Delhi District Court
Kamendra Kumar (143/21 Kk) vs Riyaj (Dar) on 4 December, 2024
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 436/2021
FIR no. 143/2021
PS: Kalindi Kunj
U/s 279/338 IPC
CNR No. DLSE01-006853-2021
Kamender Vs. Riyaz
Kamender
S/o Karan Singh
R/o Juhaila, Post Kamala Lambia
Bijnor, Uttar Pradesh.
...Claimant
Versus
1. Riyaz
S/o Mohd. Hashim
R/o H. NO. 12, Gali no.1
Bangali Panter Cwali Gali
Near Aarya Public School, Durga Vihar
Phase-III, Najafgarh, Delhi.
..... Driver /R-1
2. Jasbir Singh Gill
S/o Om Prakash Singh
R/o H. No. S-67,PDO Complex Area
New Roshan Pura, Najafgarh.
..... Owner /R-2
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 1 of 49
3. Reliance General Ins. Co. Ltd.
C-1, 3rd Floor, New Krishna Park
Janakpuri Metro Station
West, New Delhi.
......Insurance Company/ R-3
.....Respondents
Date of accident : 27.03.2021
Date of filing of DAR : 21.08.2021
Date of Decision : 04.12.2024
AWARD
1. Detailed Accident Report (hereinafter referred as DAR)
pertaining to Road Traffic Accident (RTA) of injured Kamendra
Kumar (hereinafter referred as claimant) allegedly caused by
vehicle bearing Reg. No. DL 4CS 8094 (hereinafter referred as
offending vehicle), which was driven by its driver Riyaz
(hereinafter referred as Respondent No.1) and owned by Jasbir
Singh Gill (hereinafter referred as R-2) and insured with Reliance
General Insurance Company Limited (hereinafter referred as
R-3) was filed by IO ASI Ram Kishor in terms of provisions of
Motor Vehicle Act, which is being treated as Claim Petition
under Section 166 (1) read with Section 166 (4) MV Act.
2. Preliminary information regarding accident in question
was received at PS Kalindi Kunj vide DD no. 22PP, dated
27.03.2021, upon receipt of which HC Kuldeep along with Ct.
Puran proceeded to the spot of accident where they found a
motorcycle bearing Reg. No. DL 3SDG 9022 Splendor Pro Black
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 2 of 49
Colour in accidental condition parked besides the road. They
were made to understand that injured has been removed to
hospital by PCR vehicle. Thereafter upon receipt of DD no.32A,
HC Kuldeep reached Apollo Hospital and obtained the MLC of
injured persons Satish and Kamendra. Both of them were
reported 'fit for statement' by the doctor. HC Kuldeep Singh
recorded statement of injured Satish who stated that he was
employed as driver of Gas Tanker in Indane Gas Plant, Madanpur
Khadar. He further stated that while on their way from Gas Plant
to Khadar Village by accidental vehicle, they were hit by the
speedily and rashly driven offending vehicle on Agra Kanal Road
just before Khadar Puliya, due to which they fell down and
sustained serious injuries. He further mentioned that driver of the
offending vehicle fled away with his car instead of extending any
basic help to them. However, he managed to note down
registration number of said offending vehicle. PCR call was
made by public person. FIR was registered. Matter was handed
over to ASI Ram Kishore for further investigation. ASI Ram
Kishore also contacted the PCR caller and recorded his statement
who informed having witnessed the accident and also stated that
the driver of the said offending vehicle also tried to hit his car
when he tried to intervene to stop him from fleeing away. His
statement u/s 161 Cr.PC was recorded. Site plan was prepared by
ASI Ram Kishore. Statement of injured Kamendra, who was
pillion rider on the accidental vehicle was also recorded who
corroborated the statement of injured Satish.
Notice u/s 133 MV Act was served to owner of the
offending vehicle who informed that he had sold the vehicle to
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Riyaz, who was driving at the time of accident, however, RC of
the vehicle has not been transferred in his name. Riyaz was also
produced who handed over relevant documents pertaining to the
offending vehicle who did not deny involvement of offending
vehicle in the accident.
Offending vehicle was also subsequently seized.
Mechanical Inspection of both the vehicles was got conducted.
Documents pertaining to offending vehicle were got verified by
concerned authority which was found to be genuine. Driver of
offending vehicle had refused to participate in TIP proceedings.
Injuries were opined to be grievous in nature. After conclusion of
investigation charge sheet was filed u/s 279/338 IPC before
concerned Ilaka MM while DAR has been filed by Investigating
officer before this Tribunal.
Reply/ Response:
3. In response to DAR, reply filed by R-1/driver cum
possession holder Riyaz who stated that the accident was not
caused by the offending vehicle rather he has seen the injured
lying on the road. He also stated that he holds a valid driving
license and a valid insurance policy.
4. Son of R-2/ Registered owner appeared on the very first
date on behalf of his father and copy of DAR was supplied to
him. Subsequently, none appeared on behalf of R-2 and hence,
his right to file reply was closed vide order dated 26.11.2021.
5. R-3/Insurance Company filed legal offer having raised no
statutory defence. Negligence of the offending vehicle was not
disputed in the said legal offer. The offer was, however, not
acceptable to the claimant due to difference in the expected
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 4 of 49
quantum.
Issues:
6. From the pleadings of parties, following issues were
framed vide order dated 26.11.2021:
1) Whether the injured suffered injuries in a
road traffic accident on 27.03.2021 due to rash
and negligent driving of vehicle no. DL 4CS
8094 being driven by R-1, owned by R-2 and
insured with R-3? OPP.
2) Whether the petitioners are entitled to any
compensation, if so, to what extent and from
whom ? OPP.
3) Relief.
7. Matter was then listed for Petitioner Evidence. PW-1
tendered his examination in chief by way of affidavit Ex.PW1/A
and relied upon following documents:
(i) Mark A-Copy of MLC
(ii) Ex.PW1/1- (colly 6 pages) - Original Discharge Summaries
(iii) Ex.PW1/2 (colly 8 pages)- Original Prescription, medical
treatment record
(iv) Ex.PW1/3 (colly 69 pages)-Original Medical Bills
(v) Ex.PW1/4- (colly 15 pages) Original Transport Conveyance
Bills
(vi) Ex.PW1/5- Copy of Aadhar Card of claimant Kamendra
(vii) Ex.PW1/6- Copy of PAN Card of injured.
(viii) Ex.PW1/7- Copy of DL of injured person
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 5 of 49
(ix) Ex.PW1/8- Copy of Training Certificate of claimant
Kamendra Kumar
(x) Ex.PW1/9- Copy of Original Disability Certificate
(xi) Ex.PW1/10- Copy of DAR
(xii) Mark B- Copy of bill of prosthetic kit.
PW-1 was cross examined by counsel for insurance
company. Petitioner Evidence was closed vide order dated
03.02.2024.
8. Matter was then listed for Respondent Evidence, however,
any evidence was not led by any of the respondents and hence
RE also stands closed vide order dated 03.02.2024.
Final Arguments:
9. Final Arguments were addressed by counsel for claimant
as well as counsel for insurance company. Counsel for claimant
has filed Written Computations. He argued that the insurance
company has not raised any dispute with respect to negligence in
causing the accident. Further that the disability of injured has
rendered him totally incapable to continue his services as a driver
and therefore, functional equating the permanent disability must
be considered in this matter. Counsel for claimant also relied
upon judgment titled as Raj Kumar Vs. Ajay Kumar & Anr. 2011
(1) TAC 785 (SC) and National Insurance Company Limited Vs.
Pranay Sethi & Ors SLP (Civil) No. 25590/2014 and Oriental
Insurance Company Ltd Vs. Seema MAC App. 132/2024 & CM
Appl 12682/2024, decided on 23.04.2024
Submissions also advanced by Counsel for Insurance
Company who conceded that that offending vehicle had a valid
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 6 of 49
insurance policy at the time of accident and that there is no
statutory defence in this matter which is why legal offer was
given, however, he argued that the compensation sought by
claimant is unreasonably exaggerated.
10. On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :-
ISSUE NO.1
1) Whether the injured suffered injuries in a
road traffic accident on 27.03.2021 due to rash
and negligent driving of vehicle no. DL 4CS
8094 being driven by R-1, owned by R-2 and
insured with R-3? OPP.
11. It is well settled that the proceedings before the Claims
Tribunal are in the nature of inquiry and the finding of rash and
negligent driving by driver of the offending vehicle is to be
returned only at the touch stone of preponderance of
probabilities. The factors noted above are sufficient to conclude
that preponderance of probability is made out showing
negligence of respondent no.1 in causing the accident. {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}
12. PW-1 has affirmed that the accident was caused by the
offending vehicle, speedily, rashly and negligently driven while
both the injured persons were enroute to their office by accidental
vehicle. In cross examination by counsel for insurance company,
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he was not put any question about the negligence of the
offending vehicle. As such, legal offer was filed by the insurance
company wherein the negligence of offending vehicle was not
disputed. Record suggests that the information about the accident
was promptly given to the police authorities and injured were
shifted to hospital by PCR vehicle. FIR was registered upon the
statement of injured persons. The complaint/ statement of injured
persons have been affirmed in their respective testimony, duly
substantiated with the supporting documents which remained
uncontradicted and uncontroverted. R-1 who was the driver at the
point of time has not adduced any evidence to deny the
involvement offending vehicle in causing the accident or that he
was not negligent in driving the vehicle. It is also settled that if
driver of offending vehicle does not enter the witness box, an
adverse inference can be drawn against him as observed by
Hon'ble Delhi High Court in the case of Cholamandlam
insurance company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310.
13. As such, in view of the evidence proved on record and
charge-sheet against R-1 and in backdrop of the discussion made
above, rash and negligent driving of offending vehicle by R-1/
driver is proved on the scales of preponderance of probabilities.
Issue No.1 is decided accordingly, in favour of the petitioner and
against respondent.
ISSUE NO. 2
"Whether the injured is entitled to any
compensation, if so, to what extent and from whom?
OPP"
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14. Sec. 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
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."
15. Before putting in frame the position of law, it is noted that
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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.
16. 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
decisions. [Support drawn from Govind Yadav v. New India
Insurance Co. Ltd., (2011) 10 SCC 683.]
17. This Tribunal has been tasked with determination of just
compensation. The observation of Hon'ble Supreme Court of
India in Divisional Controller, KSRTC v. Mahadeva Shetty and
Another, (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
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 10 of 49
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.. ..."
18. 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, 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 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."
19. Certain principles for delineating just compensation were
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 11 of 49
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 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
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injured would have made had he not been injured,
comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of
normal longevity).
In routine personal injury cases, compensation will
be awarded only under heads (i), (ii)(a) and (iv). It
is only in serious cases of injury, where there is
specific medical evidence corroborating the
evidence of the claimant, that compensation will
be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings
on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of
prospects of marriage) and loss of expectation of
life.
7. Assessment of pecuniary damages under Item (i) and
under Item (ii)(a) do not pose much difficulty as they
involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the head
of future medical expenses--Item (iii)--depends upon
specific medical evidence regarding need for further
treatment and cost thereof. Assessment of non-pecuniary
damages--Items (iv), (v) and (vi)--involves
determination of lump sum amounts with reference to
circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant
and the effect thereof on the future life of the claimant.
Decisions of this Court and the High Courts contain
necessary guidelines for award under these heads, if
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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 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
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left lower limb, it is not the same as 45% permanent
disability with reference to the whole body. The extent
of disability of a limb (or part of the body) expressed in
terms of a percentage of the total functions of that limb,
obviously cannot be assumed to be the extent of
disability of the whole body. If there is 60% permanent
disability of the right hand and 80% permanent
disability of left leg, it does not mean that the extent of
permanent disability with reference to the whole body is
140% (that is 80% plus 60%). If different parts of the
body have suffered different percentages of disabilities,
the sum total thereof expressed in terms of the
permanent disability with reference to the whole body
cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as
a result of injuries, the assessment of compensation
under the head of loss of future earnings would depend
upon the effect and impact of such permanent disability
on his earning capacity. The Tribunal should not
mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of
earning capacity. In most of the cases, the percentage of
economic loss, that is, the percentage of loss of earning
capacity, arising from a permanent disability will be
different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity,
and consequently, if the evidence produced show 45%
as the permanent disability, will hold that there is 45%
loss of future earning capacity. In most of the cases,
equating the extent (percentage) of loss 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
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standard multiplier method used to determine loss of
dependency). We may however note that in some cases,
on appreciation of evidence and assessment, the
Tribunal may find that the percentage of loss of earning
capacity as a result of the permanent disability, is
approximately the same as the percentage of permanent
disability in which case, of course, the Tribunal will
adopt the said percentage for determination of
compensation. (See for example, the decisions of this
Court in Arvind Kumar Mishra v. New India Assurance
Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri)
1258 : (2010) 10 Scale 298] and Yadava Kumar v.
National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether
there is any permanent disability and, if so, the extent of
such permanent disability. This means that the Tribunal
should consider and decide with reference to the
evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of
such disablement of the limb on the functioning of
the entire body, that is, the permanent disability
suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding
further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to
ascertain its extent. After the Tribunal ascertains
the actual extent of permanent disability of the
claimant based on the medical evidence, it has to
determine whether such permanent disability has
affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent
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disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent disability (this is also relevant for awarding
compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation,
profession and nature of work before the accident, as
also his age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on the
activities and functions, which he was earlier carrying
on, or (iii) whether he was prevented or restricted from
discharging his previous activities and functions, but
could carry on some other or lesser scale of activities and
functions so that he continues to earn or can continue to
earn his livelihood.
.
.
.
.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few 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 MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 17 of 49 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."
20. 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.
21. 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 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.
PECUNIARY DAMAGES
22. Damages under pecuniary heads primarily involves reimbursement of actual amount spent on account of injury MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 18 of 49 suffered in an accident to undo the monetary loss, suffered by the claimant, as ascertainable from the evidence on record. Given hereunder are various heads under which compensation for pecuniary damages is assessed:
Expenditure on Medical Treatment:
(i) He has affirmed that he has spent about Rs. 1,08,000/- on his medical expenditure. He has filed original medical prescription, treatment and pharmacy bills Ex.PW1/2 & Ex.PW1/3 in support of his contention. Summary of Medical bills filed totaling of Rs. 98,000/-. However, considering the seriousness of injury, miscellaneous medical expenses cannot be ruled out. A sum of Rs. 20,000/- is additionally awarded towards the sundry medical expenses. Hence claimant is awarded Rs. 1,08,000/- (Rs. 98,000/- + Rs. 20,000/-).
Expenditure on Conveyance:
(ii) Claimant has stated that he spent about Rs. 60,000/- on conveyance charges incurred during his medical treatment. He has filed ambulance and taxi bills (Ex.PW1/5 colly) totaling of Rs. 46,500/-. As such Rs. 46,500/- is awarded towards conveyances expenditure.
Expenditure on Special Diet:
(iii) Claimant has affirmed that he has spent Rs. 35,000/- on special diet. It is evident from the nature of injury that he would have required to take rich nutritious diet for speedy and efficient recovery. An amount of Rs. 30,000/- towards special diet is being awarded to him.
Expenditure for attendant:
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 19 of 49
(iv) It is affirmed by PW-1 that he had spent Rs. 45,000/- on the attendant charges. It is evident from the nature and seriousness of injuries that injured had to be dependent upon services of attendant including his family members. Considering that he suffered right below knee amputation, he would need help and services of attendant even for some daily activities. Although any such specific estimate has not been presented, the amount claimed does not appear to be unreasonable. A lumpsum amount of Rs. 45,000/- towards attendant charges incurred during the treatment is awarded in his favour.
Loss of Earning
(v) PW-1 deposed that he was employed as a driver in Indane Gas Plant, earning a sum of Rs. 25,000/- to Rs 30,000/- per month. He deposed in his cross examination that he remained bed ridden for about 5-6 months due to the accident. He has placed his Driving License on record as Ex.PW1/8. During cross examination, he admitted that he has no address proof which can support his affirmation of residence at Delhi, however, he testified himself to be a permanent driver with Indane Gas Plant, located at Madanpur Khadar Delhi and he resided with his chacha in Delhi. Further, in the legal offer also, no dispute has been raised by insurance company to this aspect and minimum wages of an unskilled person in the state of NCT of Delhi as on the date of accident were applied. However, as the injured has placed on record his DL and there is no contrary evidence to suggest that he was not employed as a driver with a facility in Delhi, it is evident thathe was employed for gain in Delhi and MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 20 of 49 thus, his monthly income is taken to be of minimum wages of a skilled person in the state of NCT of Delhi as on the date of accident which was Rs. 18,797/-.
(vi). Claimant has testified that he has not been able to report back to his work since the date of accident. It is evident that he remained hospitalized thrice post accident and also suffered amputation below knee in one of his leg. As per the medical treatment bills filed on record, he remained under active medical treatment for several months post accident. Further, he himself stated in this cross examination that he remained bed ridden for about 5-6 months post accident as orally advised by the doctor. Therefore, it can be presumed that he suffered complete income loss during treatment for at least 6 months post accident.
Thus the loss of income is calculated to be Rs. 18,797/- x 6 = Rs. 1,12,782/-.
Loss of future earning on account of permanent disability:
(vii) It is part of record that petitioner has been opined with 70% permanent physical impairment having suffered right below knee amputation. It is argued by counsel for claimant that functional disability be equated with the percentage of physical disability and be considered so in relation to whole body as he was employed as driver which primarily requires free movements of both lower limbs for efficient performance of duty. Same has been disputed by Ld. Counsel for Insurance Company on the premise that injured is capable of doing all the works which require movement of upper limbs and therefore, it cannot be stated that he would not be able to engage in any activity for his MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 21 of 49 living and therefore, 50% of the assessed disability should be considered in relation to the whole body.
(viii) Before proceeding further, it is important to understand as to what disability means and also types thereof. This aspect has been delved into by Hon'ble SC in Raj Kumar (supra):
"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
(ix) The term 'disability' means the decrements to the MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 22 of 49 functional efficacy of body of injured whereas 'functioning' encompass all the body functions and activities for an independent life. Functional disability is to determine the extent of loss or extent of restrictive functionality considering the nature of activities required to be necessarily performed in efficient discharge of duties and the limb effected. This computes the extent of adverse effect of physical disability upon the functional efficacy of an injured person, in turn adversely impacting his earning capacity. The process entails understanding and enumerating the skill set required for performing specific activities. To sum up, functional disability basically measures the extent of ability having been compromised to carry out basic everyday tasks or even more complex tasks required for and independent living. The limitations may occur on account of disability in the personal sphere, in the social sphere and in the occupational sphere. In the personal sphere it may encompass the daily activities of a person, his body function and his involvement in basis life situations. At the societal level, it could mean difficulty in involvement and participation in social and community activities interfering the interpersonal interaction and relationship adversely impacting the civic life. When disability restricts the vocation or employment avenues to make earning for his living, it falls in the category of disability in the occupational sphere. The disability might occur on account of age or any illness and in the case at hand by way of an accident. A person living a normal life in particular set of circumstance and making his living by engaging in any work has suffered disability which might impead his daily life activities, both on a personal and MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 23 of 49 social scale and might also impact his ability to continue earning as much as before and his future employment avenues.
(x) What is thus required to be assessed is the effect and impact of disability upon the working efficiency of injured and whether it would adversely impact his earning capabilities in future. It is settled that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity.
(xi) Hon'ble SC laid down certain guidelines for the Tribunal to be able to arrive at an objective figure to quantify the loss for the purpose of computing the compensation in the judgment of Raj Kumar (supra). Relevant extracts of this judgment for the purpose of further discussion are reproduced hereunder:
"Assessment of future loss of earnings due to permanent disability
9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 24 of 49 permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v.
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 25 of 49 National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will 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 MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 26 of 49 activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
.
.
.
.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few 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."
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 27 of 49
(xii) Further in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC), the question at hand was deliberated and following observations as relevant in the context were made:
"In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle- rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle- rickshaw-puller.
(xiii) The question of assessment of impact of disability on the earning capacity has been dealt in several cases but it is understood that each case has to be evaluated on its contextual dynamics established by way of evidence at hand. It brings us to a question whether extent of permanent disability as medically determined can simply be taken to be the extent of functional disability and hence, the loss of earning capacity. It has been held MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 28 of 49 in various pronouncements of Hon'ble Supreme Court of India and Hon'ble High Court that equating the two as a criteria would result in an inobjective and absurd compensation. There however, might be certain cases where the two would correspond to each other but it cannot be mechanically applied rather requires evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
(xiv) In the case of Raj Kumar v Ajay Kumar, the physical functional disability of left leg was assessed to be 75% and total body disability at 37.5 %. In this case, functional disability was also assessed at 75% and it was observed that the extent of physical functional disability has to be considered so as to grant just and proper compensation towards loss of future earning as the earning capacity of injured was totally negated having been rendered incapable of doing any manual work. It was also held that if permanent disability in relation to particular limb renders the injured permanently disabled from pursuing his normal vocation or any other similar work, there is no reason as to why compensation should be granted on the basis of physical disability in relation to whole body. In another matter of Syed Sadiq Etc vs Divisional Manager,United India AIR 2014 SUPREME COURT 1052, where functional disability was considered to be 65% by Hon'ble High Court in case of a vegetable vendor whose right leg had to be amputated was set aside and it was observed that loss of limb is often equivalent to loss of livelihood specially in manual labour cases and determined the functional disability at 85 percent. In another matter of Arvind Kumar Mishra (supra), injured suffered MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 29 of 49 grievous injuries and remained in coma for about 2 months and was held to be permanently disabled to the extent of 70% with his right hand amputated whereas his loss of earning capacity was held to be 90%. Similarly in case of K Janardhan v United India Insurance Company AIR 2008 Supreme Court 2384, Hon'ble Supereme Court of India, held that a tanker driver suffered 100% functional disability and incapacity to earn as a tanker driver as his right leg was amputated from the knee. In the case of Pappu Deo Yadav v Naresh Kumar, MAC App. 117/2018, injured suffered loss of an arm and therefore, was unable to carry out his functions as a typist / data entry operator and thus acknowledging the impact of injury upon the income generating capacity of victim, the extent of functional disablement and loss of income generating earning capacity was equated with the extent of permanent disablement as medically assessed at 89%.
Similarly, in the case of Sidram (supra), injured suffered paraplegia due to accident and was medically assessed with permanent disability to the tune of 45%, however, he was held to have suffered 100% loss of earning capacity.
(xv) In the present case, the disability of injured has been assessed by a medical board constituted upon the direction of the court as 70% permanent physical impairment with right below knee amputation. Therefore, by way of inference, it can be stated that the disability has not been expressed by the doctor in reference to the whole body. What is the role of that partially disabled limb in respect of the employment of injured is a separate question altogether. It is settled that any mechanical arithmetic formula cannot be applied to determined the impact of MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 30 of 49 injury upon the income generating capacity of the victim and same is required to be judged in relation to the profession, vocation or business of the victim. (support drawn from the case of Pappu Deo Yadav (supra).
(xvi) Coming to the case at hand, injured has deposed himself to be employed as a driver of truck at Indane Gas Plant. Nothing contradictory has come up on record as far as this assertion is concerned. Legal offer was filed on behalf of insurance company where also this factual position was not disputed. It is common knowledge that the duty of a driver involves extensive leg work and free leg movement which has been grossly impeded in the present circumstance. Physical aptitude and suitability for the job profile of a driver are bound to suffer on account of the disability. It is evident that the injured would not be able to continue to perform duty as a driver due to partially amputated leg. Victim would have to endure the permanent mobility restrictions which is also bound to have an adverse psychological impact as well. It is settled that change of nature of employment cannot be forced upon the victim and the assessment of compensation has to be quantified on the basis of nature of employment that he was into, at the time of accident and in contract with the the nature of jobs that he could still carry on or would have to compulsorily shift to, on account of disabilities suffered in the accident. In the backdrop of discussion above as victim suffered significant disability with amputation which evidently would adversely impact his mobility (running, standing, walking, ease of movement of limbs) which is an important and basic requirement of survival as a driver, his functional disability as would MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 31 of 49 adversely impact his earning efficiency is assessed to be 70%.
(xvii) Multiplier: As per evidence on record, date of birth of the claimant is 01.07.1985, as per documents placed on record. As such, he was about 35 years, 8 months and 26 days at the time of accident, therefore, applicable multiplier is taken as 16. (Reference drawn from the case of Sarla Verma & Ors. Vs. Delhi Transport Corp. & Anr. SLP (C) no. 8648 of 2007, decided by Hon'ble Supreme Court of India).
(xviii) Future Prospect: Further in view of the judgment of Hon'ble Supreme Court in Pappu Deo Yadav v. Naresh Kumar & Ors., AIR 2020 SC 4424 as also laid down in Sr. Antony @ Antony Swamy Vs. Managing Director KSRTC, Civil Appeal No. 2551 of 2018, future prospect has also been considered in the cases of permanent disability.
(xix) As such, as injured was between the age of 40 to 50 years (at the time of accident) and was employed on a fixed salary, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 40 % upon application of category of ''self-employed or on a fixed salary''.
(xx) In view of the above discussion of law, the calculation under future loss of income in the present case is as under:
(a) Annual income (Rs. 18,797/- x12) : Rs. 2,25,564/-
(b) Future prospect (40% of Rs. 2,25,564/-): Rs.90,226/-
______________________
(c) Total Rs. 31,57,90/-
(d) Multiplicand : Rs. 31,57,90/-
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 32 of 49
(e) Hence the 'Total Loss of Future Income' shall be :-
Percentage of functional disability (multiplicand x multiplier) = 70% of ( Rs. 31,57,90/- x 16) :Rs. 35,36,848/-
TOTAL :Rs. 35,36,848/-
(F3) Future medical expenses:
(xxi) PW -1/injured has neither relied any medical prescription wherein he has been advised any artificial limbs nor he has adduced in evidence any estimate towards the cost of such artificial limb or the periodical / yearly maintenance thereof, however, considering the amputation, subject to the medical prescriptions and objectivity, injured can always elect to avail support of an artificial limb in order to attain sense of normalcy towards his identity and some degree of independence. During the course of the arguments, upon specific query, a Quotation dated 20.11.2024 issued by Endolite Trans-tibial Prosthesis was filed depicting final price of prosthetic limb as Rs. 5,17,755/-
(inclusive of liner, sleeve, socket and foam covering). It is noted that the cost of Prosthetic Limb has been mentioned to be Rs. 2,20,416/- and life of limb has been mentioned to be 5 to 6 years with maintenance required every 6 months to 1 years costing about Rs. 15,000/- to 20,000/- as part of Written Submissions. Upon query, it was clarified by counsel for claimant that Rs.2,20,416/- was spent already on prosthetic purchase and limb fitment. However, any bill towards its purchase has not been filed. No evidence has been led by counsel for the petitioner to prove the quotation or to clarify the description therein. There seems to be no basis also of the cost of Rs. 2,20,416/- of Prosthetic Limb as mentioned in the Written Submissions.
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 33 of 49 Considering the age of victim, at least 6 replacements would be required from the date of accident till the prospective age of about 75 years. Since it is a case of amputation, even though any evidence towards cost of prosthetic limb has not been led. It is self evident that appropriate artificial prosthetic limb is need of injured. It is settled that injured need to be compensated so as to enable him to purchase the prosthetic limb and maintain the same till a certain age of average life expectancy. It goes without saying that an average prosthetic limb requires yearly maintenance with replacement of some parts with life of about 6 years. Counsel has relied upon judgment of Hon'ble Delhi High Court in the case of Oriental Insurance Company Ltd Vs. Seema MAC App. 132/2024 & CM Appl 12682/2024, decided on 23.04.2024 to support his contention to seek compensation for prosthetic limb against the quotation filed, however, in that matter Prosthetics and Orthodontist was examined on behalf of petitioner which is missing in this matter. In the Written Submissions/ Computation, Ld. Counsel for claimant has sought an amount of Rs. 9 lakhs. There is no reason why estimate of over 5 lakhs should be considered in place of Rs. 2,20,416/- which he spent earlier. Having said that requirement for artificial limb and yearly maintenance cannot be rules out. Acknowledging that, in objecting consideration of nature of injured, a lumpsum amount of Rs. 10,00,000/- is awarded towards future medical expenses including the need of an artificial / prosthetic limb in future years.
NON-PECUNIARY LOSS MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 34 of 49 (xxii) Injured is entitled to both, pecuniary as well as non- pecuniary damages. As the name suggests, pecuniary damages are designed to make good the pecuniary loss which can be ascertained in terms of money whereas non pecuniary damages are general damages to compensate the injured for mental and physical shock, pain, suffering, loss of expectation of life, inconvenience, hardship, frustration, stress, dejectment and unhappiness suffered by him on account of injuries sustained in the accident. It takes into account all the aspects of a normal life which deluded injured on account of accident. Given the nature of heads covered, it is bound to involve guess work on the part of Tribunal involving some hypothetical consideration as well, primarily considering the special circumstances of the injured and the effect of those upon his future life.
(xxiii) Regarding non-pecuniary loss, following was stated in Halsbury's Laws of England, 4 th Edition, Vol. 12 (page 446):
"Non-pecuniary loss: the pattern: Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
(As also referred in the case of Sidram.....................)
7. In Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667, the Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 35 of 49 elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non- pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.
8. In Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.
(referred and relied in the case of rupin A. Rupin Manohar Through Sh. S. Anandha vs Mohd. Ansari & Ors. on 17 August, 2017 JUDGMENT DELHI HIGH COURT (xxiv) To sum up, Compensation under non-pecuniary heads involves objective assessment of the damages in a bid to undo the loss, the injured would incur on account of his inability to a normal life and earn as much as he could, but for the injuries sustained. The whole idea behind assessment for damages for compensation is to put the claimant in the same position in so far as money can. The very nature of these damages, compulsorily involves some guesswork and hypothetical considerations, however, efforts should be made to adjudicate these on the basis of objective parameters rather than guided by subjective sympathy. The nature and severity of injury, the age, nature of disability are some of those parameters. Given hereunder are various heads under which compensation for non-pecuniary loss (general damages) is assessed:
A Damages for pain, suffering and trauma on account of injuries:
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 36 of 49 (xxv) The mental and physical loss cannot always be arithmetically computed in terms of money. These form the intangible losses suffered by injured for no fault of his. Although any form of human suffering cannot be equated in money, however, the object remains to compensate in so far as the money can compensate. Certain observations made by the Supreme Court of India in R. D. Hattangadi are relevant in the context:
"10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.
(xxvi) Certain factors were also laid down for consideration in the case of The Divisional Controller, KSRTC vs Mahadeva Shetty And Anr Appeal (Civil) 5453 of 2003 further relied in the case of Sidram (supra) for awarding compensation for pain and suffering. The observations made in the aforesaid case as relevant to the context are reproduced hereunder:
"113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 37 of 49 whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)] (xxvii) Hon'ble Supreme Court of India in the case of K. Suresh (supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity. (as relied in the case of Jagdish v Mohan AIR 2018 SUPREME COURT 1347, by Hon'ble Supreme Court of India).
(xxviii) The injured has suffered 70% permanent physical disability in with right below knee amputation. It is settled that each case has to be evaluated upon his special circumstances in the backdrop of deprivation which disability would cause on his future life. It is a case of substantial permanent disability which is likely to have adverse impact on mental, emotional and psychological health of a person having to live with the feeling MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 38 of 49 that he is no longer a normal person, relegated and pushed into the difficult world of a disabled person. There is no methodology to weigh the sufferings in terms of money, however, the Tribunal is required to engage in some guess work objectively to consider the peculiar circumstances of the case at hand to be able to award suitable compensation with the object to place the victim in as near a position as the victim was in before the accident. An amount of Rs. 3,00,000/- is awarded to the injured against pain, suffering and and trauma sustained in the accident.
(B) Loss of amenities of life:
(xxix)It compensates the victim on account of his inability to enjoy the basis amenities of life as any other normal person can, taking into account the age and the deprivation he would have to undergo and suffer due to injuries. Certain observations were made by Hon'ble High Court of Gujrat in the case of Vijaykumar Babulal Modi vs State Of Gujarat SPECIAL CIVIL APPLICATION NO. 20488 of 2017 referred by HSC in the case of Sidram (supra) which is reproduced hereunder:
"It appears that the claim under this head is to the tune of Rs.3 lac. However, the Tribunal has not awarded any sum under the head 'loss of amenities'. We are of the opinion that this head must take into account all aspects of a normal life that have been lost due to the injury caused. As per R.D. Hattangadi's case (supra), this includes a variety of matters such as the inability to walk, run or sit, etc. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of ability to freely move or travel without assistance...."
(xxx) Injured would not be able to perform several tasks on her own and has become dependent even for basic activities upon her family members or the services of the attendants, her personal MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 39 of 49 identity as well as her social identity considering the prejudice such people are likely to face specially against the backdrop of their educational, family and social settings, she is going to evidently lose much more than what we can possibly contemplate. Least would be to mention that she would be far from the sense of normalcy of an average human being. Accordingly an amount of Rs. 50,000/- is awarded towards loss of amenities considering the nature of injury and the extent of disability.
(C) Disfigurement:
(xxxi) Injured has her left above elbow amputated. Disfigured basically means something which is not in form or shape or figure which implies that the appearance of someone was spoiled on account of injuries sustained in the accident. In the case of Mohd. Sabeer @ Shabir Hussain Vs. Regional Manager, UP State Road 9070-9071 of 2022, Hon'ble Supreme Court of India highlighted the need to consider the socio economic background of the claimant while dealing with the cases of bodily disabilities observing that such disabilities make them prone to further discrimination and awarded Rs. 2 lakhs towards disfigurement involving 85% permanent disability with amputation of the right leg above the knee. As such, an amount of Rs. 1,00,000/- is awarded under this head.
Longevity of life (xxxii) There is no evidence on record that the nature of disability would have any effect on the longevity of injured therefore any amount is not awarded under this head.
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23. The compensation awarded against pecuniary and non- pecuniary damages under various heads is being sequentially put in a tabulated form hereunder for ease of reference to all concerned:
24. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
1. Pecuniary loss : - Quantum
(i) Expenditure on treatment :
Rs.1,18,000/-
(ii) Expenditure on Conveyance : Rs. 46,500/-
(iii) Expenditure on special diet : Rs. 30,000/-
(iv) Cost of nursing / attendant : Rs. 45,000/-
(v) Loss of income : Rs. 1,12,782/-
(vi) Loss of Future Income: Rs. 35,36,848/-
(vii) Artificial Limb/ Future medical Rs. 10,00,000/-
expenses
2. Non-Pecuniary Loss :
(I) Compensation of Pain and Suffering Rs.3,00,000/-
as well as mental and physical shock :
(iii) Loss of amenities of life Rs.50,000/-
(v) Disfigurement Rs.1,00,000/-
Total Compensation Rs. 53,39,130/-
Deduction, if any, NA
Total Compensation after deduction Rs. 53,39,130/-
Interest As directed
below
25. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no.
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 41 of 49 433/2013, 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 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, MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 42 of 49 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."
26. 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.
LIABILITY
27. Insurance Company has conceded valid and effective Insurance Policy on the date of accident and has not raised any statutory defence. It has already been held that accident occurred on account of rash and negligent driving of offending vehicle. It it is settled that Insurance Company is responsible to indemnify owner / insured for liability incurred by tort feaser. Therefore, such principal award amount/compensation will be payable by the insurance company of offending vehicle with simple interest MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 43 of 49 @ 9% p.a. from the date of filing of DAR till actual realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
28. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 00000042706870765 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any to the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
29. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 44 of 49
30. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
31. 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:
"......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.
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 45 of 49 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 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 semi literate 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.
MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 46 of 49 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 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....."
32. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 47 of 49 including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same, in the same manner in which he would have otherwise earned.
33. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, apportionment of award amount for injured is given as under:
Out of total award amount, Rs. 45,00,000/- is kept in form of monthly FDR of Rs. 15,000/-. Remaining amount be released in the bank account of claimant near his place of residence.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 27.03.2021 2 Name of injured Kamendra Kumar 3 Age of the injured 35 years 8 months 4 Occupation of the driver injured 5 Income of the injured Rs. 18,797/- as per minimum wages.
6 Nature injury Grievous injury and 70% MACT No. 436/2021 Kamendra Kumar Vs. Riyaz & Ors. Page No. 48 of 49 disability with amputation 7 Medical treatment taken As per record.
by the injured:
8 Period of As per record.
Hospitalization 9 Whether any permanent Grievous injury and 70% disability? disability with amputation 34 Copy of this award be given to the parties free of cost. The copy of award be also sent to the Ld. Secretary DLSA and Digitally signed by concerned criminal court. SHELLY SHELLY ARORA ARORA Date:
Announced in the open court 2024.12.04
16:24:18
+0530
on 04.12.2024
Shelly Arora
PO (MACT)-02, SE/Saket/Delhi
04.12.2024
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