Delhi District Court
Mukesh Kumar (Dar) vs Saurabh Saini (200/20, Ac) on 27 February, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 345/2020
FIR no. 200/20
PS: Amar Colony
U/s 279/338 IPC & 3/181, 146/196 MV Act
CNR No. DLSE01-004455-2020
Mukesh Kumar Vs. Saurabh Saini & Ors.
Mukesh Kumar
S/o Daya Chand
R/o H. No. 89, Prem Gali no.1
Kotla Mubarakpur, New Delhi
...Claimant/Petitioner
Versus
1. CCL
..... Driver /R-1
2. Waqar Ahmad
S/o Md. Fardaus
R/o H. NO. 1667, Gali Takht Wali
Sui Walan, Daryaganj, New Delhi.
..... Owner /R-2
Date of accident : 24.05.2020
Date of filing of DAR : 29.10.2020
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Date of Decision : 27.02.2025
AWARD
1. Detailed Accident Report (hereinafter referred as DAR) in respect of an
accident was filed by police official concerned which is being treated as Claim
Petition under Section 166 (1) read with Section 166 (4) MV Act. It pertains to
accident of injured Sh. Mukesh Kumar (hereinafter referred as claimant)
allegedly caused by offending vehicle bearing Reg. DL 1LAB 6582 driven by
Sh. Saurabh Saini (hereinafter referred as R-1), owned by Sh. Waqar Ahmad,
(hereinafter referred as R-2).
Brief facts:
2. Upon receipt of DD no. 04 on 24.05.2020 from AIIMS Trauma Center,
police officials collected the MLC of Mukesh Kumar, Pankaj, Maharaj Singh,
Rafiq Ahmad. It was informed that injured Pankaj, Maharaj Singh and Rafiq
Ahmad had already left the hospital after treatment whereas Mukesh Kumar
was found admitted with MLC no. 500233029/20 and was declared unfit for
statement. HC Ram Avtar also visited the spot of accident at Okhla Red Light,
however, any accidental vehicle or eye witness was not found. Subsequently, on
25.05.2020, injured Pankaj visited police chowki where his statement was
recorded. Injured Pankaj Kumar stated that he was waiting for passengers for
his TSR bearing Reg. No. DL 1RS 0671 on 24.05.2020 at about 06.00 AM, on
the road from Modi Mill towards Lajpat Nagar in front of public utility, where
other autos were also stationed to pick passengers, suddenly a truck bearing
Reg. no. DL 1LAB 6582, coming from the side of Modi Mill very speedily and
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negligently driven, dashed into his TSR, which then got rammed into another
TSR bearing Reg. No. DL 1RK 8371 because of which he and other three
persons standing there got seriously injured. He stated that truck driver had
stopped the vehicle at a distance and his name was revealed as Saurabh Saini
S/o Mohan Lal, R/o Village Ved Garhi PS Junenna, Tehsil Kairana, Distt.
Shamli, Uttar Pradesh. He alleged that the aforementioned truck caused the
accident due to speedy and rash driving. FIR was registered. Offending vehicle
as well as the accidental TSRs were taken into police possession. Notice u/s 133
MV Act was served. Documents pertaining to the offending vehicle were
produced. Owner of the vehicle could not produce the insurance. Driver also
could not produce the DL. Relevant penal provisions were added. Site plan was
prepared. The vehicles were got mechanically inspected. Statement of witnesses
were recorded. Upon completion of investigation, charge-sheet was filed under
Sections 279/338 IPC & 146/196 & 3/181 MV Act against R-1 before Ld.
concerned criminal court. DAR was filed by Investigating Officer before this
Tribunal.
Proceedings:
3. DAR was filed. In the ordersheets dated 29.10.2020, 03.12.2020,
05.02.2021 & 20.03.2021, presence of counsel Sh. Habib Ahmad has been
mentioned as representing R-1 as well as R-2, however, v/k has been filed only
for R-2. Also owner of the vehicle stated himself to be present for the driver as
well as noted in the order dated 29.10.2020. Perusal of the record reflects that a
Memo of Appearance by Mohd. Riyaz Ahmad was also filed on behalf of R-1
and he subsequently appeared for two dates in the matter. Along with Memo of
Appearance, Counsel for R-1 had filed an order dated 30.11.2023, passed by Ld.
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Principal Magistrate, JJB-II Delhi where he had appeared for the CCL
presumably R-1 in the matter wherein he was admonished for the commission
of offence, punishable under Section 279/337/338 IPC and 3/181 MV Act. It is
noted that his age as per copy of charge sheet filed along with DAR has been
mentioned to be of 21 years. However, upon query from the concerned
Magisterial Court, it was informed that the case was referred to Ld. JJB
Concerned as R-1 was held to be a minor/ CCL vide order dated 22.08.2023.
Accordingly, he is treated as a minor in the present DAR.
4. Counsel representing R-1 & R-2 appeared however reply was filed only
by R-2. It is stated that R-2 had appointed one Kuldeep Barar as his driver who
had valid DL while R-1 was the conductor / helper appointed by Kuldeep Brar,
therefore, R-1 was not the driver of the offending vehicle at the time of
accident. Other general defences were taken. Respondents were directed to
furnish security deposit of the amount of Rs. 8 lakhs vide order dated
28.02.2023. Same was however not deposited. Accordingly, the offending
vehicle was auctioned and auction proceeds of Rs. 1,21,201/- was deposited as
noted in the order dated 20.10.2023.
Issues:
5. From the pleadings of parties, the following issues were framed vide
order dated 28.05.2022:
1) Whether the injured suffered injuries in a road traffic
accident on 24.05.2020 due to rash and negligent driving of
vehicle no. DL 1LAB 6582 being driven by R-1 and owned by
R-2 ? OPP.
2) Whether the petitioners are entitled to any compensation, if
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so, to what extent and from whom ? OPP.
3) Relief.
6. Disability Assessment Certificate was filed as per which he was opined to
have suffered 80% permanent physical disability in relation to left lower limb
with his left lower limb amputated.
Evidence:
7. Matter was then listed for Petitioner Evidence. Injured Mukesh Kumar
appeared as PW-1 and tendered his evidentiary affidavit as Ex.PW1/A and
relied upon following documents:
i) Disability Report - Ex.PW1/1
ii) Copy of driving license- Ex.PW1/2
iii) Copy of Aadhar Card - Ex.PW1/3
iv) Copy of Aadhar Card of mother of deponent- Ex.PW1/4
v) Copy of Aadhar Card of wife of deponent - Ex.PW1/5
vi) Copy of Aadhar Card of children of deponent as Ex.PW1/6
vii) DAR - Ex.PW1/7
ix) Copies of medical bills - Ex.PW1/8
PW-1 was then cross examined by counsel for R-2.
8. petitioner evidence was then closed. Any evidence has not been led by
R-1 or R-2 as such Respondent Evidence was closed. Matter was then listed for
Final Arguments.
Arguments:
9. Final Arguments were advanced by counsel for claimant as well as by
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respondents. Written Submissions were filed by both the contesting counsels.
Counsel for claimant argued that the accident happened on account of rash and
negligent driving of respondent no.1. He also stated that the left leg of injured
was amputated on account of injuries sustained in the accident causing deep
grave mental and physical pain to him as well as his family.
10. Counsel for R-2 has argued that R-1 was only the conductor whereas the
driver appointed by him was one Kuldeep Brar who had valid Driving License.
Moreso that the accident never happened with the offending vehicle.
Findings:
11. On the basis of material on record, evidence adduced and arguments
addressed, issue wise findings are as under :-
ISSUE NO.1
1) Whether the injured suffered injuries in a road traffic
accident on 24.05.2020 due to rash and negligent driving of
vehicle no. DL 1LAB 6582 being driven by R-1 and owned by
R-2 ? OPP.
12. What is required to be ascertained is whether rash and negligent driving
of offending vehicle was responsible for sustaining injury by injured.
13. 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
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are not applicable support drawn from the cases of Bimla Devi & Ors. Vs.
Himachal Road Transport Corporation & Ors, (2009) 13 SC 530, Kaushnumma
Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421
SC, and from the case of National Insurance Co. Ltd Vs. Pushpa Rana cited as
2009 ACJ 287}
14. Mukesh Kumar appeared and deposed that he was standing along his road
side positioned TSR on 24.05.2020 at about 06.00 AM in the morning on the
main road near red light of Okhla Vegetable Market, when he was hit by a
speeding and rashly driven truck bearing Reg. No. DL 1LAB 6582 coming from
Modi Mill side, dashed against the two TSRs positioned due to which he
sustained serious injuries and his left leg had to be amputated during treatment.
He was cross examined by counsel for R-2/ owner of the offending vehicle. No
question has been put to the witness in respect of mode and manner of the
accident.
15. The accident was immediately reported to the police. There were four
persons injured in the accident. FIR was lodged upon the complaint of one of
the injured whose compensation case was settled by R-2. His statement qua the
contextual circumstances of the accident corroborate with the deposition of
PW-1. Counsel for R-2 has not been able to elicit any contradiction in the
testimony of PW-1 and there is no good reason as to why same should not be
believed. Site plan filed on record also supports the version of PW-1 as well as
the complaint which formed the basis fo registration of FIR. There is no dispute
in the involvement or identification of the offending vehicle. The registration
number was recorded by the injured person at the spot of accident itself. The
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name of driver was also told by R-1 himself to the injured persons which was
thereafter mentioned in the complaint filed on the subsequent date. The
offending vehicle was seized on the next date of accident and in mechanical
inspection extensive fresh accidental damages have been recorded in the body
of the truck as well as the two TSRs struck by it. The notice u/s 133 MV Act
was served upon owner of the offending vehicle on the date of registration of
FIR itself who informed that his driver Saurabh Saini, aged 21 years was
driving the vehicle at the time of accident.
16. Counsel for R-2 has contended that R-1 was not employed by him rather
he had employed one Kuldeep Brar as a driver who had a valid license. Neither
Kuldeep Brar has been produced in the witness box nor R-1 or R-2 were
examined to affirm the stand taken in the WS. Moreso, even this defence was
not put to PW-1 in the cross examination that R-1 was not at wheels at the time
of accident. There is thus no substance in the contentions raised by counsel for
R-2. 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 Delhi High Court in the case of Cholamandlam insurance company
Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310.
17. The impact of accident itself speaks volume about the mode and manner
of the accident. The entirety of evidence gives conclusion that accident occurred
on account of reckless driving on account of speedy, reckless and rash driving
on the part of R-1. Having so concluded, issue no.1 is decided in favour of the
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petitioners and against the respondents.
ISSUE NO. 2
"Whether the injured is entitled to any compensation, if so, to what
extent and from whom?OPP"
"The determination of quantum must be liberal, not niggardly since the law values life and
limb in a free country in generous scales"
{as observed by Hon'ble Supreme Court of India in the case of Concord of India Insurance
Company Limited v Nirmala Devi (1979 )4SCC 365}
18. Sec. 168 MV Act enjoins the Claim Tribunals to hold an inquiry into the
claim to determine the compensation payable and pass an award. Relevant
portion of Section 168 MV Act is reproduced hereunder for ready reference:
"(1) Award of the Claims Tribunal.--On receipt of an application for
compensation made under section 166, the Claims Tribunal shall,
after giving notice of the application to the insurer and after giving
the parties (including the insurer) an opportunity of being heard, hold
an inquiry into the claim or, as the case may be, each of the claims
and, subject to the provisions of section 162 may make an award
determining the amount of compensation which appears to it to be
just and specifying the person or persons to whom compensation shall
be paid and in making the award the Claims Tribunal shall specify the
amount which shall be paid by the insurer or owner or driver of the
vehicle involved in the accident or by all or any of them, as the case
may be: Provided that where such application makes a claim for
compensation under section 140 in respect of the death or permanent
disablement of any person, such claim and any other claim (whether
made in such application or otherwise) for compensation in respect of
such death or permanent disablement shall be disposed of in
accordance with the provisions of Chapter X.
.
.
.
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19. "....Money cannot renew a physical frame that has been battered." {as observed in the case of H. West and Son Limited v Shephard 1958 -65 ACJ 504 (HL, England)}. It recognizes that the physical damage caused once cannot be fully undone. Something which remains as an indelible permanent signs of an unfortunate incident cannot be balanced merely by paying some monetary compensation. The process of damage and the ugly scars left on physical body and mental self, navigating through the entire process post accident and the unintended but compulsory turns that it brings in the course of life is indeed painful and traumatic. It is also required to be underlined that the damage is not restricted to the tangible injuries visible on the body of the injured rather catapults the lives of his family members also.
20. The assessment or grant of compensation is a small attempt to render assistance to the injured to navigate through the hairpin unanticipated sudden and traumatic turn in order to bring some elbow space for him to move towards stability and normalcy to the extent possible. The underlying principle remains thus to make good the damage so far as possible as equivalent in money.
21. Section 168 MV Act puts an obligation over Tribunal to assess ' just' compensation with the object of putting the sufferer in the same position as nearly as possible as he would have been if he had not sustained the wrong. It is worthwhile to reproduce certain observations made by Karnataka High Court in the case of K. Narasimha Murthy v. Oriental Insurance Co. Ltd ILR 2004 KAR 2471 as referred and relied in the case of Rekha Jain v National Insurance Company Limited Civil Appeal No. 5370-5372 of 2013 which enumerates the milestones to be kept in mind by the Tribunal in an endevour to assess just compensation, at the same time acknowledging that any amount of money MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 10 of 43 cannot compensate fully an injured man or completely renew a shattered human physical frame as under:
"16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries."
22. It is also settled that the monetary assessment is a methodology known to law as social and legal security to a victim even though the nature of injuries and the individual ramifications might vary in different cases, therefore, it is understandable that one remedy cannot heal all. Further, the loss is in the nature of deprivation and it is unlike a personal asset with a price tag which can be simply awarded and therefore, complete accuracy in making such assessment is not humanly possible. The endevour is thus to make an assessment as best and as fair as possible under the given circumstance. The uncertainty of bringing justness to an assessment has been recognized, still holding that substantial damages must be awarded. The observations made by Lord Halsbury in the case of Mediana In re 1900 AC 113 (HL) give valuable insights into the aspect and MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 11 of 43 reproduced as under:
"......Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in money counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident....... But nevertheless the law recognises that as a topic upon which damages may be given"
23. The uncertainty involved has also been recognized by Hon'ble Supreme Court of India in the case of Rekha Jain (supra) where observations of Lord Blacburn in the case of Livingstone v Rawyards Coal Company were referred as under:
".......where any injury is to be compensated by damages, in settling the sum of money to be given... you should as nearly as possible get at that sum of money which will put the party who has been injured.. in the same position as he would have been if he had not sustained the wrong...."
24. It is further observed by their Lordship in the case of Rekha Jain (supra) as follows:
"41.....Besides, the Court is well advised to remember that the measures of damages in all these cases 'should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 12 of 43 contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing' is quite opposite to be kept in mind by the Court in assessing compensation in personal injury cases."
25. It is also settled that the compensation is not granted only for the physical injury but for the entire loss which results from the injury in an endevour to place the victim in a position as close as possible as prior to the accident (support drawn from National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 also in Raj Kumar v. Ajay Kumar Civil Appeal No. 8981 of 2010). It is also settled as held in catena of judgments that the Motor Vehicles Act is a beneficial piece of legislation and the object of the Tribunal ought to be to assist the injured persons, (support drawn from Helen C Rebello (Mrs) & Ors. v. Maharashtra State Road Transport Corporation and Anr (1999) 1 SCC 90).
26. It is settled that an injured is required to be compensated for his inability to lead full life, his inability to enjoy those natural amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned (support drawn from judgment of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376 as further referred and relied in the case of Raj Kumar (supra) and then in a recent pronouncement of Sidram v The Divisional Manager United India Insurance Co. Ltd and Anr., arising out of SLP (Civil) no. 19277 of 2018.
27. What is required of the Tribunal is to attempt objective assessment of damages as nearly as possible without fanciful or whimsical speculation even though, some conjecture specially in reference of the nature of disability and it MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 13 of 43 consequence would be inevitable. {support drawn from Raj Kumar (supra) as referred and relied in Sidram (supra).
28. Observing that a measure of damages cannot be arrived with precise mathematical calculations and that much depends upon peculiar facts and circumstances of any matter, Hon'ble Supreme Court of India elaborated upon the expression "which appears to it to be just" in the case of Divisional Controller, KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197. The relevant para of the said judgment is reproduced here for ready reference:
"15. ......It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. 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.. ..."
29. The observations made by Hon'ble Supreme Court of India in the case of K. Suresh v New India Assurance Company Limited (2012) 12 SCC 274 provide valuable insights into the factors to be weighed by the Tribunal for MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 14 of 43 determination of quantum of compensation, the relevant extract of which is reproduced as under:
"10. It is noteworthy to state that an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad- based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation" should be inhered."
30. The compensation has been broadly delineated as pecuniary and non pecuniary in the case of R. D. Hattangadi v Pest Control India Pvt Ltd. 1995 AIR 755, it is worthwhile to reproduce certain observations made therein:
"9....while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:
(i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 15 of 43 in life."
31. The issue of determination of compensation in a personal injury matter was extensively deliberated by Hon'ble Supreme Court of India in the case of Raj Kumar (supra) Relevant extract of the aforesaid judgment are reproduced hereunder for further discussion:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)
(a) do not pose much difficulty as they involve reimbursement of MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 16 of 43 actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)-- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)(a). We are concerned with that assessment in this case.
PECUNIARY DAMAGES
32. Damages under pecuniary heads primarily involves reimbursement of actual amount spent on account of injury suffered in an accident to undo the monetary loss, suffered by the claimant, as ascertainable from the evidence on record. Given hereunder are various heads under which compensation for pecuniary damages is assessed:
Expenditure on Medical Treatment:
(i) Injured has filed the summary of the medical treatment expenses as totaling Rs. 1,63,843/- including the cost of prosthetic limb. No dispute has been raised with respect to the bills placed on record as Ex.PW1/8 (colly).
Accordingly, Rs. 1,68,843/- is given towards medical expenses (including sundry expenses of Rs. 5,000/-).
Expenditure on Conveyance:
(ii) Claimant has not filed any bill towards expenditure on conveyance. The medical treatment was undertaken in AIIMS. The nature of injuries are grievous with 80% permanent physical impairment in relation to left lower limb and MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 17 of 43 therefore, he would have required appropriate transport mechanism in place to commute for the purpose of treatment as well as for further consultations.
Further, his family members or support persons also would have required to attend to him during hospitalization and also for further treatment. An amount of Rs. 50,000/- is awarded towards the head of conveyance. Expenditure on Special Diet:
(iii) Claimant remained admitted in hospital for about one & half months.
Claimant has not filed any prescription containing recommendation for special diet, however, given his medical condition, it must have been imperative to eat nutritious and healthy diet for faster and efficient improvement. Claimant remained under active medical treatment for several months. Accordingly, an amount of Rs. 50,000/- is awarded to claimant towards expenditure on special diet.
Expenditure for attendant:
(iv) Claimant has not filed any bills to show that he had made payment towards attendant charges. Injured has been assessed 80% permanent disability in relation to left lower limb with his left lower limb amputated on account of grievous injuries sustained in the accident. It is evident that he would be able to perform his daily activities with assistance, using calipers or wheelchair.
Considering the prolonged hospitalization and the nature of injuries sustained, it is logical that the injured would have required services of attendant throughout period of hospitalization and medical care post hospitalization. It is also noted that his movement would have been severely restricted on account of injuries in both the legs with left lower limb amputated and therefore, it can be accepted that he would nonethelsess continue to require assistance and support from his family member or any external help or attendant.
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(v) Attendant charges were fixed at Rs. 2,000/- per month in the case of Sidram (supra) where permanent physical disability of 45% of whole body was certified by the doctors for an accident in the year in 2012. Whereas in the case of Abhimanyu Pratap Singh. v Namita Sekhon & Anr, (2022) 8 SCC 489, the cost of home attendant charges were fixed at Rs. 4,000/- per month for a period of 20 years.
(vi) Acknowledging the need of at least one attendant for 12 hours a day in the backdrop of nature of assistance required, the home attendant charges are fixed at Rs. 4,000/- per month.
(vii) It is settled that the multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges. {as recognized in Gobald Motor Services Ltd. v R. M. K. Veluswami 9 AIR 1962 SC 1 as refereed and relied in Kajal v Jagdish Chand and Sidram Civil Appeal No. 735 of 2020}.
Applying the standard multiplier method, the attendant charges are calculated as under:
Rs. 4,000/- x 12 x 15 = Rs. 7,20,000/-
Accordingly Rs. 7,20,000/- is awarded under the head of Attendant Charges.
Loss of earning during the period of treatment:
(viii) PW-1 deposed that he was a TSR auto driver and has placed on record coy of DL as Ex.PW1/2. In fact he was standing to pick passengers when the accident occurred. There is nothing on record to doubt his deposition as far as this aspect is concerned. As per his Aadhar Card Ex.PW1/3, he was a resident of MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 19 of 43 Kotla Mubarakpur, Delhi. He has not placed on record any educational qualification certificate, accordingly, his monthly earning is taken to be as per minimum wages for skilled workman applicable in the State of NCT of Delhi as on the date of accident which was Rs. 18,563/-.
(viii-a) Injured remained admitted in the hospital for about 1 & ½ months post accident. As such any consultation documents post discharge has not been filed on record, it is evident from the nature of injury that he would not have been in a position to even anticipate about rejoining his work to make living. Counsel for the claimant has sought loss of income for six months in the Written Computation. It is reasonable to infer that the injured would have suffered loss of income for at least six months post accident.
Thus amount calculated to be Rs. 18,563/- x 6= Rs.1,11,378/-.
(F) Loss of future earning
(ix) It is settled that a person is required to be compensated not just for the physical injury but also for the loss he has suffered as well as the loss which he might entail for the rest of his life on account of those injuries which he sustained in the accident. This necessarily means that he is required to be compensated for his inability to lead a full life, his inability to enjoy normal amenities, which he would have enjoyed but for the injury, his inability to earn as much as he used to earn or could have earned. (Support drawn from the judgment titled as C. K. Subramania Iyer v. T. Kunhikuttan Nair (1969) 3 SCC
64.
(x) Claimant was directed to be assessed for his disability. Disability Assessment Certificate was received as per which he was opined to have MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 20 of 43 suffered 80% permanent physical disability in relation to left lower limb with his left lower limb amputated.
(xi) Before proceeding further, it is important to understand as to what disability means and also types thereof. This aspect has been delved into by Hon'ble SC in Raj Kumar (supra):
"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
(xii) The term 'disability' means the decrements to the functional efficacy of body of injured whereas 'functioning' encompass all the body functions and activities for an independent life. Functional disability is to determine the extent of loss or extent of restrictive functionality considering the nature of MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 21 of 43 activities required to be necessarily performed in efficient discharge of duties and the limb effected. This computes the extent of adverse effect of physical disability upon the functional efficacy of an injured person, in turn adversely impacting his earning capacity. The process entails understanding and enumerating the skill set required for performing specific activities. To sum up, functional disability basically measures the extent of ability having been compromised to carry out basic everyday tasks or even more complex tasks required for and independent living. The limitations may occur on account of disability in the personal sphere, in the social sphere and in the occupational sphere. In the personal sphere it may encompass the daily activities of a person, his body function and his involvement in basis life situations. At the societal level, it could mean difficulty in involvement and participation in social and community activities interfering the interpersonal interaction and relationship adversely impacting the civic life. When disability restricts the vocation or employment avenues to make earning for his living, it falls in the category of disability in the occupational sphere. The disability might occur on account of age or any illness and in the case at hand by way of an accident. A person living a normal life in particular set of circumstance and making his living by engaging in any work has suffered disability which might impead his daily life activities, both on a personal and social scale and might also impact his ability to continue earning as much as before and his future employment avenues.
(xiii) What is thus required to be assessed is the effect and impact of disability upon the working efficiency of injured and whether it would adversely impact his earning capabilities in future. It is settled that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity.
MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 22 of 43
(xiv) Hon'ble SC laid down certain guidelines for the Tribunal to be able to arrive at an objective figure to quantify the loss for the purpose of computing the compensation in the judgment of Raj Kumar (supra). Relevant extracts of this judgment for the purpose of further discussion are reproduced hereunder:
"Assessment of future loss of earnings due to permanent disability
9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 23 of 43 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 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 MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 24 of 43 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 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.
.
.
.
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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 MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 25 of 43 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."
(xv) Further in the case of "Mohan Soni v Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC), the question at hand was deliberated and following observations as relevant in the context were made:
"In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller. (xvi) The question of assessment of impact of disability on the earning capacity has been dealt in several cases but it is understood that each case has to be evaluated on its contextual dynamics established by way of evidence at hand. It brings us to a question whether extent of permanent disability as medically determined can simply be taken to be the extent of functional disability and MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 26 of 43 hence, the loss of earning capacity. It has been held in various pronouncements of Hon'ble Supreme Court of India and Hon'ble High Court that equating the two as a criteria would result in an inobjective and absurd compensation. There however, might be certain cases where the two would correspond to each other but it cannot be mechanically applied rather requires evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
(xvii) In the case at hand, injured was self employed as a TSR driver. Claimant has suffered 80% permanent disability in relation to his left lower limb with left lower limb amputated due to injuries sustained in the accident. It is evident that the injured would not be able to carry on with the TSR driving post accident. It can be also be reasonably inferred that injured would not be in a position to perform any activities where efficient mobility is required. It is settled that the injured cannot be compelled to change his job or vocation so as to undo or dilute the impact of permanent disability on his earning capacity. The argument that the victim could adopt some other means of livelihood is only a hypothetical conjuncture without any substantiation at this stage. With the loss of one lower limb, the injured would not be able to render his services as TSR driver which involves extensive balanced usage of all the four limbs and is therefore, bound to suffer almost total loss of income. It is thus evident that the earning capacity of the injured as on the date of accident stood completely negated rendering him incapable to earn by way of TSR driver. It is also settled that compensation for the loss of future earning has to be just and proper so that the injured is enabled to live a dignified life. It is not a case of a person doing desk job where loss of a leg would not have significant impact upon the earning capacity, which would not be the situation in a case involving driver where MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 27 of 43 mobility and movement of legs is a prime factor to determine earning capacity.
Accordingly, on the basis of discussion made above, his functional disability is evaluated as 80% in respect of the earning capacity of injured.
(F1) Future Prospect:
(xviii) It is also held therein that future prospect (as laid down in the well considered judgment of National Insurance Company v Pranay Sethi (2017) 16 SCC 680) shall be payable, not only in fatal cases but also in the case of permanent disability. The observations made in the said case as relevant to the context are reproduced hereunder:
"6. The principle consistently followed by this court 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.
7. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683. This court referred to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551; Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1; Reshma Kumari v. Madan Mohan (2009) 13 SCC 422; Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. Govind Yadav spelt out these principles by stating that the courts should, "in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." These decisions were also followed in ICICI Lombard General Insurance Co. Ltd. v. Ajay Kumar Mohanty, MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 28 of 43 (2018) 3 SCC 686. prospects too; and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three-judge bench decision in Jagdish was not binding, but rather that the subsequent decision in Anant10 to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi11 is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death.
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(xix) Hon'ble Supreme Court further discussed several cases involving permanent disability and observed as under:
20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads.
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....What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected".
(xx) PW-1 has filed his Aadhar Card as Ex.PW1/1 on record as per which his MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 29 of 43 date of birth is 20.10.1979, therefore, his age as on the date of accident was about 40 years & 7 months. Since the injured was between the age of 40-50 years (at the time of accident) and was employed on a fixed salary, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 25 % upon application of category of ''self-employed or on a fixed salary''.
(F2) Multiplier:
(xxi) The multiplier method was coined by Hon'ble Supreme Court of India in the case of Sarla Verma v Delhi Transport Corporation & Anr. Civil Appeal No. 3483 of 2008, decided on 15.04.2009 to ascertain the future loss of income in relation to the age of the deceased, in order to bring about the uniformity and consistency in determination of compensation payable in fatal and serious injuries matters. Relevant observations with respect to the multiplier method in the abovementioned case read as under:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
(xxii) The standard multiplier method was directed to be applied not only to ascertain the loss of dependancy in fatal accident case but also to determine future loss of earning in serious disability matters as well {as laid in the case of Raj Kumar (supra)}. In a recent Judgment of Pappu Dev Yadav (supra), Hon'ble MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 30 of 43 Supreme Court of India relied upon and reiterated the principles laid in various judgments passed by it in the case of Sr. Antony @ Antony Swamy v Managing Director KSRTC, Civil Appeal No. 2551 of 2018 and held that stereotypical or myopic approach must be avoided and pragmatic reality of life must be taken into account to determine the impact of extent of disability upon the income generated capacity of victim.
(xxiii) The income of the injured per annum as determined upon appreciation of evidence, thus, forms the multiplicand. A table of multiplier with reference to the age was laid down by Hon'ble Supreme Court of India. The appropriate multiplier, applicable in this case would be 15 (for age group between 36 to 40 years).
(xxiv) In view of the above discussion of law, the calculation under future loss of income in the present case is as under:
(a) Annual income (Rs. 18,563/- x 12) = Rs.2,22,756/-
(b) Future prospect (25% of Rs.2,22,756/-) = Rs. 55,689/-
__________________
(c) Total = Rs. 2,78,445/-
(d) Thus, Multiplicand = Rs. 2,78,445/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 31 of 43 80% (Rs. 2,78,445/- X 15) = Rs. 33,41,340/- (F3) Future medical expenses: (xxv) PW-1/ Injured has also not placed on record any estimate towards
the cost of such artificial limb or the periodical // yearly maintenance thereof, nor has examined any witness in respect of the prospective expenses towards it, however, considering the amputation, subject to the medical advice, technical propriety and objectivity, injured can always elect to avail support of an artificial limb in order to attain sense of normalcy towards his identity and some degree of independence. A lumpsum amount of Rs. 3,00,000/- is awarded towards future medical expenses including the need of an artificial / prosthetic limb in future years.
NON-PECUNIARY LOSS
(i) Injured is entitled to both, pecuniary as well as non-pecuniary damages. As the name suggests, pecuniary damages are designed to make good the pecuniary loss which can be ascertained in terms of money whereas non pecuniary damages are general damages to compensate the injured for mental and physical shock, pain, suffering, loss of expectation of life, inconvenience, hardship, frustration, stress, dejectment and unhappiness suffered by him on account of injuries sustained in the accident. It takes into account all the aspects of a normal life which deluded injured on account of accident. Given the nature of heads covered, it is bound to involve guess work on the part of Tribunal involving some hypothetical consideration as well, primarily considering the special circumstances of the injured and the effect of those upon his future life.
(ii) Regarding non-pecuniary loss, following was stated in Halsbury's Laws of MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 32 of 43 England, 4 th Edition, Vol. 12 (page 446):
"Non-pecuniary loss: the pattern: Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
(As also referred in the case of Sidram.....................)
7. In Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667, the Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non- pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.
8. In Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.
(referred and relied in the case of rupin A. Rupin Manohar Through Sh. S. Anandha vs Mohd. Ansari & Ors. on 17 August, 2017 JUDGMENT DELHI HIGH COURT
(iii) To sum up, Compensation under non-pecuniary heads involves objective MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 33 of 43 assessment of the damages in a bid to undo the loss, the injured would incur on account of his inability to a normal life and earn as much as he could, but for the injuries sustained. The whole idea behind assessment for damages for compensation is to put the claimant in the same position in so far as money can.
The very nature of these damages, compulsorily involves some guesswork and hypothetical considerations, however, efforts should be made to adjudicate these on the basis of objective parameters rather than guided by subjective sympathy. The nature and severity of injury, the age, nature of disability are some of those parameters. Given hereunder are various heads under which compensation for non-pecuniary loss (general damages) is assessed:
A Damages for pain, suffering and trauma on account of injuries:
(iv) The mental and physical loss cannot always be arithmetically computed in terms of money. These form the intangible losses suffered by injured for no fault of his. Although any form of human suffering cannot be equated in money, however, the object remains to compensate in so far as the money can compensate. Certain observations made by the Supreme Court of India in R. D. Hattangadi are relevant in the context:
"10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate"
because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 34 of 43 physical frame.
(v) Certain factors were also laid down for consideration in the case of The Divisional Controller, KSRTC vs Mahadeva Shetty And Anr Appeal (Civil) 5453 of 2003 further relied in the case of Sidram (supra) for awarding compensation for pain and suffering. The observations made in the aforesaid case as relevant to the context are reproduced hereunder:
"113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)]
(vi) Hon'ble Supreme Court of India in the case of K. Suresh (supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 35 of 43 of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity. (as relied in the case of Jagdish v Mohan AIR 2018 SUPREME COURT 1347, by Hon'ble Supreme Court of India).
(vii) Not only the injured suffered 80% permanent physical disability in relation to left lower limb with his left lower limb amputated both lower limbs but also amputation in left limb below knee. It is settled that each case has to be evaluated upon his special circumstances in the backdrop of deprivation which disability would cause on his future life. Loss of limb constitutes a major loss, not only physically but also mentally, emotionally and psychologically having to live with the feeling that he is no longer a normal person, relegated and pushed into the difficult world of a disabled person. There is no methodology to weigh the sufferings in terms of money, however, the Tribunal is required to engage in some guess work objectively to consider the peculiar circumstances of the case at hand to be able to award suitable compensation with the object to place the victim in as near a position as the victim was in before the accident. An amount of Rs. 3 lakhs is awarded to the injured against pain, suffering and and trauma sustained in the accident.
MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 36 of 43 (B) Loss of amenities of life:
(viii) It compensates the victim on account of his inability to enjoy the basis amenities of life as any other normal person can, taking into account the age and the deprivation he would have to undergo and suffer due to injuries. Certain observations were made by Hon'ble High Court of Gujrat in the case of Vijaykumar Babulal Modi vs State Of Gujarat SPECIAL CIVIL APPLICATION NO. 20488 of 2017 referred by HSC in the case of Sidram (supra) which is reproduced hereunder:
"It appears that the claim under this head is to the tune of Rs.3 lac. However, the Tribunal has not awarded any sum under the head 'loss of amenities'. We are of the opinion that this head must take into account all aspects of a normal life that have been lost due to the injury caused. As per R.D. Hattangadi's case (supra), this includes a variety of matters such as the inability to walk, run or sit, etc. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of ability to freely move or travel without assistance...."
(ix) Injured would not be able to move around without callipers or wheelchairs and therefore would have to forego the basic pleasures of life, including running and walking. It is settled that this head takes into account all the aspect of the normal life due to the injury caused. Accordingly an amount of Rs. 1,00,000/- is awarded towards loss of amenities considering the nature of injury and the extent of disability.
(C) Disfigurement:
(x) Injured has his left below knee amputated. Disfigured basically means something which is not in form or shape or figure which implies that the appearance of someone was spoiled on account of injuries sustained in the MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 37 of 43 accident. In the case of Mohd. Sabeer @ Shabir Hussain vs Regional Manager, U.P. State Road Transport Corporation, Civil Appeal No.9070-9071 of 2022, Hon'ble Supreme Court of India highlighted the need to consider the socio economic background of the claimant while dealing with the cases of bodily disabilities observing that such disabilities make them prone to further discrimination and awarded Rs. 2 lakhs towards disfigurement involving 70% permanent disability with amputation of the right leg below the knee. As such, an amount of Rs. 1 lakh is awarded under this head.
Longevity of life
(xi) There is no evidence on record that the nature of disability would hae any effect on the longevity of injured therefore any amount is not awarded under this head.
33. The compensation awarded against pecuniary and non-pecuniary damages under various heads is being sequentially put in a tabulated form hereunder for ease of reference to all concerned:
34. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
1. Pecuniary loss : - Quantum
(i) Expenditure on treatment : Rs.1,68,843/-
(ii) Expenditure on Conveyance : Rs. 50,000/-
(iii) Expenditure on special diet : Rs.50,000/-
(iv) Cost of nursing / attendant : Rs.7,20,000/-
MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 38 of 43
(v) Loss of income : Rs. 1,11,378/-
(vi) Loss of Future Income: Rs. 33,41,340/-
(vi) Future Medical Bills + Cost of Rs. 3,00,000/-
artificial limbs (if applicable) :
(vii) Any other loss / expenditure : NA
2. Non-Pecuniary Loss :
(I) Compensation of Pain and Suffering Rs.3,00,000/-
as well as mental and physical shock :
(iii) Loss of amenities of life : Rs.1,00,000/-
(iv) Disfiguration : Rs. 1,00,000/-
(v) Loss of marriage prospects : Nil
Total Compensation Rs. 52,41,561/-
Deduction, if any, Nil
Total Compensation after deduction Rs. 52,41,561/-
Interest As directed
below
35. It is further ordered that the claimant shall be entitled to simple interest @9% p.a. from the date of filing of DAR till actual realization of Award amount/compensation.
36. It may be noted that in the judgment of Ram Charan & Ors. v The New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah v 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 MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 39 of 43 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."
37. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 40 of 43 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
LIABILITY
38. R-1 was a minor as on the date of accident. R-2 is admittedly the owner of the offending vehicle and responsible for handing over the vehicle to R-1 and accordingly for the consequences of his actions. The vehicle was being plied without any insurance. R-2 tried to project that he had employed Kuldeep Brar who had in turn handed over the vehicle to R-1 but he has not been able to adduce any evidence to prove the same. Further, he accepted that R-1 was a conductor, therefore, it is not that R-1 was a total stranger to the vehicle. Further, he has already been held guilty by the order of Ld. JJB. In the eventuality the liability to pay compensation would solely rest on R-2/ owner of the offending vehicle. Therefore, such principal award amount/compensation will be payable by the R-2/ Reg. Owner of the offending vehicle with simple interest @ 9% p.a. from the date of filing of DAR till actual realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount. It is further clarified that the amount awarded towards future medical bills / artificial limbs would not carry any interest).
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.
MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 41 of 43 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. v Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Release of Amount Out of total settlement amount Rs. 40,00,000/- along with proportionate (to the principle amount) up to date interest is kept in form of monthly FDR of Rs. 20,000/- each. Remaining amount along with proportionate up to date interest shall be released in his bank account near his place of residence.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 24.05.2020 2 Name of injured Mukesh Kumar 3 Age of the injured 40 years MACT No 345/20 Mukesh Kumar Vs. Saurabh Saini & Ors. Page No. 42 of 43 4 Occupation of the Not proved injured 5 Income of the injured Minimum wages 6 Nature of injury Grievous injury and 80 percent disability.
7 Medical treatment taken As per record.
by the injured:
8 Period of As per record.
Hospitalization
9 Whether any permanent Grievous injury and 80
disability? percent disability.
41. Copy of this award be given to the parties free of cost. The copy of award be also sent to the Ld. Secretary DLSA and concerned Ld. criminal court.
Digitally signed
SHELLY by SHELLY
ARORA
Announced in the open court ARORA Date: 2025.02.27
on 27.02.2025 16:57:52 +0530
(Shelly Arora)
PO (MACT)-02, SE/Saket/Delhi
27.02.2025
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