Delhi District Court
Asfaq Ahmad Father vs Satender & Ors And 124/18 Titled on 15 September, 2018
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
In the Court of Sh. G. N Pandey
Motor Accident Claims Tribunal(Pilot Court)
Karkardooma Courts, Delhi.
MACT Nos. 74/18 & 124/18
MACT No. 74/18
IN THE MATTER OF :
1. Asfaq Ahmad Father
S/o Sh. Kamruddin
2. Smt. Hasin Bano Mother
W/o Sh. Asfaq Ahmad
3. Imran Brother
S/o Sh. Asfaq
All R/o H. No. E642, Gali No. 22,
Old Mustababad, Delhi.
............ Petitioners
V E R S U S
1. Satender
S/o Sh. Sai Ram
R/o Village Daluhera Jani
Distt. Meerut UP.
2. Jagdish Prashad
S/o Late Surajbal Gupta
R/o 51/4, Madhuban Colony,
Baghpat Road, Meerut, UP
3. Rohit Bansal
S/o Late Sh. Dhan Prakash Bansal
R/o 350/1, Karula Nagar,
Baghpat Road, Meerut, UP.
MACT Nos. 74/18 & 124/18 1 of 26
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court)
Karkardooma Courts, Delhi.
4 The Oriental Insurance Co. Ltd.
Baghwati Complex, Garh Road,
Meerut, UP
Regd. Office at:
Oriental House P. B. No. 7037
A25/27, Asaf Ali Road, New Delhi02
5. Budh Prakash Gupta
S/o Late Surajbal Gupta
R/o 8 Raghukul Vihar,
T. P. Nagar Meerut, UP.
........ Respondents
Date of Institution of petition : 13.03.2018 Date of Judgment/Order : 15.09.2018.
MACT No. 124/18IN THE MATTER OF : Sherddin S/o Sh. Salimuddin R/o H. No. E505, Gali No. 22, 1/ 2, Tent Wala School, Old Mustafabad, North East, Delhi.
............ Petitioner V E R S U S
1. Satender S/o Sh. Sai Ram R/o Village Daluhera Jani Distt. Meerut UP.
2. Jagdish Prashad S/o Late Surajbal Gupta R/o 51/4, Madhuban Colony, Baghpat Road, Meerut, UP
3. Rohit Bansal MACT Nos. 74/18 & 124/18 2 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
S/o Late Sh. Dhan Prakash Bansal R/o 350/1, Karula Nagar, Baghpat Road, Meerut, UP.
4 U. P. S. R. T. C. Through its Regional Manager, Meerut Depot, Meerut, UP.
5. The Oriental Insurance Co. Ltd.
Baghwati Complex, Garh Road, Meerut, UP Regd. Office at: Oriental House P. B. No. 7037 A25/27, Asaf Ali Road, New Delhi02 ........ Respondents Date of Institution of petition : 27.04.2018 Date of Judgment/Order : 15.09.2018.
A W A R D:
1. By this order, I shall dispose off two connected claim petitions bearing MACT Nos. 74/18 and 124/18 for grant of compensation.
2. Briefly the facts of both the claim petitions are that on 10.02.2018, the deceased Istkhar alongwith injured namely Sheruddin was coming from Baghpat by a hero Honda Motorcycle No. DL 1 SZ 1427. At about 5 PM, when they reached near Village Meetlli towards Meerut in the meanwhile, a bus No. UP 15 AT 4900 which was being driven by its driver at a very high speed rashly and negligently came and hit the motorcycle of the deceased. As a result of which, both of them sustained injuries and they immediately moved to Baghpat Hospital. Istkhar declared brought dead by the doctors of the hospital. Postmortem was also conducted. Injured sustained serious and grievous injuries in this accident. Thereafter, petitioners have filed claim petitions for compensation i.e. petition No. MACT Nos. 74/18 & 124/18 3 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
74/18 titled Asfaq Ahmad & Ors V/s Satender & Ors and 124/18 titled Sherddin V/s Satender & Ors.
3. The respondent No. 1 to 3 jointly filed their WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, motorcyclist tried to overtake dumper in a very rash and negligent and collided with the bus. Respondent No. 1 was driving the said bus by following the traffic rules. The respondent No.1 is having a valid DL. The bus No. UP 15 AT 4990 is insured with the respondent No. 5.
The respondent No. 5 filed WS denying the averments made in the petition contending that this petition is not maintainable. As contended, vehicle No. UP 15 AT 4990 was insured with the respondent No. 5 vide poicy No. 252405/31/2018/5376 w.e.f 30.11.2017 to midnight of 29.11.2018 in the name of respondent Budh Prakash Gupta, Sh. Jagdish Prasad gupta and Rohit Bansal.
The respondent No. 6 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, motorcyclist tried to overtake dumper in a very rash and negligent and collided with the bus. Respondent No. 1 was driving the said bus by following the traffic rules. The respondent No.1 is having a valid DL. The bus No. UP 15 AT 4990 is insured with the respondent No. 5.
4. In view of the records, following issues were framed on 19.04.2018 in petition No. 74/18:
1. Whether deceased Istkhar died on account of injuries sustained in accident took place on 10.02.2018 at about 5 PM at near village Neeti, Baghpat road, Meerut UP of PS MACT Nos. 74/18 & 124/18 4 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Baghpat, UP within the jurisdiction of PS Baghpat, due to rash and negligent driving of vehicle bearing No. UP 15 AT 4990 by respondent No. 1 ?OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP
3. Relief.
5. Following issues were framed in petition No. 31.05.2018 on 124/18 :
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle No. UP 15 AT 4900 at near village Neetali, Baghpat road, Meerut, UP by respondent No. 1 on 10.02.2018 within the jurisdiction of PS Baghpat, UP ?OPP
2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP
3. Relief.
The evidence were recorded in the matter for disposal of the petitions.
Evidence in Petition No. 74/18
6. Petitioner No. 1 filed his affidavit by way of evidence Ex. PW 1/X and examined himself as PW1. Witness has relied upon the abovesaid documents i.e:
i) Photocopy of Aadhar Card as Ex. PW1/A (OSR).
ii) Photocopy of Ration Card mark PW1/B.
iii) Photocopy of Marksheet of Secondary School Examination 2007 of deceased as Ex. PW1/C (OSR).
iv) Photocopy of Marksheet of deceased of Senior School MACT Nos. 74/18 & 124/18 5 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Certificate Examination 2009 of deceased Ex. PW1/D (OSR).
v) Photocopy of B.A, marksheet of deceased issued from Delhi University mark PW1/E.
vi) Photocopy of IIMT Certificate of Computer Software of deceased Ex. PW1/F(OSR).
vii) Photocopy of Citizen Welfare Society Certificate issued to deceased namely Istakhar Ex. PW1/G (OSR).
viii) Photocopy of Aadhar Card of deceased Ex. PW1/H (OSR).
ix) Copy of FIR dated 11.02.2018 mark PW1/1.
x) Copy of postmortem report dated 11.02.2018 mark PW1/2. Petitioners also examined other witnesses i.e. Irfan and Mohd. Nabi as PW2 and 3 by way of their respective affidavits Ex. PW 2/ A and Ex. PW 3/ A. Petitioner also examined other witness i.e. SI Sushil Kumar, PS Baghpat, UP as PW4 deposed that he is the IO of the case bearing Crime No. 166/18, u/s. 279/337/427/304A IPC PS Baghpat, UP and after investigation the matter, he has filed chargsheet before the court. He has brought the copy of the said case i.e. chargesheet, FIR, complaint, mechanical inspection report, PMR etc. which is Ex.PW4/1 (Colly 24 pages).
Petitioner also examined other witness i.e. Dr. Sunil Kumar, ENT Surgeon, Distt. Hospital, Baghpat, UP as PW5 deposed that on 11.02.2018 he has conducted the Postmortem of dead body of Istkar s/o Ashfaq aged about 27 years who was brought to the hospital due to RTA. The copy of PMR is already Mark PW1/2 which bears his signature at point - A. The reason of death is shock and hemorrhage. PE was thereafter closed.
7. During the proceedings, ld. Counsel for respondents stated that they did not want to examine other witness. RE was thereafter closed.
MACT Nos. 74/18 & 124/18 6 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Evidence in Petition No. 124/18
8. Petitioner filed his affidavit by way of evidence Ex. PW 1/A and examined himself as PW1. Witness has relied upon the abovesaid documents i.e, Ex. PW 1/ 1 to Ex. PW 1/5.
Petitioner also examined other witness i.e. SI Sushil Kumar, PS Baghpat, UP as PW4 deposed that he is the IO of the case bearing Crime No. 166/18, u/s. 279/337/427/304A IPC PS Baghpat, UP and after investigation the matter, he has filed chargsheet before the court. He has brought the copy of the said case i.e. chargesheet, FIR, complaint, mechanical inspection report, PMR etc. which is Ex.PW4/1 (Colly 24 pages). PE was thereafter closed.
9. During the proceedings, ld. Counsel for respondents stated that they did not want to examine other witness. RE was thereafter closed.
10. I have heard Ld. Counsel for parties and considered the relevant materials on record. My issue wise findings are as below :
11. My findings on the aforesaid issues are as follows : Issue No. 1 in petition No. 74/18:
1. Whether deceased Istkhar died on account of injuries sustained in accident took place on 10.02.2018 at about 5 PM at near village Neeti, Baghpat road, Meerut UP of PS Baghpat, UP within the jurisdiction of PS Baghpat, due to rash and negligent driving of vehicle bearing No. UP 15 AT 4990 by respondent No. 1 ?OPP Issue No. 1 in petition No. 124/18:
1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle No. UP 15 AT 4900 at nar village Neetali, Baghpat road, Meerut, UP by MACT Nos. 74/18 & 124/18 7 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
respondent No. 1 on 10.02.2018 within the jurisdiction of PS Baghpat, UP ?OPP
12. To succeed in the claim petition in view of Section 166 of the MV Act, it is for the claimant to prove that vehicle which caused the accident was being driven rashly and negligently by its driver. Issue No. 1 in both the cases is taken up together. Petitioner Ashfaq and Sherddin were examined as PW1 and deposed about the facts of the case. They were crossexamined by ld. Counsel for respondents and during cross examination nothing has come forward in their testimony to disbelieve the version of PW. On the other hand, respondents did not examine any witness to rebut the contentions and deny the claim of the petitioner and mere denial is not sufficient to rebut the claim of the petitioner. No witness was produced or examined by respondents as well to prove as to how accident occurred due to the negligence of the deceased/ injured; the respondent No. 1 was not at fault and was not driving the vehicle in rash and negligent manner. There is no reason to disbelieve the testimony of witnesses. I have gone through the record and documents in respect of the accident caused to the petitioner which is prima facie suggestive of negligence of respondent No. 1 in driving the vehicle at the time of accident.
Relied judgment in (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530 and the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646).
Hon'ble Supreme Court in Bimla Devi and Ors. V/s Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a MACT Nos. 74/18 & 124/18 8 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
13. In judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh, 2009 (3) AD (Delhi) 310, an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the Claimant had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.
14. I have gone through the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana to examine the aspect of negligence wherein in the Hon'ble High Court held that: In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver MACT Nos. 74/18 & 124/18 9 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
Further, in Kaushnumma Begum and others V/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
Further the Hon'ble High Court of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. V/s. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Delhi High Court, held as under:
"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit.
15. Therefore, in view of the criminal case record and statement of PWs, it is proved that the deceased Istkhar and injured Sherddin sustained fatal MACT Nos. 74/18 & 124/18 10 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
injuries/ grievous injuries on 10.02.2018 due to rash and negligent driving of offending vehicle bearing No. UP 15 AT 4990 driven by its driver i.e. respondent No. 1. The issue is decided accordingly. Issue No. ii in MACT petition No. 74/18 :
(ii) Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP
16. The Hon'ble Supreme Court in Nagappa V/s Gurdayal Singh reported as 2003(2) SCC 274 ruled that the main guiding principle for determining the compensation is that it must be just and further that it must be reasonable. As observed in UP State Road Transport corporation V/s Trilok Chandra (1996) 4 SCC 362, the compensation awarded in such cases has primarily two elements; the pecuniary loss to the estate of the deceased resulting from the accident and the pecuniary loss sustained by members of his family on account of his death in addition to the conventional award under non pecuniary heads of damages( e.g. loss of consortium, loss of love and affection, funeral expenses etc).
17. The damages are to be based on the reasonable expectation on pecuniary benefit or benefits reduceable to money value. In General Manager Kerala State Road Transport Corporation V/s Susamma Thomas reported as (1994) 2 SCC 176, the court ruled that in fatal accident action, the measure of damages is the pecuniary loss suffered or likely to be suffered by each dependent as a result of death and that : "9.The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount MACT Nos. 74/18 & 124/18 11 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that that deceased might have got better employment or income or might have lost his employment or income altogether".
18. Hon'ble Supreme Court in Sarla Verma V/s DTC reported as (2009) 6 SCC 121 held as under:
16. ... "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profits.
17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While, it may not be possible to have mathematical precision or identical awards, in assessing compensation same or similar facts should lead to award in the same range. When the factors/ inputs are the same, and the formula/ legal principles are the same, consistency and uniformity and not divergence and freakiness, should be the result of adjudication to arrive at just compensation.
19. No amount of compensation can restore, eliminate or ameliorate the MACT Nos. 74/18 & 124/18 12 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
loss suffered on account of death ( or injury with lasting effect) the endeavor by such award is to repair the damage done so as to restore the victim( which includes the dependent) to the extent possible to the preaccidental position. The pecuniary damages are meant to take care of the prospective pecuniary loss of future income and the non pecuniary damages to compensate, to an extent, for pain and suffering , loss of love, companionship, expectation of life etc. The Hon'ble Supreme Court in R. K Malik V/s Kiran Pal reported as 2009 (14) SCC 1 observed as under:
22. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy.
23. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualised and understood. Perhaps , the only mechanism known to law in this kind of situation is to compensate a person who has suffered non pecuniary loss or damages as a consequence of the wrong done to him by way of damages / monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness, etc., which is sometimes described as compensation paid for "loss of expectation of life".
MACT Nos. 74/18 & 124/18 13 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
20. The challenge in determining the ' just and reasonable' compensation in such cases is mainly due to the fact that there is virtually no evidence in actual loss of earning of the deceased child. Hon'ble Supreme Court in R. K. Malik(supra) noted:
25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The courts have therefore used the expression "standard compensation" and conventional amount/ sum"
to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensation."
21. I have gone through the testimony of the witnesses alongwith complete records. The petitioners have prayed for compensation from respondents. It is argued by Ld counsel for respondents that petitioners have not suffered any monetary loss on account of the fatal accident and therefore, they are not entitled for compensation.
There is no dispute at all that deceased received fatal injuries due to the accident. The factum of accident as well as death is not denied. The testimony of father of deceased remained unimpeached / uncontroverted and witness proved the relevant documents. No contrary evidence has been brought on record by the respondents.
22. PW1 i.e. father of the deceased deposed that at the time of accident, deceased was 27 years of age and was pursuing the graduation from Delhi University and was working as contractor for stitching work and earned Rs.
MACT Nos. 74/18 & 124/18 14 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
30,000/ per month. No documents has been produced or proved by the petitioners regarding income of the deceased. Petitioners has relied upon the educational documents of the deceased therefore the income of the deceased has to be considered on the basis of minimum wages applicable to the matriculate on the date of accident i.e. 10.02.2018. Therefore, income of the deceased is assessed as Rs. 11,830/ per month. As per adhar card, the year of birth of deceased is 1991. The accident took place on 10.02.2018. His age is taken as about 28 years on the date of accident i.e. 10.02.2018. In the judgment Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others reported as MANU/SC/0640/2015 decided by Hon'ble Supreme Court on 15/05/2015 and National Insurance Company Limited V/s Pranay Sethi & Ors. in SLP ( Civil) No. 25590/2014 decided on 31.10.2017, it has been held that multiplier is to be used with reference to the age of the deceased. There is nothing on record to show that deceased was self employed or working in fixed salary; nothing is proved in respect of income of the deceased. In view of judgment of Hon'ble Supreme Court in Laxmidhar Nayak & Ors. V/s Juggal Kishore Behera & Ors reported as MANU/SC/1506/2017, petitioners are not entitled for compensation towards future prospects.
23. In the present case, there are 3 petitioners i.e. father, mother and brother of deceased. It was further held that 50% of the deduction is to be made in case of bachelor.
Therefore, the total loss of dependency would be calculated as follows : Rs. 11,830/ X 12 (annual) X 17 (Multiplier) = Rs. 24,13,320/ Rs. 24,13,320/ Rs. 12,06,660/ ( 50 % deduction) = Rs. 12,06,660/.
24. Placing reliance upon the judgment of Supreme Court of India in National Insurance Company Limited V/s Pranay Sethi & Ors. in SLP ( Civil) No. 25590/2014 decided on 31.10.2017, the petitioners are entitled MACT Nos. 74/18 & 124/18 15 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
for the loss of estate and funeral expenses of Rs. 15,000/ and Rs. 15,000/ respectively.
Therefore, petitioners are also entitled for compensation under the following heads: Loss of dependency Rs. 12,06,660/ Loss of Estate Rs. 15,000/ Funeral Expenses Rs. 15,000/ Total Rs. 12,36,660/ I accordingly award an amount of compensation of Rs. 12,36,660/ in favour of the Claimant and against respondents. Issue No. ii in claim petition No. 124/18 :
(ii) Whether petitioner is entitled to compensation ? If so to what amount and from whom? OPP
25. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held:
4. The provision of the Motor Vehicles Act, 1988 ( Act for short) makes it clear that the award must be just, which means that compensation should , to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court of tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, MACT Nos. 74/18 & 124/18 16 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.
MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.
5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of
treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Nonpecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
MACT Nos. 74/18 & 124/18 17 of 26
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
consequence of the injuries.
(v) Loss of amenities ( and/ or loss of prospects of marriage).
(vi) Loss of expectation of life ( shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (I), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)
(b), (iii), (v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. Award under the head of future medical expenses item (iii) depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non pecuniary damages items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant.
Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of MACT Nos. 74/18 & 124/18 18 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability ( this is also relevant for awarding MACT Nos. 74/18 & 124/18 19 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:
(i) All injuries ( or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability ( except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injuredclaimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
MACT Nos. 74/18 & 124/18 20 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
(iv) The same permanent disability may result in different percentage of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
26. I have gone through the testimony of the witnesses alongwith complete medical records. It is deposed that due to the accident, injured sustained serious and multiple injuries. Regarding accident, FIR No. 166/18 was registered at PS Baghpat for offence U/s 279/338/304 A IPC. Disability certificate of the petitioner is on record. Petitioner has not summoned and examined the witness from the hospital to prove the disability certificate. Steps was not taken by the petitioner to summon the witness and during proceedings, ld. Counsel for petitioner stated that he did not want to examine doctor to prove the disability therefore petitioner is not entitled for any amount towards disability. The petitioner claimed that he is contractor of electricity work and earned Rs. 30,000/ per month. No documents has been filed / proved by the petitioner regarding his income. Petitioner has relied upon the educational documents therefore income of the injured is considered as per minimum wages Act as applicable to matriculate while considering his monthly salary as per prevalent rate at relevant time i.e. 10.02.2018 when accident took place. The income of the injured is assessed as per the minimum wages on the date of accident i.e 10.02.2018 which was Rs. 11,830/ per month for matriculate.
27. I have gone through the medical records of the petitioner. There is nothing on record in support of the affidavit of PW1 that he suffered any loss of earnings from his work. However, with the kind of injuries suffered by him, it can be safely assumed that he would have been under treatment for about five months. He is thus awarded Rs. 59,150/ (Rs. 11,830/ X 5) for five months for Loss of Wages.
MACT Nos. 74/18 & 124/18 21 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
28. The petitioner has claimed amount towards compensation from the respondent. It is also claimed that after the accident, the petitioner could not perform his routine and required attendant/ assistance for his day to day business; he also suffered financial losses due the accident and his family suffered mental pain and agony.
29. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in his life generally are to be reckoned. From the overall assessment, I assess Rs. 1,00,000/ as compensation towards Pain, Shock and Suffering to the Claimant as patient suffered multiple facial injuries.
30. Ld. Counsel for petitioner submits that petitioner has spent amount for his treatment but no medical bills has been filed on record by the counsel for petitioner. Therefore, petitioner is not awarded any amount towards medical bills.
31. The Claimant has not filed any document in support of the fact that he had incurred expenses on keeping an attendant, for conveyance and for extra nutritious diet. However, I guess he must have spent some amount for which he is awarded a lumpsum amount of Rs. 10,000/ for Special Diet and Rs. 10,000/ for Conveyance Charges.
32. Keeping in view the nature of injuries suffered by the petitioner and the fact that he was under constant treatment, he needed an Attendant to look after him and the petitioner is therefore, entitled to attendant charges. Petitioner has not filed any record to show that he has received help of special attendant however, some family member must have been attending him. A victim of accident has to be compensated in terms of money even if gratuitous services are under by a family members. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of MACT Nos. 74/18 & 124/18 22 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Hon'ble High Court held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. In the circumstances, where the injured had suffered injury, it is deemed fit that a lump sum of Rs. 10,000/ be awarded as compensation towards Attendant charges.
33. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the Claimant :
1. Future Loss of Income Rs. 0/
2. Towards Pain Shock & Suffering Rs. 1,00,000/ 3 Towards Servant / Attendant Charges Rs. 10,000/
4. Towards Conveyance & Special diet Rs. 20,000/ 5 Towards medical bills Rs. 0/ 6 Towards loss of Wages( five months) Rs. 59,150/ Total= Rs. 1,89,150/ I accordingly award an amount of compensation of Rs. 1,89,150/ in favour of the Claimant and against Respondents. Liability: In this case, The Oriental Insurance Co. Ltd admittedly has issued a valid insurance policy of the offending vehicle. There is no evidence on behalf of insurance company to show that there was any violation of the rules and terms of policy by the remaining respondents. Hence, I am of the opinion that The Oriental Insurance Co. Ltd is liable to pay the compensation on behalf of remaining respondents. Interim award if any paid to injured/ petitioner be adjusted in the award amount.
Award in MACT No. 74/18: MACT Nos. 74/18 & 124/18 23 of 26
Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
34. Resultantly, the Claim petition stands allowed. Insurance company is hereby directed to pay the compensation of Rs. 12,36,660/ within one month to the Claimants. Claimants are also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC).
35. The insurance company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.
36. Out of the total award amount of Rs. 12,36,660/, UCO Bank, KKD Courts is directed to keep the amount of Rs. 10,00,000/ in 10 FDRs of Rs. 1,00,000/ each for the maturity period of one year to ten years respectively ( at the interval of one year each) with cumulative interest in the name of petitioner No. 2.
37. UCO Bank, KKD Courts is directed to release the remaining amount alongwith interest in favour of petitioner No. 2 in her saving bank account after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).
38. Withdrawal from the said Account shall be permitted to the petitioner after due verification.
39. All the original FDRs shall be retained by the UCO bank, KKD Courts. However, the statement containing the FDRs number, amount, date of maturity and maturity amount shall be furnished by the UCO Bank to the petitioner/ beneficiary. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary. The beneficiary shall intimate regarding his bank and account MACT Nos. 74/18 & 124/18 24 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
number for automatic credit of the maturity amount.
40. No loan, advance or premature discharge of the FDRs shall be permitted without permission of this court.
41. The maturity amount of the FDRs alongwith interest thereon be transferred to the saving bank accounts of the beneficiary.
42. The liberty is given to the petitioner/ injured to approach this court for release of further amount in event of any financial exigency.
43. On request of Claimant, bank shall transfer the Savings Account to any other branch in the name of petitioner and the bank of the petitioner are directed not to issue any cheque book or Debit Card to the account holder.
44. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.
45. FormV shall be read as a part of the judgment. Award in petition No. 124/18:
46. Resultantly, the claim petition stands allowed. Insurance company is hereby directed to pay the compensation of Rs. 1,89,150/ within one month to the Claimants. Claimants are also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC).
47. The insurance company is directed to deposit the amount with UCO MACT Nos. 74/18 & 124/18 25 of 26 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.
Bank, KKD Courts Branch, Delhi.
48. Withdrawal from the said Account shall be permitted to Claimant after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).
49. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.
50. FormV shall be read as a part of the judgment.
51. Copy of this judgment be placed in the both claim petitions bearing Digitally signed by MACT Nos. 74/18 & 124/18.
GORAKH GORAKH NATH
PANDEY
Location: Court No.69,
Announced in open Court NATH North East District,
Karkardooma Court,
on this day of 15th September, 2018
PANDEY Delhi
Date: 2018.09.15
16:52:14 +0530
G. N. Pandey
Motor Accident Claims Tribunal(Pilot Court) Karkardooma Courts, Delhi.
MACT Nos. 74/18 & 124/18 26 of 26