Delhi District Court
Vinay Kumar (I)(Fir203/19/Dbg Road) vs Ashish (Bajaj Allianze ) on 24 July, 2024
IN THE COURT OF DR. RUCHI AGGARWAL ASRANI
PRESIDING OFFICER, MACT-01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
DLCT010056442020
MACT No. : 387/2020
FIR No. : 203/2019
PS : DBG Road
u/s : 279/338 IPC
Mr. Vinay Kumar,
S/o Mr. Ved Prakash
R/o H.No.2036, Church Gali, Tilak Chowk,
Malka Ganj, Delhi-110007. ......Petitioner
Versus
1. Mr. Ashish (Driver-cum-owner of the offending vehilce)
S/o Mr. Om Prakash
R/o 8952/14/B, Sidipura,
Karol Bagh, Delhi.
2. Bajaj Allianz General Insurance Co. Ltd. (Insurer)
DLF Tower, Industrial Area,
Karampura, New Delhi.
......Respondents
Date of filing of DAR : 15.09.2020 Judgment reserved on : 10.07.2024 Date of Award : 24.07.2024 MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 1 of 42 AWAR D The Detailed Accident Report (DAR) was filed on 15.09.2020. The Road Traffic Accident in question took place on 27.10.2019 at about 11:45 PM at Rani Jhansi Road at Pahari Dheeraj Cut, Delhi. The petitioner suffered grievous injuries in the said accident. The said accident was allegedly caused by the vehicle i.e. Car bearing registration No. DL-3CBC-1500 which was being driven as well as owned by respondent No. 1, Ashish and insured with respondent no.2, Bajaj Allianz General Insurance Co. Ltd.
Brief facts of the case:
2. Based on the facts outlined in the DAR, it emerges that on
28.10.2019, on receipt of PCR call vide DD No. 1A at P.S. DBG Road regarding a road accident, ASI S.Shafiuddin along with Ct. Rajesh went to the spot of accident where both the vehicle i.e. Wagon R bearing no. DL-3CBC-1500 and motorcycle bearing registration no. DL-5SBW- 6469 were found in damaged condition. Thereafter, IO after leaving the Constable at the spot went to the hospital. From hospital, IO collected the MLC of the injured bearing no. 5429/19. The statement of the injured could not be recorded by the IO as the injured refused to give his statement. Thereafter, IO again reached at the spot and both the vehicles were taken into custody. IO again went to the hospital and recorded the statement of the injured.
3. On the basis of the investigation of the spot of accident, statement MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 2 of 42 of injured and MLC of the injured, the offence under section 279/337 IPC was found to have been committed and accordingly, the FIR was registered. Thereafter, IO served notice under section 133 M.V. Act to the owner of the offending vehicle, who submitted the documents of the offending vehicle to the IO and he admitted that he was driving the offending vehicle at the time of accident. IO arrested the owner of the offending vehicle. Since the offence was bailable, the owner was released on bail. Thereafter, at the instance of injured, IO prepared the site plan. The mechanical inspection of both the vehicles was got conducted. The injury as per the final opinion on the MLC of injured was 'grievous' and therefore, Section 338 IPC was added in the FIR. The driver cum owner of the offending vehicle did not have a valid driving license and therefore, Section 3/181 M.V. Act against the driver was also added in the FIR. On completion of investigation, the chargesheet for the offences u/s. 279/338 IPC & 3/181 MV Act was filed with respect to respondent no.1 Ashish before the Ld. MM and DAR was filed before this Tribunal on 15.09.2020.
WRITTEN STATEMENTS
4. Written statement was filed on behalf of respondent no. 1 on 21.02.2022. No written statement was filed on behalf of respondent no. 2 insurance company. Therefore, the right to file the written statement was closed vide order dated 17.08.2022.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 3 of 42ISSUES FRAMED
5. The issues were framed vide order dated 17.08.2022 which are as follows:
i. Whether the petitioner Sh. Vinay Kumar suffered injuries in an accident that took place 27.10.2019 at about 11:45 PM involving vehicle bearing registration No. DL-3CCB-1500 owned and driven by the Respondent no. 1 rashly and negligently and insured with respondent no. 2? OPP ii. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
iii. Relief EVIDENCE
6. The petitioner examined himself as PW-1. Respondent no.3 examined R3W-1 Mr. Raghunath Pawar, Assistant Manager of insurance company.
7. The petitioner had filed the Form XIV. Financial statement of the petitioner was recorded and final arguments were heard on behalf of the petitioner and respondent no. 3.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 4 of 42FINDINGS & OBSERVATIONS
8. Before delving into the facts of the current case to decide the aforementioned issues, it is pertinent to highlight that it is firmly established in legal precedents that the proceedings conducted before the Claims Tribunal are in the nature of an inquiry. Further, procedural approach adopted by an accident claims' tribunal mirrors that of a civil court (National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors. 2009 ACJ 287). In civil proceedings, the establishment of facts hinges on a preponderance of probabilities, rather than being bound by the strict rules of evidence or the higher standard of beyond reasonable doubt, as required in criminal cases. The burden of proof in civil cases is lighter than in criminal cases, and the burden to decide claim petition under The Motor Vehicles Act is even lesser as compared to a civil litigation. In Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors (2009) 13 SC 530, it has been held by Hon'ble Supreme Court of India that negligence must be decided on the touchstone of preponderance of probabilities and a holistic view must be adopted in reaching a conclusion.
9. Keeping in mind the aforementioned legal principle for adjudicating the present matter, this Tribunal has thoroughly gone through the testimony of the witnesses and all the material available on record. Also, careful consideration has been given to the arguments addressed by the Learned Counsels for the petitioners and respondent no. 3.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 5 of 4210. I have heard Ld. Counsel for the petitioner and Ld. Counsel for respondent no. 3 insurance company and perused the record. My findings on the various issues are as under:-
ISSUE NO.1:
Whether the petition er Sh. Vinay Kumar suffered injuries in an accident that took place 27.10.2019 at about 11:45 PM involoving vehicle bearing registration No. DL-3CCB-1500 owned and driven by the Respondent no. 1 rashly and negligently and insured with respondent no. 2? OPP The factum of accident:
11. The onus to prove the issue no.1 was upon the petitioner. To prove its claim, the petitioner (PW-1) in his evidence by way of affidavit Ex. PW1/A, had stated as under:-
"1....
2. That on unfortunate day of 27.10.2019 at about 11:45 PM, the deponent was going by his motorcycle bearing no. DL-5SBW-6469 to meet with his friend from Jhansi Rani Road via Jhandewalan, Delhi and when the deponent reached at Cut of Pahari Dheeraj, Rani Jhansi Road Flyover then one vehicle Maruti Wagon bearing registration No. DL-3CBC-1500 came in very rash and negligent manner, which was driven by the respondent without following/obeying traffic rules and hit the motorcycle driven by the deponent bearing no. DL- 5SBW-6469, due to which the deponent caused the injury in his below right knee and left hand. The deponent was brought to the Bara Hindu Rao Hospital and since then the deponent is under medical treatment and the MLC was prepared in the same hospital. Copy of the Aadhar Card of the deponent is exhibited as Ex. PW1/1. The disability certificate of the deponent is exhibited is Ex. PW1/2. The medical treatment document/bills of the MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 6 of 42 deponent are exhibited as Ex. PW1/3 (colly).
3. That thereafter, the police recorded the statement of deponent and on the basis of his statement, an FIR bearing no.0203/2019 was registered at PS DBG Road in u/s. 279/337 IPC.
4. That the abovesaid accident was taken place due to the rash and negligent driving of the respondent no. 1 without following the rules of the road. Thereafter the deponent could not be able to live his a normal life till today, he is still suffering from physical and mental pain and agony.
5. That during the investigation, the offending vehicle as well as vehicle of the deponent was seized by the police and the same was released by the order of Hon'ble Court on Superdari.
6. That the IO prepared the Accident Information Report in detail and the same was filed before this Hon'ble Court. The complete Report filed by the IO is also exhibited as Ex. PW1/4 (colly).
7. That the deponent was firstly admitted to Hindu Rao hospital on dated 28.10.2019, thereafter on 29.10.2019 deponent was admitted to Parmarth Mission Hospital Shakti Nagar, Delhi-110007 where deponent spend an amount of Rs. 70,250/- (Rupees seventy thousand and two hundred and fifty only) apart from the abovesaid amount, deponent also spend about Rs. 3,00,000/- on special diet, conveyance, attendance charges, etc. till date and also suffered loss of earning capacity as the deponent was employed with MISS BELLA situated at G-06, Mandolia Road Kamla Nagar, Delhi- 110007 as Sale man and deponent was earning Rs.16000/- PM as fixed salary apart from the fixed salary the deponent was also be rewarded with 1% incentive on sales, the deponent monthly used to earned about 19000 to 20000/- PM and from the day of incident, deponent is not able to earn as he used to earn before accident, the deponent further spend huge amount on attendant as attendant charges.
8. That the deponent due to abovesaid accident could MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 7 of 42 not be able to work for 6 month due to the said incident the deponent was terminated by his employer and it takes approximately 8 month to deponent to recover his health and 12 month to get another job in order to earn livelihood for himself and his dependents.
9. That the respondent no.1 is the driver and owner of the offending vehicle and the respondent no. 2 is the insurer of the offending vehicle being driven by respondent no. 1 therefore the respondent s are jointly and severally liable to compensate the deponent.
10. That the abovesaid statement of the deponent is true and correct to the best of knowledge and belief."
12. PW-1 Sh. Vinay Kumar has categorically deposed that on 27.10.2019 at about 11:45 PM, when he was going by his motorcycle bearing no. DL-5SBW-6469 to meet his friend from Jhansi Rani Road via Jhandewalan, Delhi and when he reached the Cut of Pahari Dheeraj, Rani Jhansi Road Flyover, one vehicle Maruti Wagon bearing registration No. DL-3CBC-1500 came in very rash and negligent manner, which was driven by the respondent without following/obeying traffic rules and hit his motorcycle bearing no. DL-5SBW-6469, due to which he sustained injury in his below right knee and left hand. He also deposed that he was brought to the Bara Hindu Rao Hospital. Nothing adverse has come out from the cross-examination of PW-1 so as to demolish his evidence regarding the factum of accident. PW-1 has denied the suggestion that the accident occurred due to his negligence or that he was coming from the wrong side or that he was driving in a zig zag manner. Even otherwise, the petitioner was unknown to respondent no.1 prior to the accident and admittedly, there was no prior enmity with respondent no. 1 and hence, it is beyond comprehension as to why the MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 8 of 42 petitioner will implicate the respondent no.1 falsely, had he not been driving the offending vehicle.
13. Further, even though respondent no. 1 has examined himself as RW-1 and deposed that it was the petitioner who was at fault but the fact is that he has admitted the accident. Further, the burden to prove that the accident did not occur due to rashness and negligence of respondent no. 1 but of the plaintiff was on respondent no. 1, however, the respondent no. 1 has only examined himself and no other witness. It cannot be denied that respondent no. 1 will only depose in his favour to save himself from liability and thus, it was imperative to have an impartial witness to prove the defence, which he has clearly failed to produce. Moreover, RW-1 has deposed that the petitioner had hit the left side of his vehicle while the mechanical inspection report shows damage on the front of his vehicle which also shows that it must be the respondent no. 1 who had hit from the front of his vehicle.
14. In the present case, after due investigation, police had filed charge-sheet against respondent no. 1 Ashish under Section 279/338 of IPC, which is also suggestive of negligence of the said respondent in causing the accident. The IO has filed Detailed Accident Report (DAR) before this Tribunal. In National Insurance Co. v. Pushpa Rana & Ors., 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of charge-sheet are sufficient proof of negligence of the driver of the offending vehicle.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 9 of 4215. Justice Krishna Iyer said in the case of Concord of India Insurance Co. Ltd. vs. Nirmala Devi (1979) 4 SCC 365 that Motor Accident Claims Tribunals exercise compassionate jurisdiction. Keeping that in mind, it cannot be denied that this is a social welfare legislation. Further, it is settled law that the claimants cannot be expected to prove the accident to the hilt and the principle of res ipse loquitor should apply which means that the "accident speaks for itself". Thus, once it has been established in DAR and chargesheet that the accident had taken place, the burden shifts on the respondents to prove that they were not responsible for the accident which the respondent no.1 has clearly failed to discharge. Thus, the factum of accident and the identity of respondent no.1 Ashish as driver cum owner of the offending vehicle stands established.
16. From the testimony of PW-1 and the material available on record, it also stands proved that respondent no.1 acted in a rash and negligent while driving his vehicle and hitting the motorcycle of the petitioner. Thus, respondent no. 1 Ashish (driver cum owner of the offending vehicle) is held to be negligent on the basis of preponderance of probability. From the DAR, it also stands established that the offending vehicle was insured with respondent no. 2, Bajaj Allianz General Insurance Co. vide Policy No. OG-20-9906-1805-00046168 valid from 10.10.2019 to 09.10.2020. The factum of the said insurance is also admitted by respondent no.2, however, it is the case of the insurance company that the driver of the offending vehicle was driving the vehicle without a valid driving license. This issue will be dealt with in the later part of the order.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 10 of 42Plea of contributory negligence:
17. Ld. Counsel for respondent no. 2 argued that the injured was riding his motorcycle without helmet and without a driving license and thus, he was rash and negligent and shall be held liable for contributory negligence. The petitioner has not proved his driving license or that he was wearing the helmet. However, Ld. Counsel for the petitioner argued that as per the settled law, the injured cannot be said to be rash and negligent only because he did not have a valid license or was not wearing a helmet. He should be held to have committed an act that proved that he was rash and negligent.
18. Regarding this, it was held in the case of Sudhir Kumar Rana v Surinder Singh & Ors 2008 SCC OnLine SC 794 that:
"9. If a person drives a vehicle without a license, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any license but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a license, he would be held to be guilty of contributory negligence.
10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place."MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 11 of 42
19. The Sudhir Kumar Rana (supra) case was affirmed in the case of National Insurance Co. Ltd. V Puneet Bhatia (MAC APP. 774/2017 & CM APPl. 41950/2018, 50140/2018 where the appeal was rejected on the ground that merely because the driver did not have a valid license, he cannot be said to be driving in a rash and negligent manner unless rashness and negligence on his part is specifically proved. In the case of Puneet Bhatia (supra), it was further held that:
"29. Even otherwise, applying the ratio of the judgment of the Supreme Court in Sudhir Kumar Rana (Supra), I am also of the view that, though not wearing a helmet would have magnified the injuries suffered by the deceased, the same were caused by the accident in question, where the cause of the accident was the overloading of the offending vehicle which had led to the overhanging electric wires being struck with the bales that were being carried in the Offending Vehicle and the said wires falling over the deceased, entangling her scooty and making her fell down. Non- wearing of the helmet by the deceased, therefore, did not cause or contribute to the accident, though had the deceased worn a helmet, the injuries suffered by the deceased due to the accident may have been reduced (though this also remains in the realm of conjecture!).
30. The above challenge of the appellant is, accordingly, rejected."
20. The dicta laid down in the cases of Sudhir Kumar Rana (supra) as well as Puneet Bhatia (supra) makes it amply clear that an overt act of rashness and negligence had to be proved on behalf of the petitioner and merely because he did not have a driving license or was not wearing a helmet, he cannot be termed to have been riding his motorcycle in a rash and negligent manner. The respondent no. 1 has MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 12 of 42 not been able to establish that the petitioner was riding his motorcycle in a rash and negligent manner. Therefore, it is concluded that the petitioner suffered grievous injuries in an accident that took place on 27.10.2019 in which the vehicle of the respondent was involved. It is also concluded that any wilful act, neglect or default on the part of the injured has not been proved. Thus, the respondent no. 2 has not been able to prove its defence that the petitioner was rash and negligent.
The injury:
21. The petitioner (PW-1) testified that due to the accident, he sustained grievous injuries in his left lower limb. He asserted that upon the accident, he was taken to Bara Hindurao Hospital where he was treated vide MLC no. 5429/19 dated 28.10.2019 and the alleged history has been mentioned as "road traffic accident". Thereafter, he was admitted in Parmarth Mission Shakti Nagar where he was admitted on 29.10.2019 and discharged on 31.10.2019. Further, RW-1 the respondent no. 1 has admitted in his cross examination that the petitioner suffered grievous injures due to the accident.
22. Furthermore, the petitioner had filed an application to be examined for assessment of physical disability. He was examined by the Medical Board at Aruna Asaf Ali Hospital and vide certificate bearing No. 1700 dated 02.12.2021, it has been observed that the petitioner is a case of "#BB Leg L" and it has been concluded that "he is physically disabled and has 10% (Ten percent) permanent (physical impairment) in relation to his left lower limb." It has also been opined that his MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 13 of 42 condition is not likely to improve and reassessment is not recommended.
23. From the above and in totality of the circumstances, this Tribunal is of the opinion that the petitioner has been able to bring on record sufficient facts so as to prove at the scales of preponderance of probabilities that the accident in question took place due to rash and negligent driving of offending vehicle bearing registration number DL-
3CBC-1500 by its driver/respondent no. 1 on the date and time of the accident and that due to the said accident, the petitioner had suffered grievous injury and permanent disability of 10 % in relation to his left lower limb. Accordingly, issue no.1 is decided in favour of the petitioner and against the respondents.
Issue no. 2:
Whether the petitioner is entitled for compensation? If so, to what amount and from whom? (OPP)
24. The onus of proving the above issue was upon the petitioner/injured. It has already been concluded in the preceding paragraphs while deciding the issue no. 1, that the petitioner had suffered grievous injury and he has permanent disability of 10 % in relation to his left lower limb.
25. The petitioner is certainly entitled for compensation in view of decision of the discussion on the above issues. Before proceeding further to decide the present issue, it would be apposite to encapsulate the law laid down by Hon'ble Supreme Court of India in its guiding MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 14 of 42 lamp post judgment for ascertaining just compensation in road vehicular injury cases. In the case of Raj Kumar Vs. Ajay Kumar & Ors. (2011) 1 SCC 34, Hon'ble Supreme Court held as under:
"General principles relating to compensation in injury cases
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 or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi Vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. 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 earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 15 of 42
(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. 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. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item
(ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability.
6. Disability refers to any restriction or lack of ability to perform an activity in the manner MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 16 of 42 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 accidents 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 (`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.
7. 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 MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 17 of 42 percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. 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, 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. What requires to be assessed by the Tribunal is the effect of the permanently 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 terns 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 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 vs. New India Assurance Co. Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 18 of 429. 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.
10. 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 ability (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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 19 of 42 virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
26. In view of the above law laid down by Hon'ble Supreme Court of India, in injury cases, award needs to be passed only under heads of medical expenses, loss of earning during treatment period and damages for pain, suffering and trauma. However, in cases of serious injuries, where there is specific medical evidence corroborating the claim of the claimant, award additionally needs to be passed under the heads of loss of future earnings on account of permanent disability MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 20 of 42 suffered, future medical expenses, loss of amenities (including loss of prospects of marriage) and loss of expectation of life. The assessment of future medical expenses would depend upon specific medical evidence/advise for further treatment and costs thereof. The determination of damages on account of pain and suffering, loss of amenities and loss of expectation of life would depend upon the age of victim, nature of injury(ies)/deprivation/disability suffered by victim and the effect thereof on life of the petitioner. The process would involve determination/assessment of lump-sum amounts under those heads. In the case of assessment of loss of future earnings on account of permanent disability, this Tribunal needs to first ascertain whether the disability noted/assessed by the medical board is temporary or permanent in nature. If the disability is permanent in nature, then whether it is a total permanent disability or partial permanent disability. If the disability has been referred/expressed in percentage terms, in reference to any specific limb then the effect of such disability of the limb on the function of entire body has to be ascertained. Once, the permanent disability is ascertained, then the Tribunal needs to determine whether such permanent disability has affected or will affect the earning capacity of the claimant. To ascertain the same, the Tribunal needs to ascertain the avocation, profession and nature of work of the claimant before the incident. The Tribunal also needs to ascertain his age and then needs to ascertain what activities the claimant could carry on in spite of permanent disability and what he could not do as result of same. The Tribunal then also needs to ascertain whether the claimant is totality disabled from earning any kind of livelihood or whether in spite of the permanent disability, the claimant could still effectively carry on MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 21 of 42 activities and functions which he was carrying on earlier or whether the claimant is prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions to earn or can continue to earn his livelihood despite permanent disability suffered. After ascertaining the functional disability through the above process, the Tribunal needs to workout the loss of earning capacity per month. The Tribunal is thereafter required to workout loss of earning capacity per annum. An appropriate multiplier needs to be ascertained as per judgment of Hon'ble Supreme Court of India in matter of Sarla Verma Vs. DTC 2009 ACJ 1298 SC according to age of the injured/victim. The total loss of earning capacity then needs to be worked out multiplying appropriate multiplier ascertained with ascertained annual loss of earning capacity. This is a case where permanent disability is claimed and compensation is also demanded qua future loss of earnings on account of permanent disability, hence, this Tribunal now proceeds further step by step to decide the compensation/award under different heads applicable to the present matter in light of above preposition.
27. The petitioner is certainly entitled for compensation. The onus of proving the extent of compensation was upon the petitioner. To prove the claim, the petitioner examined himself as PW-1 who in his affidavit Ex. PW-1/1, has deposed as under:-
" 7. That the deponent was firstly admitted to Hindu Rao hospital on dated 28.10.2019, thereafter on 29.10.2019 deponent was admitted to Parmarth Mission Hospital Shakti Nagar, Delhi-110007 where MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 22 of 42 deponent spend an amount of Rs. 70,250/- (Rupees seventy thousand and two hundred and fifty only) apart from the abovesaid amount, deponent also spend about Rs. 3,00,000/- on special diet, conveyance, attendance charges, etc. till date and also suffered loss of earning capacity as the deponent was employed with MISS BELLA situated at G-06, Mandolia Road Kamla Nagar, Delhi- 110007 as Sale man and deponent was earning 16000/- PM as fixed salary apart from the fixed salary the deponent was also be rewarded with 1% incentive on sales, the deponent monthly used to earned about 19000 to 20000/- PM and from the day of incident, deponent is not able to earn as he used to earn before accident, the deponent further spend huge amount on attendant as attendant charges.
8. That the deponent due to abovesaid accident could not be able to work for 6 month due to the said incident the deponent was terminated by his employer and it takes approximately 8 month to deponent to recover his health and 12 month to get another job in order to earn livelihood for himself and his dependents."
Determination of Injuries and Duration of the Treatment:
28. It would be appropriate to first ascertain the nature of injuries suffered by the petitioner/ injured and duration of treatment as they need to be kept in mind while ascertaining the compensation under different applicable heads. The petitioner has filed his medical record to prove his nature of injuries as per which, injured has suffered grievous injuries in the incident in question. It has also been proved that the petitioner was taken to Bara Hindurao Hospital on the date of accident and although he left from there but his further treatment took place in Parmarth Mission Hospital from 29.10.2019 to 31.10.2019. Further, it has already been established that he has suffered permanent disability to the extent of 10% in relation to his left lower limb. Thus, his MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 23 of 42 compensation is computed as follows:
Medical expenses:
29. The petitioner has claimed Rs. 70,250/- towards medical expenses in his Form XIV. In this regard, the petitioner has placed reliance on the following original medical bills (Ex. PW-1/3):
Table No. 1S. HOSPITAL/PHARMACY BILL NO. BILL DATE AMOUNT No. NAME
1. Parmarth Mission Hospital, 1101 paid vide 31.10.2019 45,000 Delhi. cash receipts no.
135859, 136191 and 135871
2. Parmarth Mission Hospital, 135857 29.10.2019 200 Delhi.
3. Sachin Pharmaceuticals, 5655 30.01.2019 182 Delhi
4. Disruptive Health Solution, 2009/19/S-86618 31.10.2019 1088 Delhi
5. Disruptive Health Solution, 2009/19/S-87351 02.11.2019 516 Delhi
6. Disruptive Health Solution, 2009/19/S-90189 10.11.2019 179 Delhi
7. Disruptive Health Solution, 2009/19/S-91590 31.10.2019 494 Delhi
8. Disruptive Health Solution, 2009/19/S-92039 15.11.2019 200 Delhi
9. Parmarth Mission Hospital, 139483 19.11.2019 100 Delhi.
10. Sachin Pharmaceuticals, 6199 20.11.2019 934 Delhi
11. Dr. Jayant Gupta 076 30.11.2019 3600
12. Parmarth Mission Hospital, 141676 03.12.2019 400 Delhi.
13. Parmarth Mission Hospital, 141622 03.12.2019 100 MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 24 of 42 Delhi.
14. Sachin Pharmaceuticals, 6544 03.12.2019 1038 Delhi
15. Sachin Pharmaceuticals, 6827 13.12.2019 934 Delhi
16. Sachin Pharmaceuticals, 7085 23.12.2019 934 Delhi
17. Math Medicos, Delhi 3479 24.12.2019 276
18. Parmarth Mission Hospital, 145957 03.01.2020 100 Delhi.
19. Parmarth Mission Hospital, 145976 03.01.2020 400 Delhi.
20. Sachin Pharmaceuticals, 7328 03.01.2020 934 Delhi
21. Sachin Pharmaceuticals, 7741 17.01.2020 934 Delhi
22. Parmarth Mission Hospital, 152249 14.02.2020 400 Delhi.
23. Parmarth Mission Hospital, 152230 14.02.2020 100 Delhi.
24. Sachin Pharmaceuticals, 8485 14.02.2020 899 Delhi TOTAL 59,942
30. All the bills appear to be proper and they have not been disputed. Hence, the petitioner is entitled to get the compensation for the bills mentioned in aforesaid Table No. 1. Therefore, the petitioner/ injured Vinay Kumar shall be entitled to Rs. 59,9424/- towards medical expenses.
Loss of income:
31. Coming to the aspect of loss of income, the petitioner Vinay Kumar claimed that he was working as a labour porter in Gupta Market and was earning Rs. 16,000/- to 20,000/- per month. However, there is MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 25 of 42 nothing on record to prove his employment or his income. Thus, his income will be assessed as per the minimum wages. No qualification document has been placed on record to prove any special skill. Further, as per the Election card of the injured, he was a resident of Delhi. Thus, the income of the injured will be assessed as per the minimum wages of an unskilled labour in force in Delhi at the time of the accident i.e. 27.10.2019. Thus, the income of the injured Vinay is assessed at Rs.14,842/-. Therefore, it is held that the monthly income of the injured Vinay at the time of the accident i.e. on 27.10.2019 was Rs. 14,842/-. Further, the petitioner has claimed that he could not go to work for 8 months, however, there is no proof of the same still keeping in view the nature of injuries sustained by the petitioner, it is held that the petitioner shall be entitled to the Loss of Income for 06 months i.e. Rs.14,842/- x 6 = Rs. 89,052/-.
Special Diet:
32. The petitioner has claimed Rs. 30,000/- under the head special diet but there is no cogent evidence on record regarding money spent by the petitioner upon special diet. However, considering the nature of injuries suffered by the injured/petitioner, this Tribunal is of the opinion that petitioner must have spent some money under this head.
Hence, this Tribunal hereby grant compensation of Rs. 5,000/- towards expenses incurred on special diet.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 26 of 42Conveyance charges:
33. The petitioner has claimed Rs. 30,000/- under the head conveyance charges but there is no cogent evidence for the same.
However, considering the nature of injuries suffered by the injured/petitioner, this Tribunal is of the opinion that petitioner must have incurred some expense on conveyance. Hence, this Tribunal hereby grant compensation of Rs. 5,000/- towards conveyance charges.
Attendant charges:
34. The petitioner/injured has claimed Rs. 30,000/- under this head, however, there is no cogent evidence on record for the money spent by the petitioner upon an attendant. However, taking into account the injuries suffered by him, Rs. 5,000/- is awarded to the petitioner under the head of attendant charges.
Pain and Suffering:
35. The petitioner/ injured has claimed Rs. 1,00,000/- under the head pain and suffering, however, no justification has been given for claiming this amount. It is true that a particular amount cannot be fixed under the head pain and suffering which could be applicable to all cases as it varies from case to case. Judicial notice can be taken of the fact that since the petitioner has received grievous injuries, therefore, petitioner must have suffered pain and sufferings owing to the said injuries.
Considering the nature of injuries suffered by the injured/petitioner as MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 27 of 42 mentioned in the MLC, this Tribunal hereby grants compensation of Rs.20,000/- towards pain and sufferings to the petitioner.
Mental shock:
36. The petitioner/ injured has claim Rs. 50,000/- under the head mental shock and considering the nature of injuries suffered by the injured/petitioner as mentioned in the MLC, this Tribunal hereby grants compensation of Rs. 20,000/- towards mental shock to the petitioner.
Loss of amenities:
37. The petitioner/ injured has claim Rs. 50,000/- under the head loss of amenities and considering the nature of injuries suffered by the injured/petitioner as mentioned in the MLC, this Tribunal hereby grants compensation of Rs. 20,000/- towards loss of amenities.
Disfiguration:
38. The petitioner/ injured has claim Rs. 1,00,000/- under this head, however, no disfiguration to the body of the injured has been proved. Thus, no compensation is granted under this head.
Loss of marriage prospects:
39. The petitioner/ injured has claim Rs. 2,00,000/- under the head loss of marriage prospects and considering the age of the injured as well as the nature of injuries suffered by the injured/petitioner as mentioned in the MLC, this Tribunal hereby grants compensation of MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 28 of 42 Rs. 1,00,000/- towards loss of marriage prospects.
Future loss of income:
40. The petitioner Vinay Kumar has claimed loss of future earning to the extent of Rs. 6,12,000/- in his Form XIV and has stated that his 10% disability shall be considered to be 100% functional disability as he has not been able to go to work. It has already been established that the petitioner has suffered 10% disability in relation to his left lower limb. There is no evidence on record that would show that his disability is totally preventing him from doing his work. However, since, the petitioner was working as a labour, his legs are important limbs to carry out his basic job, therefore, this Tribunal is of the view that the functional disability of the petitioner shall also be assessed at 10%. The income of the petitioner has been assessed as Rs. 14,842/- as on the date of accident.
41. As per the Aadhar Card, the year of birth of the injured/ petitioner Vinay Kumar is 1996. Hence, as on the date of accident i.e. 27.10.2019, he was aged 23 years old. Thus, he was more than 23 years old and less than 24 years of age. Accordingly, the Multiplier of eighteen (18) is taken for purposes of calculating the loss of income of the petitioner (Reliance is placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs Pranay Sethi & Ors., Special Leave Petition (Civil) No. 25590 of 2014, date of decision - 31.10.2017). Further, by adopting the principles laid down in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 29 of 42 ACJ 2700 (SC), the future prospects of Vinay Kumar shall be 40% as he was self employed and was below the age of 40 years as on the date of accident on 27.10.2019.
42. As already discussed in the preceding para, the income of the petitioner has been taken as Rs. 14,842/-. In view of the above, the loss of Income on account of functional Disability is calculated as under:
Monthly income Rs. 14,842/-
Annual Income Rs. 14,842/- x 12 =
Rs. 1,78,104/-
Add Future Prospects @ 40% Rs. 1,90,896/- x 40% =
Rs. 71,241.60/-
Total income Rs. 2,49,345.60/-
Disability @ 10% Rs. 2,49,345.60/- x 10%=
Rs. 24,934.56/-
Loss of Income after multiplier (18) Rs. 24,934.56 x 18 =
Rs. 4,48,822.08/-
(rounded off to Rs. 4,48,822/-)
43. Thus, keeping in view the nature of injuries sustained by the petitioner as well as the disability suffered by him, it is held that the petitioner shall be entitled to Rs. 4,48,822/- under the head future loss of income.
44. Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principles and guidelines governing the injury cases like the present one, the compensation is being derived in the present case as under:-MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 30 of 42
NAME OF HEAD AMOUNT (in Rupees)
Expenditure on Treatment Rs. 59,942/-
Monthly income of injured Rs. 14,842/-
Loss of income for 6 months Rs. 89,052/-
Add future prospects @40% Rs. (14,482 x 12) x 40% =
Rs. 71,241.60/-
Loss of future income (income X % Rs. 2,49,345.60/- x 10% x 18= Earning Capacity X Multiplier) Rs. 4,48,822.08/-
(rounded off to Rs. 4,48,822/-) Any other loss/expenditure Nil.
Mental & Physical Shock & Pain & 20,000 + 20,000= Suffering Rs. 40,000/-
Special diet Rs. 5,000/-
Attendant charges Rs. 5,000/-
Conveyance charges Rs. 5,000/-
Loss of amenities Rs. 20,000/-
Disfiguration Nil.
Loss of Marriage prospects Rs. 1,00,000/-
Loss of earning, inconvenience, Nil.
hardship, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
Total Rs. 7,72,816/-
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 31 of 42
45. In the case of Benson George v Reliance General Insurance Co. Ltd. in Civil Appeal No. 1540 of 2022 decided on 25.02.2022, Hon'ble Supreme Court had awarded an interest of 6% per annum. Therefore, it is held that the petitioner shall be entitled to interest @ 6% per annum from the date of filing of claim petition i.e. 15.09.2020 till realization.
DISBURSEMENT
46. It is held that on realization of the award amount of Rs.7,72,816/-, Rs.72,816/- (Rupees Seventy Two Thousand Eight Hundred and Sixteen only) plus entire interest amount be released to the petitioner/claimant Vinay Kumar and the balance amount of Rs.7,00,000/- (Rupees Seven Lakhs only) shall be put in 28 monthly fixed deposits in his name in MACAD account of equal amount of Rs.25,000/- (Rupees Twenty Five Thousand only) each for a period of 01 month to 28 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank without the facility of cheque book and ATM card.
47. It is clarified that the amount shall be released to the petitioner only on submitting the copy of passbook of such saving account in the bank with the endorsement of the bank that no cheque book facility and ATM card has been issued or if it has been issued the MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 32 of 42 said ATM Card has been withdrawn and shall not be issued without the prior permission of this Tribunal.
48. The above FDR(s) shall be prepared with the following conditions as enumerated by the Hon'ble Delhi High Court vide orders dated 07.12.2018 & 08.01.2021 in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors.:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) Original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants.
However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 33 of 42 the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
49. In compliance of the directions given by Hon'ble High Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed Format-XVI is as under:
SUMMARY OF AWARD:
Date of Accident: 27.10.2019
Name of the Injured: Vinay Kumar
Age of the Injured: 23 years
Occupation of the Injured: Unskilled labour
Income of the Injured: Rs. 14,842/-
Nature of Injury: Grievous
Medical Treatment taken: Bara Hindurao Hospital and
Parmarth Mission Hospital
Period of Hospitalization: 28.10.2019 to 31.10.2019
Whether any permanent: 10%
disability?
COMPUTATION OF COMPENSATION
Sr. Heads Awarded by the Claims Tribunal
No.
1. Pecuniary Loss:
(i) Expenditure on Treatment Rs. 59,942/-
(ii) Expenditure on Special Diet Rs. 5,000/-
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 34 of 42
(iii) Expenditure on Rs. 5,000/-
Nursing/Attendant charges
(iv) Expenditure on Conveyance Rs. 5,000/-
(v) Monthly income of injured Rs. 14,842/-
(vi) Loss of income Rs. 89,052/-
(vii) Add future prospects @40% Rs. (14,482 x 12) x 40% =
Rs. 71,241.60/-
(viii) Any other loss which may Nil.
require any special treatment or
aid to the injured for the rest of
his life: future treatment and
future attendant charges.
2.
(i) Compensation for mental and Rs. 20,000 + 20,000=
physical shock Rs. 40,000/-
(ii) Pain and Sufferings
(iii) Loss of amenities of life Rs. 20,000/-
(iv) Disfiguration
Nil.
(v) Loss of marriage prospects Rs. 1,00,000/-
(vi) Loss of earning, inconvenience, Nil.
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
3. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed 10% and nature of disability as (Permanent) permanent or temporary
(ii) Loss of amenities or loss of Nil.
expectation of life span on MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 35 of 42 account of disability
(iii) Percentage of loss of earning 10% capacity in relation to disability
(iv) Loss of future income - (income Rs. 2,49,345.60/- x 10% x 18= x % earning capacity x Rs. 4,48,822.08/-
Multiplier) (rounded off to Rs. 4,48,822/-)
4. Total Rs. 7,72,816/-
1(i+ii+iii+iv+vi) +2(i+ii +iii+v) +3(iv)
5. Total Compensation Rs. 7,72,816/-
Interest awarded 6%
6. Earlier award amount (which has
already been received by the
petitioner in terms of previous
award passed by Ld. -
Predecessor) to be deducted
from present award amount .
7. Interest amount upto the date of Rs. 1,75,04.82/-
award wef 15.09.2020 (03 years
09 months and 09 days)
8. Total amount including Interest Rs. 9,47,858.82/-
(rounded off to Rs. 9,47,859/-)
9. Award amount released As mentioned in para no. 46
10. Award amount kept in FDRs As mentioned in para no. 46
11. Mode of disbursement of the As mentioned in para no. 46
award amount of the claimant(s)
12. Next date for compliance of the 24.08.2024
award
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 36 of 42
LIABILITY:
50. The offending vehicle was being driven and owned by respondent no.1 Ashish and the offending vehicle was insured with respondent no. 2, Bajaj Allianz Insurance Co. Ltd.
51. However, on the point of liability, Ld. Counsel for respondent no.2/Insurance Company has submitted that Respondent no.1 who was driving the offending vehicle at the time of the accident did not possess a valid driving license as his license only permitted him to drive a motorcycle while the offending vehicle was a light motor vehicle. Ld. Counsel for respondent no. 2 argued that since the respondent no. 1 did not have a valid driving license, he was in violation of the terms and conditions of the insurance policy and thus, the insurance company should be granted recovery rights. Ld. Counsel for respondent no. 2 also submitted that respondent no. 2 had examined an official from the insurance company as R2W1 who proved that respondent no. 1 was served with a notice issued under Order 12 Rule 8 CPC to produce the valid driving license but the same was never produced before it or before this Tribunal. He has also proved the dispatch postal receipts. It has been noted by this Tribunal that respondent no.1 has stated in his evidence that he had a valid driving license but he has not placed on record a valid driving license permitting him to drive an LMV. Therefore, it could be safely assumed that respondent no.1 was driving the offending vehicle without any valid and effective driving license.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 37 of 4252. However, since the present proceedings are beneficial in nature and the entire object is to compensate the petitioner/ injured, the respondent no. 2, insurance company shall first pay the award amount to the petitioner/ injured and thereafter, recover the same from respondent no. 1 being the driver and registered owner of the offending vehicle.
Issue No.2 is accordingly decided in favour of the petitioner and against the respondents.
RELIEF:
53. In view of the above, the respondent no. 2 Bajaj Alliance Insurance Company Limited, is directed to deposit a sum of Rs.7,72,816/- (Rupees Seven Lakhs Seventy Two Thousand Eight Hundred and Sixteen only) along with interest @ 6 % from the date of filing of DAR i.e. 15.09.2020 till realization with the Civil Nazir of this Tribunal within 30 days under intimation to the claimants, failing which insurance company shall be liable to pay interest @ 7.5 % per annum for the period of delay beyond 30 days.
54. Ahlmad is directed to e-mail an authenticated copy of the award to the insurance company for compliance within the time granted as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors. on 16.03.2021. The said respondent is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal with respect to the deposit of the compensation amount within 15 days of the deposit with a copy to the Claimant and his counsel.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 38 of 42Ahlmad shall also e-mail an authenticated copy of the award to Branch Manager, SBI, Tis Hazari Courts for information.
A digital copy of this award be forwarded to the parties free of cost.
Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial nos. 39, 40 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)].
Civil Nazir is directed to place a report on record on 24.08.2024 in the event of non-receipt/deposit of the compensation amount within the time granted.
Further Nazir is directed to maintain the record in Form XVIII in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial no. 41 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A).
Ahlmad is further directed to comply with the directions passed by the Hon'ble High Court of Delhi in MAC APP No. 10/2021 titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
File be consigned to Record Room after due compliance.
Digitally signed by RUCHI RUCHI AGGARWAL
Announced in the open Court on AGGARWAL ASRANI
ASRANI Date:
this 24th day of July, 2024. 2024.07.24
17:04:02 +0530
(Dr. RUCHI AGGARWAL ASRANI)
PO, MACT-01, Central District,
Tis Hazari Courts, Delhi.
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 39 of 42
FORM - XVII
COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 27.10.2019 2 Date of filing of Form-I -
First Accident Report Not available
(FAR)
3 Date of delivery of Form-II
to the victim(s) Not available
4 Date of receipt of Form-III
from the Driver Not available
5 Date of receipt of Form-IV
from the Owner Not available
6 Date of filing of the Form-
V - Interim Accident Not available
Report (IAR)
7 Date of receipt of Form- Not available
VIA and Form VIB from
the Victim(s)
8 Date of filing of Form-VII -
Detail Accident Report 15.09.2020
(DAR)
9 Whether there was any
delay or deficiency on the
part of the Investigating No.
Officer? If so, whether any
action/direction warranted?
10 Date of appointment of the
Designated Officer by the Not provided.
Insurance Company
11 Whether the Designated Yes
Officer of the Insurance
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 40 of 42
Company admitted his
report within 30 days of the
DAR?
12 Whether there was any
delay or deficiency on the
part of the Designated
Officer of the Insurance No
Company? If so, whether
any action/direction
warranted?
13 Date of response of the
claimant(s) to the offer of No response.
the Insurance Company.
14 Date of award 24.07.2024
15 Whether the claimant(s)
were directed to open
savings bank account(s) Yes.
near their place of
residence?
16 Date of order by which
claimant(s) were directed to
open Savings Bank
Account(s) near his place of
residence and produce PAN 15.09.2020
card and Aadhaar Card and
the direction to the bank not
to issue any cheque
book/debit card to the
claimant(s) and make an
endorsement to this effect
on the passbook(s).
17 Date on which the
claimant(s) produced the 20.05.2024
passbook of their savings
bank account(s) near the
place of their residence
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 41 of 42
alongwith the endorsement,
PAN card and Aadhaar
Card?
18 Permanent residential
address of the claimant(s). As per Award
19 Whether the claimant(s)
savings bank account(s) is
Yes.
near their place of
residence?
20 Whether the Claimant(s)
were examined at the time
Yes. Financial statement was recorded on of passing of the Award to 20.05.2024.
ascertain his/their financial condition?
Digitally
signed by
RUCHI
RUCHI AGGARWAL
AGGARWAL ASRANI
ASRANI Date:
2024.07.24
17:04:10
+0530
(Dr. Ruchi Aggarwal Asrani)
PO, MACT-01 (Central),
Tis Hazari Courts, Delhi.
24.07.2024
MACT No.387/2020 Vinay Kumar Vs. Ashish and anr. Page 42 of 42