Delhi District Court
Hari Shankar (Dar) vs Ram Sewvak Prasad (335/22 Kk) on 2 September, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 635/2024
FIR no. 335/2022
PS Kalindi Kunj
U/s 279/338 IPC
CNR No.: DLSE01 010208-2022
Hari Shankar Vs. Ram Sevak & ors.
Hari Shankar Sharma
S/o Ram Babu Mandal
R/o Ward No. 145, Bedoul
Urf Banauli, Sitamarhi, Bedaul, Bihar.
.....Petitioner
Versus
1. Ram Sewak
S/o Sone Lal Prasad
R/o Village Manisair, Raiam
Madhubani, Bihar.
At present: H. No. 108, A Block
Dairy, Madanpur Khadar, New Delhi.
.....R-1/ Driver
2. Nina Jain
W/o Sh. Manoj Kumar Jain
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R/o I-303, Mayurdhwaj Apartment, 60, IP
Extension, Patparganj, Shakarpur, East
Delhi.
.....R-2/ Owner
3. The New India Assurance Co. Ltd.
1st Floor, AFL House Lok Bharti Complex
Marol Maroshi Road, Andheri
....R-3/ Insurance Co.
Date of accident : 21.07.2022
Date of filing of DAR : 21.10.2022
Date of Decision : 02.09.2025
AWARD
1. DAR
1(a). Detailed Accident Report (hereinafter referred as DAR)
was filed by IO HC Vijender in terms of provisions of Motor
Vehicle Act, which is treated as Claim Petition under Section 166
(1) read with Section 166 (4) MV Act. It pertains to alleged
accident of injured Hari Shankar Sharma (hereinafter referred as
claimant) by vehicle bearing Reg. No. DL 1GC 7118 (hereinafter
referred as offending vehicle), which was driven by Sh. Ram
Sevak (hereinafter referred as R-1), owned by Ms. Nina Jain
(hereinafter referred as R-2) and insured with M/s The New India
Assurance Co. Ltd. (hereinafter referred as R-3).
2. Brief Facts:
2(a). Preliminary information regarding the accident was
received on 21.07.2022 vide GD No. 11A at PS Kalindi Kunj, in
respect of the MLC, upon receipt of which, IO HC Vijender
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proceeded to AIIMS Trauma Center and obtained the MLC of the
injured, Hari Shankar Kumar. The statement of the injured was
recorded on 24.07.2022, wherein he stated that on 21.07.2022 at
about 08:30 PM, he was sitting in vehicle no. DL 1GC 7118,
which was going from Arjun Gas Godam, R.K. Puram to
Madanpur Khadar Gas Godam and was being driven by R-1/
Ram Sevak. At about 09:50 PM, when the vehicle reached the
gate of Madanpur Khadar Gas Godam, the injured stepped down
from the vehicle and was standing on the conductor side. He
demanded his labour wages from the driver/R-1, who replied that
the payment would be made after parking the vehicle inside the
godown. Suddenly, R-1 ran the vehicle over the injured, crushing
his left leg, and left the spot. Thereafter, one Shiv Dhari took
injured to the hospital. After receiving treatment, the injured
returned home.
2(b) The site plan was prepared at the instance of the injured.
The statement of witness Shiv Dhari under Section 161 Cr.P.C.
was recorded, wherein he disclosed that he was working as a
driver with Indian Gas Plant and on the date of the accident, upon
receiving a call regarding the injuries sustained by the injured, he
reached the spot and shifted the injured to the hospital. FIR was
registered under the relevant penal provisions of law. Notice
under Section 133 MV Act was served upon the owner of the
offending vehicle, in response to which the son of the owner
stated that on the date of the accident, the said vehicle was being
driven by Ram Sevak. The documents of the offending vehicle
were seized and verified, which were found to be in order. A
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mechanical inspection of the offending vehicle was also
conducted. Driver Ram Sevak was thereafter charge-sheeted
under the relevant provisions of law. DAR was filed by the IO.
3. Reply:
3(a) Reply to DAR was filed on behalf of R-1/driver who stated
that no such accident took place due to negligence on the part of
driver and he has been falsely implicated in the present matter.
He further stated that vehicle bearing No. DL 1GC 7118 was
validly insured with insurance company.
3(b) Any reply not filed by R-2/ owner.
3(c) Legal offer was initially filed on behalf of insurance
company, however, same was withdrawn on 21.08.2024 on the
ground that driver of offending vehicle was not carrying valid
driving license at the time of accident.
4. Issues:
4(a) Since Legal offer was initially filed on behalf of insurance
company, following issue on quantum was framed on
17.10.2023:
i). Whether the injured is entitled to any compensation, is so, to what
extent and from whom?
(ii) Relief.
4(b) Legal offer was withdrawn on 21.08.2024 and thereafter
following issue was framed:
(i)Whether the injured suffered injury in a road traffic accident on
21.07.2022 due to rash and negligent driving of vehicle bearing no.
DL 1GC 7118 being driven by R-1, owned by R-2 and insured with
R-3? OPP.
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5. Disability Assessment:
5(a) Disability Certificate dated 07.02.2024 was received from
Pt. Madan Mohan Malaviya Hospital as per which, claimant/
injured has been certified to have suffered 13% permanent
disability in relation left foot.
6. Evidence:
6(a) Matter was then listed for Petitioner Evidence. PW-1 Sh.
Hari Shankar tendered his evidentiary affidavit as Ex.PW1/A. He
relied upon following documents:
Ex.PW1/1 - Copy of Aadhar Card
Ex.PW1/2- Copy of Driving License
Ex.PW1/3 - Copy of MLC
Ex.PW1/4- Discharge Summary and OPD Cards
Ex.PW1/9- DAR
Mark A- Educational Qualification Proof
PW-1 was cross examined by counsel for Insurance
Company.
6(b) Petitioner Evidence was closed. Matter was then listed for
RE.
6 (c) R-1 & R-2 chose not to led evidence.
6(d) R3W1 Ms. Shikha Chauhan, Administrative Officer, New
India Assurance Company tendered her evidentiary affidavit as
Ex.R3W1/A and relied upon certified copy of Insurance Policy as
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Ex.R3W1/A, Notice dated 25.11.2024 under Order 12 Rule 8
CPC as Ex.R3W1/B and Original Postal Receipt as Ex.R3W1/C
& Ex.R3W1/D.
6(e) Respondent Evidence was accordingly closed. Matter was
then listed for Final Arguments.
7. Final Arguments:
7(a) Final Arguments were advanced by Counsel for claimant
as well as counsel for Insurance Company.
7(b) It is further contended that the claimant sustained grievous
injuries in the accident, which have resulted in 13% permanent
disability, thereby causing substantial loss of income. Ld. counsel
for the claimant further submitted that respondents no.1 and 2
chose not to cross-examine PW-1, Hari Shankar, on the aspect of
rash and negligent driving, nor did they produce any evidence in
rebuttal. Hence, an adverse inference is liable to be drawn against
them, establishing their negligence. It is also argued that the
claimant is entitled to compensation towards loss of future
earning capacity on account of the permanent disability suffered.
Written submissions have also been filed on behalf of the
claimant in support of the claim.
7(c) No arguments were advanced on behalf of respondents
no.1 and 2.
7(d) Ld. counsel for the insurance company argued that the
driver of the offending vehicle was not holding a valid and
effective driving licence at the time of the accident, as the vehicle
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was loaded with gas cylinders and therefore required an
endorsement for transportation of hazardous goods. It was thus
submitted that the insurance company deserves to be either
exonerated from liability or, in the alternative, be granted
recovery rights. In support of his submission, learned counsel
placed reliance on the judgment of the Hon'ble High Court in
United India Insurance Company Ltd. vs. Saminuddin & Ors. ,
MAC App. 777/2016, CM Appl. 35523/2016 & CM Appl.
33917/2018.
7(e) It was further contended that there is no document on
record to establish that the injured was gainfully employed in
Delhi, and rather, he was a resident of Bihar. Learned counsel
also submitted that the educational document filed by the
claimant reflects that he had failed in the Secondary School
Examination, and therefore, the minimum wages of a non-
matriculate ought to be applied for assessment of income.
8. Discussion:
On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
Issue No.1
Whether the injured suffered injury in a road traffic accident on
21.07.2022 due to rash and negligent driving of vehicle bearing no.
DL 1GC 7118 being driven by R-1, owned by R-2 and insured with
R-3? OPP.
8(a). PW-1 affirmed in evidentiary affidavit Ex.PW1/A that on
21.07.2022 at about 09.50 PM, while he was standing near Gate
of Gas Plant, Madanpur Khadar, that a truck bearing Reg. No.
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DL 1GC 7118 being driven by driver Ram Sevak Prasad struck
him with its front wheel ran over his left foot leaving him
seriously injured. During cross examination,, he stated that he
was doing labour work at Gas plant and was standing near the
gate of Gas Plan when accident occurred. He stated that he has
no address proof of his residence in Delhi. He also stated that he
is unable to produce any document to show that he was working
for gain in Delhi. No cross examination was done on the aspect
of mode and manner of the accident. As such, Insurance
Company has filed legal offer and has not raised any dispute in
respect of the rash and negligent driving of driver of the
offending vehicle having caused the accident. There is no dispute
in the identification of the offending vehicle and the driver
thereof as the claimant worked as labour in the gas plant and
presumably was aware of the workforce employed at the gas
plant. The registration number of the vehicle as well as name of
driver of the offending vehicle was also mentioned in the first
complaint/ statement of claimant / injured. It is also mentioned
therein that the driver fled away from the spot along with the
vehicle and did not care to rush the injured to hospital for
immediate medical treatment. The driver has also been identified
by owner in response to the notice under Section 133 MV Act
served upon her during investigation. Site plan also corroborates
the statement of claimant. There is nothing on record to doubt the
credibility of the testimony or veracity of the witness so as not to
rely on it.
8(b). R-1 has been charge sheeted for causing injury to victim
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due to speedy and rash driving of the offending vehicle. Perusal
of record reflects that reply has been filed by driver only
generally denying the allegations/ averments however no
explanation has been tendered regarding the specific allegations
against him. R-1, being the driver was the best person to divulge
crucial details leading to the accident, however, he has chosen
not to testify about the contextual circumstances of the accident.
R-3/ Insurance Company could also have called upon R-1 as
driver of the offending vehicle to testify about the facts and
circumstances of the accident, however, same was not resorted
to. It is settled that filing of charge sheet itself is a significant
step towards the inference of negligence on the part of driver of
the offending vehicle. (Support drawn from the Judgment in the
case of National Insurance Company Vs. Pushpa Rana 2009 ACJ
287 Delhi as referred and relied by Hon'ble Supreme Court of
India in case of Ranjeet & Anr. Vs. Abdul Kayam Neb & Anr
SLP (C) No. 10351/2019). It is also settled that adverse inference
can be drawn against the driver of the offending vehicle in case
he does not appear as a witness to depose and clarify about his
stance in respect of the accident. (support drawn from the
judgment in the case of Cholamandlam insurance company Ltd.
Vs. Kamlesh 2009 (3) AD Delhi 310.)
8(c). It is a well-established legal principle that negligence in
motor accident cases should be determined based on the
preponderance of probabilities, not on proof beyond reasonable
doubt. The facts and circumstances must be considered in a broad
and practical manner. It is also settled that proceedings under the
Motor Vehicles Act are different from regular civil suits and are
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not strictly governed by the technical rules of the Indian
Evidence Act. This view has been supported in the judgments of
Bimla Devi & Ors. v. Himachal Road Transport Corporation &
Ors., (2009) 13 SCC 530; Kaushnumma Begum & Ors. v. New
India Assurance Co. Ltd., 2001 ACJ 421 (SC); and National
Insurance Co. Ltd. v. Pushpa Rana, 2009 ACJ 287.
8(d). All material on record, including GD entries, FIR, charge-
sheet, mechanical inspection reports, findings, also as no attempt
has been made by the contesting respondents to set up any
defence support the necessary inference that the accident
occurred on account of speedy and rash driving of offending
vehicle. Issue No.1 is decided in favour of claimant 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 Vs.
Nirmala Devi (1979 )4SCC 365}
9. 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:
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"(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.
.
.
.
10. "....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 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 11 of 39 members also.
11. 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.
12. 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 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 12 of 39 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."
13. 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? 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"
14. The uncertainty involved has also been recognized by Hon'ble Supreme Court of India in the case of Rekha Jain (supra) MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 13 of 39 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...."
15. 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."
16. 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 (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).
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17. 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).
18. 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)}.
19. 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.
20. 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:
MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 15 of 39 "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."
21. 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 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."
22. 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 16 of 39 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 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 17 of 39 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.
23. Loss of earning during the period of treatment:
23(a) PW-1, in his evidentiary affidavit, deposed that he was engaged in labour work and earning a sum of Rs. 20,000/- per month. However, no document pertaining to his income or employment in Delhi has been placed on record. The Secondary School Examination Mark Sheet (Mark A) reflects that he had failed in the said examination. As per Aadhaar Card (Ex.PW1/1), his permanent address is recorded as that of Bihar. In the absence of any documentary proof to establish that the injured was gainfully employed in Delhi, his income is assessed on the basis of the minimum wages for a non-matriculate as applicable in the State of Bihar on the date of accident, i.e., Rs. 8,580/-.
23(b) As per the Discharge Summary (Ex. PW1/4), the injured had sustained a fracture of the 2nd metatarsal in his left leg, for which wound dressing and debridement were carried out. He was subsequently transferred to another hospital on the same day. Treatment records dated 01.08.2022 and 27.09.2022, relating to dressing of the wound, have also been filed on record. No further medical documents have been produced. Having regard to the nature of injuries and the treatment record available, it can reasonably be inferred that the injured would not have been in a position to resume his work for a period of at least three months.
23(c) Amount towards loss of income during period of treatment is thus calculated to be Rs. 8,580/- x 3 = Rs.25,740/-.
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24. Loss of future earning 24(a) 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.
24(b) Claimant was assessed with 13% permanent physical impairment in relation to left foot.
24(c) 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 19 of 39 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."
24(d) 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 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 20 of 39 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.
24(e) 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.
24(f) 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 21 of 39 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 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;
MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 22 of 39
(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 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 23 of 39 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."
24(g) 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.
24(h) 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 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 24 of 39 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 evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
24(i) As per the Disability Certificate placed on record, injured has been certified to have suffered 13% permanent physical disability in relation to his left foot. The claimant has testified that prior to the accident he was working as a labourer. which necessarily requires extensive physical activity and unrestricted mobility.. Such disability is bound to restrict his mobility, ability to bear weight, and capacity to undertake tasks involving lifting or moving with load. Considering the nature of work performed by the claimant and the extent to which his earning capacity would be affected, his functional disability is fairly assessed at 7% in relation to the whole body.
24(j) 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., MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 25 of 39 AIR 2020 SC 4424).
24(k) As per Aadhaar Card (Ex. PW1/1), the date of birth of the claimant is mentioned as 01.01.1996, whereas in the Secondary School Examination Mark Sheet (Mark A), his date of birth is mentioned as 07.06.1999. It is settled that the High School/Secondary School Examination Mark Sheet is to be treated as most reliable document for determination of age. Accordingly, the age of the claimant is taken as 23 years as on the date of the accident. Since the injured was below age of 40 years (at the time of accident) and purportedly earning fixed income thus as mandated in case of Pranay Sethi (Supra) and other case laws, the percentage towards future prospect is taken to be @ 40 %. Further, as tabulated in the case of Sarla Verma (supra), multiplier of 18 is applicable.
24(i) 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. 8,580/- x 12) = Rs.1,02,960/-
(b) Future prospect (40% of Rs.1,02,960/-) = Rs.41,184/-
__________________
(c) Total = Rs. 1,44,144/-
(d) Thus, Multiplicand = Rs. 1,44,144/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
7% (Rs. 1,44,144/- X 18) = Rs. 1,81,621/- MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 26 of 39
25. 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 : Claimant Rs. 5,000/-
affirmed in his evidentiary affidavit that he has a significant sum upon his treatment, however, no such bill filed on record. Considering the nature of injuries and treatment records, sundry miscellaneous expenses of Rs. 5,000/- is awarded to the claimant.
(ii) Expenditure on Conveyance : No Rs. 15,000/- prescription filed by the claimant towards expenditure for conveyance. It si also noted that the injured went back to his native place and got further treatment there. However, considering the nature of injuries suffered by him, compensation towards conveyance is granted by guess work.
(iii) Expenditure on special diet : There Rs.15,000/- is no prescription for special diet. The nature of injuries sustained by the injured suggest that he must have advised and would have required to consume protein rich diet for efficient and prompt recovery.
By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : No Rs.15,000/- prescription or evidence has been filed on record with respect to any expenditure towards nursing attendant.
Claimant has suffered 2nd metatarsal MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 27 of 39 fracture which might have rendered him for doing basis needs like walking, doing daily activities for next few weeks without help of any attendant or family member. It is settled that even in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : As discussed Rs.25,740/- above:
(vi) Cost of artificial limbs (if NA
applicable) :
(vii) Any other loss / expenditure : NA
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.1,00,000/-
physical shock as well as pain and
suffering : Injured suffered 2nd metatarsal fracture on left leg which further led to 13% permanent physical disability in relation to left leg. 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 she must have suffered. Therefore, an amount of Rs. 1,00,000/- is awarded to the injured against pain, suffering as well as mental trauma sustained in the accident. Insurance Company has also computed Rs. 1,10,000/- compositely towards pain and suffering, physical and mental shock as well as loss of amenities of life (non pecuniary damages)
(iii) Loss of amenities of life : It Rs.10,000/-
MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 28 of 39 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. 10,000/- is awarded towards loss of amenities.
(iv) Loss of future Income: As discussed Rs.1,81,621/- above:
Total Compensation Rs.3,67,361/-
Deduction, if any, Nil
Total Compensation after deduction Rs.3,67,361/-
Interest As directed
below
26. Interest:
26(a). It is settled that any fixed rate of interest cannot be
prescribed for all cases at all times and would largely depend upon the prevailing rate of interest as per the applicable guidelines. As such, interest at the rate of 7.5% per annum is deemed fit and accordingly granted in the present case. (Reliance placed upon National Insurance Company Ltd Vs. Yad Ram MAC APP 526/2018 also referred and relied in case of The Oriental Insurance Company Ltd Vs. Sohan Lal & Ors. MAC APP 70/2024 of the Hon'ble Delhi High Court).
27. Liability:-
27(a). Ld. counsel for Insurance Company has contended that the driver of the offending vehicle, though had a valid license to drive transport vehicle, however, had no endorsement of the transport MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 29 of 39 authority authorizing him to drive the hazardous goods carrying vehicle, which constitute breach of the terms and conditions of the policy and therefore, insurance company has prayed for complete exoneration of liability or, in the alternative sought recovery rights. Having said that, Ld. Counsel for insurance company has conceded the validity and effectiveness of the insurance policy as on the date of accident. Per contra, respondent no.1/driver of the offending vehicle has contended that he has the valid driving license at the time of accident.
27(a). Insurance company has examined Ms. Shikha Chauhan, its Administrative Officer who deposed that a notice dated 25.11.2024 was issued in terms of Order XII Rule 8 CPC addressed to R-1 & R-2 to produce valid license to drive offending vehicle, covering the date of accident, however same was not replied to. She deposed that driver of the offending vehicle was not holding valid license to drive vehicle carrying goods of hazardous nature. She deposed in her evidentiary affidavit that driver of offending vehicle was driving the vehicle which was loaded with Gas Cylinders. During cross examination by counsel for R1/ Driver, she deposed that Report of Investigator has not been placed on record till date. She asserted that her affirmation in para no.4 of the evidentiary affidavit (Ex.R3W1/1) that the offending vehicle was loaded with gas cylinders was made on the basis of Investigator Report. She was unable to reveal the name of investigator during her cross examination. She declined the suggestion that the offending vehicle was not MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 30 of 39 carrying the gas cylinders at the time of accident.
27(b) It is evident that no dispute has been raised in respect of the validity or genuineness of the driving license of R1/ driver as such, however, it is affirmed that the license did not carry the required endorsement in respect of transporting the hazardous goods, gas cylinders in the present case. It is evident that the driving license of offending vehicle (part of DAR Ex.PW1/9) has no endorsement, authorising him to drive vehicle carrying hazardous goods.
27(c) Relevant at this stage would be to advert to Rule 9 of the Central Motor Vehicle Rules, 1989 which lays down the educational qualifications for driver of goods carriages carrying dangerous or hazardous goods. It mandates that any such person shall additionally be required to possess the ability to read and write atleast one Indian Language and English and shall also possess a Certificate of Training as per the syllabus prescribed therein. Rule 9 of the Central Motor Vehicles Rules is reproduced hereunder for ease of reference :
"[9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods.--24[(1) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, also has the ability to read and write at least one Indian language out of those 25[specified in the VIII Schedule of the Constitution] and English and also possess a certificate of having successfully passed a course consisting of following syllabus and periodicity connected with the transport of such goods."
27(d) It is noted that no evidence has been led by driver of the MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 31 of 39 offending vehicle to show that he complied with the mandate of Rule 9 of CMVR 1989 as mentioned above. The point in contention as per the evidence is to assess whether the offending vehicle was in fact carrying the hazardous goods when the accident occurred and if yes whether the endorsement as mandated by Rule 9 of CMVR 1989 would still be a prerequisite to determine or to assess the validity and effectiveness of driving license of driver / R-1 as on the date of accident.
27(e) R3W1 Ms. Shikha Chauhan has solely relied upon the Investigator Report to assert that the vehicle was not loaded with gas cylinder as on the date of accident, however, admittedly she did not file the investigator report on record. The investigator has not been called in evidence by the insurance company to file or to prove any such Investigator Report. PW-1 Hari Shankar Sharma also clarified during cross examination by counsel for R-1/ driver that the truck was empty after unloading the cylinder in the gas plant. There is nothing on record to controvert the assertions made by PW-1 Hari Shankar Sharma on the aspect that the truck was not loaded with the gas cylinders at the time of accident. It is noted that a copy of Training Certificate in respect of safe transportation of hazardous goods has been filed on record with validity upto 24.08.2024, thus covering the date of accident. While deliberating on a similar issue, Hon'ble Delhi High Court in the case of Manish Garg & Anr. Vs. United India Insurance Company & Ors.MAC APP no. 11/2023, held that the absence of endorsement under Rule 9 (3) of MV Rules cannot be MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 32 of 39 construed as a breach of statutory condition sufficient to grant recovery right to the insurer specifically when it is not proved that the offending vehicle was carrying hazardous goods at the time of accident. Following observations as relevant to the context at hand are reproduced hereunder:
"38. In the present case, there is no evidence on record which shows that the offending oil tanker at the time of the accident was carrying any hazardous substance.
39. It is relevant to note that the Investigating Agency, during the course of trial, failed to establish that the offending vehicle driven by the appellant driver was in fact carrying any combustible or hazardous substance at the time of the incident. No witness examined during trial made any assertion to that effect, nor was any suggestion put to the witnesses during cross- examination indicating that the vehicle was laden with hazardous material.
40. There is no mention of the offending tanker containing oil or any hazardous substance, or of any seizure, in the FIR or the charge sheet. The DAR is conspicuously silent on this crucial factual aspect. No evidence on this aspect had been led by Respondent No. 1/ Insurance Company to show that the offending oil tanker was carrying any combustible material at the time of the accident as well. In the absence of such evidence, the presumption that the vehicle was transporting dangerous goods cannot be sustained.
41. The Hon'ble Allahabad High Court in the case of New India Assurance Co. Ltd. v. Lakshmi : 2018 SCC OnLine All 6122 held that the requirement of endorsement arises only when a vehicle is actually carrying goods of a hazardous or dangerous nature. The Court held that an empty container or tanker, by itself, cannot be treated as hazardous unless there is evidence to prove that it contained or was carrying such goods at the time of the accident. In the absence of such evidence, no breach of Rule 9 of the MV Rules can be presumed. The relevant portion of the judgment is reproduced hereunder:
"10. The object behind the proviso is that a person who is driving vehicle carrying such goods must be trained enough so that no causality of any kind takes place on account of careless or negligent driving. The purpose of endorsement on the license is also same. The question, therefore, is as to whether empty MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 33 of 39 container of such goods by itself to be treated as dangerous or hazardous to human life. In the opinion of the Court an empty container or cylindrical bottle cannot be termed as goods dangerous or hazardous nature to human life. Rule 9(3) makes endorsement obligatory if one intends to carry goods that are dangerous or hazardous by nature to human life. So emphasis is that goods by very nature should be dangerous or hazardous to human life. A mere container or bottle that might be used to contain dangerous or hazardous goods cannot be treated itself as dangerous or hazardous by nature. It is quite possible that empty containers are carried from one place to another place and, therefore, unless sufficient evidence is led by the parties that those containers that were loaded on a truck carried dangerous or hazardous goods, the driver while driving such vehicle with a valid license entitling him to a drive transport vehicle will not get rendered ineligible just for carrying empty cylinders and in such circumstances the insurance company will not get absolved from its liability in a third party claim. It could be a case where manufacturer transports cylinders to the industry/company and it could equally be a case where containers are transported from production unit to sale unit or to a Godown at distant place. In such circumstances, transportation of such empty cylinders or containers from one place to another would not require driver to have endorsement under proviso to section 14 of Act, 1988. Since containers or cylinders are not dangerous or hazardous goods by nature, therefore, in the event of a road accident involving transport vehicle carrying such empty cylinders/containers the insurance company cannot get rid of its liability to meet third party claim as per terms of insurance policy."
42. Even otherwise, Appellant No. 2/ driver was undisputably holding a valid driving license at the time of the accident and had undergone the requisite training for driving vehicles carrying hazardous goods, a fact duly evidenced by a training certificate which has not been disputed by Respondent No. 1/Insurance Company. The endorsement referred to in Rule 9(3) of the MV Rules, is merely a ministerial act to be performed by MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 34 of 39 the licencing authority and not a prerequisite that nullifies the competency or training of the driver. A coordinate Bench of this Court in National Insurance Co. Ltd. v. Sonia Mittal : 2017 SCC OnLine Del 11202 while deciding somewhat similar issue, held as under :
"11. Coming to the defence taken by the insurance company vis-à- vis the driver and owner of the offending vehicle, what distinguishes the case at hand is that the driver of the offending vehicle had undergone the requisite training which had been duly certified. There is nothing on record to show that the insurance company raises questions about the validity of the training certificate. It is insisting merely on the fact that there was no endorsement secured from the transport authority in terms of the requirement under the rules. That, however, ought not cut any ice.
What is the crucial requirement is the special training for driving a vehicle meant for transportation of hazardous goods. That requirement had been fulfilled. Securing of endorsement in wake of such certification of the special skill was more of ministerial nature. The rule of main purpose would apply [see National Insurance Company v. Swaran Singh (2004) 3 SCC 297]. The plea of insurers for recovery rights is, therefore, rejected."
43. The reliance placed by the Insurance Company on judgment in the case of Mangla Goods Carrier v. National Insurance Co. Ltd. (supra), in the opinion of this Court, is misplaced, inasmuch as the said judgment did not consider the earlier binding decision in National Insurance Co. Ltd. v. Sonia Mittal (supra), where as noted above, this Court held that the absence of endorsement on the license, despite the driver having the requisite certified training, would not amount to a disqualification or breach of policy conditions. The Court categorically held that securing such an endorsement was a ministerial act and the core requirement was possession of specialised training and knowledge.
44. I find myself in agreement with the reasoning adopted in National Insurance Co. Ltd. v. Sonia Mittal (supra), which also drew strength from the law laid down by the Hon'ble Apex Court in National Insurance Co. Ltd. v. Swaran Singh : (2004) 3 SCC 297, wherein it was held that a breach must be proved to be willful and fundamental to deny indemnity to the insured and MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 35 of 39 rule of main purpose would apply. The relevant portion is reproduced hereunder :
"Summary of findings
110. The summary of our findings to the various issues as raised in these petitions is as follows:
xxx xxx xxx
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving license is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act."
45. Therefore, in the present case, Appellant No. 2/driver had undergone requisite training and was in possession of a valid driving license. Further, there is no evidence that the tanker was carrying hazardous goods at the relevant time, the mere absence of endorsement under Rule 9(3) of the MV Rules cannot be construed as a breach of statutory conditions sufficient to grant recovery rights to the insurer. At best, the absence of endorsement may attract an administrative penalty under the applicable rules, but it does not render the license invalid or the insurance policy inoperative vis-à-vis third-party claims."
27(f) The contention raised by insurance company that absence of endorsement to transport hazardous goods in the offending vehicle would constitute fundamental breach of terms and conditions of the insurance policy when it has not proved that the vehicle was in fact carrying the hazardous goods is held as untenable and hence rejected.
MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 36 of 39 27(g) It is admitted that the insurance policy was valid and effective as on the date of accident and also considering that driver had a valid driving license to drive the goods carriage as on the date of accident, in the interest of justice and in view of the statutory obligation upon the insurance company to provide coverage to the third party against the accident, it is directed that the insurance company shall pay the entire compensation to the injured along-with interest @ 7.5% from the date of filing of DAR till realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount. Further, in case the matter adjourned sine die, interest for the period i.e. the date of concerned order till revival of the case, shall not be awarded. Further, if any auction proceeds is received, same be adjusted in the final award amount).
28. The award amount shall be deposited by the Insurance Company. Counsel for the Insurance Company is also directed to furnish the complete case details, including the MACT case number, CNR number, FIR number, name of Police Station, name of the deceased/claimant(s), date of accident, and any other relevant particulars, to the State Bank of India, Saket Court Branch, New Delhi at the time of getting the amount deposited. The amount shall be deposited through RTGS/NEFT/IMPS in the account titled "MACT FUND PARKING", Account No. 00000042706870765, IFSC Code SBIN0014244, MICR Code 110002342, under intimation to the Nazir of this Tribunal.
29. Release of Award Amount/ Disbursement
(a) Whole amount along with proportionate interest is directed to be released in the bank account of claimant. MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 37 of 39
30. In terms of the Practice Directions issued by Hon'ble High Court, vide reference no. 134/Rules/DHC, dated 14.05.2025, the claimant (s) are directed to produce their bank account details along with either a certificate of the banker giving all details of the bank account of the person or persons entitled to receive the compensation including IFS Code, or a copy of cancelled cheque of the bank account to this Tribunal with seven days of the date of Award, if not already placed on record. They are also directed to file their Aadhar Card and PAN Card if not already filed.
31. Directions to the Branch Manager, SBI, Saket Court Complex 31(a). The Manager, SBI, Saket Court Complex, is further directed to verify the documents and details submitted by the claimant pertaining to their bank account, and upon proper verification, under certification of the Branch Manager (of the bank whose details have been provided by the claimant for release of the compensation amount) disburse the amount, directed to be released to the claimant, directly into the verified bank account of the claimant under notice to the Tribunal.
32. SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 21.07.2022 2 Name of injured Hari Shankar 3 Age of the injured 23 years MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 38 of 39 4 Occupation of the Not proved injured 5 Income of the injured 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 Yes.
disability?
33. 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 Digitally signed concerned criminal court. by SHELLY SHELLY ARORA Announced in the open court ARORA Date:
2025.09.02 on 02.09.2025s 16:57:29 +0530 Shelly Arora PO (MACT)-02, SE/Saket/Delhi 02.09.2025 MACT No.:635/2024 Hari Shakar Vs. Ram Sevak & Ors. Page No. 39 of 39