied liability on the ground that the driver of the offending motorcycle was not holding a valid and effective driving licence at the time of the accident.
Inquiry
4. After completion of the pleadings, following issues were framed on 20.01.2023, by my learned predecessor :
(1) Whether petitioner sustained injuries in a motor vehicle accident dated 26.05.2021 due to rash and negligent driving of vehicle bearing registration MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 3 of 30 no. UP 81BW 1808 being driven by respondent no. 1 Sh. Shamshuddin Habib and owned by respondent no. 2 Sh. Aiyaj Hussain? OPP.
(2) Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? OPP.
(3) Relief.
The present claim petition and claim petition bearing MACT no. 100/2022 titled Geeta vs. Shamshuddin Habib & Ors. arise from the same accident. As common questions of law and facts were involved, so both these petitions were consolidated for the purpose of recording of evidence with the present petition as the leading petition vide order dated 05.04.2024.
5. In order to prove his claim, the petitioner examined himself as PW1 and filed his evidence by way of affidavit and the same is Ex. PW1/1. The petitioner deposed regarding the manner of the accident consistent with the claims made in the DAR. The petitioner has also deposed regarding his employment and the expenses incurred by him on treatment. The petitioner has relied on the following documents in support of his testimony:
Ex. PW1/2 is the copy of his aadhar card.
Ex. PW1/3 is the disability certificate no. F.1(1)/DDU/MB/2022/19756 dated 22.09.2022 issued by the Ortho Board of Deen Dayal Upadhyay Hospital, Delhi.
The disability of the petitioner was assessed by the duly constituted Ortho Board of DDU Hospital in compliance of order dated 29.07.2022 of my learned predecessor.
Ex. PW1/4 is the copy of his MLC.
Ex. PW1/5 is the collection of his treatment record and medical bills. Ex. PW1/6 is the DAR.
In his cross-examination, the petitioner deposed that he became unconscious after the accident and regained consciousness only at the hospital. He further MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 4 of 30 deposed that the accident had taken place on Najafgarh-Dwarka Mor-Uttam Nagar road, which is a double road with proper divider. He admitted that it was a head-on collision. He further deposed that the offending motorcycle, coming from the wrong side, hit him while he was entering the main road from the service lane.
6. Ms. Geeta, the petitioner in MACT no. 100/2022, examined herself as PW1 in that petition and filed her evidence by way of affidavit and the same is Ex. PW1/1 therein.
Ms. Geeta deposed regarding the manner of the accident on the same lines as the petitioner in the present case, Sh. Kamlesh.
In her cross-examination, Ms. Geeta deposed that she remained conscious after the accident. She admitted that it was a case of head-on collision. She further admitted that she was not wearing a helmet at the time of the accident. She further deposed that, after the accident, the driver of the offending motorcycle left his motorcycle at the spot and fled. She further deposed that her family members arrived at the spot and noted the registration number of the offending vehicle. She denied the suggestion that the accident had occurred due to the negligence of the petitioner.
7. After completion of petitioner's evidence, the matter was fixed for respondents' evidence.
8. The respondent no. 1 examined himself as R1W1 and his evidence by way of affidavit is Ex. R1W1/A. In his evidence by way of affidavit, respondent no. 1 deposed that the accident had occurred due to the negligence of the driver of motorcycle bearing registration no. DL 4SCS 1865. He deposed that, at the time of the accident, he was holding a valid and effective driving licence bearing no. UP5520190007538, MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 5 of 30 issued by the Licensing Authority, Siddharthnagar, Uttar Pradesh. He deposed that, at the relevant time, the alleged offending motorcycle bearing registration no. UP 81BW 1808 was insured with respondent no. 3. He denied having received any notice under Order XII Rule 8 CPC from respondent no. 3. He further deposed that he knew how to drive a two-wheeler. In his cross-examination, the respondent no. 1 deposed that he was working as Phablmist (sic "Phlebotomist") with NDNC at Nawada, New Delhi and was on his way from Dwarka to Rajouri Garden for sample collection when his motorcycle bearing registration no. UP81BW1808 met with an accident with another motorcycle on the Nawada-Najafgarh main road. In his further cross- examination, he claimed that while he was proceeding straight towards Rajouri Garden, another motorcycle came out from a street (gali) and hit his motorcycle in the middle. He deposed that he had sustained injuries in the accident and that the accident occurred near his office. He admitted that no complaint was lodged by him regarding the accident. On being shown the driving license Ex. R3W1/1, the respondent no. 1 admitted the document.
9. The respondent no. 2 examined himself as R2W1 and his evidence by way of affidavit is Ex. R2W1/A. The respondent no. 2 deposed that at the time of accident respondent no. 1 was holding a valid and effective driving license bearing no. UP5520190007538, issued by licensing authority, Siddharthnagar, Uttar Pradesh. He further deposed that at the time of accident the alleged offending motorcycle bearing registration no. UP 81BW 1808 was insured with respondent no. 3. He further deposed that he had not received any notice under Order XII Rule 8 of CPC from respondent no. 3. He further deposed that respondent no. 1 possessed the skills to drive a two-wheeler, either with gears or without gears and that he had personally seen respondent no. 1 driving the same.
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 6 of 30 In his cross-examination, respondent no. 2 admitted that respondent no. 1 is his first cousin. He further admitted the driving licence of respondent no. 1 exhibited as Ex. R3W1/1.
10. The respondent no. 3 examined Sh. Ayush Dabas, its Manager Legal as R3W1 and his evidence by way of affidavit is Ex. R3W1/A. R3W1 deposed that the DL bearing no. UP 5520190007538 was effective for motorcycle without gear and LMV. He further deposed that the offending vehicle bearing registration no. UP 81BW 1808 was a TVS APACHE RTR 160 which is a motorcycle with gear. He further deposed that driver was not having valid and effective driving license to drive the said category of vehicle, that is, motorcycle with gear.
R3W1 further deposed that at the time of accident the offending vehicle was insured with vide policy no. 2312 2028 7288 0201 000 in the name of respondent no 2.
R3W1 has relied upon following documents in support of his testimony:
Ex. R3W1/1 is copy of driving license of respondent no. 1. Ex. R3W1/2 is the copy of Certificate of Registration of motorcycle bearing registration no. UP 81BW1808 (offending vehicle). Ex. R3W1/3 is copy of notice under Order XII Rule 8 of CPC addressed to respondent nos. 1 & 2.
Ex. R3W1/4 (colly.) is a set of postal receipts of the notices sent to R-1 and R-2. Ex. R3W1/5 is the office copy of insurance policy containing terms and conditions.
In his cross-examination, R3W1 admitted that he was not present at the time of accident. He further admitted that he has not filed any tracking report of the postal receipts of notice under Order XII Rule 8 of CPC.
11. I have heard learned counsels Sh. P.K. Poddar and Ms. Remanshi for the petitioner, Sh. Anil Kumar Sharma for respondent nos. 1 & 2, and Ms. Sunanda MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 7 of 30 Nimisha, for the respondent no. 3. I have perused the record. My issue-wise findings are as under:
Issue No. 1:
Whether petitioner sustained injuries in a motor vehicle accident dated 26.05.2021 due to rash and negligent driving of vehicle bearing registration no. UP 81BW 1808 being driven by respondent no. 1 Sh. Shamshuddin Habib and owned by respondent no. 2 Sh. Aiyaj Hussain? OPP.
12. Onus to prove this issue was on the petitioner. The petitioner has relied on his testimony as well as the DAR.
13. The learned counsel for respondent nos. 1 & 2 has opposed the claim, by contending that the accident took place due to the negligence of the petitioner.
14. Before dealing with the contentions of the learned counsel for respondents, it will be worth to take a brief look at the legal position regarding the standard of proof required to be met by the petitioner, in an accident case, before a claims tribunal.
15. The Hon'ble Supreme Court in Bimla Devi and Others vs. Himachal Road Transport Corporation and Others (2009) 13 SCC 530 has held:
"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 an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. 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. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
16. The Hon'ble Supreme Court in Mangla Ram vs. Oriental Insurance Company Limited and Others (2018) 5 Supreme Court Cases 656 has laid MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 8 of 30 down in paragraphs 27 & 28:
"27. ...This Court in a recent decision in Dulcina Fernandes, noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against Respondent 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal.
28. Reliance placed upon the decisions in Minu B. Mehta and Meena Variyal, by the respondents, in our opinion, is of no avail. The dictum in these cases is on the matter in issue in the case concerned. Similarly, even the dictum in Surender Kumar Arora will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of Respondent 2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong."
17. The Hon'ble High Court of Delhi in National Insurance Company Ltd. vs. Smt. Pushpa Rana & Ors. 2008 (101) DRJ 645 has held:
"12. The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgement of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal; 2007 (5) SCALE 269. On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced (i) certified copy of the criminal record of criminal case in FIR No. 955/2004, pertaining to involvement of the offending vehicle, (ii) criminal record showing completion of MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 9 of 30 investigation of police and issue of charge sheet under Section 279/304-A,IPC against the driver; (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver."
18. It is clear from the above discussed authoritative pronouncements that in a claim petition under MV Act, strict proof of an accident caused by particular vehicle in a particular manner may not be possible to be done by the petitioner. The petitioner is merely to establish his case on the touchstone of preponderance of probability. Filing of charge-sheet against the driver prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even if the driver were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. The Tribunal must take a holistic view of the matter.
19. The accident took place on 26.05.2021 and the FIR no. 463 of 2021 was lodged by Ms. Geeta (petitioner in MACT no. 100/2022) on the same day at police station Bindapur. Therefore, there was no delay in lodging of the FIR. On completion of investigation, the police filed the charge-sheet against the respondent no. 1 under Sections 279/338 of IPC showing the involvement of offending vehicle bearing registration no. UP 81BW 1808. In the criminal case arising out of the accident, the learned MM-03, South-West, Dwarka Courts, vide order dated 03.02.2023 passed in Cr. Case no. 4236/2022 MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 10 of 30 titled as State vs. Samsuddin, has framed charges against the respondent no. 1 for the offences punishable under Sections 279/338 of IPC. The arrest memo dated 28.05.2021 shows that the respondent no. 1 was arrested in the criminal case related to the accident.
The respondent no. 2, in his reply to the notice dated 28.05.2021 under Section 133, MV Act issued to him, admitted that respondent no. 1 was driving the offending vehicle bearing registration no. UP 81BW 1808 on the day of accident. The Mechanical Inspection Reports dated 29.05.2021 of the motorcycle bearing registration no. DL 4SCS 1865 and the offending motorcycle bearing registration no. UP 81BW 1808 clearly show that the motorcycles suffered damage.
The medical documents forming part of the DAR further lend credence to its contents. The MLC no. 71143 of the petitioner (Ex. PW1/4) and MLC no. 71142 of Ms. Geeta, both dated 26.05.2021 and issued by Guru Gobind Singh Government Hospital, New Delhi, record that the petitioner and Ms. Geeta suffered grievous injuries in a road accident.
20. Ms. Geeta (petitioner in MACT no. 100/2022) has categorically stated, both in the FIR and in her examination-in-chief, that respondent no. 1 was coming from the wrong side of the road. The petitioner has also deposed that respondent no. 1 was coming from the wrong side of the road. Despite having ample opportunity, the respondents did not cross-examine the petitioner and Ms. Geeta on this aspect. No effort was made to confront them with the site plan. Not even a suggestion was put to them that respondent no. 1 was not driving on the wrong side of the road.
In her cross-examination, Ms. Geeta further deposed that, after the accident, respondent no. 1 fled from the spot. Significantly, there was neither any MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 11 of 30 suggestion put to Ms. Geeta to the contrary nor any evidence led by the respondents to show that respondent no. 1 did not flee from the spot.
21. The respondent no. 1, in his deposition, has not denied the occurrence of the accident. In his cross-examination, he claimed that he had sustained injuries in the accident and that the accident occurred near his office. He admitted that he did not lodge any FIR or complaint against the driver of the other motorcycle. As regards the contention of respondent nos. 1 and 2 that the accident was caused due to the negligence of the petitioner, it is significant to note that, despite claiming that he suffered injuries and that the accident occurred near his office, respondent no. 1 did not take any step to lodge an FIR.
22. It is admitted by the petitioner and Ms. Geeta that it is a case of head-on collision. The omission by the respondent no. 1 to lodge an FIR coupled with the categorical and unchallenged testimonies of the petitioner and Ms. Geeta on the aspect of respondent no. 1 coming from the wrong side, creates serious doubt about the defence set up by the respondent nos. 1 & 2.
23. In view of the above discussion and taking a holistic view, it stands proved, on the touchstone of preponderance of probabilities, that the accident in question was caused due to rash and negligent driving of motorcycle bearing registration no. UP 81BW 1808, being driven by respondent no. 1 Sh. Shamshuddin Habib and owned by respondent no. 2 Sh. Aiyaj Hussain, thereby causing injuries to the petitioner.
Issue no. 1 is therefore decided in favour of the petitioner and against the respondents.
Issue No. 2:
Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? OPP.
24. Onus to prove this issue was on the petitioner. In view of finding on issue MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 12 of 30 number 1, the petitioner is held entitled to compensation for the injuries suffered by him in the road accident.
25. The Hon'ble Supreme Court in Raj Kumar vs. Ajay Kumar & Anr. (2011) 1 SCC 343 has laid down the general principles relating to compensation in injury cases and held:
"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 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."
26. The Hon'ble Supreme Court in Rekha Jain vs. National Insurance Company Ltd. MANU/SC/0773/2013, while dealing with the case of a 24 years old model and actress, who had suffered grievous injuries on her face and parts of her body held as follows:
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 13 of 30 "38. For a film actress, the physical appearance particularly the facial features are very important to act in the films and in T.V. serials. It is in her evidence that on account of the accident her face was disfigured, she has put on weight and has become fat and therefore she is unable to perform the role as an actress in films in future. Having regard to the nature of vocation she has been carrying on and wishes to carry on with in future, the opportunity is lost on account of the disfigurement of her face, to act in the films as an actress either as a heroine or actress in supporting role or any other role to be played in T.V. serials, albums and also as a model.
It is in the evidence of the Appellant that as per the District Medical Board of Sambalpur, her permanent disability is 30%. Having regard to the nature of injuries and observations made by this Court and Karnataka High Court in the cases referred to supra, we have to record a finding of fact that the Appellant's permanent disability should be treated as 100% functional disablement as she cannot act in the films and in T.V. serials in future at all. Therefore, on account of the aforesaid reasons, she has suffered functional disability..."
27. It is clear from the above discussed authoritative pronouncements that permanent physical disability is not the same as functional disability. Permanent physical disability refers to the medical assessment of the loss or impairment of a part of the body as a result of an injury. Functional disability, on the other hand, relates to the extent to which such physical disability affects the petitioner's ability to perform his or her job or earning capacity. Functional disability may be less than, equal to, or in some cases more than the permanent physical disability based on the nature of the petitioner's work and the injury's impact on earning capacity. The same permanent disability may result in different degrees of functional disability or loss of earning capacity in different individuals, depending on factors such as the nature of their profession, MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 14 of 30 occupation or job, as well as their age, educational background and other relevant circumstances.
Functional Disability of the Petitioner
28. As per the aforesaid disability certificate dated 22.09.2022 (Ex. PW1/3) issued by DDU Hospital, the petitioner suffered permanent physical disability of 6% in relation to the left upper limb.
29. The petitioner, in his evidence by way of affidavit, has claimed that at the time of the accident he was working as a vegetable vendor. In his cross- examination the petitioner has admitted that he has studied till 5 th class and can read English. The petitioner did not examine either the doctor who treated him or any member of the Medical Board that assessed his disability.
30. It is clear from the deposition of the petitioner that his job is mostly physical in nature. It is evident that the petitioner would face difficulty in performing any kind of physical work, and his earning capacity would stand adversely affected. Accordingly, the 6% permanent physical disability in relation to the left upper limb is assessed to have resulted in a 3% functional disability or loss of earning capacity.
Pecuniary damages (Special damages) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure
31. The petitioner, in his evidence by way of affidavit, has further claimed that he spent ₹ 2,00,000/- on medicines and treatment, X-ray, doctor's prescriptions, conveyance, special diet etc. The treatment record and medical bills of the petitioner is Ex. PW1/5. The original medical bills placed on record by the petitioner amount to ₹ 5,666/-. In view of this Tribunal, the petitioner is entitled only to payment towards original medical bills produced by him. Therefore, the petitioner is entitled to ₹ MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 15 of 30 5,666/- towards medicines and treatment.
32. The petitioner has not produced any bills regarding the special diet and conveyance. Keeping in view that the petitioner has suffered grievous injuries, the petitioner must have incurred expenses on conveyance and special diet. Therefore, the petitioner is awarded ₹ 15,000/- towards special diet and ₹ 15,000/- towards conveyance.
33. The petitioner has not produced any bills regarding the attendant. The Hon'ble High Court of Delhi in Delhi Transport Corporation and Anr. Vs. Kumari Lalita 1982 SCC Online Delhi 123 has held that the victim cannot be deprived of compensation towards gratuitous service rendered by some family members for the benefit of tortfeasor.
Keeping in view the nature of injury of the petitioner and the long period of treatment, a sum of ₹ 15,000/- is granted to the petitioner towards attendant charges.
Loss of earnings (and other gains) which the injured would have made had he not been injured
34. The petitioner, in his evidence by way of affidavit, has further claimed that at the time of accident, he was working as vegetable vendor and was earning ₹ 25,000/- per month. However, the petitioner has not produced any documentary evidence in this regard.
35. Considering that the petitioner is a resident of Delhi and has failed to prove his income, the same is to be assessed as per Minimum Wages Act, 1948, as applicable to Delhi. As per the said Act, the minimum wages payable in Delhi on 26.05.2021 (the date of accident) was ₹ 15,908/- per month. The same is taken to be the income of the petitioner (A).
36. Keeping in view that the petitioner has suffered grievous injuries leading to permanent physical disability, it is presumed that the petitioner would have been MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 16 of 30 unable to work for four months. The petitioner is entitled to four months of loss of earning. The petitioner is, therefore, entitled to ₹ 15908/- x 04 = ₹ 63,632/- towards loss of earning during the period of treatment. Loss of future earnings on account of permanent disability
37. As per his Aadhar card the petitioner was born on 04.02.1992. Therefore, on the date of accident (26.05.2021), the petitioner was 29 years of age.
38. As per the law laid down by the Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others (2017) 16 SCC 680, the multiplier has to be taken on the basis of the age of the petitioner and for the age group 26-30 years, a multiplier of 17 is applicable. The petitioner is also entitled to addition of 40% of the established income towards future prospects since he was below 40 years of age at the time of accident.
39. Loss of future earnings is calculated as follows:
Annual Income before the accident =₹ 15,908/- x 12 = ₹ 1,90,896/- Future Prospects (addition of 40% of the established income)= ₹ 76,358.4 Annual Income including Future Prospects (A)= ₹ 2,67,254.4 Loss of Future Earning per annum (3 % of A)= ₹ 8,017.632 Multiplier applicable with reference to age = 17 Loss of Future Earnings = ₹ 8,017.632 x17 = ₹ 1,36,299.744 Future medical expenses
40. No evidence has been led by the petitioner regarding future medical expenses. Therefore, the petitioner is not entitled to any future medical expenses. Non-pecuniary damages (General damages) Damages for pain, suffering and trauma as a consequence of the injuries
41. The following factors that are to be taken into account for assessing compensation under the head pain and suffering:
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 17 of 30 i. Nature of injury ii. Parts of body where injuries occurred iii. Surgeries, if any iv. Confinement in hospital v. Duration of the treatment As per the opinion of the doctor on his MLC dated 26.05.2021, the petitioner has suffered grievous injuries. As per the discharge note of Jai Prakash Narayan Apex Trauma Centre, Delhi, the petitioner was admitted to the said Centre on 29.05.2021 and discharged on the same day. As per the disability certificate dated 22.09.2022 (Ex. PW1/3), the petitioner is a case of "old united fracture 3 rd metacarpal with stiffness at DIP joint of left 4 th finger". He has a permanent physical disability of 6% in relation to left upper limb. In the given circumstances, the petitioner is entitled to ₹ 25,000/- under the head pain and suffering and ₹ 15,000/- towards mental and physical shock. Other heads claimed by the petitioner:
42. In the absence of any evidence on record, no case is made out for grant of compensation to the petitioner under any other head.
43. The compensation payable under various heads is summarized below:
Serial Heads Amount No. Pecuniary damages (Special damages) 1. Medicines & Treatment ₹ 5,666/- 2. Special Diet ₹ 15,000/- 3. Conveyance ₹ 15,000/- 4. Attendant Charges ₹ 15,000/-
5. Loss of Earning during the period of ₹ 63,632/-
treatment MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 18 of 30
6. Loss of Future Earnings ₹ 1,36,299.744 Non-pecuniary damages (General damages)
7. Pain & Suffering ₹ 25,000/-
8. Mental & Physical Shock ₹ 15,000/-
Total ₹ 2,90,597.744
(rounded off to ₹
2,91,000/-)
Liability
44. The respondent nos. 1 & 2, being the principal tortfeasors, are primarily liable to make payment of compensation awarded to the petitioner. However, since the offending motorcycle bearing registration no. UP 81BW 1808 was insured by respondent no. 3 against third party risks, therefore, the respondent no. 3 is liable to pay compensation to the petitioner.
45. The respondent no. 3 has, however, disputed its liability on the ground that respondent no. 1 did not possess a valid and effective driving licence to drive the offending motorcycle, which amounted to a breach of the terms and conditions of the insurance policy. Accordingly, the respondent no. 3 has sought either complete exoneration from liability or recovery rights against respondent nos. 1 and 2.
46. Per contra, respondent nos. 1 and 2 have raised three contentions in their defence.
Firstly, they have relied on their depositions to contend that respondent no. 1 knew how to drive two-wheelers, whether with gear or without gear. Secondly, they have contended that they did not receive any notice under Order XII Rule 8 of CPC from respondent no. 3.
Thirdly, they have placed reliance on the judgment of the Hon'ble Supreme Court MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 19 of 30 in Nirmala Kothari Vs. United India Insurance Company Ltd. [2020] 3 S.C.R. 1189 wherein it has been held:
"11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.
12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/ complainant is guilty of willful negligence while employing the driver.The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the driver's licence. In view of above facts and circumstances, the impugned judgment is not liable to be sustained and is hereby set aside. The appeals accordingly stand allowed. The respondent/ Insurance Company is held liable to indemnify the appellant."
47. Admittedly, the respondent no. 1 had a driving license (Ex. R3W1/1) bearing no. UP5520190007538 issued by Licensing Authority Siddharthnagar, Uttar Pradesh. The said license is valid for MCWOG (Motorcycle Without Gear) and LMV (Light Motor Vehicle). It is not in dispute that the offending vehicle bearing registration no. UP 81BW 1808 was a motorcycle with gear.
48. As regards the first contention of respondent nos. 1 and 2 that respondent no. 1 knew how to drive two-wheelers, whether with gear or without gear, the same MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 20 of 30 is of no avail. What is material under the terms of the insurance policy is the possession of a valid driving licence and not merely the proficiency or skill to drive a motorcycle with gears. Even if the driver of the offending vehicle was otherwise proficient in driving, in the absence of a valid licence, the insurer cannot be saddled with liability to indemnify the claim.
49. As far as the second contention of respondent nos. 1 and 2 that they did not receive any notice under Order XII Rule 8 of CPC from the respondent no.3 is concerned, the same is without merit. The purpose of the said notice is to afford an opportunity to the driver and owner of the offending vehicle to produce the relevant document. In the present case, the driving license of the respondent no. 1 is on record.
50. The reliance of respondent nos. 1 and 2 on Nirmala Kothari (supra) is misplaced. That decision only lays down that where a driver produces a license which, on the face of it, appears genuine, the employer is not required to make further inquiry into its authenticity.
The present case is not one of a fake licence but of a licence not valid for the class of vehicle involved in the accident. It is further to be noted that respondent no. 1 was not an employee of respondent no. 2. Rather, respondent no. 2 has admitted in cross-examination that respondent no. 1 is his first cousin. The licence of respondent no. 1 (Ex. R3W1/1), on its face, is valid only for MCWOG (Motorcycle Without Gear)and LMV (Light Motor Vehicle). There is no plea or deposition from respondent no. 2 to show that he even glanced at the license of respondent no. 1 prior to permitting him to drive. Hence, there was no possibility of his being misled.
51. In view of the above discussion, this Tribunal is of the opinion that MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 21 of 30 respondent no. 1 did not possess a valid driving license to drive the offending motorcycle on the day of the accident. This amounts to a clear violation of the terms and conditions of the insurance policy. Accordingly, respondent no. 3 (HDFC Ergo General Insurance Company Ltd.) is directed to pay the award amount along with interest to the petitioner, and it shall have the right to recover the same from the respondent no. 1 (Sh. Shamshuddin Habib) and respondent no. 2 (Mohd. Aiyaj Hussain), jointly and severally. Issue no. 2 is decided accordingly.
Issue No. 3: Relief
52. In view of findings on issue number 2, the petitioner is held entitled to a sum of ₹ 2,91,000/- (Rupees Two Lacs Ninety One Thousand only) along with simple interest @ 7.5% per annum from the date of filing of claim petition, that is, 04.03.2022 till the date of compliance, that is, 20.09.2025. Thereafter, simple interest @ 12% per annum for delayed payment, if any. The amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be excluded from the award amount.
Release
53. As per the provisions of Section 168(3) of MV Act, the award amount along with interest shall be deposited/ transferred by the respondent no. 3/HDFC Ergo General Insurance Company Ltd. in the bank account of this Tribunal (Bank Account No. 42709452600 at State Bank of India, District Court Complex, Sector-10, Dwarka New Delhi, IFSC Code SBIN0011566 and MICR Code 110002483) by RTGS/NEFT/IMPS within 30 days of award under intimation to the Nazir of this Tribunal and with notice of deposit to the petitioner.
54. The statement of the petitioner regarding his financial status, needs and liabilities has been recorded.
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 22 of 30 The details of the MACT bank account of the petitioner and the address of the bank with IFSC Code are as follows:
Name Bank Details Kamlesh A/c no. 43613374358 at State Bank of India, Branch
District Court Complex, Sector-10, Dwarka, New Delhi. IFSC Code: SBIN0011566
55. The Hon'ble High Court of Delhi in Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. FAO No. 842/2003 has formulated the Motor Accident Claims Annuity Deposit (MACAD) scheme vide its order dated 01.05.2018 and implemented the same vide its subsequent orders dated 07.12.2018 and 08.01.2021.
56. The Hon'ble Supreme Court vide its order dated 16.07.2024 in Bajaj Allianz General Insurance Company Private Ltd. vs. Union Of India & Ors. Writ Petition (Civil) no. 534/2020 has held:
"9. To clarify the aforesaid position, it is for the Tribunal in a given case to make a decision as to whether the entire amount has to be released or if it is to be released in part. Suffice it is to state that the Tribunal is expected to give its own reasoning while undertaking such an exercise."
Schedule of Disbursal
57. Keeping in view the quantum of the award, expenses incurred by the petitioner on his treatment and loss of earning during the period of treatment, fifty percent (50%) of the award amount be immediately released to the petitioner.
The remaining fifty percent (50%) of the award amount of the petitioner be kept in the form of two FDR(s) for periods of one to two years in succession. MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 23 of 30 Directions to Bank
58. The Manager, State Bank of India, District Court Complex, Sector-10, Dwarka is directed to comply with the Schedule of Disbursal provided in this Award.
The said Manager is further directed that:
(a) The bank shall not permit any joint name(s) to be added in the MACT accounts of the petitioner.
(b) The original fixed deposit/FDRs shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the petitioner.
(c) No loan, advance, withdrawal or pre-mature discharge be allowed on the FDRs without permission of this Tribunal.
(d) The concerned bank shall not issue any cheque book and/or debit card to petitioner for his MACT account. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.
59. The Form-XVI of the Modified Claims Tribunal Agreed Procedure, as per the directions given by the Hon'ble High Court of Delhi in Rajesh Tyagi (supra) on 08.01.2021 is as under:
FORM-XVI SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 26.05.2021
2. Name of injured: Kamlesh
3. Age of the injured: 29 years (at the time of accident) MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 24 of 30
4. Occupation of the injured: working as Vegetable Vendor/ delivery boy with Amazon (as claimed)
5. Income of the injured: ₹ 25,000/- per month (as claimed)
6. Nature of injury: Grievous injury.
7. Medical treatment taken by the injured: Guru Gobind Singh Government Hospital, Delhi & Jai Prakash Narayan Apex Trauma Centre, Delhi.
8. Period of hospitalization: 29.05.2021
9. Whether any permanent disability? Permanent physical disability of 6% in relation to left upper limb.
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment ₹ 5,666/-
(ii) Expenditure on conveyance ₹ 15,000/- (iii) Expenditure on special diet ₹ 15,000/- (iv) Cost of nursing/attendant ₹ 15,000/- (v) Cost of artificial limb Nil. (vi) Loss of earning capacity Nil. (vii) Loss of income ₹ 63,632/-
(viii) Any other loss which may require any Nil special treatment or aid to the injured for the rest of his life MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 25 of 30
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical ₹ 15,000/-
shock
(ii) Pain and suffering ₹ 25,000/-
(iii) Loss of amenities of life Nil.
(iv) Disfiguration Nil.
(v) Loss of marriage prospects Nil.
(vi) Loss of earning, inconvenience, As above.
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and Permanent Physical Disability nature of disability as permanent or of 6% in relation to left upper temporary limb.
(ii) Loss of amenities or loss of Not Applicable expectation of life span on account of disability
(iii) Percentage of loss of earning capacity Not Applicable in relation of disability
(iv) Loss of future income -(Income x % ₹ 1,36,299.744/-
Earning Capacity x Multiplier)
14. TOTAL COMPENSATION ₹ 2,90,597.744 (rounded off to ₹ 2,91,000/-)
15. INTEREST AWARDED Simple interest @ 7.5% per annum from the date of institution of the petition (04.03.2022) till the date of compliance (20.09.2025).
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 26 of 30 Thereafter, simple interest @ 12% per annum.
16. Interest amount up to the date of ₹ 75,599/-
award
17. Total amount including interest up to ₹ 3,66,599/-
the date of award
18. Award amount released 50%
19. Award amount kept in FDRs 50%
20. Mode of disbursement of the award Account Transfer amount to the claimant(s)
21. Next date for compliance of the award 20.09.2025
60. The Form-XVII of the Modified Claims Tribunal Agreed Procedure, as per the directions given by the Hon'ble High Court of Delhi in Rajesh Tyagi (supra) on 08.01.2021 is as under:
FORM-XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD
1. Date of the accident 26.05.2021
2. Date of filing of Form I- First Not Known Accident Report (FAR)
3. Date of delivery of Form-II to the Not Known victim(s)
4. Date of receipt of Form-III from Not Known the Driver
5. Not Known MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 27 of 30 the owner
6. Date of filing of the Form- Not Known V- Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and Not Known Form VIB from the Victim (s)
8. Date of filing of Form-VII- 04.03.2022 Detailed Accident Report (DAR)
9. Whether there was any delay or Yes.
deficiency on the part of No action warranted at this stage the Investigating Officer? If so, whether any action/direction as it is not a case of prolonged warranted? delay.
10. Date of appointment of the Not Known Designated Officer by the Insurance Company.
11. Whether the Designated Officer of No. the Insurance Company submitted his report within 30 days of the DAR?
12. Whether there was any delay or No. deficiencies on the part of the Designated Officer of the Insurance Company?If so, whether any action/direction warranted?
13. Date of response of the No. claimants(s) of the offer of the Insurance Company.
14. Date of the award 21.08.2025 MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 28 of 30
15. Whether the claimants(s) Yes was/were directed to open savings bank account(s) near their place of residence?
16. Date of order by which 04.03.2022 claimants(s) was/were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimants(s) and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) 14.02.2025 produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of R-3, B-10, Mohan Garden the claimant(s) Uttam Nagar, West Delhi, Delhi-110059.
19. Whether the claimant(s) savings Yes bank account(s) is near his place of residence?
20. Whether the claimant(s) was/were Yes examined at the time of passing of the award to ascertain his/their financial condition?
61. Dasti copy of Award be given to the parties free of cost.
62. Attested copy of Award be sent to the Manager, State Bank of India, District Court Complex, Sector-10, Dwarka New Delhi.
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 29 of 30
63. Copy of Award be also sent to the concerned learned Judicial Magistrate and Delhi State Legal Services Authority.
64. Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble High Court of Delhi vide its order dated 08.01.2021 in Rajesh Tyagi (supra).
65. Ahlmad is directed to prepare a separate miscellaneous file to be listed on 10.11.2025 for compliance report.
66. File be consigned to the record room after compliance of necessary formalities.
Digitally signed
SUDEEP by SUDEEP RAJ
SAINI
RAJ Date:
SAINI 2025.08.21
16:04:39 +0530
ANNOUNCED IN THE OPEN (SUDEEP RAJ SAINI)
COURT ON 21.08.2025 PO, MACT-02, SOUTH-WEST DISTRICT
DWARKA COURTS, NEW DELHI
MACT No. 102/2022 Kamlesh vs. Shamshuddin Habib & Ors. Page No. 30 of 30