Delhi District Court
Abhay @ Abhishek vs Yogesh Kumar on 1 March, 2025
MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
IN THE COURT OF MS. RICHA MANCHANDA, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH DISTRICT,
ROHINI COURTS, DELHI
MAC Petition No. 885/17
UID/CNR No. DLNT01-011409-2017
Sh. Abhay @ Abhishek
S/o Sh. Tara Chand,
R/o Gali No. 13,
AR 175, Swatantar Nagar,
Narela, Bhorgarh,
Delhi.
..........Petitioner
VERSUS
1. Sh. Yogesh Kumar,
S/o Sh. Om Pal Singh,
R/o. Village Loomb,
Tehsil Baraut,
Baghpat, UP.
(Driver)
2. Sh. Jaipal Singh(now deceased),
Through his legal heirs:-
(i) Smt. Chand Kaur,
W/o Late Sh. Jai Pal Singh,
(ii) Sh. Ajeet Singh,
S/o Late Sh. Jai Pal Singh,
(iii) Sh. Sunil Kumar,
S/o Late Sh. Jai Pal Singh,
(iv) Ms. Amresh,
D/o Late Sh. Jai Pal Singh,
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 1 of 39
MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
(v) Ms. Varsha,
D/o Late Sh. Jai Pal Singh,
(vi) Ms. Munesh,
D/o Late Sh. Jai Pal Singh,
All R/o 541, Mavikatan,
Tehsil Baraut,
Baghpat, UP.
3. HDFC Ergo General Insurance Co. Ltd.
1st Floor, HDFC House, 165-166,
Backay Reclamation, H.T. Parekh Marg,
Church Gate, UP.
(Insurer)
............Respondents
Date of Institution : 12.10.2017
Date of Arguments : 01.03.2025
Date of Award : 01.03.2025
APPEARANCES:-
Sh. Ankit Shirvastav, Ld. Counsel for petitioner.
Sh. Nitin Raghav, Ld. Counsel for driver and owner.
Sh. A.K. Singh, Ld. Counsel for insurance company.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD
1. The present petition has been filed U/s 166 & 140 M.V.Act seeking compensation of Rs. 40,00,000/- alongwith interest from the date of filing of the present claim petition till its realization on account of injuries suffered by petitioner Abhay @ Abhishek (aged about 25 years) in a road traffic accident in question which occurred on 04.08.2017.
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 2 of 39MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
2. The concise material facts relevant to decide the present claim petition as averred are that on 04.08.2017, petitioner was going to his relative's house on a scooty bearing registration no. DL5S-AZ-9924 and his friend was also following him on motorcycle bearing registration no. DL55- BH-9694. At about 3:00 PM, when the petitioner reached near Jonny Pul, UP, offending vehicle bearing registration no. UP17M-2564 which was being driven by its driver at a very high speed, in a rash and negligent manner, came from behind and hit against the aforesaid scooty of petitioner with a great force and dragged him for a long distance, as a result of which, he fell down on the road and sustained injuries. He was immediately taken to GTB Hospital and later on shifted to AIIMS Trauma Centre. A case U/s 279/337/338 IPC was registered at PS. Meerut, vide FIR No. 332/2017 with regard to the accident in question. The petitioner has claimed that the accident has taken place due to rash and negligent driving of aforementioned offending vehicle which was allegedly being driven by respondent no.1/driver, owned by respondent no. 2 and was duly insured with respondent no. 3/HDFC Ergo General Insurance Co. Ltd., at the time of accident in question.
3. In their joint Written Statement, the respondents no.1 & 2 i.e. driver and registered owner have claimed that no accident has been caused by the respondent no. 1 and alleged offending vehicle has been falsely implicated in the present case. It has been further claimed that the Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 3 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 driver/respondent no. 1 was having all the valid documents at the time of accident and thus, they are not liable to pay any compensation to the petitioner. Alternatively, they have admitted that alleged offending vehicle was insured with respondent no. 3 at the time of accident and thus, insurance company is liable to pay compensation, if any to the petitioner. On merits, they have denied the averments made in the claim petition and prayed for its dismissal.
4. In its written statement, the respondent no. 3 i.e., insurance company has claimed that insurance company is not liable to pay any compensation as the insurance policy of the alleged offending vehicle was issued for agricultural purposes, however the same was being used for commercial purpose. However, it has been admitted that offending vehicle was insured with it at the time of accident. On merits, it has denied the averments made in the claim petition and prayed for its dismissal.
5. From pleadings of the parties, the following issues were framed by my Ld Predecessor vide order dated 29.05.2018:-
1. Whether the injured Abhay @ Abhishek suffered injuries in road traffic accident on 04.08.2017 at about 3:00 pm near Jonny Pul, UP, within the jurisdiction of PS. Meerut, due to rashness and negligence on the part of Sh. Yogesh Kumar who was driving Tractor bearing registration no. UP17M-2564, owned by Sh. Jaipal Singh and insured with HDFC General Insurance Co.
Ltd.?OPP.
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 4 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
2. Whether the injured is entitled to any
compensation, if so, to what amount and from whom?
OPP.
3. Relief.
6. To substantiate his claim, the petitioner has examined three witnesses i.e. himself as PW1, PW2 Sh. Anshul Sengar, Prothetist and Orthoist and PW3 Dr. Ashutosh Gupta and his evidence was closed vide order dated 11.02.2019. On the other hand, the respondents no. 1 & 2 have examined one witness i.e., respondent no. 1/driver himself as R1W1. However, no evidence was adduced by insurance company.
7. I have heard Ld. Counsel for the parties at length and perused the record including the pleadings of the documents, appreciated evidence led on record and examined the legal position applicable to the facts of the present case. The issue wise determination is as under:-
ISSUE NO. 18. The onus to prove the aforesaid issue was placed on the petitioner. To prove the said issue, the injured examined himself as PW1 by way of affidavit (Ex. PW1/A). In his evidence by way of affidavit (Ex. PW1/A), injured has deposed on the lines of averments made in the claim petition. He has relied upon the following documents:-
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 5 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
S.No. Description of documents Remarks
1. Copy of his Aadhaar Card Ex. PW1/1(OSR)
2. Copy of his driving licence Ex. PW1/2(OSR)
3. Copy of his PAN Card Ex. PW1/3(OSR)
4. Copy of his marksheet issued by Ex. PW1/4(OSR)
National Institute of Open
Schooling
5. His original medical treatment Ex. PW1/5(Colly) record
6. Certified copy of criminal case Ex. PW1/6(Colly) record
9. PW1 injured in his testimony by way of affidavit (PW1/A) has deposed on the lines of claim petition and has testified that on 04.08.2017, he was going to his relative's house on a scooty bearing registration no. DL5S- AZ-9924 and his friend was also following him on motorcycle bearing registration no. DL55-BH-9694. He further deposed that at about 3:00 PM, when he reached near Jonny Pul, UP, offending vehicle bearing registration no. UP17M-2564 which was being driven by its driver at a very high speed, in a rash and negligent manner, came from behind and hit his aforesaid scooty with a great force and dragged him for a long distance, as a result of which, he fell down on the road and sustained injuries. He further deposed that he was immediately taken to GTB Hospital and later on shifted to AIIMS Trauma Centre. A case U/s 279/337/338 IPC was registered at PS. Meerut, vide FIR No. 332/2017 with regard to the accident in question. He categorically deposed that the accident took place due to sole rash and negligent driving of offending vehicle by its driver/respondent no. 1.
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10. During his cross-examination on behalf of respondents, he deposed that he was removed to GTB Hospital by his cousin brother namely Naresh Kumar after the accident. He further deposed that he was conscious after the accident. He further deposed that he had made PCR call at 100 number from the mobile phone of his cousin brother. He deposed that the offending vehicle had come from his left hand side before it caused the accident. He further deposed that he himself was driving his scooty and his friend Saurabh was sitting as pillion rider on it. He deposed that his cousin brother namely Naresh and one more person were riding on another motorcycle. He further deposed that Saurabh had sustained abrasions only and that is why, his MLC was not prepared any hospital. He deposed that he had been removed from GTB Hospital by his family members in order to provide him better medical treatment from some other hospital. He deposed that the speed of his scooty was about 30 kmph at the time of accident. He further deposed that he could not tell as to what was the speed of the offending vehicle no. UP17M-2564 at the time of accident as he had not seen its speed before it caused the accident. He denied the suggestion that he was driving his scooty at high speed or in rash and negligent manner or that accident had taken place due to sole negligence on his part. He further denied the suggestion that there was no negligence on the part of driver of vehicle no. UP17M-2564 in causing the accident in question. He further denied the suggestion that accident was not caused by vehicle no. UP17M-2564. He deposed that his statement was recorded by police at his house after about 20- Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 7 of 39
MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 25 days of the date of accident. He denied the suggestion that he had got the aforesaid vehicle falsely implicated in connivance with the police in order to seek false compensation in this case.
11. During the arguments, Ld. Counsel for petitioner heavily relied upon criminal case record (Ex. PW1/6 colly) in support of case of petitioner in order to bring home that the accident in question had taken place due to the rash and negligent driving of offending vehicle i.e. Tractor bearing Registration No. UP17M-2564, by its driver/respondent no. 1. It has been contended that respondent no. 1 Sh. Yogesh Kumar was also chargesheeted by police for offences punishable U/s 279/337/338/427 IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1. Per contra, it is contended on behalf of insurance company that no accident was caused by the alleged offending vehicle and the same has been falsely implicated in the present case by the petitioner.
12. On the other hand, respondent no.1/R1W1 has deposed in his evidence by way of affidavit Ex.R1W1/1 that no accident was ever caused by him and he was driving the said vehicle with utmost care and caution. He further deposed that alleged offending vehicle was insured with respondent no. 3 at the time of accident. He further deposed that he was having valid driving licence at the time of accident and exhibited the same as Ex. R1W1/A(OSR). He further deposed that the aforesaid tractor was never used Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 8 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 for any commercial purposes and was being used for agriculture purpose. He has relied upon copy of RC of alleged offending vehicle and marked the same as Mark A. He also relied upon copy of insurance policy of alleged offending vehicle and marked the same as Mark B. During his cross-examination on behalf of petitioner, he admitted that a criminal case was registered against him in PS. Janni, UP(Meerut) with regard to accident in question. He denied the suggestion that he was doing the business of bricks. He volunteered that he was carrying bricks of his fields. During his cross-examination on behalf of insurance company, he admitted that he was driving his tractor. He volunteered that he was going to his fields. He denied the suggestion that he was not having valid driving licence to drive the tractor on the date of accident. He further denied the suggestion that there was no endorsement on the driving licence authorizing him to drive the tractor. He volunteered that no separate driving licence was required for driving the tractor.
13. Ld. Counsel for the respondents no. 1 & 2 vehemently argued that the petitioner has failed to prove negligence on the part of respondent no. 1 in causing the accident. For this purpose, he heavily relied upon the testimony of R1W1 as discussed above. On the other hand, Ld. counsel for petitioners argued that the testimony of R1W1 should not be believed as he himself was driving the offending vehicle at the time of accident. He further submitted that FIR was registered against respondent no. 1.
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 9 of 39MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
14. It may be noted that respondent no. 1 i.e. R1W1 has simply deposed that he did not cause the accident in question and offending vehicle has been falsely implicated in the present case but his testimony does not inspire confidence at all as FIR No. 332/17 u/s 279/337/338/427 IPC was registered at PS. Janni with regard to accident in question on the statement of friend of Saurabh on 05.08.2017(accident being caused on 04.08.2017 at about 3:00 PM) who clearly mentioned to the police official that the accident was caused due to rash and negligent driving of aforesaid Tractor by respondent no. 1 at the time of recording of his statement. Thus, there is no possibility of any false implication of driver of offending vehicle or false involvement of the offending vehicle in this case. The contents of said FIR would show that complainant therein has disclosed the same sequence of facts leading to the accident, as deposed by PW1 during the course of inquiry. Even the respondent no. 1 had admitted in his cross-examination that he was driving his tractor on the date of accident. So, there was no point of petitioner falsely implicating the respondent no. 1 in the present case. It is quite obvious that respondent no. 1/R1W1 has taken the aforesaid plea in order to escape from the penal consequences as criminal case is pending trial against him for causing the accident.
15. The facts of the case, arguments of the Ld. Counsels, evidence, and material on record have been carefully examined and scrutinized. Respondent no. 1 namely Sh. Yogesh Kumar has been charge sheeted for the offences punishable U/s 279/337/338/427 IPC by the investigating agency Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 10 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 after arriving at the conclusion on the basis of investigation carried out by it that the accident in question has taken place due to rash and negligent driving of offending vehicle by respondent no. 1.
16. It is relevant to mention here that copy of MLC (which is part of criminal case record Ex. PW1/6 colly) of petitioner filed would show that he had been taken to GTB Hospital, Delhi with alleged history of RTA on the date of accident itself i.e., on 04.08.2017. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
17. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of preponderence of probabilities that he had sustained grievous injuries in road accident which took place on 04.08.2017 at about 3:00 PM, near Jonny Pul, UP, due to rash and negligent driving of offending vehicle by respondent no. 1. Thus, issue no. 1 is decided in favour of petitioner and against the respondents.
ISSUE NO. 218. Section 168 of the Motor Vehicle Act 1988 enjoins upon the Claims Tribunal to hold an inquiry into the claim to make an award Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 11 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 determining the amount of compensation which appears to it to be just and reasonable.
19. It has been duly proved that the minor injured/petitioner Master Rohit sustained grievous injury in the road traffic accident occurred on 04.08.2017 due to rash and negligent driving of the respondent no. 1/driver. Consequent upon the injuries and permanent disability, the injured/petitioner suffered both physical and internal injuries. Accordingly, petitioner is entitled for just and fair compensation in the present case.
20. The guiding principles for assessment of "just and reasonable compensation" in injury cases has been laid down by Hon'ble Delhi High Court, in III (2007), ACC 676 titled as Oriental Insurance Co,. Ltd., Vs. Vijay Kumar Mittal & Ors that: -
" The possession of one's own body is the first and most valuable all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. Bodily injury is to be treated and varies on account of gravity of bodily injury. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages".
21. It has been further held by the Hon'ble High Court that:
"the general principle which should govern the assessment of damages in persons injury cases is that the Court should Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 12 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 award to injured persons such a sum as will put him in the same position as he would have been in the same position as he would have been in if he had not sustained injuries".
22. The Hon'ble Apex Court was pleased to consider the legal position for grant of reasonable and fair compensation and has laid down the binding guidelines that " the compensation should be just and is not expected to be a windfall or a bonanza nor it should be niggardly or a pittance". Reliance is placed on 2012 (8) SLT 676 titled K. Suresh Vs. New India Assurance Co. Ltd. The golden principles for assessment of adequate compensation to victims of road accident have been appreciated by the Full Bench of Hon'ble Apex Court in 2017 (13) SCALE 12 : 2017 XI AD (SC) 113 titled National Insurance Co. Ltd. Vs. Pranay Sethi and Ors., wherein it has been held:-
".....The Tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well expected norm that money can not substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum....."
23. Accordingly, the entitlement of injured/victim to just compensation is being assessed in the background of well settled parameters and guidelines as hereinbelow.
MEDICAL EXPENSES
24. Petitioner in his evidence by way of affidavit Ex. PW1/A has deposed that after the accident, he was taken to GTB Hospital and thereafter, Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 13 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 he was shifted to JPN Apex Trauma Centre. He further deposed that due to injuries suffered by him in the accident, his left hand got amputated. He further deposed that he had spent more than Rs. 1,00,000/- on his treatment. During his cross-examination on behalf of respondents, he admitted that he had not filed any medical bill whatsoever on record and he could not produce any documentary proof to show that he had incurred Rs. 1,00,000/- on his medical treatment. He denied the suggestion that he had not incurred any amount on his medical treatment. He deposed that his treatment continued for about 3 months and he had received his treatment from JPN Apex Trauma Centre, AIIMS. He further deposed that whatever medical treatment record was available with him, same has already been filed on record.
25. It is an admitted fact that petitioner has not filed any medical bills in proof of expenses incurred by him on his treatment. Moreover, the petitioner is found to have received treatment from the government hospitals. Thus, in the absence of any medical bills, no amount is awarded to the petitioner under this head.
LOSS OF INCOME
26. The petitioner has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was working in a private company and earning Rs. 15,000/- per month at the time of accident. He further deposed that due to the injuries sustained by him in the accident, he could not resume Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 14 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 his work from the date of accident till date due to amputation of his left upper limb. During his cross-examination on behalf of respondents, he deposed that he was working as Supervisor in the Housekeeping department of DLF Mall situated at Sector - 18, Noida. He further deposed that he could not produce any documentary proof in this regard or to show that he was earning Rs. 15,000/-per month at the time of accident. He denied the suggestion that he could not do so as he was not working for gain or that he was not earning anything at the time of accident.
27. The medical treatment record i.e., Discharge Summary (which is part of Ex. PW1/5 colly) of JPN Apex Trauma Centre, AIIMS, in respect of petitioner/injured, would reveal that he had suffered crush injury left upper limb with left hemopneumothorax with scapula fracture left . Apart from this, the petitioner is also shown to have sustained permanent disability to the extent of 90% in relation to his left upper limb and his case was of left shoulder disarticulation. The petitioner has not filed any documents showing that he was advised bed rest for any specific period. It is argued on behalf of petitioner that since the petitioner has suffered amputation of his left upper limb (left shoulder disatriculation) due to the injuries sustained in the present accident and he is unable to resume his work, the petitioner has suffered 100% loss of income. Here it be noted that the petitioner has suffered 90% permanent disability in relation to his left upper limb and his case was of left shoulder disatriculation. The medical treatment record relied upon by the petitioner shows that he has lastly visited the aforesaid hospital on Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 15 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 09.10.2017. Moreover, the petitioner himself deposed in his cross- examination that his treatment continued for about 3 months from the date of accident. Considering the nature of injuries sustained by petitioner and in view of his deposition regarding treatment obtained by him and in view of his medical treatment record available on record, it is presumed that he would not have been able to work at all atleast for a period of 6 months or so including period of recovery also.
28. Apart from the bald statement made by petitioner in his affidavit that he was working in a private company and was earning about Rs. 15,000/- per month at the time of accident, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. However, the petitioner has filed copy of his 10 th class marksheet (Ex. PW1/4) in proof of his educational qualification. In view of the above, I am of the view that loss of income of the petitioner has to be assessed while taking the income of a Matriculate person under Minimum Wages Act applicable during the period in question The minimum wages of a matriculate person were Rs. 16,468/- per month as on the date of accident which is 04.08.2017. Thus, a sum of Rs. 98,808/- (Rs. 16,468/- x 6) is awarded in favour of petitioner under this head.
PAIN AND SUFFERING
29. Hon'ble High Court of Delhi in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under:-
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 16 of 39MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
30. Injured himself as PW1 has deposed in his evidence by way of affidavit(Ex PW1/A) that he has suffered grievous injuries and 90% permanent disability in relation to his left upper limb and there was amputation of his left upper limb due to the accident in question. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him including permanent disability to the extent of 90% suffered by him, I hereby award a sum of Rs. 2,50,000/- towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
31. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. His treatment record would also show that he had suffered grievous injuries and 90% permanent disability in relation to his left upper limb and Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 17 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 there was amputation of left upper limb due to the accident in question. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life and his quality of life has been definitely affected. In view of the nature of injuries including permanent disability suffered by him, his continued treatment for considerable period, I award a notional sum of Rs. 2,00,000/- towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE & SPECIAL DIET
32. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on conveyance, special diet and attendant charges. At the same time, it cannot be overlooked that the petitioner has suffered grievous injuries and 90% permanent disability in relation to his left upper limb and there was amputation of left upper limb due to the accident in question. Thus, he would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for his regular check up & follow up during the period of his medical treatment. In these facts and circumstances, I hereby award a sum of Rs. 25,000/- each for conveyance and special diet to the petitioner.
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 18 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
LOSS OF FUTURE INCOME
33. The petitioner is shown to have sustained 90% permanent disability in relation to his left upper limb. Same is quite evident from Disability Certificate dated 15.12.2017 of Medical Board of SRHC Hospital, Narela, Delhi.
34. As per the testimony of PW3 Dr. Ashutosh Gupta, SRHC Hospital, Narela, Delhi, the petitioner was found to have suffered 90% permanent disability in relation to his left upper limb in terms of Disability Certificate (Ex. PW3/1). He further deposed that the case of the petitioner was of disatriculation of left shoulder joint. He deposed that the said disability was permanent in nature and thus, reassessment was not recommended. He further deposed that due to amputation/injuries sustained by the injured, he would not be able to perform any avocation involving movement of his left upper limb. He further deposed that he would also not be able to perform his day to day activities with left upper limb. During his cross-examination on behalf of respondents, he deposed that the members of Disability Board had considered the medical treatment record of the patient at the time of assessing his disability. He further deposed that MLC of injured and other medical treatment record, if any of G.T.B. Hospital were not produced or made available by the patient at that time. He further deposed that it is mentioned in the Discharge Summary of Sushruta Trauma Centre that the aforesaid patient had been shifted to said Centre from G.T.B Hospital Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 19 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 and the patient was alleged to have sustained injuries on 04.08.2017. He denied the suggestion that the petitioner had not sustained the kind of injury as mentioned in the discharge summary of Trauma Centre, in the accident in question. He admitted that the patient can do writing work with right upper limb while sitting in the office/shop/premises. He volunteered that he could do so with little difficulty. He deposed that he could not tell the functional disability of aforesaid injured in relation to whole body. He denied the suggestion that the disability suffered by the injured has no co-relation with the injuries sustained by him due to the accident. He further denied the suggestion that the disability of the aforesaid patient was not assessed by Disability Board as per the guidelines laid down by Ministry of Social Welfare & Justice or that disability certificate Ex. PW3/1 had been issued without properly examining the aforesaid patient or merely at the instance of the patient.
35. It is argued on behalf of petitioner that petitioner was working as Supervisor in the Housekeeping department of DLF Mall at the time of accident. It is further argued that since the petitioner has suffered disability to the extent of 90% in relation to his left upper limb and there was amputation of left upper limb, he would never be able to work as Supervisor as his avocation involves proper movement of his all limbs and thus, the loss of earning capacity be taken as 100% in relation to whole body. For this, he has relied upon judgment passed by Hon'ble Apex Court in case titled "Mohd. Sabeer @ Shabir Hussain Vs. Regional Manager, U.P State Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 20 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 Road, Civil Appeal Nos. 9070-9071 of 2022, decided on 09.12.2022 , wherein the Hon'ble Court has held in para no. 16 as under:-
xxxx "16. The Appellant herein has suffered permanent disability of 70% and has an amputated right lower limb amongst other injuries. The High Court has wrongly taken the view that the Appellant has only suffered 35% functional disability. The Appellant is not a salaried person but is self-employed who manages his business. For the Appellant to be able to augment his income, he is most definitely required to move around. The Appellant can also not drive on his own, which hinders his mobility further. This proves that the functional disability of the Appellant will severely impact his earning capacity, and the 35% functional disability calculated by the High Court is incorrect in the facts and circumstances of the case and in our view the loss of future earning capacity must be calculated at 60%."
Xxxxx
36. Per contra, it is argued on behalf of insurance company that the disability of the petitioner is not that much which could amount to 100% loss of earning capacity.
37. With regard to assessment of functional disability in the accident cases, I am guided by the decision of Hon'ble Apex Court in case titled as Raj Kumar Vs. Ajay Kumar & Anr., CIVIL APPEAL NO.8981 OF 2010 (Arising out of SLP (C) No. 10383 of 2007) wherein Hon'ble Apex Court has held as under:
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 21 of 39MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
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 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.
38. Now coming back to the facts of present case it is noted that the petitioner was stated to be working as Supervisor in a private company and Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 22 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 he has suffered 90% permanent disability in relation to his left upper limb. PW-3 Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital has deposed that the disability of the petitioner is permanent in nature and same is not likely to improve. It is pertinent to mention here that any type of work requires physical dexterity in limbs and digits to operate hand and power driven tools and equipment commonly used in the profession of fabrication, physical ability to lift, carry and ability to continually walk, stand, climb, stoop, bend, kneel, reach in all directions, etc. It may be noted here that petitioner was stated to be working as Supervisor in a Housekeeping Department of DLF Mall at the time of accident and it is quite obvious that for any Supervisor, proper movement of the all limbs are very necessary which is not possible in the case of petitioner due to the amputation suffered by him in the accident. Moreover, PW3 Dr. Ashutosh Gupta volunteered that petitioner can do writing work with right upper limb with little difficulty. It is relevant to mention here that for any profession specially for Supervisor, lots of tasks have been assigned and writing is only a part in the said profession. So, it can not be presumed that if petitioner can write, he can do the other task also with efficiency of a normal human being. Even otherwise, during cross-examination of PW2 (Prosthetis and Orthoist) on behalf of insurance company, he deposed that after installation of prosthesis upon the patient, his left upper limb would work upto 30% vis-a-vis the left upper limb of any normal human being. He also deposed that since more complexities are invovled in the upper limb of a human being, his/her upper limb works to a lesser extent as compared to his/her lower limb after installation of prosthesis Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 23 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 in upper limb as compared to lower limb. Thus, in view of the aforesaid discussion, 90% permanent physical impairment in relation to his left upper limb and amputation of his left upper limb is going to adversely affect his avocation. In view of case (supra), I am of the considered opinion that due to disability suffered (permanent physical impairment in relation to his left upper limb and amputation of left upper limb) in the present accident, the petitioner will suffer 100% loss of earning capacity. Hence, the functional disability of the petitioner is considered as 100% towards loss of earning capacity. (Reliance placed on "Arjun & Ors., Vs. IFFCO Tokio General Insurance Co. Ltd.", MAC Appeal No. 223/16, decided on 04.01.2018, Reliance General Insurance Co. Ltd. Vs. Malti Devi & Ors., in MAC. APP. 572/2012, decided on 20.05.2015, Bajaj Allianz General Insurance Co. Ltd. Vs. Shamim Akhtar & Anr, in MAC. APP. 616/2018 & C.Ms. 26742/2018, decided on 26.09.2018 and Bajaj Allianz General Insurance Co. Ltd. Vs. Nasruddin & Ors., in MAC. APP. 585/2012, decided on 28.05.2015 , decided on 28.05.2015", passed by Hon'ble High Court of Delhi).
39. In copy of Aadhaar Card (Ex. PW1/1) of petitioner, his year of birth is mentioned as 1993. The date of accident is 04.08.2017. In view of said document, his age was about 24 years as on the date of accident. Hence, the appropriate multiplier would be 18 in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The monthly income of petitioner has been taken as Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 24 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 Rs. 16,468/- per month as discussed above. Thus, the loss of monthly future income would be Rs. 14,821.20p (Rs. 16,468/- x 90/100 ). The total loss of future income would be Rs. 44,81,930.88p (Rs. 14,821.20 x 12 x 18 x 140/100). Thus, a sum of Rs. 44,81,930.88p is awarded in favour of petitioner under this head.
ARTIFICIAL LIMB AND ITS MAINTENANCE EXPENSES
40. During the course of arguments, Ld. Counsel for petitioner argued that petitioner requires artificial limb due to the amputation of his left upper limb. In support of his contention, he has relied upon testimony of PW2 Sh. Anshul Sengar, Prothetist and Orthoist, Ottobock Health Care India Pvt. Ltd., Delhi. PW2 has produced the rough estimate/quotation dated 07.03.2018 in respect of patient namely Sh. Abhay regarding installation of Ottobock Shoulder Disartic Myofacil Prosthesis as issued by their Company and exhibited the same as Ex. PW2/2. He further deposed that he had also brought the life expectancy till the age of 60 years in respect of petitioner and exhibited the same as Ex. PW2/3. During his cross-examination on behalf of insurance company, he deposed that after installation of aforesaid prosthesis upon the patient, his left upper limb would work upto 30% vis-a-vis the left upper limb of any normal human being. He further deposed that since more complexities are involved in the upper limb of a human being, his/her upper limb works to a lesser extent as compared to his/her lower limb after installation of prosthesis in upper limb as compared to lower limb. He further Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 25 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 deposed that he was stating the above fact on the basis of medical jurisprudence as well as on the basis of his past experience in this field. He denied the suggestion that he was deposing falsely in this regard or that the same was not true as per medical jurisprudence as claimed by him. He admitted that the price quotation mentioned in Ex. PW2/2 was as per price list of their company and the cost of aforesaid prosthesis might vary from one company to another company. He denied the suggestion that the period of replacement of said prosthesis or the estimated cost for replacement thereof as mentioned in Ex. PW2/3 was inflated by their company at the instance of aforesaid patient or that said amounts shown therein, were not as per the standard laid down in the relevant field.
41. During the course of arguments, Ld. counsel for petitioner argued that artificial limb is to be provided to the petitioner and same is required to be replaced after every 6 years as per document produced by PW2. He also contended that cost of artificial limb was Rs. 4,75,780/- (Rs. 4,14,440/- plus Rs. 61,340/-) as per quotation (Ex. PW4/2) given by M/s. Ottobock Healthcare India Pvt. Ltd. He therefore urged that appropriate compensation amount may also be awarded to the petitioner under this head.
42. On the other hand, Ld. counsel for insurance company vehemently argued that no amount should be awarded to the petitioner under this head.
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43. No evidence has been led by the insurance company to dispute the amount of prosthetis or its requirement by the petitioner. The condition of left upper limb of the petitioner was noticed by Claims Tribunal during the course of arguments. It goes without saying that it is a beneficial legislation enacted by our Parliament in order to compensate the victims of road accidents and to alleviate their sufferings to some extent. Hence, I am of the considered opinion that notional amount representing the cost of artificial limb required by petitioner to lead normal life, should also be awarded separately to him under this head.
44. It may be noted here that as per testimony of PW2, the life of artificial limb is about six years and it also requires repair/replacement/maintenance @ 15-20% of the cost of prosthesis every year. Presently, the age of petitioner/injured is about 29 years and the average life of a human being is about 70 years. Hence, it can be presumed that the petitioner would require replacement of artificial limb seven times during his life time and would also require to incur amount on its maintenance. After carefully perusing the deposition of PW1 & PW2 and keeping in view the fact that petitioner has suffered amputation of left upper limb and consequently, he has suffered 90% permanent disability in relation to his left upper limb and the installation of prosthesis would definitely minimize the sufferings of petitioner or would help him to lead normal life, I hereby award a notional sum of Rs. 40,00,000/-(rounded off) (Rs. 4,75,780/- plus 20% of Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 27 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 Rs. 4,75,780/- X 7) under this head for installation of artificial limb and its maintenance.
ATTENDANT CHARGES(DURING TREATMENT) & FUTURE
45. PW1/injured has deposed in his evidence by affidavit (Ex. PW1/A) that due to the injuries and amputation of his left upper limb suffered by him, he is unable to do his day to day activities of his own and therefore, required a permanent attendant for the same.
46. It is apparent from record that petitioner has suffered grievous injuries in the accident. Apart from the injuries, he has also suffered permanent disability to the extent of 90% in relation to his left upper limb with amputation of left upper limb. It is relevant to mention here that during cross-examination of PW2 (Prosthetis and Orthoist) on behalf of insurance company, he deposed that after installation of prosthesis upon the patient, his left upper limb would work upto 30% vis-a-vis the left upper limb of any normal human being. He further deposed that since more complexities are involved in the upper limb of a human being, his/her upper limb works to a lesser extent as compared to his/her lower limb after installation of prosthesis in upper limb as compared to lower limb. Keeping in view the testimony of PW2 in respect of functioning of patient after installation of prosthetis, notice can be taken of the fact that since the petitioner has suffered permanent disability to the extent of 90% in relation to his left upper limb with Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 28 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 amputation of left upper limb, there is requirement of attendant during his whole life as he might not be able to lead normal life as he was leading before the accident and he would require escort of a person during his whole life till he is alive. Notice can also be taken of the fact that he would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. Since the petitioner has suffered 90% permanent disability in relation to his left upper limb with amputation of left upper limb which has been considered as 100% with respect to loss of earning capacity(as discussed above), he will require assistance of an attendant throughout his life.
47. Hon'ble High Court of Delhi in the case titled as " Pritam Singh Vs. Oriental Insurance Co. Ltd. & Ors." (supra) has been pleased to held that in a case where the claimant has been rendered permanently disabled to the extent of 100%, he would definitely require consistent presence of attendant throughout his life. It was further held that in such circumstances, the proper course would be to take care of attendant charges incurred during the treatment as well as for future on the assumption that injured would need to engage an attendant on regular basis. It was also held that the expenditure towards this end, could be computed on the basis of minimum wages of an unskilled worker prevalent as on the date of accident and to adopt the multiplier as per the age of injured at that time.
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48. Hon'ble Supreme Court in the case titled as " Abhimanyu Pratap Singh Vs. Namita Sekhon & Anr.", Civil Appeal No. 4648 of 2022, decided on 06.07.2022 has been pleased to hold in para no. 14 that in a case where the claimant has been rendered permanently disabled to the extent of 100%, it would not be justified to grant compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years. In fact, the said amount should be determined applying the multiplier method.
49. Turning back to the facts of the present case, the minimum wages of an unskilled worker as applicable in the State of Delhi as on the date of accident which is 04.08.2017, were Rs. 13,584/- per month. The age of injured was around 24 years as on the date of accident and multiplier of 18 is applicable. Accordingly, a sum of Rs. 29,34,144/- (Rs. 13,584/- X 12 X 18) is awarded to the petitioner under this head.
Thus, the total compensation is assessed as under:-
1. Loss of income Rs. 98,808/-
2. Pain and suffering Rs. 2,50,000/-
3. Loss of general amenities and Rs. 2,00,000/-
enjoyment of life
4. Conveyance & Special diet Rs. 50,000/-
5. Loss of future income Rs. 44,81,930.88/-
6. Artificial limb and its maintenance Rs. 40,00,000/-
expenses
7. Attendant Charges Rs. 29,34,144/-Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 30 of 39
MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
Total Rs. 1,20,14,882.88/-
Rounded off to Rs. 1,20,15,000/-
50. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Counsel for insurance company tried to avoid the liability of insurance company on the ground that there was breach of terms and conditions of insurance policy in this case inasmuch as tractor was attached with trolley and thus, same was being used for commercial purposes. He further submitted that respondent no. 1 namely Sh. Yogesh Kumar was not having valid and effective DL at the time of accident. Thus, insurance company is not liable to indemnify the insured and is not liable to pay any compensation to the petitioner.
51. Per contra, counsel for respondents no. 1 & 2 vehemently argued that trolley is an essential part and parcel of tractor and one can not effectively use tractor without trolley being attached to it. He further argued that the tractor and trolley was being used for agricultural purposes and respondent no. 1 was having DL in respect of LMV, MCWG and TRANS vehicles. Therefore, the insurance company is liable to pay the compensation amount, being contractually and statutorily bound to indemnify the insured.
52. In order to appreciate the aforesaid submissions, it would be relevant to refer to the relevant documents i.e. DL (Ex. R1W1/A) in the name of respondent no. 1 and copy of insurance policy (Mark B)in respect of Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 31 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 offending vehicle. The perusal of copy of DL of respondent no. 1 Sh. Yogesh Kumar, would show that said DL was issued in respect of LMV, MCWG and TRANS having validity w.e.f. 04.05.2007 till 03.05.2027 for NT and w.e.f. 04.05.2007 till 24.11.2017 for TRANS.
53. In view of the testimony of R1W1 and copy of DL (Ex. R1W1/A), it cannot be said that respondent no. 1 was not holding valid or effective driving license to drive the tractor at the time of accident in question. The perusal of insurance policy (Mark B), which is an undisputed document even from the side of insurance company, would show that same had been issued in respect of Agricultural Tractors having validity from 08.11.2016 to midnight of 07.11.2017. It is relevant to note that insurance company has taken the plea in its written statement that tractor was being used for commercial purpose. Therefore, it was the duty of insurance company to prove that the offending tractor-trolley was being used for commercial purpose. However, no evidence whatsoever has been led by insurance company to prove the same. Ld. Counsel for insurance company during the course of arguments argued that the risk of trolley was not covered under the insurance policy and once the trolley was attached with the tractor, the driver must hold valid DL for commercial category for LMV but in this case, the driver was not holding DL at the time of accident.
54. Now, the question arises as to whether in a fact situation like the present one, where tractor is attached with trolley being used in agricultural Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 32 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 field, it can be said that the vehicle was being used for commercial purpose.
The answer to this question, in my opinion, has to be in negative.
55. Similar question came up for consideration before Punjab & Haryana High Court in the case of "Bajaj Allianz General Insurance Company Ltd Vs. Tarun Kaura & Ors.," FAO No. 2887/08 decided on 02.03.2010. Hon'ble High Court of Punjab & Haryana High Court has held in the said decision that a person who has a valid license for driving a tractor, can also drive a trolley attached to it, as a trolley is an agricultural equipment.
56. Hon'ble Delhi High Court in the case of "New India Assurance Company Ltd. Vs. Sanjay Singh & Ors." MAC.APP No. 561/12 decided on 08.05.14, has held that a tractor is a LMV and also that no separate endorsement is required on the DL for driving a tractor which is being used for agricultural purposes and a person having a DL for driving LMV (non transport) can drive a tractor. Similar view has been taken by Hon'ble Delhi High Court in the matters titled as "Satish Chand Kasana & Anr Vs. Chandra Shekhar Yadav & Anr" in MAC.APP No. 203/14 decided on 25.08.14 and "Rajinder Singh & Anr. Vs. Satnosh Devi & Ors." MAC.APP No.554/12 decided on 31.07.14.
57. Now turning back to the facts of the present case. It may be noted here that insurance company has failed to prove that the offending vehicle was being used for commercial purpose at the time of accident.
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 33 of 39MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 Although, it is mentioned in the FIR that the offending Tractor was loaded with bricks at the time of accident but it does not mean that the said bricks were being transported by driver/respondent no. 1 for commercial purpose. It could be transported for being used in the agricultural field and thus, the purpose of its use cannot be termed as commercial. There is no substance in the argument raised on behalf of insurance company that merely because trolley was not expressly insured in the insurance policy (Mark B), it can be allowed to avoid its liability. The identical question arose before Hon'ble High Court of Andhra Pradesh in the case titled as "Asari Pothalingam & Ors., Vs. Lambadi Mamji & Anr, 2012 ACJ 2117(A.P). In the said case also, only tractor was insured but the said tractor was attached with trolley at the time of accident which led to death of one labourer travelling therein. Similar contention was made on behalf of insurance company that since trolley was not insured, it is not liable to pay any compensation for damage caused to third party by trolley. While rejecting the said contention, it was held in para 17 of the judgment, after referring to previous decision delivered by Division Bench of A.P. High Court reported at 2009 ACJ 514(A.P), that no separate insurance is contemplated for a trailor and when the trailor is attached to the tractor, which is insured, it becomes a part of the tractor. Similar view has been taken by Division Bench of Punjab and Haryana High Court in case of Surender mentioned supra as also by Division Bench of Andhra Pradesh High Court reported at 2008 (2) Transport and Accidents Cases 582 (A.P).
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58. Even otherwise, the position in law has been settled by Hon'ble Supreme Court of India in "Mukund Dewangan Vs. Oriental Insurance Company Ltd.", 2017 (7) SCALE 731, wherein it has been held that even where the driver was holding a driving licence which was valid for LMV, whereas the vehicle involved is light goods vehicle (LGV), the insurance company is not entitled to any recovery rights. Similar view has been taken by Hon'ble Delhi High Court in "New India Assurance Company Limited Vs. Subhash Rastogi & Ors.", MAC APP No. 438/2009 decided on 25.07.17 and in another decision in the case of " Ram Narayan Verma Vs. Rajani & Ors. (Reliance General Insurance Company Ltd.), MAC APP No. 478/2017 decided on 27.07.17.
59. Furthermore, the difference between the category of LMV(NT) and that of LMV (Commercial) has been done away with by Ministry of Road Transport and Highways, Government of India vide its Circular No. RT-11021/44/2017-MVL dated 16.04.2018, while following the dictum of law laid down by Hon'ble Apex Court in Mukund Dewangan's case (supra). That being so, the insurance company is held liable to pay the compensation amount to the petitioner. It cannot be allowed to escape from its liability to indemnify the insured so far as payment of compensation amount is concerned. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 35 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025
ISSUE NO.3/RELIEF
60. In view of my findings on issues no. 1 and 2, a compensation of Rs. 1,20,15,000/- (including interim award amount, if any) alongwith interest @ 7.5% per annum is Awarded in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 12.10.2017 till the date of its realization. The petitioner shall entitled for interest @ 7.5% per annum only on the amount of Rs. 80,15,000/- (excluding the amount of Rs. 40,00,000/- awarded under the head of artificial limb). Issue no. 3 is decided accordingly. (Reliance placed on United India Insurance Co. Ltd. V. Baby Raksha & Ors, MAC APP. No. 36/2023 passed by Hon'ble Delhi High Court on 21.04.2023).
APPORTIONMENT
61. Statement of petitioner in terms of Clause 29 MCTAP was recorded on 14.10.2024. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the awarded amount, a sum of Rs. 10,00,000/-(Rupees Ten Lakhs Only) shall be immediately released to the petitioner through his bank account no. 43421387922 with State Bank of India, SME Narela, Delhi, having IFSC Code SBIN0021402 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 1,00,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest.
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62. It is made clear that the entire amount of Rs. 40,00,000/- awarded under the head artificial limb shall be kept separate and the amount from the same shall be released to the petitioner only on the basis of requirement of replacement of prosthesis and its maintenance only after production of original bill and certificate of doctor in this regard by the petitioner.
63. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody.
However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 37 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
64. Respondent no. 3/HDFC Ergo General Insurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer a sum of Rs. 10,00,000/- in the aforesaid saving bank account of petitioner, on completing necessary formalities as per rules. He be further directed to keep Abhay @ Abhishek Vs. Yogesh Kumar & Ors. Judge MACT -02(North) Page 38 of 39 MACP No. 885/17; FIR No. 332/17 DOD:01.03.2025 the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioner and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & Form XVII in terms of MCTAP are annexed herewith as Annexure-A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Digitally signed by RICHA RICHA MANCHANDA
Announced in the open MANCHANDA Date:
2025.03.01
Court on 01.03.2025 14:33:38 +0545
(RICHA MANCHANDA)
Judge MACT-2 (North)
Rohini Courts, Delhi
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