Raju Gupta S/O Sh. Madan Mohan Gupta vs Himachal Road on 8 October, 2018

[Cites 17, Cited by 0]

Delhi District Court

Raju Gupta S/O Sh. Madan Mohan Gupta vs Himachal Road on 8 October, 2018

                 Sh. G. N. Pandey,  Motor Accident Claims Tribunal( Pilot Court) 
                                  Karkardooma Courts, Delhi.




                        In the Court of Sh. G. N Pandey 
                  Motor Accident Claims Tribunal(Pilot Court) 
                              Karkardooma Courts, Delhi.           

                                                               
                                    DAR Nos. 153/16, 154/16 & 155/16


                                                   DAR No. 153/16

IN THE MATTER OF :

                 Raju Gupta S/o Sh. Madan Mohan Gupta
                 R/o H. No. 1511, Gali Arya Samaj, Sita Ram Bazaar,
                 Chandni Chowk, Delhi. 

                                                              ............ Petitioner

                                         V E R S U S


        1.       Manoj Kumar s/o Sh. Babu Ram 
                 R/o H. No. B2, Nangli Vihar, 
                 New Delhi. 

        2.       Ram Singh S/o Sh. G. S. Meena
                 R/o H. No. 117, Gali No. 3, Prem Vihar,
                 Nangli Dairy, Najafgarh, Delhi. 

        3.       National Insurance Co. Ltd. 
                 B18, Janak Puri, 1st Floor,
                 New Delhi. 
                                                              ........ Respondents

Date of Institution of DAR      : 29.03.2016
Date of Judgment/Order     : 08.10.2018 



DAR Nos. 153/16, 154/16 & 155/16                                         1 of 35

Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

DAR No. 154/16

IN THE MATTER OF : Neelam W/o Sh. Satish Kumar R/o E2/548, Gali no. 3, Sonia Vihar, Delhi.

............ Petitioner V E R S U S

1. Manoj Kumar s/o Sh. Babu Ram R/o H. No. B2, Nangli Vihar, New Delhi.

2. Ram Singh S/o Sh. G. S. Meena R/o H. No. 117, Gali No. 3, Prem Vihar, Nangli Dairy, Najafgarh, Delhi.

3. National Insurance Co. Ltd.

                 B18, Janak Puri, 1st Floor,
                 New Delhi.                                   ........ Respondents 

Date of Institution of DAR      : 29.03.2016
Date of Judgment/Order     : 08.10.2018 

                                                   DAR No. 155/16
IN THE MATTER OF :

                 Satish Kumar S/o Sh. Kanhaiya Lal

R/o E2/548, Gali no. 3, Sonia Vihar, Delhi.

............ Petitioner V E R S U S

1. Manoj Kumar s/o Sh. Babu Ram R/o H. No. B2, Nangli Vihar, New Delhi.

2. Ram Singh S/o Sh. G. S. Meena R/o H. No. 117, Gali No. 3, Prem Vihar, Nangli Dairy, Najafgarh, Delhi.

DAR Nos. 153/16, 154/16 & 155/16 2 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

3. National Insurance Co. Ltd.

B18, Janak Puri, 1st Floor, New Delhi.

                                                              ........ Respondents 

Date of Institution of DAR      : 29.03.2016
Date of Judgment/Order     : 08.10.2018 


A W A R D:

1. By this order, I shall dispose off three connected DAR petitions bearing No. 153/16, 154/16 & 155/16 for grant of compensation.

2. Briefly the facts of these DAR petitions are that on 14/15.02.2016 at about 2 AM, all the injured boarded in an auto No. DL 1 RM 0893 to go to Sonia Vihar from Khajoori Chowk. The driver of the aforesaid auto started driving his vehicle/ auto in a very rash and negligent manner and at a very high speed. When the auto reached at Wazirabad road in front of Sonia Vihar Water Plant, in the meanwhile driver of the said auto hit the said vehicle in a standing truck No. HR 55 F 2507 from the backside. Due to which, all the passengers sustained multiple injuries. Regarding accident, FIR No. 155/16 was registered at PS Kajoori Khas, Delhi for offence U/s 279/337/338 IPC. The respondents in all the petitions are common.

3. The respondent No. 1 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, respondent is falsely implicated in the above noted case; the said vehicle is not involved in the alleged accident. It is further contended that alleged vehicle was duly insured with the insurance company. While denying rest of the claim of the DAR Nos. 153/16, 154/16 & 155/16 3 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

petitioner in the petition, the respondent No. 1 prayed to dismiss the petition with cost.

The respondent No. 2 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, respondent is falsely implicated in the above noted case; the said vehicle is not involved in the alleged accident. It is further contended that alleged vehicle was duly insured with the insurance company. While denying rest of the claim of the petitioner in the petition, the respondent No. 2 prayed to dismiss the petition with cost.

The respondent No. 3 / insurance company filed WS of the claim petition admits that policy No. 361801/31/14/67000015255 valid from 10.03.2015 to 09.03.2016 for vehicle No. DL 1 RM CND 0893 issued to Ram Singh.

4. In view of the records, following issues were framed on 01.09.2016 in petition No. 153/16:

1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle No. HR 55 F 2507 by respondent No. 1 on 15.02.2016 at about 2 AM at Wazirabad road in front of Sonia Vihar, Water Plant towards Wazirabad Road, Delhi within the jurisdiction of PS Khajoori Khas ?OPP

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

5. Following issues were framed in petition No. 154/16 on 01.09.2016 : DAR Nos. 153/16, 154/16 & 155/16 4 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

6. Following issues were framed in petition No. 155/16 on 01.09.2016:

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

The evidence were recorded in the matter for disposal of the petitions: Evidence in Petition No. 153/16

7. Petitioner examined himself as PW1 by way of affidavit Ex. PW 1/ X. Witness has relied upon the documents i.e. Original bills E.x PW 1/ 1, photocopy of ID proof of injured Ex. PW 1/ 2 and attested copy of DAR Nos. 153/16, 154/16 & 155/16 5 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

criminal case record Ex.PW 1/ 3.

The petitioner also summoned and examined witness i.e. Dr. Apoorv Sehgal, Sr. Resident, Department of Orthopedics, GTB Hospital, Delhi as PW2 who proved the disability certificate Ex. PW 2/1. In view of the disability certificate, the petitioner is suffering 37 % physical disability in relation to left lower limb and right upper limb. PE was thereafter closed.

8. Respondent No. 1 examined himself as R1W1 by way of affidavit Ex. R1W1/A. Respondent No. 2 examined himself as R2W1 by way of affidavit Ex. R2W1/A. Respondent No. 1 and 2 summoned and examined the witness i.e. Sh. Ashok Dabas, Incharge, Operation Control Centre, Transport Department, Govt. of NCT of Delhi, Rajpur Road, Delhi as R2W2 appeared with the GPS Tracking report of vehicle bearing No. DL 1 RM 0893 for the period from 14.02.2016 (9:35 am to 9:02) and 15.02.2016 ( 10:10 am to 9:15 pm). Report in this respect alongwith covering letter Ex. R2W2/1. RE was thereafter closed.

Evidence in Petition No. 154/16

9. Petitioner examined herself as PW1 by way of affidavit E.x PW 1/ X. Witness has relied upon the documents i.e. copy of adhar card Ex. PW 1/ 1. PE was thereafter closed.

10. Respondent No. 1 examined himself as R1W1 by way of affidavit Ex. R1W1/A. Respondent No. 2 examined himself as R2W1 by way of affidavit Ex. R2W1/A. Respondent No. 1 and 2 summoned and examined the witness i.e. Sh. Ashok Dabas, Incharge, Operation Control Centre, Transport DAR Nos. 153/16, 154/16 & 155/16 6 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Department, Govt. of NCT of Delhi, Rajpur Road, Delhi as R2W2 appeared with the GPS Tracking report of vehicle bearing No. DL 1 RM 0893 for the period from 14.02.2016 (9:35 am to 9:02) and 15.02.2016 ( 10:10 am to 9:15 pm). Report in this respect alongwith covering letter Ex. R2W2/1. RE was thereafter closed.

Evidence in Petition No. 155/16

11. Petitioner examined himself as PW1 by way of affidavit Ex PW 1/ X. Witness has relied upon the documents i.e. copy of ID proof Ex. PW 1/ 1. PE was thereafter closed.

12. Respondent No. 1 examined himself as R1W1 by way of affidavit Ex. R1W1/A. Respondent No. 2 examined himself as R2W1 by way of affidavit Ex. R2W1/A. Respondent No. 1 and 2 summoned and examined the witness i.e. Sh. Ashok Dabas, Incharge, Operation Control Centre, Transport Department, Govt. of NCT of Delhi, Rajpur Road, Delhi as R2W2 appeared with the GPS Tracking report of vehicle bearing No. DL 1 RM 0893 for the period from 14.02.2016 (9:35 am to 9:02) and 15.02.2016 ( 10:10 am to 9:15 pm). Report in this respect alongwith covering letter Ex. R2W2/1. RE was thereafter closed.

13. I have heard Ld. Counsel for petitioner, ld. counsel for respondent No. 1 and 2 and ld. Counsel for insurance company and considered the relevant materials on record. I have also gone through the written argument filed on behalf of respondent No. 1 and 2. My issue wise findings are as below :

14. My findings on the aforesaid issues are as follows : Issue No. 1 in petition No. 153/16: DAR Nos. 153/16, 154/16 & 155/16 7 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

15. To succeed in the claim petitions in view of Section 166 of the MV Act, it is for the claimant to prove that vehicle which caused the accident was being driven rashly and negligently by its driver. Issue No. 1 in all three cases is taken up together. Petitioner Raju Gupta, Neelam and Satish Kumar were examined and deposed about the facts of the case. They were crossexamined by Ld. Counsel for respondents and during cross examination nothing has come forward in their testimony to disbelieve the DAR Nos. 153/16, 154/16 & 155/16 8 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

version of PWs. On the other hand, the testimony of RWs did not rebut the testimony of PW to deny the claim of the petitioner and mere denial is not sufficient to rebut the claim of the petitioner. No witness was produced or examined by respondents as well to prove as to how accident occurred due to the negligence of the deceased/ injured; the respondent No. 1 was not at fault and was not driving the vehicle in rash and negligent manner. There is no reason to disbelieve the testimony of witnesses. DAR filed by IO which includes copy of FIR, site plan, MLC etc. I have gone through the record and documents in respect of the accident caused to the petitioner which is prima facie suggestive of negligence of respondent No. 1 in driving the vehicle at the time of accident.

Relied judgment in (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530 and the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646).

Hon'ble Supreme Court in Bimla Devi and Ors. V/s Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 held as under:

"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

16. In judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was DAR Nos. 153/16, 154/16 & 155/16 9 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh, 2009 (3) AD (Delhi) 310, an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the Claimant had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.

17. I have gone through the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana to examine the aspect of negligence wherein in the Hon'ble High Court held that: In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.

Further, in Kaushnumma Begum and others V/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue DAR Nos. 153/16, 154/16 & 155/16 10 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.

Further the Hon'ble High Court of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. V/s. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Delhi High Court, held as under:

"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit.

18. Therefore, in view of the criminal case record and statement of PWs, it is proved that the injured Raju Gupta, Neelam and Satish Kumar sustained injuries on 15.02.2016 by the offending vehicle bearing No. DL 1 RM 0893 driven by respondent No. 1. The issue is decided accordingly.

Issue No. ii in claim petition No. 153/16 :

(ii) Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP DAR Nos. 153/16, 154/16 & 155/16 11 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

19. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held:

4. The provision of the Motor Vehicles Act, 1988 ( Act for short) makes it clear that the award must be just, which means that compensation should , to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court of tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: DAR Nos. 153/16, 154/16 & 155/16 12 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising:

                          (a)         Loss   of   earning   during   the   period   of
           treatment;
                          (b)       Loss   of   future   earnings   on   account   of
           permanent disability. 
                 (iii)    Future medical expenses. 
                 Nonpecuniary damages (General Damages)
                 (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 earning on account of permanent disability, future medical expenses, loss of amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary DAR Nos. 153/16, 154/16 & 155/16 13 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual 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.

permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. 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 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.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.

DAR Nos. 153/16, 154/16 & 155/16 15 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

(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 percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard 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 percentage of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

20. I have gone through the testimony of the witnesses alongwith complete medical records. Ld. Counsel for respondents argued that as the petitioner failed to prove his income, he is entitled for compensation in accordance with the minimum wages at relevant time. It is further stated that injured has not suffered any monetary loss on account of the injury and therefore, he should not be granted any amount on account of loss of income.

21. PW1 has stated in his affidavit vide Ex. PW 1/A that he was doing private work and earned Rs. 20,000/ per month. PW2 Dr. Apoorv Sehgal, DAR Nos. 153/16, 154/16 & 155/16 16 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Sr. Resident, Department of Orthopedics, GTB Hospital, Delhi proved the disability certificate of petitioner which is Ex. PW 2/1 deposing that patient is suffering 37 % physical disability in relation to left lower limb and right upper limb. Due to the disability received, certainly his carrier prospects and life has been affected including his earning capacity. As stated, he was doing private job, he cannot perform his profession keeping in view of nature of work and injury/ age. It may be concluded that the accident/ disability of the petitioner can reduce his efficiency and activities. In the facts and circumstances of the case and nature of disability of the petitioner, I assessed that due to disabilities sustained, his capacity has been reduced restricting him from carrying his work. Considering the evidence on record and facts of the case, the functional disability of the petitioner has been assessed as 20 % in relation to his whole body, in view of judgment of Raj Kumar V/s Ajay Kumar & Ors., (2011) 1 SCC 343.

22. As per adhar card, the date of birth of injured is 14.01.1983. The accident took place on 15.02.2016 therefore the age of the injured is taken as about 34 years on the date of accident. Petitioner stated that at the time of accident, he was doing private job and earned Rs. 20,000/ per month. No documents has been placed or proved on record by petitioner regarding his earning therefore in the absence of any records, petitioner is entitled to compensation as per minimum wages Act as applicable to unskilled workman while considering his monthly salary as per prevalent rate at relevant time i.e. 15.02.2016 when accident took place. The income of the injured is assessed as per the minimum wages on the date of accident i.e 15.02.2016 which was Rs. 9,178/ per month for unskilled workman. As the petitioner / injured did not produce or prove any document to show that he was engaged in regular job / self employed, in view of the judgment of DAR Nos. 153/16, 154/16 & 155/16 17 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

the Hon'ble Supreme Court in National Insurance Company Ltd Vs. Pranay Sethi and Ors. (SLP (C) No.25590/2014, he is not entitled for addition towards future prospects.

Accordingly, the loss of income on account of disability/ future earnings is as follows:

1. Annual income before the accident (9,178/ X 12) Rs. 1,10,136/

2. Loss of future earnings per annum( 20 %) Rs. 22,027/

3. Multiplier applicable with reference to age 16

4. Loss of future earnings (16 x 22,027/) Rs. 3,52,432/

23. The Claimant is thus awarded a compensation of an amount of Rs. 3,52,432/( Rs. 9,178/ X 12 X 16 x 0.20) under the head Future Loss of Income.

24. There is nothing on record in support of the affidavit of PW1 that injured suffered any loss of earnings from his work. However, with the kind of injuries suffered by him, it can be safely assumed that he would have been under treatment for about five months. He is thus awarded Rs. 45,890/ (Rs. 9,178/ X 5) for five months for Loss of Wages.

25. The petitioner has claimed compensation from respondents. It is also claimed that after the accident, the petitioner could not perform his routine and required attendant/ assistance for his day to day business; he also suffered financial losses due the accident and his family suffered mental pain and agony.

26. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in his life generally are to be reckoned. From the overall assessment, his age and the fact that his disability shall remain throughout his life, I assess Rs. 50,000/ as compensation towards Pain, DAR Nos. 153/16, 154/16 & 155/16 18 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Shock and Suffering to the Claimant.

27. The Claimant will have to endure his physical discomfort, disappointment and stress for whole of his remaining life. He is awarded a compensation of Rs. 30,000/ towards Loss of Amenities and Enjoyment of Life.

28. Ld. Counsel for petitioner submits that petitioner has spent amount for his treatment and medical bills has been filed on record. After perusal of the medical bills, petitioner is awarded a sum of Rs. 4,711/ towards medical bills.

29. The Claimant has not filed any document in support of the fact that he had incurred expenses on keeping an attendant, for conveyance and for extra nutritious diet. However, I guess he must have spent some amount for which he is awarded a lumpsum amount of Rs. 30,000/ for Special Diet and for Conveyance Charges.

30. Keeping in view the nature of injuries suffered by the petitioner and the fact that he was under constant treatment, he needed an Attendant to look after him and the petitioner is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. A victim of accident has to be compensated in terms of money even if gratuitous services are under by a family members. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble High Court held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. In the circumstances, where the injured had suffered permanent disability, it is DAR Nos. 153/16, 154/16 & 155/16 19 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

deemed fit that a lump sum of Rs. 20,000/ be awarded as compensation towards Attendant charges.

31. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the Claimant :

1. Future Loss of Income Rs. 3,52,432/

2. Towards Pain Shock & Suffering Rs. 50,000/

3. Towards Loss of Amenities & Enjoyment of Life Rs. 30,000/ 4 Towards Servant / Attendant Charges Rs. 20,000/

5. Towards Conveyance & Special diet Rs. 30,000/ 6 Towards medical bills Rs. 4,711/ 7 Towards loss of Wages Rs. 45,890/ Total= Rs. 5,33,033/ I accordingly award an amount of compensation of Rs. 5,33,033/ in favour of the Claimant and against Respondents. Issue No. ii in MACT No. 154/16: ii. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

32. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held:

manner. The court of tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( 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
DAR Nos. 153/16, 154/16 & 155/16                                         21 of 35

Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

permanent disability.

                 (iii)    Future medical expenses. 
                 Nonpecuniary 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).

(b), (iii), (v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual 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 DAR Nos. 153/16, 154/16 & 155/16 22 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

claimant.

Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. Ascertainment of the effect of the permanent disability on the actual earning capacity involves DAR Nos. 153/16, 154/16 & 155/16 23 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

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 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.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent DAR Nos. 153/16, 154/16 & 155/16 24 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

disability can give evidence only in regard 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.

33. I have gone through the testimony of the witnesses alongwith complete medical records. Ld. Counsel for respondents argued that as the petitioner failed to prove her income, she is entitled for compensation in accordance with the minimum wages at relevant time. It is further stated that injured has not suffered any monetary loss on account of the injury and therefore, she should not be granted any amount on account of loss of income.

34. PW1/ petitioner has stated in her affidavit Ex. PW1/A that she is housewife and due to the accident, she remained on bed and she has suffered for long time and she had spent huge money upon her treatment.

35. I have gone through the medical records of the petitioner. Nothing in support of the fact of loss of wages suffered by the petitioner is produced nor it is claimed either in the petition or in the affidavit that injured / petitioner suffered any amount towards loss of wages. Keeping in view the age of petitioner and injury as well as material on records, the petitioner failed to prove any loss of wages on records. The medical record also suggests that the petitioner's medical rest is not proved in support of her contentions.

36. After perusal of the medical documents of the injured, it appears that DAR Nos. 153/16, 154/16 & 155/16 25 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

injured has suffered simple injury. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in her life generally are to be reckoned. From the overall assessment, her age and the fact and gravity of the injury, petitioner is granted the total compensation of Rs. 15,000/. As the Claimant failed to prove any grievous injuries to effect her physical discomfort, disappointment and stress for whole of her remaining life, she is not entitled for any amount towards Loss of Amenities and Enjoyment of Life.

I accordingly award an amount of compensation of Rs. 15,000/ in favour of the Claimant and against Respondents. Issue No. ii in MACT No. 155/16: ii. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

37. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held:

reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising:

                          (a)         Loss   of   earning   during   the   period   of
           treatment;
                          (b)       Loss   of   future   earnings   on   account   of
           permanent disability. 
                 (iii)    Future medical expenses. 
                 Nonpecuniary damages (General Damages)
DAR Nos. 153/16, 154/16 & 155/16                                         27 of 35

Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

(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).

(b), (iii), (v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual 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.

Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent DAR Nos. 153/16, 154/16 & 155/16 28 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. 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 DAR Nos. 153/16, 154/16 & 155/16 29 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

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 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.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.

the evidence in entirety.

38. I have gone through the testimony of the witnesses alongwith complete medical records. The petitioner deposed that due to the accident, he sustained multiple injuries ; he was taken to Jag Pravesh Chand Hospital and was treated vide MLC No. 7643. Regarding accident, FIR No. 155/16 was registered at PS Khajoori Khas, Delhi. Petitioner further claimed that he was doing private job and earned Rs. 20,000/ per month. Petitioner has not filed / proved on record the income proof. Keeping in view the age of petitioner and injury as well as material on records, the petitioner failed to prove any loss of wages on records.

39. In view of the MLC of the injured, the injury of the petitioner is simple. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in his life generally are to be reckoned. From the overall assessment, his age and the fact and gravity of the injury, petitioner is granted the total compensation of Rs. 15,000/. As the Claimant failed to prove any grievous injuries to effect his physical discomfort, disappointment and stress for whole of her remaining life, he is not entitled for any amount towards Loss of Amenities and Enjoyment of Life. I accordingly award an amount of compensation of Rs. 15,000/ in favour of the Claimant and against Respondents. Liability:

40. Respondent No. 3 is the insurance company which admittedly has DAR Nos. 153/16, 154/16 & 155/16 31 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

issued a valid insurance policy of the offending vehicle. There is no evidence on behalf of respondent No. 3 to show that there was any violation of the rules and terms of policy by the respondent No. 1 & 2. Hence, I am of the opinion that respondent No. 3 being insurance company is liable to pay the compensation on behalf of respondent No. 1 & 2. Interim award if any paid to injured/ petitioner be adjusted in the award amount.

Award in MACT No. 153/16:

41. Resultantly, the DAR petition stands allowed. Insurance company is hereby directed to pay the compensation of Rs. 5,33,033/ within one month to the Claimants. Claimants are also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC).

42 The insurance company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

43. Out of the total award amount of Rs. 5,33,033/, UCO Bank, KKD Courts is directed to keep the amount of Rs. 4,00,000/ in 4 FDRs of Rs. 1,00,000/ each for the maturity period of one year to four years respectively ( at the interval of one year each) with cumulative interest in the name of petitioner.

44. UCO Bank, KKD Courts is directed to release the remaining amount alongwith interest in favour of petitioner in his saving bank account after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or DAR Nos. 153/16, 154/16 & 155/16 32 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

debit card / cheque book has been cancelled ( if issued).

45. Withdrawal from the said Account shall be permitted to the petitioner after due verification.

46. All the original FDRs shall be retained by the UCO bank, KKD Courts. However, the statement containing the FDRs number, amount, date of maturity and maturity amount shall be furnished by the UCO Bank to the petitioner/ beneficiary. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary. The beneficiary shall intimate regarding his bank and account number for automatic credit of the maturity amount.

47. No loan, advance or premature discharge of the FDRs shall be permitted without permission of this court.

48. The maturity amount of the FDRs alongwith interest thereon be transferred to the saving bank accounts of the beneficiary.

49. The liberty is given to the petitioner/ injured to approach this court for release of further amount in event of any financial exigency.

50. On request of Claimant, bank shall transfer the Savings Account to any other branch in the name of petitioner and the bank of the petitioner are directed not to issue any cheque book or Debit Card to the account holder.

51. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

52. FormV shall be read as a part of the judgment.

DAR Nos. 153/16, 154/16 & 155/16 33 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Award in MACT No. 154/16:

53. Resultantly, the DAR petition stands allowed. Insurance Company is hereby directed to pay the compensation of Rs. 15,000/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Insurance Company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

54. Withdrawal from the said Account shall be permitted to Claimant after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

55. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

56. FormV shall be read as a part of the judgment. Award in MACT No. 155/16:

57. Resultantly, the DAR petition stands allowed. Insurance Company is hereby directed to pay the compensation of Rs. 15,000/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization.

DAR Nos. 153/16, 154/16 & 155/16 34 of 35 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

(The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Insurance Company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

58. Withdrawal from the said Account shall be permitted to Claimant after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

59. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

60. FormV shall be read as a part of the judgment.

61. Copy of this judgment be placed in the DAR petitions bearing Nos.

                                                                           Digitally signed by
153/16, 154/16 & 155/16.                                                   GORAKH NATH
                                                                           PANDEY
                                             GORAKH                        Location: Court
                                             NATH                          No.69, North East
                                                                           District,
Announced in open Court 
on this day of 08th October 2018
                                             PANDEY                        Karkardooma
                                                                           Court, Delhi
                                                                           Date: 2018.10.08
                                                                           16:51:03 +0530
                                               G. N. Pandey

Motor Accident Claims Tribunal(Pilot Court) Karkardooma Courts, Delhi.

DAR Nos. 153/16, 154/16 & 155/16                                        35 of 35

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