Delhi District Court
Guddi Devi (Dar) vs Salman Khan (167/19Slc) on 4 November, 2024
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.185/2020
FIR No.167/2019
PS Sun Light Colony
U/s 279/338 IPC
CNR No. DLSE01-001604-2020
Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs.
Salman Khan & Ors.
1. Banwari Lal (husband of deceased)
2. Babloo (son of deceased)
3. Sarita (daughter of deceased)
4. Arti (daughter of deceased)
5. Manoj (son of deceased)
6. Jyoti (daughter of deceased)
7. Pooja (daughter of deceased)
All R/o H. No. T-52,
Sarai Kale Khan,
Hazrat Nizamuddin, South Delhi,
Delhi-110013.
.....Petitioners
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Versus
1. Salman Khan
S/o Sirtaj
R/o Vill.- Bhalaye Khurd,
PS- Mohan Ganj, Amethi, Uttar Pradesh.
...R-1/ Driver
2. Rajesh Kumar
R/o C-28, Karampura,
New Delhi.
...R-2/ Owner
3. The New India Assurance Company Limited
Rohini Micro Office, 310906, Unit no.103,
1st Floor, RG Complex, D. C. Chowk, Sector -9,
Rohini, Delhi.
....R-3/ insurance Company
Date of accident : 27.06.2019
Date of filing of DAR : 28.02.2020
Date of Claim Petition: : 03.01.2022
Date of Decision : 04.11.2024
AWARD
1. A Detailed Accident Report (DAR) filed by IO ASI Tridev
on 28.02.2020 was registered as claim petition u/s 166 (4) MV
Act qua injuries sustained by Guddi Devi (hereinafter called the
injured) in an accident allegedly caused by vehicle bearing
Registration Number DL 1GC 2039 (hereinafter called the
offending vehicle), driven by Sh. Salman Khan (hereinafter
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referred as R-1), owned by Sh. Rajesh Kumar (hereinafter
referred as R-2) and insured with The New India Assurance
Company Limited (hereinafter called R-3). Subsequently, upon
her death on 03.01.2022, a claim petition was preferred by LRs
of claimant including husband and six children, seeking
compensation against her death due to injuries sustained in
accident. It is contended that respondent no.1/driver and
respondent no.2 as owner are liable to compensate the claimants
and accordingly R-3 being the insurance company of the
offending vehicle holds the responsibility to compensate for the
death of accident victim.
Brief Facts of DAR:
2. As per details gathered from copy of charge sheet, the first
information regarding accident was received through DD entry
no. 42A dated 27.06.2019 upon receipt of which, ASI Narender
Kumar with Ct. Pawan Kumar reached the place of accident i.e.
Sarai Kale Khan, Red Light se Gyaspur Jhuggio ki taraf jane
wale raste par, where he found the alleged stationed offending
vehicle i.e. oil tanker. They learned that the injured had already
been rushed to the hospital. Statement of eyewitness, Sh. Salan
Kumar, who ran a roadside stall near the spot of accident, was
recorded by the police who informed that on 27.06.2019 at about
4:30 PM, he saw the offending vehicle speeding and being driven
in a rash and negligent manner took a sharp turn and hit a
pedestrian woman, running over her leg. The driver, later
identified as Salman, also attempted to flee but was apprehended
by him and other public persons present there, until the police
arrived. He also made PCR call which took the injured to the
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hospital. In the meantime, upon receipt of DD no. 48A regarding
MLC, IO reached AIIMS Trauma Center and obtained MLC with
remarks "A/H/O RTA Pedestrian crossing the road run over by
truck at Sarai Kale Khan Red Light unfit for statement". FIR was
registered. Site plan was prepared. Accidental vehicle was taken
into police possession. Mechanical Inspection of offending
vehicle was got conducted. Documents pertaining to offending
vehicle and the driving license of the driver were got verified.
Injuries were opined to be grievous in nature. Driver was charge
sheeted for commission of offence under section 279/338 IPC.
DAR was subsequently filed.
Proceedings:
3. In response to DAR, driver, owner as well as insurance
company appeared. Reply was filed by Insurance Company.
Reply:
4. In reply filed by Insurance Company, it is stated that DAR
Verification Report did not contain any information about the
permit for carrying the hazardous goods and there was no
clarification in respect of class of vehicle which the driver was
authorised for.
5. An application for assessment of physical disability of
injured was allowed vide order dated 06.11.2020 against which
disability certificate opining 90% permanent disability in relation
to left hip dis-articulation was received as noted in the order
dated 12.04.2021.
Issues:
6. From the pleadings of parties, following issues were
framed vide order dated 12.04.2021:
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1. Whether the injured suffered injuries in a road traffic
accident on 27.06.2019 due to rash and negligent driving
of vehicle no. DL 1GC 2039 being driven by R-1, owned
by R-2 and insured with R-3? OPP
2. Whether the injured is entitled to any compensation, if
so, to what extent and from whom? OPP
3. Relief.
Findings:
7. Matter was listed for evidence. Injured woman expired
during the proceedings. An application was filed by counsel for
claimant to bring on record the LRs of deceased. It was
contended that she expired on account of injuries sustained in the
accident. The application was considered under Order XXII Rule
4 CPC and allowed vide order dated 21.03.2023 whereby legal
heirs of Late Guddi Devi including husband and six children
were impleaded/ replaced as claimants in this matter. Amended
Memo of Parties also taken on record.
8. PW-1 Banwari Lal stepped in the witness box as PW-1 and
tendered his examination in chief by way of affidavit Ex.PW1/A.
He relied upon following documents:
I. Ex.PW1/1- Copy of Aadhar Card
II. Ex.PW1/2-Medical treatment documents of deceased (colly)
III. Mark A- Copy of death certificate of deceased
IV. Mark B- Copy of Post Mortem Report of deceased issued by
AIIMS Trauma Center.
V. Ex.PW1/3 - Copy of Aadhar Card of husband of deceased.
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VI. Ex.PW1/4 (colly)-Copy of Aadhar Cards of claimants no. 2
to 7.
VII- Ex.PW1/4- Copy of DAR
He was also cross examined by counsel for insurance
company.
9. PW-2 Sh. Salan Kumar stepped in the witness box as PW-2
and tendered his examination in chief by way of affidavit as
Ex.PW2/A. He relied upon his Aadhar Card as Ex.PW2/1. He
was also cross examined by counsel for insurance company.
10. Petitioners' Evidence was closed. Matter was then listed
for Respondent Evidence.
11. Insurance Company examined its witness Sh. Rahul Verma
as RW3 who also tendered his examination in chief by way of
affidavit as Ex.RW3/A and relied upon his Authorisation Letter
as Ex.RW3/1, copy of application for summoning the witness
from RTO, Amethi, Uttar Pradesh is Ex.RW3/2, D/L Report as
printed on 22.09.2023 with enclosing special endorsement letter
for carrying hazardous goods and letter of RTO witness stating
reason for non appearance before Ld. LC is Ex.RW3/3 (colly),
certified copy of Insurance Policy with respect to vehicle bearing
no. DL 1GC 2039 issued by New India Assurance Company is
favour of Sh. Rajesh Kumar is Ex.RW3/4.
12. He was cross examined by counsel for R-1 & 2 as well as
counsel for claimants.
Respondents Evidence was then closed.
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Final Arguments:
13. Final Arguments were addressed by counsel for claimant
and counsel for the insurance company. Counsel for the claimant
argued that the accident took place on account of rash and
negligent driving on the part of offending vehicle. She also stated
that injured suffered amputation and subsequently died on
account of injuries sustained in the accident as evident from the
post mortem report. Counsel for claimant also contended that
Guddi Devi used to work as a house help and earning about Rs.
20,000/- per month. Computation has also been filed in this case
by counsel for claimant.
14. Counsel for insurance company, on the other hand, stated
that compensation ought to be granted for the injuries sustained
in the accident and not for the death. He however admitted that
the vehicle was duly insured at the time of accident.
15. In view of the evidence on record, my issue wise findings
are as under:
Discussion:
Issue No.1
Whether the injured suffered injuries in a road traffic accident on
27.06.2019 due to rash and negligent driving of vehicle no. DL
1GC 2039 being driven by R-1, owned by R-2 and insured with
R-3? OPP
16. What is required to be ascertained is whether rash and
negligent driving of offending vehicle resulted in an accident
which caused injuries to the claimant.
17. It has been held in catena of cases that negligence has to be
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decided on the touchstone of preponderance of probabilities and
a holistic view is to be taken. It has been further held that the
proceedings under the Motor Vehicle Act are not akin to the
proceedings in a Civil Suit and hence, strict rules of evidence are
not applicable {support drawn from the cases of Bimla Devi &
Ors. Vs. Himachal Road Transport Corporation & Ors, (2009) 13
SC 530, Kaushnumma Begum and others v/s New India
Assurance Company Limited, 2001 ACJ 421 SC, and from the
case of National Insurance Co. Ltd Vs. Pushpa Rana cited as
2009 ACJ 287}.
18. PW-2 Salan Kumar appeared as eye witness in this matter
and gave a detailed narration of the mode and manner of the
accident specifying that the offending vehicle was an oil tanker
bearing the mark of Indian Oil and took a sharp turn towards the
way of Gyaspur Jhuggi in a high speed, without paying heed to
traffic rules and regulation, driven in rash and negligent manner,
ended up hitting a pedestrian woman from behind because of
which, he fell down and the front wheel of the said offending
vehicle ran over her left leg after which the driver tried to run
away from the spot but was caught and was handed over to the
police. He was cross examined by counsel for the insurance
company wherein he stated that he has been running the roadside
stall for the last 20 years from 08.00 AM till 11.00 PM. He again
reiterated that leg of Guddi Devi has been crushed under the front
wheel of offending vehicle. He also stated that he called the
police from his mobile phone and that Guddi Devi was taken to
AIIMS Trauma Center. He also stated that he has no contact with
the family members of deceased Guddi Devi.
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19. No contradiction or inconsistency could be elicited from
the detailed deposition of the eye witness. He has deposed to the
all clarity as how the accident caused. Police was immediately
informed as evident from the record. The FIR was promptly
registered. There is no doubt in involvement and the
identification of the offending vehicle and the identification of
driver thereof who was immediately caught after the accident and
handed over to the police. Driver of the offending vehicle has not
even made a feeble attempt to explain the circumstances
otherwise. In view of the discussion made above, it is held that
the accident took place on account of rash and negligent driving
of the offending vehicle.
20. In view of the discussion made above, the issue No.1 is
decided accordingly, in favour of the petitioner.
ISSUE NO. 2
ii). Whether the claimants are entitled to any
compensation, if so, to what extent and from whom?
OPP
21. Section 168 MV Act enjoins the Claim Tribunals to hold
an enquiry into the claim to make an effort determining the
amount of compensation which appears to it to be just and
reasonable. Same is reproduced hereunder for ready reference:
(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
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and specifying the person or persons to whom
compensation shall be paid and in making the award
the Claims Tribunal shall specify the amount which
shall be paid by the insurer or owner or driver of the
vehicle involved in the accident or by all or any of
them, as the case may be: Provided that where such
application makes a claim for compensation under
section 140 in respect of the death or permanent
disablement of any person, such claim and any other
claim (whether made in such application or otherwise)
for compensation in respect of such death or
permanent disablement shall be disposed of in
accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies
of the award to the parties concerned expeditiously
and in any case within a period of fifteen days from
the date of the award.
(3) When an award is made under this section, the
person who is required to pay any amount in terms of
such award shall, within thirty days of the date of
announcing the award by the Claims Tribunal, deposit
the entire amount awarded in such manner as the
Claims Tribunal may direct."
22. Before putting in frame the position of law, it is noted that
the process of determining the compensation by the court is
essentially a very difficult task and can never be an exact science.
Perfect compensation is hardly possible, more so in claims of
injury and disability. (As observed by Hon'ble Supreme Court of
India in the case of Sidram Vs. The Divisional Manager United
India Insurance Company Ltd, SLP (Civil) No. 19277 of 2019).
23. The basic principle in assessing motor vehicle
compensation claims, is to place the victim in as near a position
as she or he was in before the accident, with other compensatory
directions for loss of amenities and other payments. These
general principles have been stated and reiterated in several
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decisions. [Support drawn from Govind Yadav vs. New India
Insurance Company Ltd. , (2011) 10 SCC 683].
24. This Tribunal has been tasked with determination of just
compensation. The observation of Hon'ble Supreme Court of
India in Divisional Controller, KSRTC Vs. Mahadeva Shetty &
Anr. , (2003) 7 SCC 197, needs mention here (para 15):
Statutory provisions clearly indicate that the
compensation must be "just" and it cannot be a
bonanza; not a source of profit but the same should
not be a pittance. The courts and tribunals have a
duty to weigh the various factors and quantify the
amount of compensation, which should be just.
What would be "just" compensation is a vexed
question. There can be no golden rule applicable to
all cases for measuring the value of human life or a
limb. Measure of damages cannot be arrived at by
precise mathematical calculations. It would depend
upon the particular facts and circumstances, and
attending peculiar or special features, if any. Every
method or mode adopted for assessing
compensation has to be considered in the
background of "just" compensation which is the
pivotal consideration. Though by use of the
expression "which appears to it to be just", a wide
discretion is vested in the Tribunal, the
determination has to be rational, to be done by a
judicious approach and not the outcome of whims,
wild guesses and arbitrariness.. ..."
25. Delineating the damages as pecuniary and non pecuniary,
Hon'ble Supreme Court of India, in case of R. D. Hattangadi Vs.
Pest Control (India) Pvt Ltd. reported as 1995 AIR 755, made
following observations:
"9....while fixing an amount of compensation payable
to a victim of an accident, the damages have to be
assessed separately as pecuniary damages and special
damages. Pecuniary damages are those which the
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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."
26. Certain principles for delineating just compensation were
enumerated in the case of Raj Kumar Vs. Ajay Kumar & Anr.,
(2011) 1 SCC 343, by Hon'ble Supreme Court of India.
Following observations are relevant in the context:
"40.General principles relating to compensation in injury
cases
5. The provision of the Motor Vehicles Act, 1988 ("the
Act", for short) makes it clear that the award must be
just, which means that compensation should, to the
extent possible, fully and adequately restore the
claimant to the position prior to the accident. The
object of awarding damages is to make good the loss
suffered as a result of wrong done as far as money can
do so, in a fair, reasonable and equitable manner. The
court or the Tribunal shall have to assess the damages
objectively and exclude from consideration any
speculation or fancy, though some conjecture with
reference to the nature of disability and its
consequences, is inevitable. A person is not only to be
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compensated for the physical injury, but also for the
loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability to
lead a full life, his inability to enjoy those normal
amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to
earn or could have earned. [See C.K. Subramania Iyer
v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970
SC 376] , R.D. Hattangadi v. Pest Control (India) (P)
Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and
Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50
: (1969) 3 All ER 1528 (HL)]
6. The heads under which compensation is awarded
in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been injured,
comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
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
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claimant, that compensation will be granted under
any of the heads (ii)(b), (iii), (v) and (vi) relating to
loss of future earnings on account of permanent
disability, future medical expenses, loss of amenities
(and/or loss of prospects of marriage) and loss of
expectation of life.
7. Assessment of pecuniary damages under Item (i)
and under Item (ii)(a) do not pose much difficulty as
they involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the
head of future medical expenses--Item (iii)--
depends upon specific medical evidence regarding
need for further treatment and cost thereof.
Assessment of non-pecuniary damages--Items (iv),
(v) and (vi)--involves determination of lump sum
amounts with reference to circumstances such as age,
nature of injury/deprivation/disability suffered by the
claimant and the effect thereof on the future life of
the claimant. Decisions of this Court and the High
Courts contain necessary guidelines for award under
these heads, if necessary. What usually poses some
difficulty is the assessment of the loss of future
earnings on account of permanent disability--Item
(ii)(a). We are concerned with that assessment in this
case.
Assessment of future loss of earnings due to
permanent disability
8. Disability refers to any restriction or lack of ability
to perform an activity in the manner considered
normal for a human being. Permanent disability
refers to the residuary incapacity or loss of use of
some part of 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
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functions that he could perform before the accident,
though he is able to perform some of them and is still
able to engage in some gainful activity. Total
permanent disability refers to a person's inability to
perform any avocation or employment related
activities as a result of the accident. The permanent
disabilities that may arise from motor accident
injuries, are of a much wider range when compared
to the physical disabilities which are enumerated in
the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
("the Disabilities Act", for short). But if any of the
disabilities enumerated in Section 2(i) of the
Disabilities Act are the result of injuries sustained in
a motor accident, they can be permanent disabilities
for the purpose of claiming compensation.
9. The percentage of permanent disability is
expressed by the doctors with reference to the whole
body, or more often than not, with reference to a
particular limb. When a disability certificate states
that the injured has suffered permanent disability to
an extent of 45% of the left lower limb, it is not the
same as 45% permanent disability with reference to
the whole body. The extent of disability of a limb (or
part of the body) expressed in terms of a percentage
of the total functions of that limb, obviously cannot
be assumed to be the extent of disability of the whole
body. If there is 60% permanent disability of the right
hand and 80% permanent disability of left leg, it does
not mean that the extent of permanent disability with
reference to the whole body is 140% (that is 80%
plus 60%). If different parts of the body have suffered
different 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
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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:
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(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of such
disablement of the limb on the functioning of the
entire body, that is, the permanent disability suffered
by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding
further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to ascertain
its extent. After the Tribunal ascertains the actual
extent of permanent disability of the claimant based
on the medical evidence, it has to determine whether
such permanent disability has affected or will affect
his earning capacity.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent disability (this is also
relevant for awarding compensation under the head
of loss of amenities of life). The second step is to
ascertain his avocation, profession and nature of
work before the accident, as also his age. The third
step is to find out whether (i) the claimant is totally
disabled from earning any kind of livelihood, or (ii)
whether in spite of the permanent disability, the
claimant could still effectively carry on the activities
and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from
discharging his previous activities and functions, but
could carry on some other or lesser scale of activities
and functions so that he continues to earn or can
continue to earn his livelihood.
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19. We may now summarise the principles
discussed above:
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with
reference to the whole body of a person, cannot be
assumed to be the percentage of loss of earning
capacity. To put it differently, the percentage of loss
of earning capacity is not the same as the percentage
of permanent disability (except in a few cases, where
the Tribunal on the basis of evidence, concludes that
the percentage of loss of earning capacity is the same
as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or
who examined him subsequently to assess the extent
of his permanent disability can give evidence only in
regard to the extent of permanent disability. The loss
of earning capacity is something that will have to be
assessed by the Tribunal with reference to the
evidence in 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."
27. The above-said principles have been placed reliance upon
in a recent judgment reported as Sidram Vs. The Divisional
Manager United India Insurance Co. Ltd and Anr., arising out of
SLP (Civil) no. 19277 of 2018 passed by Hon'ble Supreme Court
of India as decided on 16.11.2022.
28. It is settled proposition of law as held in catena of
judgments that "just compensation" should include all elements
that would go to place the victim in as near a position as she or
he was in, before the occurrence of the accident. Whilst no
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amount of money or other material compensation can erase the
trauma, pain and suffering that a victim undergoes after a serious
accident, (or replace the loss of a loved one), monetary
compensation is the manner known to law, whereby society
assures some measure of restitution to those who survive, and the
victims who have to face their lives.
29. The accident took place on 27.06.2019. Injured was treated
at Department of Trauma Surgery and Critical Care, JPN Apex
Trauma Center, AIIMS for two months and eventually discharged
on August 2020. The Discharge Summary Ex.PW1/1 contain the
description of her injury as "Extensive Degloving Injury of LT
Thigh with Left Hip Disarticulation and STSG of Left Hip Raw
Area". Additionally follow up OPD treatment records have also
been filed as part of medical treatment records by PW-1 husband
of deceased. Subsequently, she died during the course of her
treatment in the year 2022. Her Post Mortem Examination was
conducted (Mark B) which opined the cause of death as
septicemia consequent upon perforation peritonitis, a long term
complication of multiple injuries to the abdomen and lower limb .
As clarified in the post mortem report itself that the death
happened on account of the long term complications in the
injuries in the accident. Therefore, it is concluded that injuries
sustained in the accident led to the death of injured Guddi Devi.
30. As evident from the record, Guddi Devi remained alive
and under active medical treatment for about 2 & ½ years prior to
her death and therefore, compensation under the pecuniary heads,
including medical treatment charges, attendant charges,
conveyance and special diet, against the amount actually spent
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prior to her death and for pain, suffering and trauma endured by
her prior to her death is being awarded hereunder. Remaining
compensation shall be awarded on the basis of loss of
dependency and other prescribed heads in a fatal case as
applicable from the date of death.
31. To determine compensation, it is imperative to ascertain
the income of the deceased. PW-1 deposed that Guddi Devi was
working as a house help and earning Rs. 20,000/- per month. As
such any employer has not been brought in the witness box or
any certification by any of such employer has not been filed on
record, however, there is no contrary evidence to doubt the
uncontroverted deposition of PW-1 in respect of the nature of
work performed by Guddi Devi. There is no cross examination
by counsel for insurance company in this context. Guddi Devi
was resident of Delhi and used to work for gain in Delhi, there is
no gain saying that she was also physical, emotional and
psychological pillar of strength of her family which cannot be
computed in terms of money.
32. At this stage, it is relevant to note that in New India
Assurance Vs. Khayali Ram decided on 24.01.2017 in MACA
No.251/14, Hon'ble Delhi High Court held that services of a
housewife are equivalent to the services rendered by a skilled
workman.
33. As per the settled proposition of law, counting the invaluable
contribution of the lady of the house, towards the entire family in
terms of the selfless services rendered by her to keep things
together and also taking into account the unorginised labour that
she indulged in to support her family, she is taken to be a skilled
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person on the date of accident, working in the NCT of Delhi and
therefore, her monthly income is ascertained to be Rs. 17,508/-
on the date of accident.
COMPENSATION FOR THE INJURY SUSTAINED BY
VICTIM:
34. As already discussed above, claimant is being awarded
compensation for the injuries sustained by her under Pecuniary
and Non Pecuniary Damages under the applicable heads.
(I) Pecuniary Damages:
(a) Expenditure on Medical Treatment: - Claimants have filed
medical bills Ex.PW1/2 as well as summary of medical bills
totaling to Rs. 8,845/-. Sundry / miscellaneous expenses cannot
be ruled out during the admission in the hospital and
subsequently also. Accordingly, injured is awarded 28,845/- (Rs.
8,845/- + Rs. 20,000/- sundry miscellaneous expenses) towards
expenditure on medical treatment.
(b) Attendant Charges: -Victim had suffered serious multiple
injuries which led to 90% permanent disability in relation to left
hip dis-articulation as noted in the order dated 12.04.2021. It is
evident that this condition necessitated continuous care and
assistance, leading to the need for a dedicated attendant to
support daily living activities and medical requirements.
Considering that she had to avail services of an attendant for 2 &
½ years post accident, an amount of Rs.2,00,000/- is awarded
towards attendant charges.
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(c) Special Diet: - The accident took place on 27.06.2019, and
she was treated at Department of Trauma Surgery and Critical
Care, JPN Apex Trauma Center, AIIMS for two months and
eventually discharged on August 2020. Additionally, follow up
OPD treatment records were also filed as part of medical
treatment records. As such, considering the nature of injury
suffered by her and the period of prolonged treatment an amount
of Rs. 50,000/- is awarded to claimant towards expenditure on
special diet.
(d) Conveyance Charges: Victim had suffered serious multiple
injuries which led to 90% permanent disability in relation to left
hip dis-articulation. It is evident that injured was hospitalized for
about 2 & ½ months and visited several times to AIIMS Trauma
Center for follow up. Further, her family members or support
persons also would have been required to travel extensively for
her treatment. An amount of Rs. 20,000/- is being awarded
towards conveyance charges.
(e) Loss of Income: As per discussion already made above,
income of injured was considered as per minimum wages for
skilled person, applicable in State of Delhi at the time of accident
at Rs. 17,508/-. She had suffered serious multiple injuries which
led to 90% permanent disability in relation to left hip dis-
articulation and due to her injuries she was rendered incapable to
render her household services rather became totally dependent
upon her family members. It is noted that accident took place on
27.06.2019 while injured remained alive for about 2 & ½ years
and expired on 03.01.2022. As such, loss of income is calculated
to be Rs. 17,508/- x 30 months = Rs. 5,25,240/-.
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(II) Non Pecuniary Damages:
(a) Damages for pain, suffering and trauma on account of
injuries: The mental and physical loss cannot always be
arithmetically computed in terms of money. These form the
intangible losses suffered by injured for no fault of his. Although
any form of human suffering cannot be equated in money,
however, the object remains to compensate in so far as the money
can compensate. Certain observations made by the Supreme
Court of India in R. D. Hattangadi are relevant in the context:
"10. It cannot be disputed that because of the accident the
appellant who was an active practising lawyer has become
paraplegic on account of the injuries sustained by him. It is
really difficult in this background to assess the exact
amount of compensation for the pain and agony suffered
by the appellant and for having become a lifelong
handicapped. No amount of compensation can restore the
physical frame of the appellant. That is why it has been
said by courts that whenever any amount is determined as
the compensation payable for any injury suffered during
an accident, the object is to compensate such injury "so far
as money can compensate" because it is impossible to
equate the money with the human sufferings or personal
deprivations. Money cannot renew a broken and shattered
physical frame.
(b) Certain factors were also laid down for consideration in the
case of The Divisional Controller, KSRTC vs Mahadeva Shetty
And Anr Appeal (Civil) 5453 of 2003 further relied in the case of
Sidram (supra) for awarding compensation for pain and
suffering. The observations made in the aforesaid case as relevant
to the context are reproduced hereunder:
"113. Before we close this matter, it needs to be
underlined, as observed in Pappu Deo Yadav (supra)
that Courts should be mindful that a serious injury not
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only permanently imposes physical limitations and
disabilities but too often inflicts deep mental and
emotional scars upon the victim. The attendant trauma
of the victim's having to live in a world entirely
different from the one she or he is born into, as an
invalid, and with degrees of dependence on others,
robbed of complete personal choice or autonomy,
should forever be in the judge's mind, whenever tasked
to adjudge compensation claims. Severe limitations
inflicted due to such injuries undermine the dignity
(which is now recognized as an intrinsic component of
the right to life under Article 21) of the individual, thus
depriving the person of the essence of the right to a
wholesome life which she or he had lived, hitherto.
From the world of the able bodied, the victim is thrust
into the world of the disabled, itself most discomfiting
and unsettling. If courts nit-pick and award niggardly
amounts oblivious of these circumstances, there is
resultant affront to the injured victim. [See: Pappu Deo
Yadav (supra)]
(c) Hon'ble Supreme Court of India in the case of K. Suresh
(supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of
the heart or for mental tribulations. The quintessentiality
lies in the pragmatic computation of the loss sustained
which has to be in the realm of realistic approximation.
Therefore, Section 168 of the Motor Vehicles Act, 1988 (for
brevity "the Act") stipulates that there should be grant of
"just compensation". Thus, it becomes a challenge for a
court of law to determine "just compensation" which is
neither a bonanza nor a windfall, and simultaneously,
should not be a pittance."
But the measure of compensation must reflect a genuine
attempt of the law to restore the dignity of the being. Our
yardsticks of compensation should not be so abysmal as to
lead one to question whether our law values human life. If it
does, as it must, it must provide a realistic recompense for
the pain of loss and the trauma of suffering. Awards of
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compensation are not law's doles. In a discourse of rights,
they constitute entitlements under law. Our conversations
about law must shift from a paternalistic subordination of
the individual to an assertion of enforceable rights as
intrinsic to human dignity. (as relied in the case of Jagdish
Vs. Mohan AIR 2018 SUPREME COURT 1347, by
Hon'ble Supreme Court of India).
(d) Victim had suffered serious multiple injuries which led to
90% permanent disability in relation to left hip dis-articulation. It
can be understood that her every day basic routine activities
would have been severely restricted. She became totally
dependent upon support from other person/ family members for
her daily activities. She is bound to be frustrated and very angry
on what she has become. The medical dictum of nearly no
possibility of significant improvement in her living conditions
must have totally shattered her zeal towards life. It is evident that
the accident must have caused deep emotional and psychological
scars on her mind and sole. An attempt is being made to
compensate the pain caused by severe mental and physical
suffering. An amount of Rs. 3,00,000/- is awarded to the
claimant against pain, suffering and and trauma sustained in the
accident.
COMPENSATION FOR LOSS OF DEPENDENCY IN LIEU
OF FATAL INJURY SUSTAINED BY INJURED GUDDI DEVI.
35. It is evident that injured was alive for 2 & ½ years post
accident and died on 03.01.2022 due to multiple injuries suffered
by her. An application was then filed by counsel for claimants to
bring on record the LRs of deceased Guddi Devi. The application
was considered under Order 22 Rule 4 CPC. This application was
allowed vide order dated 21.03.2023 whereby the legal heirs of
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Guddi Devi including husband and six children were impleaded/
replaced as claimants in this matter. As per settled proposition,
claimants/ LRs are also entitled for compensation under loss of
dependency in liue of death of deceased.
36. In The Landmark Case of National Insurance Company
Limited Vs. Pranay Sethi And Others (2017 SCC Online SC
1270), decided by constitutional bench of Hon'ble Supreme Court
of India, regarding the concept of 'just compensation' it was held
:
"................55. Section 168 of the Act deals with
the concept of "just compensation" and the same
has to be determined on the foundation of
fairness, reasonableness and equitability on
acceptable legal standard because such
determination can never be in arithmetical
exactitude. It can never be perfect. The aim is to
achieve an acceptable degree of proximity to
arithmetical precision on the basis of materials
brought on record in an individual case. The
conception of "just compensation" has to be
viewed through the prism of fairness,
reasonableness and non-violation of the principle
of equitability. In a case of death, the legal heirs
of the claimants cannot expect a windfall.
Simultaneously, the compensation granted cannot
be an apology for compensation. It cannot be a
pittance. Though the discretion vested in the
tribunal is quite wide, yet it is obligatory on the
part of the tribunal to be guided by the
expression, that is, "just compensation". The
determination has to be on the foundation of
evidence brought on record as regards the age
and income of the deceased and thereafter the
apposite multiplier to be applied. The formula
relating to multiplier has been clearly stated in
Sarla Verma and it has been approved in Reshma
Kumari . The age and income, as stated earlier,
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have to be established by adducing evidence. The
tribunal and the courts have to bear in mind that
the basic principle lies in pragmatic computation
which is in proximity to reality. It is a well-
accepted norm that money cannot substitute a life
lost but an effort has to be made for grant of just
compensation having uniformity of approach.
There has to be a balance between the two
extremes, that is, a windfall and the pittance, a
bonanza and the modicum. In such an
adjudication, the duty of the tribunal and the
courts is difficult and hence, an endeavour has
been made by this Court for standardisation
which in its ambit includes addition of future
prospects on the proven income at
present..................."
37 Further about the principles relating to Assessment of
compensation in case of death, it was held in Pranay Sethi
(supra) that detailed analysis of Sarla Verma (SMT) And Others
Versus Delhi Transport Corporation And Another (2009 Scc
Online Sc 797) is necessary as in the said case, the Court
recapitulated the relevant principles relating to assessment of
compensation in case of death. In fact, Hon'ble SC in Pranay
Sethi (supra) mainly relied and approved the earlier judgment of
Sarla Verma( Supra) read with Reshma Kumari[( 2013) 9 SCC
65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826 ], with
some modification, regarding all the aspects like aspect of
multiplier, the steps and guidelines stated in para 19 of Sarla
Verma for determination of compensation in cases of death,
future prospects, deduction to be made towards personal and
living expenses.
(d) As per earlier discussions, income of deceased has been
taken as per minimum wages applicable in State of Delhi for an
skilled person at the time of accident at Rs. 17,508/-.
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38 As per the Aadhar Card, Ex.PW1/1, her death of birth is
01.01.1967 and therefore, as such she was about 52 years & 6
months at the time of accident. As deceased was between age of
50 to 60 years (at the time of accident) and was self employed,
thus having regard to ratio and direction in Pranay Sethi (Supra)
and other case laws, the percentage towards future prospect is
taken to be @ 10 % upon application of category of ''self-
employed or on a fixed salary''.
Step No- 1 : Ascertainment of Multiplicand:
39. Deceased left behind her husband Banwari Lal and six
children; Bablu, aged about 28 years, Sarita aged about 38 years,
Arti, aged about 24 years, Manoj aged about 23 years, Jyoti, aged
about 18 years and Pooja, aged about 16 years. It is settled that
dependency has to be assessed on the date of accident. The
children who are younger ones including Manoj, Jyoti and Pooja
as well as husband of deceased are considered to be financially
dependent upon the deceased.
40. Accordingly, as it is held in Sarla Verma (Supra) that
deduction towards personal and living expenses of the deceased
should be one-fourth (1/4th) where the number of dependent
family members is 4 to 6. Thus accordingly, in the present case,
the deduction for personal expenses is taken to be 1/4th.
Step No- -2 : Ascertainment of Multiplier:
41. In the present case, age of the deceased was about 52 years
& 6 months as per record. Thus, having regard to the table
mentioned in para - 40 of Sarla Verma (supra), multiplier of 11 is
applied for necessary computation.
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Step No- -3 : Actual Calculation ( actual loss/loss of
dependency):
41.(i). In view of the above discussion of law, the
calculation in the present case is as under:
41.(i).1. Annual income of the deceased.
(Rs. 17,508/- per month x 12) = Rs. 2,10,096/-
41.(ii). Future prospect
(10 % of Rs. 2,10,096/-) = Rs. 21,010/-
------------------------------
41.(iii) Total = Rs.2,31,106/-
41.(iv) Deduction for personal expenses (1/4th of Rs.2,31,106/-) = (-)Rs. 57,776/-
41.(v) Multiplicand ( Rs.2,31,106/- (−) Rs.57776/-) = Rs. 1,73,330/-
41.(vi) As such, the total loss of dependency is:
Rs. 1,73,330/- ( multiplicand) x 11 (multiplier)= Rs.19,06,630/-
Grant of Loss of Estate, Loss Of Consortium And Funeral Expenses:
42. (vii) In this regard in Pranay Sethi (supra) it was held :
''...............46. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses..... .
.
52. As far as the conventional heads are MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 29 of 47 concerned, we find it difficult to agree with the view expressed in Rajesh . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation.
There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.
.
.
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 30 of 47 funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years...............''
43. Thus in view of such finding in Pranay Sethi (Supra), in Which Hon'ble Supreme Court wanted to avoid immense variations and instead ensure consistency, the claimants are also entitled to certain sums towards grant of loss of estate, loss of consortium and funeral expenses.
44 In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors. (2018) 18 SCC 130, the Hon'ble Supreme Court of India held as under:
"This Court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training.
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love and affection, and their role in the family unit.
MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 31 of 47 Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.
The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.
The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).
At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.
In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 32 of 47 affection is comprehended in loss of consortium.
The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head."
45. It may further be noted that the date of judgment of Pranay Sethi (supra) is 31/10/2017. Further it was stated in such judgment itself that the amount that Hon'ble SC have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. As such a sum of Rs.18,150/- for cremation expenses; and Rs.18,150/- towards loss of estate is also payable.
46. Further, on the date of accident, deceased had left behind, her husband and six children. As such in view of the judgments of the Hon'ble Supreme Court as noted above, all of them would further be entitled to Rs. 48,400/- each towards loss of consortium.
Total Award Amount
47. Thus the total award amount comes to Rs.19,06,630/- (+) Rs. 18,150/- ( Loss to estate) + Rs. 18,150/-( funeral expenses) + Rs 3,38,800/- ( loss of consortium) = Rs.22,81,730/-.
48. The summary of computation for both injury as well as death is now reproduced in a tabulated form for ease :
A. Injury Case Pecuniary loss : - Quantum Sl. no.
1. (i) Expenditure on treatment : As Rs. 28,845/-
discussed above.
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(ii) Expenditure on Conveyance : As Rs. 20,000/- discussed above.
(iii) Expenditure on special diet : As Rs.50,000/- discussed above.
(iv) Cost of nursing / attendant : Rs.2,00,000/-
(v) Loss of income : Rs. 5,25,240/-.
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 3,00,000/-
trauma on account of injuries:
Total Compensation Rs.11,24,085/-
B. Fatal Case:
S. No. Heads Awarded by
the Claims
Tribunal
1 A. Income of the deceased per year Rs.2,10,096/-
2 B. Add-Future Prospects 10% of A (per Rs. 21,010/-
year)
3 C. Total Rs.2,31,106/-
4 D. Less-Personal Expenses of the deceased Rs.57,776/-
1/4th of (C)
5 E. Yearly loss of dependency [C -D] Rs. 1,73,330/-
6 F. Multiplier. 11
7 G. Total loss of dependency (E x F = G) Rs. 19,06,630/-
8 H. Medical Expenses Nil
9 I. Compensation for loss of consortium Rs.3,38,800/-
10 J. Compensation for loss of estate Rs. 18,150/-
11 K. Compensation towards funeral expenses Rs. 18,150/-
MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 34 of 47 12 L. TOTAL COMPENSATION Rs.22,81,730/-
total of G+H+I+J+K =L
49. Thus, the compensation awarded for both injury as well as death to the injured is calculated to be Rs. 34,05,815/- (Rs.11,24,085/- + Rs.22,81,730/-).
50. It may be noted that in the judgment of Ram Charan & Ors. Vs. he New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty, learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 35 of 47 MV Act 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
51. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 36 of 47 Liability:-
52. The contention of R-3/ Insurance Company that the driver of the offending vehicle held driving license without meeting the requirements of special endorsement for driving commercial vehicle carrying hazardous inflammable goods in compliance of mandate provided in Sec. 14 (2) (a) of MV Act 1988. R-3 had examined Sh. Rahul Verma, Nodal Officer of the Insurance Company who proved the original DL report as printed on 22.09.2023 enclosing Special Endorsement Letter for carrying hazardous goods as Ex.RW3/3 (colly). RW3 deposed that the special endorsement was received w.e.f. 05.04.2023 whereas the accident took place on 27.06.2019, therefore, it is clear that the owner / insured had handed over the vehicle carrying hazardous goods without compliance of the legal requirements including endorsement training certificate and therefore, company is not liable to pay compensation to the deceased.
53. The insured carried the valid insurance policy as on the date of accident as conceded by the insurance company. It is evident upon perusal of correspondence received from RTO concerned and proved by Nodal Officer of the Insurance Company Ex.RW3/3 (colly) that the driving license had the validity to transport hazardous goods only with effect from 12.04.2023 which means that there was no endorsement to transport inflammable material as on the date of accident in the year 2019. It is also evident that the driver underwent training course for 'Safe Transportation of Hazardous Goods' from 05.04.2023 to 07.04.2023. There is nothing placed on record to show that the driver had undergone any training prior to the MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 37 of 47 accident to drive a Transport Vehicle carrying inflammable / hazardous goods. No evidence has been adduced by the owner / insured to show that it had ensured any compliance as noted above or there was any mis- representation on the part of R-1 as driver to show the necessary compliance at the time of seeking appointment to drive vehicle carrying hazardous goods. It is a pre condition of insurance policy for the insured to allow the insured vehicle to be driven by any person with valid and effective driving license. It is evident that the driver / R-1 had no authorisation to drive a commercial vehicle carrying inflammable material / hazardous goods. It is also evident that R-2 permitted R-1 to drive vehicle without necessary endorsement thereby breached the terms and conditions of the insurance policy. Support drawn by the judgment of the Hon'ble Delhi High Court in judgment titled as United India Ins Co Ltd vs Saminuddin & Ors MAC App. 777/2016 wherein driver of the offending vehicle had even undergone the training course but there was no endorsement on the driving license but it was still taken to be fundamental breach of policy condition. Relevant extract of the judgment is reproduced hereunder for ready reference:
"5. What emanates from the above is that the owner was able to establish that the driver possessed the requisite driving skills as certified by the aforementioned Government- licenced Motor Driving Training School. However, it is nobody's case that mere possession of the certificate will necessarily result in the Transport Authority certifying and/or licencing the person as having the requisite skills to drive a hazardous-goods carrying vehicle. As the name itself suggests, a motor driving training school is a school/institute which trains candidates to drive motor vehicles. It purports to impart a trainee the requisite skills as well as teach them the basic road signs and rules related to driving of motor vehicles on roads.
MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 38 of 47
6. Nevertheless, at the end of any such training, whenever a candidate appears before the Transport Authority, his motor driving skills and knowledge of the applicable rules are tested by the Authority. It is only when the candidate passes the tests that he is issued a driving licence. Mere possession of a certificate from a training school cannot substitute the statutory requirement of a Driving Licence to be issued by the relevant authority. For driving of hazardous-goods carrying vehicles, a further endorsement is required on the Driving Licence.
7. In the present case, for indemnification against insurance claims under the said policy, the insurer had proceeded in good faith, that the driver of the hazardous-goods carrying motor vehicle would have been duly licenced by the relevant Licencing Authority, to drive the said vehicle. But on the driving licence, there was no such endorsement. In other words, the driver had neither been tested nor approved by the Licencing Authority to drive the hazardous-goods carrying vehicle. There is a breach of policy condition, therefore, the owner of the vehicle would be liable to indemnify the loss......"
54. In this very matter, relying upon the judgment passed in the case of National Insurance Company Limited Vs. Swaran Singh 2004 ACJ 1 (SC) and National Insurance Company Limited Vs. Laxmi Narain Dhut (2007) 3 SCC 700, Hon'ble Delhi High Court directed the insurance company to pay the compensation to the claimant with the liberty to recover from the owner subsequently.
55. As such, award amount/compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. till actual realization but with liberty to recover the same from driver and owner of the offending vehicle. ( As DAR was filed in respect of injury sustained in accident, the compensation paid for sustaining grievous injury and disability shall carry interest w.e.f. date of accident whereas the compensation awarded against death of injured shall carry interest from the date of death of injured).
MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 39 of 47 Directions Regarding Deposit of Award Amount in Bank:
56. In compliance of directions issued vide order dated 16.11.2021 by Hon'ble Supreme Court of India in Writ Petition Civil No.534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India the award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 00000042706870765, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir in the prescribed format i.e. MCOP Number on the file of (Claims Tribunal Name) Date of award, Compensation Amount, Income Tax Deduction at Source, Bank Transaction Reference No./Unique Transaction Reference (UTR) Number. In turn, the State Bank of India, Saket Courts Branch shall receive the deposited sum and capture the above information and furnish a statement of account on a daily basis to the Nazir of this Tribunal to reconcile the deposits of compensation and the respective MCOPs towards which such deposits are made. On such deposits being made, the insurance company shall submit a letter to the Nazir of this Tribunal enclosing a copy of the said bank advice, in prescribed format as above, as per which the deposit made to the bank account of this Tribunal, to enable this Tribunal to keep tab on the deposits made and the MCOPs for which they were made. The Payment advice for remittance of compensation is as under:
PAYMENT ADVICE FOR REMITTANCE OF
COMPENSATION :
............ Bank ...................
MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 40 of 47 To:
............... Court ........................ We confirm remittance of compensation as follows on instructions of ................................... (insurance company):-
MCOP Number On the file of (Claims Tribunal Name), Place Date of award Amount Deposited, Income Tax Deduction at Source, if any Unique Transaction Reference (UTR) Number. Insurance company of offending vehicle, on deposit, shall also send a copy of the payment advice in above format to this Tribunal and serve a copy of the same on the claimants or their counsel as the case may be.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
57. This Tribunal is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD (Motor Accident Claims Annunity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
58. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 41 of 47 "......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 42 of 47 strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semiliterate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 43 of 47 of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
59. Section 166 MV Act mandates grant of compensation to legal representatives of deceased/ victim. The observations made in case of Hon'ble Supreme Court of India in N. Jayashree & Ors. Vs. Cholamandlam MS Gen. Ins. Co. Ltd, SLP (C) no.14558 of 2019 relevant in this context:
"14.The MV Act does not define the term 'legal representative'. Generally, 'legal representative' means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A 'legal MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 44 of 47 representative' may also include any person who intermeddles with the estate of the deceased.
Such person does not necessarily have to be a legal heir.
60. It is thus held that claimant as husband of deceased and three children including Manoj, Jyoti and Pooja being legal representative are entitled to receive compensation.
61. Now the compensation is apportioned amongst the other LRs of deceased in the following manner:
(I) Share of husband of deceased: Out of the compensation amount, claimant no.1 is awarded Rs. 23,60,615/- with interest as stated above of the compensation. Out of such amount, Rs. 18,00,000/-
is kept in form of monthly FDRs of Rs.15,000/- each. Remaining amount be released to the claimant/ husband of deceased in his bank account near his place of residence as per rule/ directions. (II) Share of claimants / children; Manoj Jyoti and Pooja: Out of the compensation amount, claimant children of deceased namely Manoj, Jyoti and Pooja are awarded Rs. 3,00,000/- each. Out of which Rs. 2,00,000/- of each share shall be kept in form of monthly FDR of Rs. 10,000/-. Remaining amount shall be released to each of them in their bank account near their place of residence.
(III) Share of claimants / children Bablu, Sarita & Aarti: Out of the compensation amount, claimants Bablu, Sarita and Aarti are awarded Rs. 48,400/- each and whole of such amount shall be released to MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 45 of 47 them in their bank account near their place of residence.
62. The following directions are also given to the bank for compliance:
(a) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of victim i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account.
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d) The maturity amounts of the FDR (s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/ or debit card to claimant (s). However, in case the debit card and/ or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit freeze the account of the claimant so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
(g) The bank shall make an endorsement on the MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 46 of 47 passbook of the claimant to the effect, that no cheque book and / or debit card have been issued and shall not be issued without the permission of the Court and claimant shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
63. Copy of this award be given to the parties free of Digitally cost. The copy of award be sent to the DLSA and by signed Ld. SHELLY Metropolitan Magistrate. SHELLY ARORA ARORA Date:
Announced in the open court 2024.11.04 16:50:19 on 04.11.2024 +0530 Shelly Arora PO (MACT)-02, SE/Saket/Delhi 04.11.2024 MACT No.185/2020 Guddi Devi (now deceased) through LRs Banwari Lal & Ors. Vs. Salman Khan & Ors. Page No. 47 of 47