Delhi District Court
Manoj Kumar vs Irshad And Ors on 27 February, 2024
MACT 2024/19
KAPIL DEV Vs. IRSHAD AND ORS.
MACT 2025/19
MANOJ KUMAR Vs. IRSHAD AND ORS.
MACT 2026/19
LUKMAN KHAN AND ORS. Vs. IRSHAD AND ORS.
IN THE COURT OF SHRI SUDESH KUMAR-II :
PRESIDING OFFICER : MACT : SOUTH DISTT. : SAKET
COURTS : NEW DELHI
Petition No. : 2024/19
CNR NO. DLST01-005270-2019
1. Kapil Dev
S/o Sh. Charan Singh
R/o H.No. 2, Pataudi Road,
Sector-93 Hayatpur,
Gurugram - 122505 ......injured
Petition No. : 2025/19
CNR NO. DLST01-005271-2019
1. Manoj Kumar
S/o Sh. Chand Dhanwasi
R/o 119, Wazipur, Gurugram,
Haryana - 122505 .......injured
Petition No. : 2026/19
CNR NO. DLST01-005272-2019
1. Lukman Khan
S/o Mohd. Islam
R/o Ward no. 10, Naya Gaon Patudi,
Gurgram, Haryana .......injured
...... Petitioners
Versus
1.Sh. Irshad
S/o Sh. Ishab
R/o Village dhiana,
tehsilk nuh, pincode- 122107.
(driver cum owner of offending vehicle
No. RJ-14-GE-0001) ....Respondent no. 1
Page No.1/37
MACT 2024/19
KAPIL DEV Vs. IRSHAD AND ORS.
MACT 2025/19
MANOJ KUMAR Vs. IRSHAD AND ORS.
MACT 2026/19
LUKMAN KHAN AND ORS. Vs. IRSHAD AND ORS.
2. Heera Lal Chaudhary
S/o Sh. Ladu Ram
R/o Nilo ki Dhani Swarda,
Mozamabad, PS Dudu
District Jaipur Rajasthan - 3033008
(as per sale agreement reg. owner of offending
vehicle) ....Respondent no. 2
3. Joginder Singh Godara
S/o Lal Chand Godara
R/ B-301, Om Sai Residency
Near Amandeep Nagar
New Karelibaugh, Vadorda,
Gujrat
(subsequent purchase owner in possession
of offending vehicle) ....Respondent no. 3
4. New India Assurance Company
(Insurance company of offending vehicle)
Off no. R-7, behind MCD office
Green park near uphar cinema ....Respondent no. 4
......Respondents
Date of Institution : 02.08.2019
Date of reserving of order : 17.02.2024
Date of pronouncement : 27.02.2024
JUDGMENT:
1. These are the three claim petitions bearing no.(s) 2024/19, 2025/19 and 2026/19 filed by injured Kapil Dev, Manoj Kumar and Lukman Khan. These three petitions have arisen out of the same accident. The petitioners have filed the claim petitions claiming the compensation under Section 166 & 140 of Page No.2/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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MACT 2026/19LUKMAN KHAN AND ORS. Vs. IRSHAD AND ORS.
the Motor Vehicle act, 1988 (hereinafter referred as 'the Act') for the injuries sustained in a road accident that occurred on 08.05.2017 at about 6.10 am at near MDI Chowk Flyover Gurugram due to rash and negligent driving of vehicle bearing no. RJ-14GE-0001 by the respondent no. 1/Irshad.
2. The brief facts as per present petitions are that on 08.05.2017 the injured persons namely Kapil Dev, Manoj and Lukman Khan were going to Delhi from Gurugram in Haryana roadways bus bearing no. HR-55U-2725 driven by its driver in a moderate speed and correct left side of the road. At about 6.10 AM when bus reached near MDI Chowk Flyover, then a truck bearing no. RJ-14GE-0001 came from signature tower side NH-8 in a very rash and negligent manner and hit the driver side of the bus from behind. As a result of which bus turned over and the petitioners suffered grievous injuries.
3. Notice of the petitions were issued to the respondents. Pursuant to notice, the respondents filed their written statements.
4. The respondent no. 1/ driver cum owner in his written statement denied all the allegations and stated that no such accident was caused by him and the police has registered false and frivolous FIR against him. The respondent no. 1 however admitted that alleged offending vehicle was insured at the time of Page No.3/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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the accident. Hence the liability if any, has to be fastened against the respondent no. 4 insurance company.
5. The insurance company/ respondent no. 4 also contested the claims of the petitioners by filing its WS resisting the claims on the ground that the present accident occurred due to composite negligence of the driver of Haryana Roadways bus bearing registration no. HR-55U-2725 and the driver of truck having registration no. RJ-14GE-0001. It is also contended that the respondent issued commercial vehicle package policy no. 22030031160100019262 valid for the period from 21.10.2016 to 20.10.2017 in favour of the respondent no. 2 Heera Lal Choudhary (owner of the alleged offending vehicle).
6. After the pleadings, following issues were framed vide order dated 04.01.2023 by my Ld. Predecessor in all the three petitions :
◦ Whether petitioners Lukman Khan, Manoj Kumar and Kapil Dev sustained injuries in a road accident on 08.05.2017 at about 6.10 am at near MDI Chowk Flyover Gurugram due to rash and negligent driving of the vehicle bearing registration no. RJ- 14GE-0001 being driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3?... OPP ◦ In case, issue no. 1 is decided in affirmative then to what amount of compensation, the petitioners are entitled and from whom?
◦ Relief.Page No.4/37 MACT 2024/19
KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
MANOJ KUMAR Vs. IRSHAD AND ORS.MACT 2026/19
LUKMAN KHAN AND ORS. Vs. IRSHAD AND ORS.
7. I have heard Ld. Counsels for the parties and have carefully perused the court record.
My findings on the issues are as under:-
ISSUE NO. 18. In a claim petition, onus is on the claimant(s)/ petitioner(s) to prove that the injured persons suffered fatal injuries in the vehicular accident caused by the wrongful act or negligence of the driver of the offending vehicle.
9. In order to establish their claims, the injured persons namely Manoj Kumar, Kapil and lukman examined themselves as PW1 in their claims. Dr. Mayank Pratap Singh, Sr. Resident was examined as PW2 in all the claims to prove the disability of the injured persons. Vide oder dated 14.08.2023 all the claims were consolidated for the purposes of evidence.
10. The insurance company examined Assistant Manager Mr. Rahul Verma as R4W1 and Sh. Pawan Kumar,Junior Assistant, MLO, Transport Office, Gorakpur as R3W2.
11. PW1 Sh. Kapil Dev (in 2024/19) is the other injured. He deposed on the similar lines as injured Manoj in regard to the Page No.5/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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manner of accident. He was removed to the civil hospital, Gurugram where doctor prepared MLR. He was working as a driver where he was earning Rs.19,535/- per month. After the accident, he does not have working capability. Due to the injuries he has lost his job and he is still jobless. He further deposed that he has suffered 10% permanent disability in his left upper limb due to the accident. He has relied upon following documents in support of his contentions :-
• MLR no. MI/2017/94 prepared by doctor Ex.PW1/A/ • Discharge summary and all the treatment record Ex.PW1/B and C. • Chargesheet Ex.PW1/D. • Pay slip of petitioner Ex.PW1/E. • DL Ex.PW1/F. • Disability certificate Ex.PW1/G. • Copy of aadhar card and PAN card Ex.PW1/H and Ex.PW1/I. In his cross-examination by Ld. Counsel for the respondent no.4/insurance company, he stated that he was working with DTC therefore, he was not required to purchase the ticket being the staff member. He does not have any medical bills with regard to the expenses incurred on his treatment. At the time of accident, he was working with DTC as Contract Driver and was getting salary of Rs.19,535/- per month. After the accident he could not assume his duty for about six months. He denied that the accident occurred due to the rash and negligent driving of the driver of the bus bearing no. HR-55U-2725.Page No.6/37 MACT 2024/19
KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
MANOJ KUMAR Vs. IRSHAD AND ORS.MACT 2026/19
LUKMAN KHAN AND ORS. Vs. IRSHAD AND ORS.
12. PW2 Dr. Mayank Pratap Singh, Sr. Resident in Pt. Madan Mohan Malaviya Hospital, New Delhi (in MACT no. 2024/19) was the summoned witness. He has produced the record pertaining to all the three injured namely Lukman Khan, Manoj Kumar and Kapil separately in their claims. He has medically examined all the three injured. He categorically deposed that the injured Kapil Devi has also suffered 10% permanent disability in his right upper limb and it will be very difficult for him to drive a vehicle.
In his cross-examination, he deposed that he is a resident doctor of Pt. Madan Mohan Malaviya Hospital. He again submitted that the injured Lukman has suffered 10% permanent disability in his right upper limb which was non-progressive. He categorically deposed that there is no chance of his disability being cured with passage of time.
13. PW1 Manoj Kumar (in MACT no. 2025/19) is one of the injured who deposed on the lines of his claim. He deposed as per his affidavit in evidence Ex.PW1/1 and stated that he was going to attend his duty on 08.05.2017 at 6.30 AM in DC Tehkhand Roadways bus bearing no. HR-55U-2725. When he reached near MDI Chowk Flyover, a truck bearing no. RJ-14GE- 0001 coming from NH18 signature tower side driven in a very high speed, rash and negligent manner without following the traffic rules on wrong side of the road and hit the bus. Due to Page No.7/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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forceful impact the bus got rolled over and he sustained grievous injury on his left hand. He was admitted in ESIC model hospital on 08.05.2017 and visited many times for medical care. He submitted that he was working as a driver on contract basis in DTC wherein he was earning Rs.27,100/- per month. After the accident he remained on leave for about one year. He lost his job because of the injuries and he is still jobless. He has relied upon the following documents in support of his contentions :-
• Treatment record of the petitioner Ex.PW1/A. • Pay slip of the petitioner Ex.PW1/B. • Driving licence of the petitioner Ex.PW1/C. • Disability certificate Ex.PW1/D. • Copy of aadhar card and PAN card Ex.PW1/E and Ex.PW1/F. In his cross-examination by counsel for the respondent no. 4/insurance company, he stated that the accident occurred on 08.05.2017 when he was going by bus bearing no. HR-55U-
2725. Since he was working with DTC therefore, he was not required to purchase the ticket being the staff member. The said bus was hit by truck having registration no. RJ-14GE-0001 from the back side. In his cross-examination, he again submitted that he was working with DTC as Contract driver and was getting the salary of Rs.21,282 p.m. he has placed on record his salary slip. After the accident, he could not assume his duties for about six months.
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14. PW2 Dr. Mayank Pratap Singh, Sr. Resident in Pt. Madan Mohan Malaviya Hospital, New Delhi (in MACT no. 2025/19) was the summoned witness. He produced the record pertaining to all the three injured namely Lukman Khan, Manoj Kumar and Kapil. He submitted that he has medically examined all the three injured. The injured Manoj Kumar has suffered 10% permanent disability in his left upper limb. It will be very difficult for him to drive a vehicle.
In his cross-examination, he deposed that he is a resident doctor of Pt. Madan Mohan Malaviya Hospital. He again submitted that the injured Manoj Kumar has suffered 10% permanent disability in his left upper limb and his disability is non-progressive. There is no chance of his disability being cured with passage of time.
15. PW1 Sh. Lukman Khan (in 2026/19) is also the injured. He deposed on the similar lines as injured PW Manoj and PW Kapil in regard to the manner of the accident. He further stated that after the accident, he was removed to civil hospital, Gurugram where doctor referred him to ESIC Model Hospital. He was working as a driver on contract basis in DTC and was earning Rs.31,737/- per month. He has suffered 16% permanent disability in his left lower limb. Due to the injuries, he has lost his job and he is still jobless. He has relied upon following documents in support of his contentions :-
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• Treatment record of the petitioner Ex.PW1/A. • Pay slip of the petitioner Ex.PW1/B. • Driving licence of he petitioner Ex.PW1/C. • Disability certificate Ex.PW1/D. • Copy of aadhar card and PAN Card Ex.PW1/E and PW1/F. In his cross-examination by Ld. Counsel for the respondent no.4/insurance company, he stated that he was working with DTC therefore, he was not required to purchase any ticket being the staff member. The said bus was hit by the truck having registration no. RJ-14GE-0001 from the back side. After the accident, he was taken to Civil Hospital, Gurugon from where he was discharged after about one month.
16. PW2 Dr. Mayank Pratap Singh, Sr. Resident in Pt. Madan Mohan Malaviya Hospital, New Delhi was examined in all the three claim petitions. He produced the record of the injured Lukman Khan, Manoj Kumar and Kapil. He has medically examined all the three injured. He deposed that due to the disability suffered by Lukman Khan, his left leg has become disabled and he is not able to move or drive vehicle properly. He is unable to squat his leg.
In his cross-examination, he deposed that he is a resident doctor of Pt. Madan Mohan Malaviya Hospital. The injured Lukman has suffered 16% permanent disability in his left lower limb and his disability is non-progressive. There is no chance of his disability being cured with passage of time.
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17. R4W1/ Sh. Rahul Verma is the Assistant Manager with respondent no. 4/insurance company. He deposed that the insurance company issued commercial vehicles package policy no. 22030031160100019262 valid for the period from 21.10.2016 to 20.10.2017 in favour of respondent no. 2 Heera Lal Choudhary with regard to truck having registration no. RJ- 14GE-0001. In the present case the driver and owner of the offending vehicle are not participating in the proceedings and neither the driver nor the owner of the offending vehicle placed on record verification report of the driving licence of respondent no. 1/Irshad. Hence the respondent no. 4 deputed their investigator to find out the genuineness of the DL of the driver of the offending vehicle. The investigator submitted his report stating that particulars of the driving licence pertaining to Irshad were not available online. Therefore, he moved an application to Public Information Office/DTO MV Department, Babpara, Imphal West, Manipur requesting therein to provide particulars of the DL pertaining to Irshad. Insurance company sent notice under Order 12 Rule 8 CPC to the driver, registered owner and owner in possession of the offending truck calling upon them to produce the original insurance policy valid and DL of Irshad (driver of the offending vehicle). He has relied upon the following documents:-
• Certified copy of insurance policy Ex.R4W1/A. Page No.11/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
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• Original copy of investigator report dated 19.07.2023 Ex.R4W1/B. • Original copy of RTI application dated 10.07.2023 Ex.R4W1/C. • Original notice u/o XII Rule 18 CPC Ex.R4W1/D. • Original postal receipts are Ex.R4W1/E to Ex.R4W1/G.
18. After the examination of the said witness, the insurance company moved an application for summoning. The concerned officer of MLO office, Gorakpur and examined him as R3W2.
19. R3W2 Sh. Pawan Kumar, Junior Assistant, Motor Licensing Authority, Gorakhpur deposed that he is a summoned witness. He produced the summoned record pertaining to DL no. UP532003006410 belonging to the respondent no. 1. He submitted that as per record, the said DL was valid on the date of accident i.e. 08.05.2017 for driving motorcycle, LMV and heavy transport vehicle (HTV).
He was not cross-examined by any of the respondents.
20. No evidence was led by the driver cum owner of the offending vehicle Irshad despite opportunity given. He was rather proceeded ex-parte as he has failed to appear in the Court.
21. Ld. Counsel for the petitioners has argued forcefully that from the evidence of PWs coupled with the criminal record Page No.12/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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placed, the petitioner has proved the fact that it was the respondent no. 1 who had caused injuries to the injured persons by his rash and negligent driving.
22. It has been vehemently contended on behalf of the counsel for the respondent no. 4/ insurance company that the accident has occurred due to the composite negligence of the driver of Haryana roadways bus bearing no. HR-55U-2725 and driver of truck bearing no. RJ-14GE-0001.
23. In the present case, petitioner has filed certified copy of chargesheet. Charge sheet has been filed against the respondent no.1 driver of the offending vehicle. All the three injured had categorically deposed about the manner and occurrence of the accident which was due to rash and negligent driving of the respondent No.1. No other version of accident has come on record except the one as narrated by injured persons. The driver of the offending vehicle has never challenged the filing of the chargesheet against him for any false implication. It is pertinent to note that the respondent no. 1/ driver of the offending vehicle was the material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box during the course of the inquiry. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in Page No.13/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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question occurred due to rash and negligent driving of vehicle bearing no. RJ-14GE-0001. He has not even cross examined the PWs despite opportunity being given. It has never been disputed by the respondent no.1 that the offending truck was not involved in the accident. The entire investigation conducted by the IO supports the testimony of the injured persons. The chargesheet and the documents annexed were never challenged. Hence, no other version of the accident is coming up on record except for the one raised by the petitioners. The testimony of all the PWs is fully supporting the case of the petitioners. The testimony of all the injured persons remained unrebutted and uncontraverted.
24. In this regard observations made by the Hon'ble Supreme Court in New India Assurance Company Ltd. vs. Pushpa Rana and Ors. reported in 2007 SCC online DEL 1700 has to be considered wherein it was held that :-
"the wife of the deceased had produced (1) certified copy of criminal record of criminal case in FIR No. 955/2004 pertaining to involvement of the offending vehicle; (2) Criminal record showing completion of investigation of police and issue of charage-sheet under Section 279/304-A IPC against the driver; (3) certified copy of FIR wherein criminal case against the drive was lodged; and (4 ) recover memo and mechanical inspection report of the offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach the conclusion that the driver was negligent."Page No.14/37 MACT 2024/19 MACT 2025/19
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25. Hitting from behind per-se amounts to negligence unless explained otherwise. As noted above no other version of accident is explained or proved on record except the one narrated by the injured persons.
26. In view of the aforesaid discussion, in the absence of any defence brought on record by the respondents and unrebutted testimony of injured persons corroborated by criminal proceedings the fact that the offending vehicle hit the vehicle of the injured persons prima facie shows rash and negligent conduct of R1. The accident has taken place due to rash and negligent driving of R1 Irshad due to which the injured persons sustained grievous injuries. Issue no. 1 is accordingly, decided in favour of the petitioners.
I S S U E No. 227. The petitioners have claimed compensation in respect of the injuries sustained by them. In a road accident, a person is entitled to compensation for the pecuniary and non-pecuniary damages.
28. As the offending vehicle was being driven and owned by respondent no. 1 so respondent no.1 is primarily liable to compensate the petitioners. It is an admitted position on record that the vehicle was insured with respondent no.4/New India Page No.15/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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Assurance Company, therefore, respondent no. 4 becomes contractually liable to compensate the petitioners/claimants for the amount.
29. Let me assess the compensation which the claimants are entitled for under different heads.
IN CASE OF INJURED MANOJ KUMAR (IN MACT NO. 2025/19) MEDICAL EXPENSES :
30. As per the record, no medical bills are filed by the petitioner. Hence, he is not entitled towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
31. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain vs. Jai Kisan, FAO No.:709/02, date of decision:
02.02.2007 can be considered:
12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
13. The objective facts relatable to pain and suffering would be :
(a) Nature of injury.Page No.16/37 MACT 2024/19 MACT 2025/19
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(b) Body part affected.
(c) Duration of the treatment.
Applying the above criteria to the facts of the present case where petitioner/injured has suffered 10% permanent physical impairment in relation to his left upper limb and keeping in view the period of hospitalization and duration of treatment, I am of the opinion that an amount of Rs.1,00,000/- would be just and fair compensation towards his pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
32. In the present case the petitioner Manoj Kumar has not placed on record any document with regard to his special diet, conveyance and attendant charges. However, the injuries on the person of the injured were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant. Therefore, looking into all the facts, I award Rs.40,000/- to the petitioner/ injured Manoj Kumar towards his special diet, conveyance and attendant charges.
LOSS OF INCOME/ FUTURE LOSS OF INCOME
33. As per the salary slip of the injured Manoj Kumar produced on record as Ex.PW1/B, at the time of accident he was working as a driver on contract basis in DTC and was earning about Rs.17,705/- per month. His abovesaid employment and Page No.17/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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salary slip were never disputed by the insurance company. Hence, Rs.17,705/- p.m is taken as his salary for the said period.
The injuries on the person of petitioner were such that he might have remained out of work for about six months. Hence I award a sum of Rs.1,06,230/- (Rs.17,705/- x 6) towards loss of income during period of treatment.
34. The petitioner further stated that he was not able to work from the date of accident till date. He had suffered 10% permanent physical impairment in respect of Left Upper Limb. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" :-
"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 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 Page No.18/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
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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.
The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker Page No.19/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
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driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289, in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.
In a more recent decision in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations:
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 Page No.20/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
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the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and 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.
35. In a very recent judgment announced by the Supreme Page No.21/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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Court of India in case title Sri Anthony alias Anthony Swamy v. The Manging Director, K.S.R.T.C. on 10.06.2020. Hon'ble Supreme Court of India has reiterated the principles set out for grant of compensation in cases of permanent physical functional disability. In case titled Rajkumar v. Ajay Kumar & Anrs., 2011(1) SCC 343 :-
"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 the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of Page No.22/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
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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.
36. The petitioner Manoj was a driver. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" that 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 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, the loss of one of the legs to the marginal farmer would be the end of the road in so far his earning capacity is concerned. But in case of person engaged in some kind of desk work in an office, the loss of leg may not have same effect. The loss of a leg (or for that matter the loss of any limb) to any one is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs Page No.23/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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to a person working in an office would not interfere with his work/earning capacity in the same degree as in the case of marginal farmer or a cycle rickshaw-puller. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343". Looking into his physical condition and the job he had been doing, his functional disability in this particular case is taken as 7%. The petitioner has examined PW2 Dr. Mayank Pratap Singh, Sr. Resident at Pt.Madan Mohan Malaviya Hosptial who specifically stated that it will be very difficult for him to drive a vehicle. Therefore, in my opinion though it is difficult for him to drive the vehicle but still he can do various other things where motion/much physical work is not required. As per the Aadhar Card, the date of birth of the petitioner is 12.05.1974. The accident took place on 08.05.2017. Therefore, he was 43 years of age at the time of accident. Taking a multiplier of '14', the future loss of income comes to Rs.17,705/- x 12 x 14 x 7% = Rs.2,08,210/-. I therefore, award Rs.2,08,210/- to the petitioner towards Future Loss of Income on account of permanent disability.
Loss of Amenities :-
37. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an effect his social life. I therefore, Page No.24/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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award Rs.30,000/- to the petitioner towards loss of amenities.
The total compensation of the petitioner Manoj hence comes out to be :
MEDICAL EXPENSES :Nil.
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE :Rs.1,00,000/-
SPECIAL DIET, CONVEYANCE &
ATTENDANT :Rs. 40,000/-
LOSS OF INCOME :Rs.1,06,230/-
FUTURE LOSS OF INCOME :Rs.2,08,210/-
LOSS OF AMENITIES : Rs.30,000/-
==========
TOTAL :Rs.4,84,440/-
===========
IN CASE OF INJURED KAPIL DEV (IN MACT NO.
2024/19) MEDICAL EXPENSES :
38. As per the record, no medical bills are filed by the petitioner Kapil Dev. Hence, he is not entitled towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
39. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain vs. Jai Kisan, FAO No.:709/02, date of decision:
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02.02.2007 can be considered:
12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
13. The objective facts relatable to pain and suffering would be :
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment.
Applying the above criteria to the facts of the present case where petitioner/injured has suffered 10% permanent physical impairment in relation to his right upper limb and keeping in view the period of hospitalization and duration of treatment, I am of the opinion that an amount of Rs.1,00,000/- would be just and fair compensation towards his pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
40. In the present case the petitioner Kapil Dev has not placed on record any document with regard to his special diet, conveyance and attendant charges. However, the injuries on the person of the injured were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant. Therefore, looking into all the facts, I award Rs.40,000/- to the petitioner/ injured Kapil Dev towards Page No.26/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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his special diet, conveyance and attendant charges.
LOSS OF INCOME/ FUTURE LOSS OF INCOME
41. The petitioner/ injured stated that at the time of accident he was working as a driver on contract basis in DTC and was earning about Rs.19,535/- per month. However the petitioner Kapil Dev has filed the salary slip for the year February, 2013 and the accident has occurred on 08.05.2017. Therefore, the same can not be considered. No other document or evidence has been led by him to prove his salary at the time of accident. Hence, the minimum wages for a skilled person of Haryana at the time of accident which was Rs.9,585/- per month at that time is taken up as his earnings.
The injuries on the person of petitioner were such that he might have remained out of work for about six months. Hence I award a sum of Rs.57,510/- (Rs.9,585/- x 6) towards loss of income during period of treatment.
42. In view of the observations made by "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" and Sri Anthony alias Anthony Swamy v. The Manging Director, K.S.R.T.C. 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 person suffering the disability. In the present case, looking into the Page No.27/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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physical condition of the injured Kapil and the job he had been doing, his functional disability is taken as 7%. The petitioner also examined PW2 Dr. Mayank Pratap Singh, Sr. Resident at Pt.Madan Mohan Malaviya Hospital who specifically stated that it will be very difficult for him to drive a vehicle. Therefore, in my opinion though it is difficult for him to drive the vehicle but still he can do various other things where motion/much physical work is not required. As per the Aadhar Card, the date of birth of the petitioner is 12.04.1986. The accident took place on 08.05.2017. Therefore, he was 31 years of age at the time of accident. Taking a multiplier of '16', the future loss of income comes to Rs.9,585/- x 12 x 16 x 7% = Rs.1,28,822/-. I therefore, award Rs.1,28,822/- to the petitioner towards Future Loss of Income on account of permanent disability.
Loss of Amenities :-
43. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations.
The injuries would also have an effect his social life. I therefore, award Rs.30,000/- to the petitioner towards loss of amenities.
The total compensation of the petitioner hence comes out to be :
MEDICAL EXPENSES :Nil.
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ENJOYMENT OF LIFE :Rs.1,00,000/-
SPECIAL DIET, CONVEYANCE &
ATTENDANT :Rs. 40,000/-
LOSS OF INCOME :Rs.57,510/-
FUTURE LOSS OF INCOME :Rs.1,28,822/-
LOSS OF AMENITIES : Rs.30,000/-
==========
TOTAL :Rs.3,56,332/-
===========
IN CASE OF INJURED LUKMAN KHAN (IN MACT NO. 2026/19) MEDICAL EXPENSES :
44. As per the record, no medical bills are filed by the petitioner Lukman Khan. Hence, he is not entitled towards medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
45. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain vs. Jai Kisan, FAO No.:709/02, date of decision: 02.02.2007 can be considered:
12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.Page No.29/37 MACT 2024/19 MACT 2025/19
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13. The objective facts relatable to pain and suffering would be :
(a) Nature of injury.
(b) Body part affected.
(c) Duration of the treatment.
Applying the above criteria to the facts of the present case where petitioner/injured has suffered 16% permanent physical impairment in relation to his left lower limb and keeping in view the period of hospitalization and duration of treatment, I am of the opinion that an amount of Rs.1,00,000/- would be just and fair compensation towards his pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
46. In the present case the petitioner Lukman Khan has not placed on record any document with regard to his special diet, conveyance and attendant charges. However, the injuries on the person of the injured were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant. Therefore, looking into all the facts, I award Rs.40,000/- to the petitioner/ injured Lukman khan towards his special diet, conveyance and attendant charges.
LOSS OF INCOME/ FUTURE LOSS OF INCOME
47. As per the salary slip of the injured Lukman Khan produced on record as Ex.PW1/B, at the time of accident he was Page No.30/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
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working as a driver on contract basis in DTC and was earning about Rs.26,365/- per month. His abovesaid employment and salary slip were never disputed by the insurance company. Hence, Rs.26,365/- p.m is taken as his salary for the said period.
The injuries on the person of petitioner were such that he might have remained out of work for about six months. Hence I award a sum of Rs.1,58,190/- (Rs.26,365/- x 6) towards loss of income during period of treatment.
48. In view of the observations made by "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" and Sri Anthony alias Anthony Swamy v. The Manging Director, K.S.R.T.C. 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 person suffering the disability. In the present case, looking into the physical condition of the injured Lukman Khan and the job he had been doing, his functional disability is taken as 10%. The petitioner also examined PW2 Dr. Mayank Pratap Singh, Sr. Resident at Pt.Madan Mohan Malaviya Hospital who specifically stated that it will be very difficult for him to drive a vehicle. Therefore, in my opinion though it is difficult for him to drive the vehicle but still he can do various other things where motion/much physical work is not required. As per the Aadhar Card, the date of birth of the petitioner is 10.07.1974. The Page No.31/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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accident took place on 08.05.2017. Therefore, he was 43 years of age at the time of accident. Taking a multiplier of '14', the future loss of income comes to Rs.26,365/- x 12 x 14 x 10% = Rs.4,42,932/-. I therefore, award Rs.4,42,932/- to the petitioner towards Future Loss of Income on account of permanent disability.
Loss of Amenities :-
49. Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an effect his social life. I therefore, award Rs.30,000/- to the petitioner towards loss of amenities.
The total compensation of the petitioner hence comes out to be :
MEDICAL EXPENSES :Nil.
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE :Rs.1,00,000/-
SPECIAL DIET, CONVEYANCE &
ATTENDANT :Rs. 40,000/-
LOSS OF INCOME :Rs.1,58,190/-
FUTURE LOSS OF INCOME :Rs.4,42,932/-
LOSS OF AMENITIES : Rs.50,000/-
==========
TOTAL :Rs.7,91,122/-
===========
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MACT 2024/19
KAPIL DEV Vs. IRSHAD AND ORS.
MACT 2025/19
MANOJ KUMAR Vs. IRSHAD AND ORS.
MACT 2026/19
LUKMAN KHAN AND ORS. Vs. IRSHAD AND ORS.
RELIEF
50. In view of my findings, In MACT No. 2024/19, I award Rs.3,56,332/- to the injured Kapil Dev and in MACT No. 2025/19, I award Rs.4,84,440/- to the injured Manoj Kumar. In MACT no. 2026/17, I award Rs.7,91,122/- to the injured Lukman Khan alongwith interest @ 9% per annum from the date of filing the petition till its realisation. Entire amount with interest be released to the injured Kapil Dev and injured Manoj Kumar.
As far as the injured Lukman is concerned, looking into his injuries, an amount of Rs.2,00,000/- (Rupees Three Lakhs) are directed to be kept in the form of fixed deposit in the following phased manner :
• Rs.1,00,000/- for a period of 01 year. • Rs.1,00,000/- for a period of 02 years.
Remaining amount with interest be released to him.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
51. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no. 4/insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which respondent no.4/insurance company Page No.33/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
52. The respondent no.4/insurance company is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the Ld. counsel for the respondent no.4.
53. 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 SOUTH SAKET COURT A/c 42706751873 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
54. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP)
55. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner :-
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1) The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
2) Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3) No cheque book be issued to petitioner/claimant without the permission of this Court.
4) The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant alongwith the photocopy of the FDR's .
5) The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
6) No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
7) Half yearly statement of account be filed by the Bank in this Court.
8) On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9) Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10)The bank is also directed to get the nomination form filled by the claimant at the time of preparation of FDRs.
11)The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12)The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the Page No.35/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.MACT 2025/19
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petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 41125-41127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT NO.
4/INSURANCE COMPANY
1. The Respondent no. 4 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
2. The Respondent no. 4 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
3. The Respondent no. 4 shall intimate the claimant/petitioner Page No.36/37 MACT 2024/19 KAPIL DEV Vs. IRSHAD AND ORS.
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about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
4. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no. 4.
5. The case is now fixed for compliance by the respondent no.4/insurance company for 15.04.2024.
Pronounced in the open court on 27th February, 2024 (SUDESH KUMAR-II) Presiding Officer : MACT (S) Saket Courts, New Delhi Page No.37/37