Delhi District Court
Ashutosh Biswas vs Vikki Mehto on 27 April, 2024
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 751/2022
FIR No. 287/2020
PS : Okhla Industrial Area
U/s 279/337/338 IPC
CNR No.DLSE010084682022
Ashutosh Biswas
S/o Sh. Sudhir Biswas
R/o H. No. S14/A147,
BlockS, JJR Camp,
Okhla Industrial Area PhaseII,
New Delhi 110020.
.....Petitioner
Versus
1. Vikki Mehto
S/o Sh. Munna Mehto
R/o House No. JA2/1133,
J.J. Colonoy, Madanpur Khadar,
Kalindi Kunj, SouthEast Delhi,
Delhi 110076.
....R1/ driver
MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 1 of 30
2. Sh. Ram Singh
S/o Sh. Ram Jeewan Singh
R/o A677, GD Colony,
Mayur Vihar PhaseIII,
Delhi.
....R2/ Owner
Date of accident : 08.07.2020
Date of filing of Claim Petition : 06.09.2022
Date of filing of DAR : 01.11.2022
Date of Decision : 27.04.2024
AWARD
1. This is an application/petition under Section 166 & 140 of Motor Vehicle Act
filed by Sh. Ashutosh Biswas S/o Sh. Sudhir Biswas (hereinafter called the
petitioner) against Sh.Vikki Mehto S/o Sh. Munna Mehto (hereinafter called the
Respondent No.1), Sh.Ram Singh S/o Sh. Ram Jeewan Singh (hereinafter called the
Respondent No.2) and Bajaj General Insurance Company Ltd. (hereinafter called the Respondent No.3) seeking compensation in respect of an accident which occurred on 08.07.2020 at about 8.30 p.m. near Sanjay Colony Police Booth, Okhla Industrial Area, Phase2, New Delhi. Subsequently, on 01.11.2022, Detailed Accident Report (DAR) was also filed, which was merged with the present claim petition vide order dated 26.11.2022.
2. On 08.07.2020, during emergency duty upon receipt of DD No. 5A, HC Jaspal MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 2 of 30 alongwith HC Ashwani reached AIIMS Trauma Center and collected MLC No. 500237784/2020 of injured and recorded his statement, who stated that on 08.07.2020 at about 8.30 p.m., when he was returning from his duty and was crossing road near Sanjay Colony Police Booth Phase2, Okhla Industrial Area, New Delhi, suddenly, a three wheeler scooter rickshaw (TSR) driven in rash and negligent manner and at a high speed hit him, as a result of which he fell down on the road and sustained grievous injuries. It is further stated that son of the claimant took him to AIIMS Trauma Center, New Delhi. Thereafter, HC Jaspal reached at the place of accident and seized the offending vehicle as well as other relevant documents. Respondent no.1 was also found at the spot, whose disclosure statement was recorded. Mechanical Inspection of the offending vehicle was got conducted. On the basis of statement of injured, FIR was registered. Upon completion of investigation, chargesheet was filed under Sections 279/337/338 IPC against driver and owner. DAR was filed by Investigating Officer before this Tribunal.
3. Notice was issued to driver as well as owner of the offending vehicle. Both the respondents were represented by their counsel on 25.07.2023.
4. As offending vehicle was not insured, respondent nos. 1 and 2 were called upon to show cause as to why they should not be directed to furnish security to the tune of Rs.75,000/ to satisfy the award, if any to be passed against them. They were also directed to file affidavit of income and assets. Neither they filed any reply to show cause nor did deposit any amount for compliance of the award. They also did MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 3 of 30 not choose to contest the petition and did not even file reply to DAR/Claim Petition.
5. Application for assessment of physical disability by Medical Board was filed and allowed, as per which permanent disability has been assessed to be 14% in relation to left lower limb of the claimant.
6. From the pleadings of parties, following issues were framed by Ld. Predecessor of this Tribunal vide order dated 25.07.2023:
i). Whether the claimant/injured suffered injuries in a road traffic accident on 08.07.2020 due to rash and negligent driving of vehicle no. DL1RK 5091 (TSR) being driven by R1 and owned by R2? OPP.
ii). Whether the claimants are entitled to any compensation, if so, to what extent and from whom?OPP
iii). Relief.
7. Thereafter matter was listed for recording of evidence. Claimant appeared as PW1 and tendered his evidentiary affidavit Ex.PW1/A and also relied upon his MLC Ex.PW1/1, Discharge Summary Ex.PW1/2, Xray report/Prescription/OPD Cards Ex.PW1/3 (colly), Medical Bills Ex.PW1/4 (colly), Aadhar Card and PAN Card Ex.PW1/5 (colly), Disability Certificate Ex.PW1/6 and DAR Ex.PW1/7. No other evidence has been led on behalf of petitioner and PE was closed on 12.03.2024.
8. Right of respondent nos. 1 and 2 to contest as well for leading the evidence was closed vide order dated 25.07.2023.
9. Arguments were addressed by counsel for petitioner. Ld. Counsel argued that MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 4 of 30 matter may be decided on the basis available on record and applicable and settled law. No one appeared for respondent nos. 1 and 2 and therefore, arguments were not advanced on their behalf.
10. On the basis of material on record, evidence adduced and arguments addressed, my issue wise findings are as under :
ISSUE NO.1 "i). Whether the claimant/injured suffered injuries in a road traffic accident on 08.07.2020 due to rash and negligent driving of vehicle no.
DL1RK 5091 (TSR) being driven by R1 and owned by R2? OPP."
11. What is required to be ascertained is whether rash and negligent driving of offending vehicle was responsible for sustaining injury by injured.
12. It has been held in catena of cases that negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable (support drawn from the case of Bimla Devi & Ors. vs. Himachal Road Transport Corportaion & Ors. [(2009) 13 SCC 530], Kaushnumma Begum and others v/s New India Assurance Company Limited, (2001 ACJ 421 SC), National Insurance Co. Ltd. vs. Pushpa Rana reported as [2009 ACJ 287].
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13. Further, in the present case, police after investigation had filed chargesheet against respondent no.1 under section 279, & 338 of IPC which is also suggestive of negligence of respondent in causing the accident. Including in the case of National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, it has been laid down by Hon'ble Supreme Court and Hon'ble High Court that completion of investigation and filing of chargesheet are sufficient proof of negligence of the driver of the offending vehicle.
14. It is also settled that if driver of offending vehicle does not enter the witness box, an adverse inference can be drawn against him as observed by Hon'ble High Court of India in the case of Cholamandlam insurance company Ltd. Vs. Kamlesh, 2009 (3) AD Delhi 310.
15. In the present case also, driver did not enter into the witness box to controvert the claim of petitioner or even to explain circumstances of accident.
16. PW1/injured deposed on the lines of original complaint/statement as recorded by IO during investigation on the basis of which chargesheet was filed against driver of offending vehicle. It is categorically affirmed in Ex.PW1/A that the offending vehicle was driven by respondent No.1 in rash and negligent manner in utter disregard to traffic rules and ended up hitting the petitioner because of which he fell down on the road and sustained injuries. Respondents have chosen not to cross examine the injured. As far as the identification of the offending vehicle is concerned, MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 6 of 30 there is absolutely no dispute as it was seized from the spot itself. Even, respondent No.1 was found at the spot and his disclosure statement was recorded as per the investigation report. That respondent no.1 was not involved in the accident has not been denied by respondent no.1 as well as by respondent no.2. Even, in response to notice under Section 133 M.V. Act, respondent no.2 (owner) stated that respondent no.1 was driving the offending vehicle on the date of accident. Any reply has not been filed by respondent No.1 or respondent no.2 disputing the accident to tender any explanation or contending facts otherwise. Any evidence to the contrary has not been led by respondent nos.1 and 2. Mechanical Inspect Report also shows fresh damages substantiating the deposition of PW1.
17. As such, in view of the above analysis of material on record, evidence proved on record, chargesheet against respondent no.1 and the fact that respondent no.1 did not appear in witness box, issue no.1 is decided accordingly, in favour of the petitioner and against the respondents.
ISSUE NO. 2ii). Whether the claimants are entitled to any compensation, if so, to what extent and from whom?OPP
18. Section 168 MV Act enjoins the Claim Tribunals to hold an enquiry into the claim to make an effort determining the amount of compensation which appears to it to be just and reasonable. Same is reproduced hereunder for ready reference:
MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 7 of 30 (1) Award of the Claims Tribunal.--On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
19. Before putting in frame the position of law, it is noted that the process of determining the compensation by the court is essentially a very difficult task and can never be an exact science. Perfect compensation is hardly possible, more so in claims of injury and disability. (As observed by Hon'ble Supreme Court of India in the case of Sidram Vs. The Divisional Manager United India Insurance Company Ltd, MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 8 of 30 SLP (Civil) No. 19277 of 2019).
20. The basic principle in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. [Support drawn from Govind Yadav vs. New India Insurance Company Ltd. , (2011) 10 SCC 683].
21. This Tribunal has been tasked with determination of just compensation. The observation of Hon'ble Supreme Court of India in Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr. , (2003) 7 SCC 197, needs mention here (para 15):
Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness.. ..."
MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 9 of 30
22. Delineating the damages as pecuniary and non pecuniary, Hon'ble Supreme Court of India, in case of R. D. Hattangadi Vs. Pest Control (India) Pvt Ltd. reported as 1995 AIR 755, made following observations:
"9....while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
23. Certain principles for delineating just compensation were enumerated in the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, by Hon'ble Supreme Court of India. Following observations are relevant in the context:
"40.General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 10 of 30 should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v. Willoughby [1970 AC 467 :
(1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)]
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.
Nonpecuniary damages (General damages) MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 11 of 30
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)
(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of nonpecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)(a). We are concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 12 of 30 the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 13 of 30 percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 14 of 30 Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 15 of 30 disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
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24. The abovesaid principles have been placed reliance upon in a recent judgment reported as Sidram Vs. The Divisional Manager United India Insurance Co. Ltd and Anr., arising out of SLP (Civil) no. 19277 of 2018 passed by Hon'ble Supreme Court of India as decided on 16.11.2022.
25. It is settled proposition of law as held in catena of judgments that "just compensation" should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives.
26. PW1/injured deposed that he was working as a tailor (private job) in Delhi and was earning Rs.25,000/ per month before the accident and has been unable to work efficiently postaccident. But for bald deposition, no supporting document has been placed on record to show that claimant was a qualified tailor. Even, the name of his employer has not been mentioned in his evidentiary affidavit. Any document to show his educational or technical qualification has also not been placed on record. It is noted that claimant has placed on record his Aadhar Card Ex.PW1/5, as per which claimant is a resident of Delhi. Same address is mentioned in the MLC, DAR, charge- sheet and evidentiary affidavit tendered by injured/PW1 himself. Accordingly, his MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 17 of 30 income is taken to be that of minimum wage for unskilled worker as applicable in NCT of Delhi on the date of accident which is @ Rs.15,310/- per month and is taken/presumed to be the monthly income of the injured.
27. Through, injured/claimant claimed that he could not go to work for atleast 6 months and had to avail long leave, medical documents/bills have produced on record are for the period from July to September, 2020. No leave application has been placed on record. Accordingly, it is held that claimant suffered loss of income for four months.
28. It is further deposed by PW1/injured that he is claiming compensation also for future prospect/ functional disability. It is submitted that as per medical disability certificate, petitioner received 14% permanent disability in relation to left lower limb. Counsel for petitioner has argued that 14% disability should be counted for the whole body as claimant used to work as a tailor and therefore, his earning capacity has been adversely affected. Considering the nature of occupation of claimant, disability in his lower limb would definitely have an adverse effect on his functional efficiency.
29. Having regard to nature of injury and part of body involved corresponding to the nature of work/business and the demands it carries for time bound deliveries, it is assumed to have some effect on the functional efficiency of claimant. His functional disability is taken/ assessed to be 7 %.
30. Multiplier : As per evidence on record, date of birth of the claimant is MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 18 of 30 01.01.1964, as per documents placed on record. As such, he was above 56 years at the time of accident on 08.07.2020, therefore, applicable multiplier is taken as 09. (Reference drawn from the case of Sarla Verma & Ors. Vs. Delhi Transport Corp. & Anr. SLP (C) no. 8648 of 2007, decided by Hon'ble Supreme Court of India).
31. Future Prospect : It is settled that compensation towards future prospect is admissible in cases of serious injury resulting in permanent disability (support drawn from the judgment of Hon'ble Supreme Court in Pappu Deo Yadav vs. Naresh Kumar & Ors., AIR 2020 SC 4424 as also followed by Hon'ble Delhi High Court in case of National Insurance Company vs. Pankaj Malhotra MAC App. 552 of 2023).
32. As injured was between the age of 50 to 60 years and was self employed, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 10 % upon application of category of ''self-employed or on a fixed salary''.
33. In view of the above discussion of law, the calculation under future loss of income in the present case is as under :
(i) Annual income (Rs.15,310/ x 12) : Rs.1,83,720/
(ii) Future prospect (10% of 1,83,720/) : Rs.18,372/ Total (Multiplicand) : Rs.2,02,092/
(iii) Hence the 'Total Loss of Future Income' shall be : (percentage of functional disability (multiplicand x multiplier) (7% of Rs.2,02,092/ x 9) : Rs. 1,27,317.96/ MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 19 of 30
34. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
Sl. Pecuniary loss : Quantum
no.
1. (i) Expenditure on treatment : having Rs.3,380/
regard to material on record including
documents/bills Ex.PW1/4 (colly) and the
findings above. (As per actuals).
(ii) Expenditure on Conveyance : Rs. 10,000/
Petitioner has not filed any bills. He has got
his treatment from AIIMS Trauma Center.
(iii) Expenditure on special diet : There Rs.20,000/
is no prescription for special diet.
The nature of injuries are grievous and
petitioner suffered 14% permanent
physical impairment in relation to his left
lower limb.
By guess work, compensation can be
awarded for special diet.
(iv) Cost of nursing / attendant : The Rs.20,000/
nature of injuries are grievous and
petitioner suffered 14% permanent
physical impairment in relation to his left
lower limb.
Even in the absence of documentary
proof, compensation for attendant's charges
is to be given even if services were
rendered by family members.
MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 20 of 30
(v) Loss of income : Compensation Rs. 61,240/
towards loss of income, as noted above is
Rs. 15,310 / x 4 months = Rs. 61,240/
(vi) Cost of artificial limbs (if NA
applicable): :
(vii) Any other loss / expenditure : NA
2. NonPecuniary Loss :
(i) Compensation of mental and physical Rs.30,000/
shock : The nature of injuries are grievous
and petitioner suffered 14% permanent
physical impairment in relation to his left
lower limb, he would have undergone great
mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 30,000/
for pain and suffering is to be awarded
keeping in mind the nature of injuries
suffered by the petitioner.
(iii) Loss of amenities of life : The nature Rs.15,000/
of injuries are grievous and petitioner
suffered 14% permanent physical
impairment in relation to his left lower
limb.
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning
capacity
(I) Percentage of disability assessed and The nature of
MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 21 of 30
nature of disability as permanent or injuries are grievous temporary and petitioner suffered 14% permanent physical impairment in relation to his left lower limb.
(ii) Loss of amenities or loss of Already granted
expectation of life span on account of
disability :
(iii) Percentage of loss of earning 7%
capacity in relation to disability: As
already discuss above.
(iv) Loss of future Income: As discussed Rs. 1,27,318/
above. (round off)
(v) Future medical expenses Nil
Total Compensation Rs.3,16,938/
Deduction, if any : Nil
Total Compensation after deduction Rs.3,16,938/
Interest As directed below
35. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 22 of 30 Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988: Three decisions were cited before us by Mr. A. P. Mohanty, learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MV Act 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4 A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 23 of 30
36. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 28112812 OF 2020 [Arising out of SLP (C) Nos.84958496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
Total Award Amount
37. Thus, the total award amount comes to Rs.3,16,938/. It is further directed that the claimant shall be entitled to simple interest @ 9% p.a. from the date of filing of petition till actual realization of Award amount/compensation. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
LIABILITY
38. In this case, offending vehicle was not insured which is a matter of record. Further, respondent nos. 1 and 2 failed to deposit the security amount and did not file any reply to DAR. Keeping in view the entirety of the facts and circumstances involved in the present case and the above-said guidelines laid down by Hon'ble MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 24 of 30 Supreme Court and Hon'ble High Court of Delhi, entire liability falls on their shoulder and respondent no.1/driver and respondent no.2/owner are held to be liable to pay the compensation and award amount in question jointly and severally to the petitioner as held above.
39. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 00000042706870765 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any to the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
40. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 25 of 30 amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
41. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
42. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs. R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 26 of 30 literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos.
(i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 27 of 30 ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
43. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same, in the same manner in which he would have otherwise earned.
44. Keeping in view the entirety of the facts and circumstances involved in the MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 28 of 30 present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, entire award amount of Rs.3,16,938/ along with interest, be released to the petitioner/injured in his bank account near his place of residence as per rule/ directions.
FORM -VIB SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 08.07.2020 2 Name of injured Ashutosh Sharma 3 Age of the injured 56 years 4 Occupation of the Not proved injured 5 Income of the injured Rs.15,310/- as per minimum wages as discussed.
6 Nature injury Grievous.
7 Medical treatment As per record.
taken by the injured:
8 Period of As per record.
MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 29 of 30 Hospitalization 9 Whether any 14% permanent physical permanent disability? impairment in relation to his left lower limb.
45. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate.
46. Put up on 27.05.2024 for compliance.
Announced in the open court on 27.04.2024.
(Shelly Arora) PO (MACT)02, SE/Saket Courts New Delhi MACT No. 751/22 Ashutosh Biswas Vs. Vikki Mehto Page No. 30 of 30