Delhi District Court
Pawan Kumar Sharma vs Davander Sharma on 25 February, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.374/2018
FIR No.517/2018
PS Sikandrabad
U/s 279/338/427 IPC
CNR No. DLSE01-001726-2018
Pawan Kumar Gupta Vs. Davander Sharma & Ors.
Pawan Kumar Sharma
S/o Sh. Radhey Shyam Sharma
R/o Village- Poroli, Post Anchukala
........Claimant
Versus
1. Davander Sharma
S/o Gerraj Sharma
R/o Village Rabupura,
Distt. Gautam Budh Nagar, UP
Also At: Aakalpur, Khurja, Distt. Bulandshahar, UP
...R-1/ driver
2. Jagtar Singh
S/o Sh. Gurdeep Singh
R/o H. No. J-48, Saurabh Vihar,
Badarpur, Jaitpur, New Delhi.
.....R-2/owner
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 1 of 40
3. M/s HDFC Ergo Gen. Ins. Co. Ltd.
Ambadeep Building, 14,
KG Marg, New Delhi.
....R-3/ insurance Company
Date of accident : 21.06.2017
Date of filing of petition : 28.02.2018
Date of Decision : 25.02.2025
AWARD
1. This is a claim petition filed under Section 166 of MV Act
by Sh. Pawan Kumar Sharma hereinafter referred as claimant)
who suffered injuries in an accident which took place on
21.06.2017 due to rash and negligent driving of vehicle bearing
Reg. No. DL 3SHE 6000 (hereinafter referred as offending
vehicle) being driven by Sh. Davander Sharma, (hereinafter
referred as R-1/ driver), owned by Sh. Jagtar Singh (hereinafter
referred as R-2) and insured with M/s HDFC Gen. Ins. Co. Ltd.
(hereinafter referred as R-3). A sum of Rs.40,00,000/- has been
claimed as compensation along with interest @ 12% per annum.
Brief Facts of the case:
2. On 21.06.2017 at around 08.45 PM, while claimant/
injured with his wife namely Smt. Munesh were riding on a
motorcycle bearing Reg. No. UP 13S 2998 (hereinafter referred
as accidental vehicle) from Ghazibad to Sikandrabad and were
crossing near Gulaothi, Sikandrabad, their motorcycle was hit by
alleged offending motorcycle driven from opposite side. It is
stated that the alleged accident took place due to speedy and
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 2 of 40
reckless driving of such offending vehicle which suddenly
changed its lane and hit the motorcycle with great force due to
which, the injured fell down with motorcycle and sustained
multiple injuries. He was immediately rushed to Govt Hospital,
Sikandrabad and from there, he was shifted to Rana Hospital then
to Kailash Hospital where he was hospitalized from 22.06.2017
to 14.07.2017. FIR was registered. Investigation was conducted.
R-1/ driver of the car was charge sheeted for causing hurt to
petitioner on account of rash and negligent driving on a public
way.
Proceedings:
3. Notice of the petition was issued and served upon
respondents, in response to which all the respondents filed their
Written Statement.
Reply:
4. In Written Statement filed on behalf of R-1 & 2, it is stated
that any such accident did not take place due to rash and
negligent driving of driver/ R-1 and they have been falsely
implicated in this case. It is stated that the vehicle bearing Reg.
No. DL 3SHE 6000 was duly insured at the time of accident.
Other general defences were also made.
5. R-3/ Insurance Company, it is contended that this is a
collusive case as the accident took place on 21.06.2017 and the
complaint has been lodged by the cousin of petitioner on
28.07.2017 to implead Respondent No.1. Subsequently, FIR was
lodged on 04.08.2017 which shows that alleged offending vehicle
and driver were implanted after the accident. Insurance Company
also conceded the validity of insurance policy. It is also stated
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that this Tribunal has no territorial jurisdiction to entertain the
present claim petition. Other general defences were also taken.
Issues:
6. From the pleadings of parties, following issues were
framed vide order dated 01.06.2022:
i). Whether the injured suffered injuries in a road
traffic accident on 21.06.2017 due to rash and
negligent driving of vehicle no. DL 3SHE 6000
being driven by R-1/ Davender Singh, owned by
R-2/ Jagtar Singh and insured with R-3? OPP.
ii). Whether the petitioner is entitled to any
compensation, if so, to what extent and from
whom?OPP
iii). Relief.
7. Disability Assessment Report dated 19.09.2023 was
received with 10% permanent physical impairment in relation to
right upper limb and right lower limb.
Evidence:
8. Matter was thereafter listed for recording of evidence.
Injured/ claimant Pawan Kumar Sharma stepped in the witness
box as PW-1 and tendered his evidentiary affidavit as Ex.PW1/1.
He relied upon following documents:
(i) Ex.PW1/1 - Copy of medical treatment records (running into
193 pages)
(ii) Ex.PW1/2- Copy of medical bills (running into 172 pages)
(iii) Ex.PW1/3-Copy of disability report
(iv) Ex.PW1/4-Copy of DL of injured
(v) Ex.PW1/5-Copy of PAN Card of injured.
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(vi) Ex.PW1/6- Copy of Aadhar Card of injured.
(vii) Ex.PW1/7- Certified copy of criminal case records
(viii) Mark X- Copy of MLC
PW-1 was cross examined in detail by counsel for
Insurance Company.
9. Petitioner Evidence was then closed. Any evidence has not
been led on behalf of respondents and thus, Respondent Evidence
was also closed vide order dated 15.02.2025. Matter was then
listed for Final Arguments.
Final Arguments:
10. Final Arguments were addressed by counsel for claimant
and counsel for insurance company. It was argued by counsel for
claimant that the accident took place on account of rash and
negligent driving on the part of offending vehicle due to which
injured suffered permanent impairment, assessed as 10% in
relation to his right lower limb and right upper limb. He
contended that injured was working as coordinator with M/s
Navrang Contractor, in Gurugram Haryana and earning Rs.
20,000 per month.
11. Per contra, counsel for insurance company argued that the
is an unexplained delay of 37 days in filing the FIR. He has also
argued that petitioner has not been able to prove the income and
has not been able to corroborate his expenses on conveyance,
special diet and attendant charges. Further, the involvement of
offending vehicle in causing the accident has been disputed. He
has also contended the present accident is a case of head on
collision and therefore, contributory negligence ought to be
imputed upon the injured. It is stated that the claim petition has
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been filed only to extract compensation wrongfully.
Issue No.1
i). Whether the injured suffered injuries in a road
traffic accident on 21.06.2017 due to rash and
negligent driving of vehicle no. DL 3SHE 6000
being driven by R-1/ Davender Singh, owned by
R-2/ Jagtar Singh and insured with R-3? OPP.
9.
12. What is required to be ascertained is whether rash and
negligent driving of offending vehicle resulted in accident which
caused injuries to the claimant.
13. PW1 deposed that he along with his wife Smt. Munesh
were on way to Ghaziabad from Sikandrabad on 21.06.2017 at
about 08.45 PM by a motorcycle bearing Reg. No. UP 13S 2998,
being driven by him at a normal speed on the correct side of the
road. He further deposed that when they reached near Gulaothi,
Sikandrabad, within the jurisdiction of PS Sikandrabad, Distt.
Bulandshahar, another motorcycle bearing Reg. no. DL 3SHE
6000 (Bullet) being driven at a high speed in a rash and negligent
manner without proper lookout, without blowing any horn, came
from the opposite side, abruptly changing its driving lane and
dashed into his motorcycle forcefully as a result of which he lost
balance and fell down on the road sustaining multiple injuries.
He was rushed to Govt. Hospital Sikandrabad and then to Distt.
Hospital, Bulandshahar and then to Rana Hospital, Bulandshahar
and finally admitted in Kailash Hospital, Greater Noida where he
remained hospitalized from 22.06.2017 to 14.07.2017. During
cross examination by counsel for the insurance company, he
declined the suggestion that he never met with an accident on
21.06.2017, admitting although, that no complaint was made to
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the police prior to 28.07.2017 which is after around 37 days of
the accident. He attempted to clarify that the delay happened as
he was under medical treatment, however, he has informed his
cousin brother Yogender Singh about the details of the accident
admitting that the said Yogender Singh took about 37 days to
inform the police about it. He declined the suggestion that he was
discharged in a stable condition on 14.07.2017 and therefore, was
medically fit to be able to file complaint to the police. He
clarified that he started speaking only after two months of his
discharge on 14.07.2017. He declined the suggestion that he was
not wearing any helmet at the time of accident which is why he
had suffered head injury in the accident. He stated that any site
plan was not prepared by the police in his presence or with his
consultation. He declined the suggestion that he was driving the
motorcycle rashly and speedily which is why the accident
happened.
14. PW-1/ injured has been extensively cross examined by
counsel for insurance company. It is evident from the record that
the complaint was formally filed by Yogender Sharma, cousin
brother of injured on 21.06.2017 while the FIR was lodged on
04.08.2017. Counsel for insurance company has contended that
no accident happened on 21.06.2017 which is why no complaint
was filed immediately. The medical record filed in evidence by
PW-1 injured is perused. As per Discharge Summary of Kailash
Hospital, placed on record as Ex.PW1/1 (colly), injured was
admitted there on 22.06.2017 in the night at 12.44 AM. The
accident, as per the report, happened around 09.00 PM, the
previous night after which, as per the deposition, injured was
taken to at least 3 hospitals but, apparently due to his serious
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condition, twice he was referred to other hospitals and finally
admitted in Kailash Hospital. It is mentioned in the case
summary that the Treachia was already intubated when he was
brought to Kailash Hospital on ventilation support. As per the
discharge summary, he suffered multiple haemorrhagic
contusions, fractures, subdural haematoma, fracture of right
clavicle apart from tissue opacification in the head and Thorax
Scan on account of trauma suffered in the accident. He
underwent extensive procedure of (Lt.) Temporal Craniotomy +
Removal of (Lt) temporal contusion & Lobectomy + Duroplasty
& Cranioplasty + (Rt) temporal craniotomy + Removal of (Rt.)
temporal of EDH, SDH & (Rt) temporal contusion + Duroplasty
& Cranioplasty under GA on 22.06.2017. He was extubated on
27.06.2017 and later discharged on 14.07.2017 in stable
condition. The nature of injuries and the procedures which he had
to undergo as part of treatment, itself reflect the severity of
accidental injuries wherein saving life with minimal damage
could have been the only priority of the injured as well as his
family members. The formal complaint with the police was filed
within 10 days of his discharge by his cousin brother, mentioning
the specifics of the accident as informed by the injured. It is
settled that that the genuineness of the contents of FIR is more
important than the promptness in filing the complaint. The
registration number of the offending vehicle was duly mentioned
in the complaint as well as the FIR. R-1 as driver of the
offending vehicle was charge sheeted for causing injuries to
injured due to rash and negligent driving on a public way.
15. R-1 & 2 have chosen not to lead any evidence. It is also
settled that if driver of offending vehicle does not enter the
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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.
16. Counsel for insurance company has not been able to elicit
any contradiction in the testimony of PW-1 in respect of rash
driving of R-1. PW-1 clearly deposed that R-1, driving the
vehicle in the opposite direction, abruptly changed its lane
because of which it crashed right in to the motorcycle of the
injured. There is no reason why testimony of PW-1 should not be
relied upon. R-1 was the only other person who could have
testified about the specifics of the accident in contract to the
testimony of PW-1, however, neither has he cross examined
PW-1 nor has he led any evidence. Counsel for insurance
company has also cross examined PW-1 majorly on the aspect of
delay in filing of FIR rather than on the aspect of negligence or
for that matter involvement of the offending vehicle.
17. It is thus evident from the discussions made above that
accident happened as R-1 did not adhere to the lane discipline
and drove speedily and recklessly to dash against the accidental
motorcycle. Issue in hand is accordingly decided in favour of the
petitioner and against the respondents.
ISSUE NO. 2
"Whether the injured is entitled to any
compensation, if so, to what extent and from whom?
OPP"
18. Sec. 168 MV Act enjoins the Claim Tribunals to hold an
inquiry into the claim to determine the compensation payable and
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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.
.
.
.
19. "....Money cannot renew a physical frame that has been battered." {as observed in the case of H. West and Son Limited Vs. Shephard 1958 -65 ACJ 504 (HL, England)}. It recognizes that the physical damage caused once cannot be fully undone. Something which remains as an indelible permanent signs of an unfortunate incident cannot be balanced merely by paying some monetary compensation. The process of damage and the ugly scars left on physical body and mental self, navigating through the entire process post accident and the unintended but MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 10 of 40 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 Vs. National Insurance Company Limited Civil Appeal No. 5370- 5372 of 2013 which enumerates the milestones to be kept in mind by the Tribunal in an endevour to assess just compensation, at the same time acknowledging that any amount of money cannot compensate fully an injured man or completely renew a shattered human physical frame as under:
"16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 11 of 40 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 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? MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 12 of 40 Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident....... But nevertheless the law recognises that as a topic upon which damages may be given"
23. The uncertainty involved has also been recognized by Hon'ble Supreme Court of India in the case of Rekha Jain (supra) where observations of Lord Blacburn in the case of Livingstone Vs. Rawyards Coal Company (1880) 5 APP CAS 25 were referred as under:
".......where any injury is to be compensated by damages, in settling the sum of money to be given... you should as nearly as possible get at that sum of money which will put the party who has been injured.. in the same position as he would have been if he had not sustained the wrong...."
24. It is further observed by their Lordship in the case of Rekha Jain (supra) as follows:
"41.....Besides, the Court is well advised to remember that the measures of damages in all these cases 'should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing' is quite opposite to be kept in mind by the Court in assessing compensation in personal injury cases."
25. It is also settled that the compensation is not granted only for the physical injury but for the entire loss which results from MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 13 of 40 the injury in an endevour to place the victim in a position as close as possible as prior to the accident (support drawn from National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 also in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343). It is also settled as held in catena of judgments that the Motor Vehicles Act is a beneficial piece of legislation and the object of the Tribunal ought to be to assist the injured persons, (support drawn from Helen C Rebello (Mrs) & Ors. v. Maharashtra State Road Transport Corporation and Anr (1999) 1 SCC 90).
26. It is settled that an injured is required to be compensated for his inability to lead full life, his inability to enjoy those natural amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned (support drawn from C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376 as further referred and relied in the case of Raj Kumar (supra) and then in a recent pronouncement of Sidram Vs Divisonal Manager United India Insurance Company & Anr SLP (Civil) No.19277 of 2018).
27. What is required of the Tribunal is to attempt objective assessment of damages as nearly as possible without fanciful or whimsical speculation even though, some conjecture specially in reference of the nature of disability and it consequence would be inevitable. {support drawn from Raj Kumar (supra) as referred and relied in Sidram (supra)}.
28. Observing that a measure of damages cannot be arrived with precise mathematical calculations and that much depends upon peculiar facts and circumstances of any matter, Hon'ble Supreme Court of India elaborated upon the expression "which MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 14 of 40 appears to it to be just" in the case of Divisional Controller, KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197.
29. The observations made by Hon'ble Supreme Court of India in the case of K. Suresh Vs. New India Assurance Company Limited (2012) 12 SCC 274 provide valuable insights into the factors to be weighed by the Tribunal for determination of quantum of compensation. The relevant extract of which is reproduced as under:
"10. It is noteworthy to state that an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad- based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation" should be inhered."
30. The compensation has been broadly delineated as pecuniary and non pecuniary in the case of R. D. Hattangadi Vs. Pest 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 15 of 40 pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
31. The issue of determination of compensation in a personal injury matter was extensively deliberated by Hon'ble Supreme Court of India in the case of Raj Kumar (supra) Relevant extract of the aforesaid judgment are reproduced hereunder for further discussion:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
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(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses--Item (iii)--depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages--Items (iv), (v) and (vi)--involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability--Item (ii)(a). We are concerned with that assessment in this case.
PECUNIARY DAMAGES
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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 17 of 40 claimant, as ascertainable from the evidence on record. Given hereunder are various heads under which compensation for pecuniary damages is assessed:
(i) Expenditure on Medical Treatment: Injured remained admitted in Kailash Hospital from 22.06.2017 till 14.07.2017.
He has placed his medical treatment records Ex.PW1/1 (colly) and copy of medical bills as Ex.PW1/2 (colly). He has deposed that he has spent about Rs. 15,00,000/- on his medical treatment. The medical bills, placed on record total to Rs. 16,67,571/-. He clarified during cross examination that he has not received any financial assistance from medi-claim or government agency. He declined the suggestion that the medical bills Ex.PW1/2 were forged and fabricated. Accordingly, injured is awarded Rs. 16,67,571/- towards expenditure on medical treatment.
(ii) Expenditure on Conveyance: PW-1 has not filed any bills pertaining to the conveyance, however, he has deposed that he has spent about Rs.50,000/- on the conveyance. As per the medical treatment records, he remained under active medical treatment for about almost a year post accident and therefore, would have required to make several hospital visits for consultation, examination and procedures. The family members of the injured would also have to necessarily make hospital visits to attend the injured during hospitalization/ OPD visits. As such, an amount of Rs. 30,000/- is awarded towards the head of conveyance.
(iii) Expenditure on Special Diet: Any bills in respect of any special diet have not been placed on record. PW-1 has deposed that he has spent Rs. 50,000/- upon special diet. However, MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 18 of 40 considering the nature of injuries, a balanced and nutritious diet would have been the basic need for prompt and effective recovery. An amount of Rs. 30,000/- is awarded to injured towards expenditure on special diet.
(iv) Expenditure for attendant: PW-1 deposed that he had spent Rs. 1,00,000/- upon attendant charges, however, he admitted that he has not filed any document in support of that. Injured had suffered severe head injuries as well as chest injuries and remained under active medical treatment for almost a year and therefore, would have required the services of attendant. It is settled that the services extended by family members also need to be compensated. An amount of Rs. 50,000/- is thus awarded awarded towards expenditure for attendant charges.
(v) Loss of earning during the period of treatment: PW-1 deposed that he was working with a Co-ordinature with M/s Navrang Contractor, receiving salary of Rs. 20,000/- per month, however has not been able to attend to his duty subsequently. Further, PW-1 has not placed on record any document, pertaining to his income as admitted by him during his cross examination. He also admitted that he has not filed any document to show that he was fired from his employment after the accident. He also admitted that both his ID proofs placed on record as his driving license as Ex.PW1/4 and his Aadhar Card Ex.PW1/6 mention his address as that of Bulandshahar UP. He stated that he cleared Senior Secondary Examination, however, he admitted that he has not placed on record any certification in support of that. Accordingly, his income is calculated to be as per minimum wages for unskilled workman as applicable in the State of Uttar Pradesh at the time of accident which was Rs.7,400/-.
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(vi) Medical Treatment Papers Ex.PW1/1 perused, as per which, he remained under active medical treatment for almost a year post accident. He took periodic/ monthly OPD consultations from neuro surgeon who mentioned in his observations as 'giddiness, emotional lability signifying exaggerated changes in mood, depression, no motivation to work, repeatation of work, lethargy, abnormal laughter'. Continuous follow ups were taken. It is mentioned in the OPD card dated 18.03.2021 that last follow up was taken up on 07.02.2020 wherein it was mentioned that he has started working as told by injured to doctor concerned. It is also mentioned in the OPD consultation cards that the recovery of injured was progressive. PW-1 himself has deposed that he could not resume his work for about 1 year post accident. Considering the nature of injury and nature of job, it is reasonable to infer that he would not have been able to resume his work for at least one year post accident.
His income is thus calculated to be Rs.7400/- x 12 = Rs.88,800/-
(vii) Loss of future earning:It is settled that an injured 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 injured is required to be compensated for inability to lead a full life, inability to enjoy normal amenities, which she would have enjoyed but for the injury, inability to earn as much as she 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.
(viii) Disability Assessment Report was received and claimant/ MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 20 of 40 injured was opined to have suffered with 10% permanent physical impairment in relation to his right upper limb and right lower limb.
(ix) 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."
(x) The term 'disability' means the decrements to the MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 21 of 40 functional efficacy of body of injured whereas 'functioning' encompass all the body functions and activities for an independent life. Functional disability is to determine the extent of loss or extent of restrictive functionality considering the nature of activities required to be necessarily performed in efficient discharge of duties and the limb effected. This computes the extent of adverse effect of physical disability upon the functional efficacy of an injured person, in turn adversely impacting his earning capacity. The process entails understanding and enumerating the skill set required for performing specific 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 22 of 40 as much as before and his future employment avenues.
(xi) 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.
(xii) 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%.
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 23 of 40
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 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 24 of 40 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 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 25 of 40 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."
(xiii) 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:
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 26 of 40 "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.
(xiv) The question of assessment of impact of disability on the earning capacity has been dealt in several cases but it is understood that each case has to be evaluated on its contextual dynamics established by way of evidence at hand. It brings us to a question whether extent of permanent disability as medically determined can simply be taken to be the extent of functional disability and hence, the loss of earning capacity. It has been held in various pronouncements of Hon'ble Supreme Court of India and Hon'ble High Court that equating the two as a criteria would result in an inobjective and absurd compensation. There however, might be certain cases where the two would correspond to each other but it cannot be mechanically applied rather requires MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 27 of 40 evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
(xv) PW-1 deposed that he was working as a Coordinator / helper with a company. It can be inferred that he was performing manual labour / help to earn. He admitted during cross examination that his driving license is still valid till the year 2030 and he has not placed on record any document to show that he would not be a position to drive throughout his life. Counsel for the insurance company contended that the injured has not suffered any functional disability. Injured suffered with severe multiple head injuries as well as chest injuries and remained under neurological assessment for more than a year post accident. Considering the nature of injuries and the nature of work, it cannot be stated that same the disability would not impede his functional efficacy or performance to work for gain.
The functional disability of injured is assessed to be 10% in relation to whole body considering that two of the prime limbs have been adversely affected.
(xvi) Future Prospect: It is settled that future prospect (as laid down in the well considered judgment of National Insurance Company Vs. Pranay Sethi (2017) 16 SCC 680) shall be payable, not only in fatal cases but also in the case of permanent disability. (Support drawn from Pappu Deo Yadav v. Naresh Kumar & Ors., AIR 2020 SC 4424).
(xvii) PW-1 has filed her Aadhar Card as Ex.PW1/1 on record as per which her date of birth is 11.02.1980, therefore, her age as on the date of accident was about 37 years. Since the injured was below the age of 40 years (at the time of accident) and was MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 28 of 40 employed on a fixed salary, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 40 % upon application of category of ''self- employed or on a fixed salary''.
(xviii) Multiplier: The multiplier method was coined by Hon'ble Supreme Court of India in the case of Sarla Verma v Delhi Transport Corporation & Anr. Civil Appeal No. 3483 of 2008, decided on 15.04.2009 to ascertain the future loss of income in relation to the age of the deceased, in order to bring about the uniformity and consistency in determination of compensation payable in fatal and serious injuries matters. Relevant observations with respect to the multiplier method in the abovementioned case read as under:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
(xix) 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 Supreme Court of India relied upon and reiterated the principles laid in various judgments passed by it in the case of Sr. Antony @ MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 29 of 40 Antony Swamy v Managing Director KSRTC, Civil Appeal No. 2551 of 2018 and held that stereotypical or myopic approach must be avoided and pragmatic reality of life must be taken into account to determine the impact of extent of disability upon the income generating capacity of victim.
(xx) The income of the injured per annum as determined upon appreciation of evidence, thus, forms the multiplicand. A table of multiplier with reference to the age was laid down by Hon'ble Supreme Court of India in the case of Sarla Verma (supra); as per which, the appropriate multiplier, applicable in this case would be 15 (for age group between 36 to 40 years).
(xxi) 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.7400x12) = Rs.88,800/-
(b) Future prospect (40% of Rs.88,800/-) = Rs. 35,520/-
__________________
(c) Total = Rs. 1,24,320/-
(d) Thus, Multiplicand = Rs. 1,24,320/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
10% (Rs. 1,24,320/- X 15) = Rs.1,86,480/-
NON-PECUNIARY LOSS
(xxii) Injured is entitled to both, pecuniary as well as non-
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 30 of 40 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.
(xxiii) Regarding non-pecuniary loss, following was stated in Halsbury's Laws of England, 4 th Edition, Vol. 12 (page 446):
"Non-pecuniary loss: the pattern: Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 31 of 40 compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups:
pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non- pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.
8. In Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.
(referred and relied in the case of A. Rupin Manohar Through Sh. S. Anandha vs Mohd. Ansari & Ors. 605/2015 passed by Hon'ble Delhi High Court) (xxiv) To sum up, Compensation under non-pecuniary heads involves objective assessment of the damages in a bid to undo the loss, the injured would incur on account of his inability to a normal life and earn as much as he would, but for the injuries sustained. The whole idea behind assessment for damages for compensation is to put the claimant in the same position in so far as money can. The very nature of these damages, compulsorily involves some guesswork and hypothetical considerations, however, efforts should be made to adjudicate these on the basis of objective parameters rather than guided by subjective 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 32 of 40 (general damages) is assessed:
(xxv) Damages for pain, suffering and trauma on account of injuries: The mental and physical loss cannot always be arithmetically computed in terms of money. These form the intangible losses suffered by injured for no fault of his. Although any form of human suffering cannot be equated in money, however, the object remains to compensate in so far as the money can compensate. Certain observations made by the Supreme Court of India in R. D. Hattangadi are relevant in the context:
"10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame."
(xxvi) 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 33 of 40 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)] (xxvii) Hon'ble Supreme Court of India in the case of K. Suresh (supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 34 of 40 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 Vs. Mohan AIR 2018 SUPREME COURT 1347, by Hon'ble Supreme Court of India).
(xxviii) Injured suffered grievous injuries which led to 10% permanent physical impairment in relation to his right upper limb and right lower limb. He must have suffered immense physical, mental and emotional trauma for what he was compelled to undergo on account of injuries sustained in the accident. There is no measure with the court to quantify the pain and suffering of the injured, however, an attempt is being made to compensate in terms of money for the agony he must have suffered. Therefore, an amount of Rs. 1,00,000/- is awarded to the injured against pain, suffering and and trauma sustained in the accident.
(xxix) Loss of amenities of life: It compensates the victim on account of his inability to enjoy the basic amenities of life as any other normal person can, taking into account the age and the deprivation he would have to undergo and suffer due to injuries. Considering the nature of injuries suffered by claimant, an amount of Rs. 20,000/- is awarded towards loss of amenities.
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:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : As Rs. 16,67,571/-
discussed above.
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 35 of 40
(ii) Expenditure on Conveyance : As Rs. 30,000/-
discussed above.
(iii) Expenditure on special diet : As Rs.30,000/-
discussed above.
(iv) Cost of nursing / attendant : Rs.50,000/-
(v) Loss of earning during the period of Rs.88,800/-
treatment:
(vi) Loss of Future Income Rs.1,86,480/-
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 1,00,000/-
trauma on account of injuries:
(ii) Loss of amenities of life Rs. 20,000/-
3 Total Compensation
Deduction, if any, Nil
Total Compensation after deduction Rs.21,72,851/-
Interest As directed
below
34. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty, learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 36 of 40 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.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 37 of 40
35. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
36. The total compensation shall be payable to the claimant along with to simple interest @9% p.a. from the date of filing of DAR till actual realization of Award amount/compensation.
LIABILITY
37. Insurance Company has conceded valid and effective Insurance Policy on the date of accident and has not raised any statutory defence. It has already been held that accident occurred on account of rash and negligent driving of offending vehicle. It is settled that Insurance Company is responsible to indemnify owner / insured for vicarious liability incurred by tort feaser. Therefore, such principal award amount/compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of claim petition till actual realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
38. 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 MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 38 of 40 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).
39. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
APPORTIONMENT OF AMOUNT
40. Out of the total award amount Rs. 17,00,000/- along with interest is kept in monthly FDR of Rs.10,000/- each. Remaining amount shall be released to injured in his bank account near his place of residence.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 39 of 40 1 Date of accident 21.06.2027 2 Name of injured Pawan Kumar Sharma 3 Age of the injured 37 years 4 Occupation of the Not proved injured 5 Income of the injured Rs.7400/- as per minimum wages 6 Nature injury Grievous injury and disability 7 Medical treatment taken As per record.
by the injured:
8 Period of As per record.
Hospitalization 9 Whether any permanent Grievous injury and disability 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 criminal court.
Digitally signedAnnounced in the open court SHELLY ARORA
by SHELLY
on 25.02.2025 ARORA Date:
2025.02.25
16:36:15 +0530
Shelly Arora
PO (MACT)-02, SE/Saket/Delhi
25.02.2025
MACT No.374/2018 Pawan Kumar Sharma Vs. Davander Sharma & ors. Page No. 40 of 40