Delhi District Court
Sh. Uday Aggarwal vs Sh. Shahun on 1 February, 2023
MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
IN THE COURT OF SHRI VINOD YADAV,
PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH DISTRICT, ROHINI COURTS, DELHI
MAC Petition No. 271/17
UID/CNR No. DLNT010036702017
Sh. Uday Aggarwal,
S/o Sh. Satish Aggarwal,
R/o. A16, Vishwa Apartments,
Sector - 9, Rohini,
New Delhi.
.......Petitioners
VERSUS
1. Sh. Shahun,
S/o Sh. Roshan,
R/o Doolatpur, Goverdhan,
Mathura,
Uttar Pradesh.
(Driver)
2. Sh. Mubarak,
S/o Sh. Ram Jain,
R/o 153, Devasa Saras,
Mathura,
Uttar Pradesh.
(Registered owner)
3. Reliance General Insurance Co.
60, Okhla Industrial Estate,
New Delhi - 110020.
(Insurer)
........Respondents
AND
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 1 of 65
MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
MAC Petition No. 267/17
UID/CNR No.DLNT010036692017
Smt. Kanta Aggarwal,
W/o Sh. Satish Aggarwal,
R/o. A16, Vishwa Apartments,
Sector - 9, Rohini,
New Delhi.
(Injured)
VERSUS
1. Sh. Shahun,
S/o Sh. Roshan,
R/o Doolatpur, Goverdhan,
Mathura,
Uttar Pradesh.
(Driver)
2. Sh. Mubarak,
S/o Sh. Ram Jain,
R/o 153, Devasa Saras,
Mathura,
Uttar Pradesh.
(Registered owner)
3. Reliance General Insurance Co.
60, Okhla Industrial Estate,
New Delhi - 110020.
(Insurer)
........Respondents
AND
MAC Petition No. 268/17
UID/CNR No.DLNT010036722017
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 2 of 65
MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
Smt. Nidhi Aggarwal,
W/o Sh. Uday Aggarwal,
R/o. A16, Vishwa Apartments,
Sector - 9, Rohini,
New Delhi.
VERSUS
1. Sh. Shahun,
S/o Sh. Roshan,
R/o Doolatpur, Goverdhan,
Mathura,
Uttar Pradesh.
(Driver)
2. Sh. Mubarak,
S/o Sh. Ram Jain,
R/o 153, Devasa Saras,
Mathura,
Uttar Pradesh.
(Registered owner)
3. Reliance General Insurance Co.
60, Okhla Industrial Estate,
New Delhi - 110020.
(Insurer)
........Respondents
AND
MAC Petition No. 269/17
UID/CNR No.DLNT010036712017
Smt. Garima Aggarwal,
W/o Sh. Bharat Aggarwal,
R/o. A16, Vishwa Apartments,
Sector - 9, Rohini,
New Delhi.
(Injured)
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 3 of 65
MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
VERSUS
1. Sh. Shahun,
S/o Sh. Roshan,
R/o Doolatpur, Goverdhan,
Mathura,
Uttar Pradesh.
(Driver)
2. Sh. Mubarak,
S/o Sh. Ram Jain,
R/o 153, Devasa Saras,
Mathura,
Uttar Pradesh.
(Registered owner)
3. Reliance General Insurance Co.
60, Okhla Industrial Estate,
New Delhi - 110020.
(Insurer)
........Respondents
AND
MAC Petition No. 270/17
UID/CNR No.DLNT010036682017
Master Samarth Aggarwal,
S/o Sh. Bharat Aggarwal,
R/o. A16, Vishwa Apartments,
Sector - 9, Rohini,
New Delhi.
(Injured)
VERSUS
1. Sh. Shahun,
S/o Sh. Roshan,
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 4 of 65
MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
R/o Doolatpur, Goverdhan,
Mathura,
Uttar Pradesh.
(Driver)
2. Sh. Mubarak,
S/o Sh. Ram Jain,
R/o 153, Devasa Saras,
Mathura,
Uttar Pradesh.
(Registered owner)
3. Reliance General Insurance Co.
60, Okhla Industrial Estate,
New Delhi - 110020.
(Insurer)
........Respondents
Date of Institution : 22.03.2017
Date of Arguments : 01.02.2023
Date of Decision : 01.02.2023
APPEARENCES
Sh. Amit Maihan, Ld. Counsel for all the petitioner(s)
None for driver and owner (defence struck off vide order dated
07.05.2018)
Sh. S.K. Tyagi, Ld. Counsel for insurance co.
Petition under Section 166 and 140 of M.V. Act, 1988
for grant of compensation
AWARD:
1. Vide this common order, I shall dispose of all the five claim
petitions with regard to injuries sustained by Sh. Uday Aggarwal, Smt.
Kanta Aggarwal, Smt. Nidhi Aggarwal, Smt. Garima Aggarwal and Master
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 5 of 65
MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
Samarth Aggarwal in Motor Vehicular Accident which occurred on
28.06.2015 at about 12:00 Noon at Pani Gaon Road, Near Gulshan Dhaba,
PS. Yamunapar, District Mathura, UP, involving Mahindra Bolero
Camper/Jeep bearing registration no. UP85AT0868 (offending vehicle)
being driven in a rash and negligent manner by its driver, respondent no.1
herein.
2. All these claim petitions were consolidated for the purpose of
recording of evidence vide order dated 31.01.2020, passed by my
Ld. Predecessor and MACP No. 271/17 titled as " Uday Aggarwal Vs.
Shahun & Ors" was treated as the leading case. Accordingly, the evidence
was led on behalf of both the sides in the leading case for the purpose of
these matters.
FACTS OF THE CASES
3. As per all the claim petitions on 28.06.15, Sh. Uday Aggarwal, Smt. Kanta Aggarwal, Smt. Nidhi, Smt. Garima Aggarwal and Master Samarth (all the injured persons herein) were returning to their home from Vrindavan in their Wagon R Car bearing registration no. DL5CD6498. At about 12:00 Noon, when they reached near Gulshan Dhaba, Pani Gaon Road, offending vehicle which was being driven by respondent no. 1 in a rash and negligent manner, came from opposite side and hit the aforesaid car in which all the injured persons were travelling with a great force, as a result of which all the occupants of the car received grievous injuries. They Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 6 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 all were taken to Brij Hospital, Vrindavan. FIR No. 268/15 u/s. 279/337/338/427 IPC was registered at PS. Yamunapar with regard to the said accident. The offending vehicle was owned by respondent no. 2 and insured with Reliance General Insurance Co. Ltd./respondent no. 3 during the period in question.
4. The respondents no. 1 & 2 i.e. driver and registered owner failed to file their written statement despite grant of sufficient time and opportunity. Consequently, their defence was struck off vide order dated 07.05.2018 passed by my Ld. Predecessor.
5. In its identical but separate Written Statements filed in all the six cases, the respondent no. 3 i.e. insurance company has raised statutory defence as provided in Section 149(2) of M.V. Act by claiming that offending vehicle was being driven by the respondent no. 1 without having valid and effective driving licence at the time of accident and as such, it is not liable to pay any compensation to the petitioners in the present case. 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 all the claim petitions and prayed for their dismissal.
6. From the pleading of the parties, the following issues were framed in all the five claim petitions bearing MACP Nos. 271/17, 267/17 to 270/17 separately by Ld. Predecessor vide order dated 07.05.2018 : Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 7 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
1) Whether the injured Uday Aggarwal, Kanta Aggarwal, Nidhi Aggarwal, Garima Aggarwal and Master Samarth suffered injuries in road traffic accident on 28.06.2015 at about 12:00 Noon, Pani Gaon Road, near Gulshan Dhaba, Police Station Yamunapar, District Mathura, within the jurisdiction of PS. Yamunapar, District Mathura, due to rashness and negligence on the part of the driver Shahun who was driving vehicle bearing registration no. UP85AT0868, owned by Sh. Mubarak and insured with Reliance Generals Insurance Co.
Ltd.? OPP.
2) Whether the injured are entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
7. In order to establish their claim, the petitioners have examined nine witnesses i.e. PW1 Sh. Uday Aggarwal (injured in MACP No. 271/17), PW2 Sh. Bharat Aggarwal, PW3 Smt. Kanta Aggarwal (injured in MACP No. 267/17), PW4 Ms. Nidhi Aggarwal (injured in MACP No. 268/17), PW5 Ms. Garima Aggarwal (injured in MACP No. 269/17), PW6 Sh. Gaurav, Inspector, Income Tax, PW7 Sh. Ankit Kumar, Inspector, Income Tax, PW8 Dr. Kunwar Sanjay Kumar, Civil Assistant, Surgeon, BSA Hospital, Rohini, Delhi and PW9 Dr. Tarun Duggal, SR, BSA Hospital, Rohini, Delhi and their evidence was closed vide order dated 30.09.2022. On the other hand, no evidence was adduced by any of the respondents and RE in the matter was closed vide order dated 27.10.2022.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 8 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
8. Before proceeding further, it may be noted that vide order dated 22.12.2022 passed by my Ld. Predecessor, it was directed that the petitioner(s) shall not be entitled to any interest from 18.04.2019 till 31.01.2020. Thus, their right to claim interest has been curtailed from 18.04.2019 till 31.01.2020.
9. I have heard the arguments advanced by Ld. Counsels for the parties. My findings on the issues are as under: ISSUE NO. 1 ( IN ALL THE CASES)
10. For the purpose of this issue, the testimonies of all the injured persons i.e. PW1 and PW3 to PW5 are relevant. They all deposed in their respective evidence by way of affidavit (Ex. PW1/A to Ex. PW5/A respectively) on the lines of averments made in their respective claim petitions.
11. PW1 Sh. Uday Aggarwal has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of his Aadhaar Card Ex PW1/1
2. Copy of FIR No. 0268/15 Mark A
3. OPD Card of Brij Healthcare & Ex. PW1/2 Research Centre
4. Discharge summary of Jaypee Ex. PW1/3(colly) Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 9 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 Hospital alongwith other medical record
5. Copy of ITR for the year 2015 Ex. PW1/4 16
6. His original certificate issued Ex. PW1/5 by his employer
7. Original disability certificate Ex. PW1/6
8. Original medical and Ex. PW1/7(colly) transportation bills/expenses
9. Copy of individual mediclaim Ex. PW1/8(colly) policy alongwith details of claim amount received under mediclaim policy
10. Copy of RC of offending Mark B vehicle
11. Copy of fitness certificate of Mark C offending vehicle
12. Copy of driving licence of Mark D respondent no. 1
12. During his crossexamination on behalf of insurance company, he deposed that he was driving the car at the time of accident. He volunteered that the speed of his car was about 3040 kmph. He further deposed that he had seen the offending vehicle which was coming from opposite direction and he had tried to save his vehicle from the offending vehicle but both the vehicles collided with each other from the driver's side. He denied the suggestion that the accident had taken place due his own negligence as he was driving his vehicle in a rash and negligent manner at the time of accident. He further denied the suggestion that the respondent Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 10 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 no. 1 was driving his vehicle at a normal speed. He admitted that his statement was not recorded by the police at any point. Respondents no. 1 & 2 did not crossexamine this witness.
13. PW3 Smt. Kanta Aggarwal has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of her Aadhaar Card Ex PW3/1
2. OPD Card of Brij Healthcare & Ex. PW3/2 Research Centre
3. Discharge summary of Jaipur Ex. PW3/3(colly) Golden Hospital
4. Discharge Summary of Ex. PW3/4(colly) Jaypee Hospital
5. Copy of ITR of 201516 & Ex. PW3/5(colly) 201617
6. Original disability certificate Ex. PW3/6
7. Original medical and Ex. PW3/7(colly) transportation bills/expenses
8. Copy of individual mediclaim Ex. PW3/8(colly) policy alongwith details of claim amount
14. During her crossexamination on behalf of insurance company, she admitted that she was travelling in the vehicle bearing no. DL5CD6948 and she was sitting in the middle rear seat of the car. She further deposed that they were five persons and one child in the vehicle. She further Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 11 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 deposed that she did not see the offending vehicle coming from the opposite side. She deposed that she did not know how the accident had taken place.
15. PW4 Mrs. Nidhi Aggarwal has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of her Aadhaar Card Ex PW4/1
2. OPD Card of Brij Healthcare & Ex. PW4/2 Research Centre
3. Discharge summary of Jaipur Ex. PW4/3(colly) Golden Hospital
4. Discharge Summary of Ex. PW4/4(colly) Jaypee Hospital
5. Original disability certificate Ex. PW4/5
6. Original medical and Ex. PW4/6(colly) transportation bills/expenses
16. During her crossexamination on behalf of insurance company, she admitted that she was travelling in the vehicle bearing no. DL5CD6948 and she was sitting in the left side on the rear seat of the car. She further deposed that they were five persons and one child in the vehicle. She further deposed that she did not see the offending vehicle coming from the opposite side. She deposed that she did not know how the accident had taken place.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 12 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
17. PW5 Mrs. Garima Aggarwal has relied upon the following documents: Sr. No. Description of documents Remarks
1. Copy of her Aadhaar Card Ex PW5/1
2. OPD Card of Brij Healthcare & Ex. PW5/2(colly) Research Centre
3. Discharge summary of Jaipur Ex. PW5/3(colly) Golden Hospital
4. Discharge Summary of Ex. PW5/4(colly) Jaypee Hospital
5. Copy of ITR of 201516 Ex. PW5/5(colly)
6. Original leave certificate Ex. PW5/6 issued by her employer
7. Original disability certificate Ex. PW5/7
8. Original medical and Ex. PW5/8(colly) transportation bills/expenses
9. Copy of individual mediclaim Ex. PW5/9(colly) policy alongwith details of claim amount received under mediclaim policy
18. During her crossexamination on behalf of insurance company, she deposed that she neither knew the registration number of the offending vehicle nor had she seen the same before the accident. She denied the suggestion that Sh. Uday Aggarwal was driving the Car in a rash and negligent manner or that the accident had taken place due to his negligence.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 13 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
19. The careful perusal of testimonies of aforesaid witnesses i.e. PW1, PW3 to PW5 would go to show that the respondents more particularly insurance company has not been able to impeach their respective testimonies through litmus test of crossexamination. Even otherwise, the testimonies of aforesaid witnesses inspire confidence as they themselves shown to have sustained injuries due to the accident. Moreover, it is an undisputed fact that FIR No. 268/15 u/s 279/337/338/427 IPC was registered at PS. Yamunapar with regard to accident in question. Copy of said FIR (Mark A), would show that same was registered on 30.06.2015 (accident being caused on 28.06.2015 at about 12:00 Noon) on the statement of complainant Sh. Vanshidhar Bansal. The contents of said FIR would show that he had disclosed therein the same sequence of facts leading to the accident as deposed by PW1, PW3 to PW5 during their evidence. Thus, there is no reason to disbelieve the testimony of aforesaid witnesses made on oath.
20. It is pertinent to note that the respondent no.1/driver of offending vehicle was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the accident in question occurred due to rash and negligent driving of offending vehicle by him.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 14 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
21. A perusal of site plan clearly makes out that the offending vehicle had crossed its lane and had hit against the car of petitioners, which makes it evident that respondent no. 1 was not in control of it.
22. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner(s) have been able to prove on the basis of preponderence of probabilities that all the petitioners namely Sh. Uday Aggarwal, Smt. Kanta Aggarwal, Ms. Nidhi Aggarwal, Ms. Garima Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 15 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 Aggarwal and Master Samarth had sustained injuries in the road accident which took place on 28.06.2015 at about 12:00 Noon at Pani Gaon Road, Near Gulshan Dhaba, PS. Yamunapar, District Mathura, UP, due to rash and negligent driving on the part of driver of offending vehicle. Thus, this issue is decided in favour of petitioners and against the respondents in both these claim petitions.
ISSUE NO.2
23. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Compensation in MACP No. 271/17 (Injured Uday Aggarwal) MEDICAL EXPENSES
24. PW1 Sh. Uday Aggarwal has deposed in his evidence by way of affidavit (Ex. PW1/A) that after the accident, he was taken to Brij Health Hospital, Vrindavan, however, due to lack of sufficient medical facility, he was referred to Maheshwari Hospital, Mathura and thereafter, he was taken to Jaypee Hospital, Noida, where he remained admitted from 28.06.2015 to 06.07.2015. He further deposed that he had sustained grievous injuries in the accident. He has relied upon medical bills Ex. PW1/7 (colly). During his Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 16 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 crossexamination on behalf of insurance company, he admitted that his medical bills got reimbursed under his mediclaim policy, however, all the bills had not been reimbursed.
25. It is relevant to note that the injured has relied upon medical bills(Ex. PW1/7 colly) to the tune of Rs. 6,77,220/. A bare perusal of document Ex. PW1/7 reveals that out of the aforesaid amount of medical bills, an amount of Rs. 4,91,910/ had been paid by the insurance company under mediclaim policy and remaining amount of Rs. 1,85,310/ had been paid by the petitioner. It may be noted here that petitioner during his cross examination by Ld. Counsel for insurance company had admitted that some of his medical bills got reimbursed to him under his mediclaim policy. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 1,85,310/ is awarded to the petitioner under this head.
LOSS OF INCOME
26. PW1 has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was employed with Mehta @ Padamsay Surveyors Private Limited and was drawing monthly salary of Rs. 31,000/ per month at the time of accident. He further deposed that due to the Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 17 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 injuries suffered by him in the accident, he could not work for a considerable period and thus, suffered loss of income. For this, he has relied upon copy of his income tax return for the year 201516 (Ex. PW1/4). During his cross examination on behalf of insurance company, he deposed that he was a regular payee of income tax. He admitted that he had filed the income tax return for the Assessment Year 201516 & 201617. He further deposed that he could not produce the income tax return for the Assessment Year 201718 & 201819. He admitted that as per his income return for the assessment year 201415 & 201617, his income had increased. He denied the suggestion that he had not suffered any loss of income due to the injuries sustained in the accident.
27. The medical treatment record i.e. Discharge Summary (which is part of Ex. PW1/3 colly) of Jaypee Hospital, in respect of petitioner/injured, would reveal that he was admitted in the said hospital on 28.06.2015 and discharged on 06.07.2015. As per the said record, the petitioner is found to have sustained fracture right femur, fracture right tibia, compound fracture right foot, fracture right supercondylar humerus with intercondyler extension, fracture 1st metacarpal left hand and fracture right ulna shaft.
28. Apart from the aforesaid documents produced by petitioner, he has failed to file any other medical treatment record in order to show the exact period upto which he had received the medical treatment.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 18 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 Nevertheless, it can not be overlooked that the petitioner had sustained multiple fractures as mentioned above due to the accident. Apart from this, he was also found to have sustained permanent disability to the extent of 13% in relation to his right upper and lower limbs. Considering the nature of injuries sustained by the petitioner and the disability suffered by him in the accident, it is presumed that he would not have been able to work atleast for a period of 6 months or so.
29. After referring to the testimony of PW1 and the documents Ex. PW1/4(colly) filed by the said witness, Ld. counsel for petitioners vehemently argued that annual income of petitioner should be taken as Rs. 3,75,952/ minus tax paid by the petitioner. For said purpose, he relied upon ITR for the Assessment Year 201516 (Ex. PW1/4 colly) filed on record. He, therefore, urged that appropriate amount of compensation may be awarded on the basis of said ITR. On the other hand, Ld. counsel for insurance company vehemently argued that the petitioner has failed to lead any cogent evidence to prove his actual income at the time of accident and thus, his income may be taken as per Minimum Wages Act applicable during the relevant period.During his cross examination on behalf of insurance company, he deposed that he was a regular payee of income tax. He admitted that he had filed the income tax return for the Assessment Year 201516 & 201617. He further deposed that he could not produce the income tax return for the Assessment Year 201718 & 201819. He admitted that as per his income return for the assessment year 201415 & Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 19 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 201617, his income had increased. He denied the suggestion that he had not suffered any loss of income due to the injuries sustained in the accident.
30. The aforesaid argument raised on behalf of insurance company, is not tenable in the eyes of law for the simple reason that the petitioner was regularly filing the income tax return and was filing ITRs since much prior to the date of accident. A bare perusal of ITR for the Assessment Year 201516 (which is part of Ex. PW1/4 colly) as available on record, would show that same was filed by the petitioner with Income Tax Department on 07.10.15 i.e. about 3 months after the date of accident which occurred on 28.06.2015. It is relevant to mention here that the income tax return is a statutory document on which reliance may be placed to determine the annual income of any individual. Hence, there is no reason to discard the said document in order to calculate the loss of income suffered by petitioner. (Ref: United India Insurance Co. Ltd. Vs. Indiro Devi, decided on 03.07.2018 by Hon'ble Supreme Court of India in SLP(Civil) No. 71047105).
31. The income tax return for the assessment year 201516 shows the gross total income of petitioner to be Rs. 3,75,952/ on which tax payable has been mentioned as Rs. 3,529/. The annual income of the deceased after deduction of income tax thus comes to Rs. 3,72,423/ (Rs. 3,75,952/ minus tax of Rs. 3,529/) for the calculation of loss of income. Thus, a sum of Rs. 1,86,000/ (rounded off) (Rs. 3,72,423/12 x 6) is Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 20 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
32. 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: " 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".
33. The petitioner has deposed in his evidence by way of affidavit(Ex PW1/A) that he had sustained grievous injuries in the accident in question. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Apart from this petitioner had also sustained permanent disability to the extent of 13% in relation to his right upper and lower limbs. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 21 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 suffered by him including permanent disability, I hereby award a sum of Rs. 1,00,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
34. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. Apart from this petitioner had also sustained permanent disability to the extent of 13% in relation to his right upper and lower limbs. Thus, he would not be able to enjoy general amenities of life after the accident in question and his quality of life has been definitely affected. In view of the nature of injuries and his continued treatment, I award a notional sum of Rs. 75,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
35. Ld. Counsel for petitioner argued that petitioner had spent considerable amount on special diet, conveyance and attendant charges but he has failed to lead any cogent evidence on record in respect of amount incurred by him under the aforesaid heads. At the same time, it cannot be overlooked that he had sustained grievous injuries in the accident in question. Apart from this petitioner had also sustained permanent disability to the extent of 13% in relation to his right upper and Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 22 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 lower limbs. 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. 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. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ for conveyance charges and Rs. 15,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
36. As already stated above, the petitioner is shown to have sustained 13% permanent disability in relation to his right upper and lower limbs. Same is quite evident from Disability Certificate dated 23.07.2019 of Medical Board of BSA Hospital, Rohini, Delhi.
37. As per the testimony of PW9 Dr. Tarun Duggal, SR, Orthopedics, BSA Hospital, Rohini, Delhi, the petitioner was found to have suffered 13% permanent disability in relation to his right upper and lower limbs in terms of Disability Certificate (Ex. PW1/6). He deposed that due to the aforesaid disability, the petitioner would have moderate difficultly in walking on plain surface, walking on slope, climbing stairs, squatting on Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 23 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 floor and in taking turns. During his crossexamination on behalf of insurance company, he deposed that there was no criteria to assess the functional disability as a whole body. He denied the suggestion that the disability assessed by Board did not have any corelation with the injuries as mentioned in MLC and treatment record.
38. It is relevant to note here that the petitioner was doing private job at the time of accident. Ld. Counsel for insurance company argued that petitioner had not suffered any loss of future income on account of disability suffered by him in the accident. He further argued that petitioner during his crossexamination himself admitted that his income had increased in the year 201516 & 201617 i.e. after the accident. It may be noted here that petitioner was just aged about 28 years as on the date of accident and was doing private job at the time of accident. It is pertinent to mention here that if the petitioner had not suffered the disability in the accident, his performance at his work place would have definitely been better than present. It is quite obvious that for any profession, proper movement of all the limbs is very necessary. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner and his nature of work at the time of accident, his functional disability is taken as 13% with regard to whole body. (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 Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 24 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 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 date of birth is mentioned as 16.11.1986. The date of accident is 28.06.2015. Thus, the petitioner was more than 28 years of age on the date of accident. Hence, the appropriate multiplier would be 17 in view of judgment passed in case titled as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The annual income of petitioner has been taken as Rs. 3,72,423/ as discussed above. Thus, the loss of monthly future income would be Rs. 4035/(rounded off) (Rs. 3,72,423/12 x 13/100 ). The total loss of future income would be Rs. 11,52,000/(rounded off) (Rs. 4,035/ x 140/100 x 12 x 17).
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 1,85,310/
2. Loss of income Rs. 1,86,000/
3. Pain and suffering Rs. 1,00,000/
4. Loss of general amenities and Rs. 75,000/ enjoyment of life
5. Conveyance, special diet and Rs. 40,000/ attendant charges Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 25 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
6. Loss of future income Rs. 11,52,000/ Total Rs. 17,38,310/ Rounded off to Rs. 17,38,000/ Compensation in MACP No. 267/17 (Injured Smt. Kanta Aggarwal) MEDICAL EXPENSES
40. PW3 Smt. Kanta Aggarwal i.e. injured herself, has deposed in her evidence by way of affidavit (Ex. PW3/A) that after the accident, she was taken to Brij Health Hospital, Vrindavan, however, due to lack of sufficient medical facility, she was referred to Maheshwari Hospital, Mathura and thereafter, she was taken to Jaipur Golden Hospital, Rohini, Delhi, where she remained admitted from 28.06.2015 to 03.07.2015. She further deposed that she was again hospitalized in Jaypee Hospital, Noida, where he remained admitted from 26.10.2015 till 27.10.2015. She further deposed that she had sustained grievous injuries in the accident. She has relied upon medical bills Ex. PW3/7 (colly). During her crossexamination on behalf of insurance company, she admitted that her medical bills got reimbursed under her mediclaim policy, however, all the bills had not been reimbursed.
41. It is relevant to note that the injured has relied upon medical bills(Ex. PW3/7 colly) to the tune of Rs. 3,02,141/. A bare perusal of document Ex. PW3/7 reveals that out of the aforesaid amount of medical Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 26 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 bills, an amount of Rs. 1,48,388/ had been paid by the insurance company under mediclaim policy and remaining amount of Rs. 1,53,753/ had been paid by the petitioner. It may be noted here that petitioner during her cross examination by Ld. Counsel for insurance company had admitted that some of her medical bills got reimbursed under her mediclaim policy. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 1,53,753/ is awarded to the petitioner under this head.
LOSS OF INCOME
42. PW3 has categorically deposed in her evidence by way of affidavit(Ex PW3/A) that she was graduate and had been imparting private tuitions and was earning Rs. 30,000/ per month at the time of accident. She further deposed that due to the injuries suffered by her in the accident, she could not work for about 6 months and thus, suffered loss of income for the said period. For this, she has relied upon copy of her ITRs for the year 201516 & 201617 Ex. PW3/5(colly). During her crossexamination on behalf of insurance company, she deposed that she was a regular payee of income tax. She admitted that she had filed the income tax return for the Assessment Year 201516 & 201617. She further deposed that he could not produce the income tax return for the Assessment Year 201718 & 201819. She admitted that as per her income tax return for the assessment Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 27 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 year 201415 & 201617, her income had increased. She denied the suggestion that she was not earning Rs. 30,000/ per month. She admitted that she had not filed any documents to show that she had taken 6 month's bed rest. She denied the suggestion that she had not suffered any loss of income due to the injuries sustained in the accident.
43. The medical treatment record i.e. Patient Bill Summary (which is part of Ex. PW3/3 colly) of Jaipur Golden Hospital, in respect of petitioner/injured, would reveal that she was admitted in the said hospital on 28.06.2015 and discharged on 03.07.2015. The medical treatment record i.e. Discharge Summary (which is part of Ex. PW3/4 colly) of Jaypee Hospital, in respect of petitioner/injured, would reveal that she was admitted in the said hospital on 26.10.2015 and discharged on 27.10.2015. As per the said record, the petitioner is found to have sustained Mal Union fracture of (right) femur.
44. Apart from the aforesaid documents produced by petitioner, she has failed to file any other medical treatment record in order to show the exact period upto which she had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had sustained mal union fracture of right femur as mentioned above due to the accident. Apart from this, she was also found to have sustained permanent disability to the extent of 10% in relation to her right lower limb. Considering the nature of injuries sustained by the petitioner and the disability suffered by her in the Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 28 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 accident, it is presumed that she would not have been able to work atleast for a period of 6 months or so.
45. In order to prove her earnings, the petitioner has examined PW6 Sh. Gaurav from the office of Income Tax Department who had produced the income tax returns for the assessment year 201516 to 2016 17 in respect of petitioner Smt. Kanta Aggarwal and exhibited the same as Ex. PW6/1(colly) and Ex. PW6/2(colly) respectively. During his cross examination on behalf of insurance company, he admitted that he had not fed the contents of Ex. PW6/1 and Ex. PW6/2 in the system. He deposed that Ex. PW6/1(colly) and Ex. PW6/2(colly) were not accompanied by Certificate u/s. 65B of Indian Evidence Act.
46. After referring to the testimonies of PW3 & PW6 and the documents filed by the said witnesses, Ld. counsel for petitioner vehemently argued that annual income of petitioner should be taken as Rs. 3,46,427/ minus actual tax paid by the petitioner. For said purpose, he relied upon ITR for the Assessment Year 201516 (Ex. PW6/1 colly) filed on record. He, therefore, urged that appropriate amount of compensation may be awarded on the basis of said ITR. On the other hand, Ld. counsel for insurance company vehemently argued that the petitioner has failed to lead any cogent evidence to prove her actual income at the time of accident and thus, her income may be taken as per Minimum Wages Act applicable during the relevant period.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 29 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
47. The aforesaid argument raised on behalf of insurance company, is not tenable in the eyes of law for the simple reason that the petitioner was regularly filing the income tax return and was filing ITRs since much prior to the date of accident. A bare perusal of ITR for the Assessment Year 201516 (Ex. PW6/1 colly) as available on record, would show that same was filed by the petitioner with Income Tax Department on 07.10.15 i.e. about 3 months after the date of accident which occurred on 28.06.2015. It is relevant to mention here that the income tax return is a statutory document on which reliance may be placed to determine the annual income of any individual. Hence, there is no reason to discard the said document in order to calculate the loss of income suffered by petitioner. (Ref: United India Insurance Co. Ltd. Vs. Indiro Devi, decided on 03.07.2018 by Hon'ble Supreme Court of India in SLP(Civil) No. 71047105).
48. The income tax return for the assessment year 201516 shows the gross total income of petitioner to be Rs. 3,46,427/ on which tax payable has been mentioned as Rs. 42/. It is relevant to mention here that refund of Rs. 4,040/ was given to the petitioner Smt. Kanta Aggarwal during the aforesaid period. Thus, the annual income of the petitioner is taken as Rs. 3,46,387/ for the calculation of her loss of income. Thus, a sum of Rs. 1,73,000/ (rounded off) (Rs. 3,46,387/12 x 6) is awarded in favour of petitioner under this head and against the respondents.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 30 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 PAIN AND SUFFERING
49. 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: " 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".
50. PW3 has deposed in her evidence by way of affidavit (Ex PW3/A) that she had sustained grievous injuries in the accident in question. Apart from this petitioner had also sustained permanent disability to the extent of 10% in relation to her right lower limb. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by her including permanent disability, I hereby award a sum of Rs. 1,00,000/ towards pain and sufferings to the petitioner.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 31 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
51. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. Apart from this petitioner had also sustained permanent disability to the extent of 10% in relation to her right lower limb. Thus, she would not be able to enjoy general amenities of life after the accident in question and her quality of life has been definitely affected. In view of the nature of injuries and her continued treatment, I award a notional sum of Rs. 75,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
52. Ld. Counsel for petitioner argued that petitioner had spent considerable amount on special diet, conveyance and attendant charges but she has failed to lead any cogent evidence on record in respect of amount incurred by her under the aforesaid heads. At the same time, it cannot be overlooked that she had sustained grievous injuries in the accident in question. Thus, she 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 her regular check up & follow up during the period of her medical treatment. She would have been definitely helped by some person either outsider or from her family, to perform her daily activities as also Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 32 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 while visiting the hospital during the course of her medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ for conveyance charges and Rs. 15,000/ each for special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
53. As already stated above, the petitioner is shown to have sustained 10% permanent disability in relation to her right lower limb. Same is quite evident from Disability Certificate dated 23.07.2019 of Medical Board of BSA Hospital, Rohini, Delhi.
54. As per the testimony of PW9 Dr. Tarun Duggal, SR, Orthopedics, BSA Hospital, Rohini, Delhi, the petitioner was found to have suffered 10% permanent disability in relation to her right lower limb in terms of Disability Certificate (Ex. PW3/6). He deposed that due to the aforesaid disability, the petitioner would have moderate difficultly in walking on plain surface, walking on slope, climbing stairs, squatting on floor and in kneeling. During his crossexamination on behalf of insurance company, he deposed that there was no criteria to assess the functional disability as a whole body. He denied the suggestion that the disability assessed by Board did not have any corelation with the injuries as mentioned in MLC and treatment record.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 33 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
55. It is relevant to note here that the petitioner was imparting private tuitions at the time of accident. Ld. Counsel for insurance company argued that petitioner had not suffered any loss of future income on account of disability suffered by her in the accident. He further argued that petitioner during her crossexamination herself admitted that her income had increased in the year 201516 & 201617 i.e. after the accident. It is quite obvious that for any profession, proper movement of all the limbs is very necessary. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner and her nature of work at the time of accident, his functional disability is taken as 10% with regard to whole body. (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.)
56. In copy of Aadhaar Card (Ex. PW3/1) of petitioner, her year of birth is mentioned as 1960. The date of accident is 28.06.2015. Thus, the petitioner was aged about 55 years on the date of accident. Hence, the appropriate multiplier would be 11 in view of judgment passed in case titled Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 34 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The annual income of petitioner has been taken as Rs. 3,46,387/ as discussed above. Thus, the loss of monthly future income would be Rs. 2887/(rounded off) (Rs. 3,46,387/12 x 10/100 ). The total loss of future income would be Rs. 4,19,000/(rounded off) (Rs. 2,887/ x 110/100 x 12 x 11).
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 1,53,753/
2. Loss of income Rs. 1,73,000/
3. Pain and suffering Rs. 1,00,000/
4. Loss of general amenities and Rs. 75,000/ enjoyment of life
5. Conveyance, special diet and Rs. 40,000/ attendant charges
6. Loss of future income Rs. 4,19,000/ Total Rs. 9,60,753/ Rounded off to Rs. 9,61,000/ Compensation in MACP No. 268/17 (Injured Ms. Nidhi Aggarwal) MEDICAL EXPENSES
57. PW4 Ms. Nidhi Aggarwal i.e. injured herself, has deposed in her evidence by way of affidavit (Ex. PW4/A) that after the accident, she was taken to Brij Health Hospital, Vrindavan, however, due to lack of Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 35 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 sufficient medical facility, she was referred to Maheshwari Hospital, Mathura and thereafter, she was taken to Jaipur Golden Hospital, Rohini, Delhi, where she remained admitted from 28.06.2015 to 04.07.2015. She further deposed that she had sustained grievous injuries in the accident. She has relied upon medical bills Ex. PW4/6 (colly).
58. It is relevant to note that the injured has relied upon medical bills(Ex. PW4/6 colly) to the tune of Rs. 1,96,955/. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 1,96,955/ is awarded to the petitioner under this head.
LOSS OF INCOME
59. PW4 has categorically deposed in her evidence by way of affidavit(Ex PW4/A) that she was housewife. She further deposed that due to the injuries suffered by her in the accident, she could not render her household services for nearly six months. During her crossexamination on behalf of insurance company, she denied the suggestion that she had not suffered any loss of income due to the injuries sustained by her in the accident or due to the disability. She admitted that she was a housewife.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 36 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
60. The medical treatment record i.e. Discharge Summary (which is part of Ex. PW4/3 colly) of Jaipur Golden Hospital, in respect of petitioner/injured, would reveal that she was admitted in the said hospital on 29.06.2015 and discharged on 04.07.2015. As per the said record, the case of the petitioner was RTA with polytrauma.
61. Apart from the aforesaid documents produced by petitioner, she has failed to file any other medical treatment record in order to show the exact period upto which she had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had sustained polytrauma as mentioned above due to the accident. Apart from this, she was also found to have sustained permanent disability to the extent of 19% with regard to dental/maxillofacial. Considering the nature of injuries sustained by the petitioner and the disability suffered by her in the accident, it is presumed that she would not have been able to work atleast for a period of 3 months or so.
62. In case titled Kirti & Anr. Vs. Oriental Insurance Company Limited (2021) 2 SCC 166, 3Judge Bench of Hon'ble Supreme Court while discussing and highlighting the services rendered by housewife/homemaker and assessment of her notional income as per minimum wages prescribed for the State observed as under:
xxxxx " Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 37 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 law. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all. Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case. The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally. The granting of future prospects,on the notional income calculated in such cases, is a component of just compensation"
xxxxx
63. It is apparent on record that the petitioner Ms. Nidhi Aggarwal was housewife at the time of accident. It can not be denied that women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It is relevant to note here that while deciding claim petition under M.V Act, it is the duty of Claims Tribunal to follow the principles of justice, equity and good conscience and to adopt more realistic, pragmatic and liberal approach. Thus, loss of income of injured has to be assessed while taking the income of a skilled person under Minimum Wages Act applicable during the period in question.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 38 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 The minimum wages of a skilled person were Rs. 10,998/ per month at the time of accident in question, which had occurred on 28.06.2015. Thus, a sum of Rs. 32,994/(10,998/ x 3) is awarded in favour of petitioner and against the respondent under this head.
PAIN AND SUFFERING
64. 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: " 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".
65. PW4 has deposed in her evidence by way of affidavit (Ex PW4/A) that she had sustained grievous injuries in the accident in question. Apart from this petitioner had also sustained permanent disability to the extent of 19% with regard to dental/maxillofacial. Keeping in view the Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 39 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 medical treatment record of petitioner available on record and the nature of injuries suffered by her including permanent disability, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
66. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. Apart from this petitioner had also sustained permanent disability to the extent of 19% with regard to dental/maxillofacial. Thus, she would not be able to enjoy general amenities of life after the accident in question and her quality of life has been definitely affected. In view of the nature of injuries and her continued treatment, I award a notional sum of Rs. 50,000/ towards loss of general amenities and enjoyment of life to the petitioner.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
67. Ld. Counsel for petitioner argued that petitioner had spent considerable amount on special diet, conveyance and attendant charges but she has failed to lead any cogent evidence on record in respect of amount incurred by her under the aforesaid heads. At the same time, it cannot be overlooked that she had sustained grievous injuries in the accident in question. Thus, she would have taken special rich protein diet for his speedy recovery and would have also incurred considerable amount Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 40 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 towards conveyance charges while commuting to the concerned hospital as OPD patient for her regular check up & follow up during the period of her medical treatment. She would have been definitely helped by some person either outsider or from her family, to perform her daily activities as also while visiting the hospital during the course of her medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ each for conveyance, special diet and attendant charges to the petitioner.
LOSS OF FUTURE INCOME
68. As already stated above, the petitioner is shown to have sustained permanent disability to the extent of 19% with regard to dental/maxillofacial. Same is quite evident from Disability Certificate dated 19.08.2019 of Medical Board of BSA Hospital, Rohini, Delhi.
69. As per the testimony of PW8 Dr. Kunwar Sanjay Kumar, Civil Assistant, Surgeon, Grade - 1, Dental, BSA Hospital, Rohini, Delhi, the petitioner was found to have suffered permanent disability to the extent of 19% with regard to dental/maxillofacial in terms of Disability Certificate (Ex. PW4/5). During his crossexamination on behalf of insurance company, he testified after seeing the discharge summary Ex. PW4/3 of the petitioner that her case was of RTA with polytrauma and word polytrauma included dental/maxillofacial injuries. He further deposed that Inter Maxillary fixation Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 41 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 of patient was done on 30.06.2015 under general anesthesia. He denied the suggestion that the injuries suffered on 28.06.2015 and the disability issued in the year 2019 did not have any corelation.
70. The disability certificate(Ex. PW4/5) of injured would reveal that she had suffered permanent disability to the extent of 19% with regard to dental/maxillofacial. It is further mentioned therein that there is a scarring of face and masticating difficulty due to painful left TMJ. It is relevant to mention here that Temporomandibular Joint (TMJ) disorders are conditions affecting the jaw joints and surrounding muscles and ligaments due to which patient feels jaw tenderness, headaches, earaches and facial pain. In the present case, the petitioner is facing masticating difficulty due to disability suffered by her which means that she would face difficulty to grind or crush (food) with or as if with the teeth. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner, her functional disability is taken as 6% with regard to whole body.
71. In copy of Aadhaar Card (Ex. PW4/1) of petitioner, her date of birth is mentioned as 23.01.1989. The date of accident is 28.06.2015. Thus, the petitioner was aged about 26 years on the date of accident. Hence, the appropriate multiplier would be 17 in view of judgment passed in case titled as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The income of petitioner has been taken as Rs. 10,998/ per month as discussed above. Thus, the loss of monthly future income would be Rs. 660/(rounded off) Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 42 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 (Rs. 10,998 x 6/100 ). The total loss of future income would be Rs. 1,88,000/(rounded off) (Rs. 660/ x 140/100 x 12 x 17).
COMPENSATION FOR DISFIGUREMENT OF FACE
72. After referring to the disability certificate (Ex. PW4/5), Ld. Counsel for petitioner argued that it is apparent on record that the case of petitioner is of scarring of face. Hence, appropriate amount should also be awarded to the petitioner for disfigurement of his face. On the other hand, Ld. counsel for insurance company vehemently argued that there is no definite evidence led by petitioner in this regard and therefore, no amount whatsoever should be awarded to him under this head.
73. As already noted above, case of petitioner was of scarring of face and the same are shown to be permanent in nature. Hence, notional amount of Rs. 50,000/ is awarded in favour of petitioner under this head.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 1,96,955/
2. Loss of income Rs. 32,994/
3. Pain and suffering Rs. 50,000/
4. Loss of general amenities and Rs. 50,000/ enjoyment of life Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 43 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
5. Conveyance, special diet and Rs. 30,000/ attendant charges
6. Loss of future income Rs. 1,88,000/
7. Compensation for disfigurement of Rs. 50,000/ face Total Rs. 5,97,949/ Rounded off to Rs. 5,98,000/ Compensation in MACP No. 269/17 (Injured Ms. Garima Aggarwal) MEDICAL EXPENSES
74. PW5 Ms. Garima Aggarwal i.e. injured herself, has deposed in her evidence by way of affidavit (Ex. PW5/A) that after the accident, she was taken to Brij Health Hospital, Vrindavan, however, due to lack of sufficient medical facility, she was referred to Maheshwari Hospital, Mathura and thereafter, she was taken to Jaipur Golden Hospital, Rohini, Delhi, where she remained admitted from 29.06.2015 to 03.07.2015. She further deposed that thereafter, she was removed to Jaypee Hospital, Noida, where she remained admitted from 20.07.2015 till 25.07.2015. She further deposed that she had sustained grievous injuries in the accident. She has relied upon medical bills Ex. PW5/8 (colly).
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 44 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
75. It is relevant to note that the injured has relied upon medical bills(Ex. PW5/8 colly) to the tune of Rs. 78,591/. A bare perusal of document Ex. PW5/8 reveals that out of the aforesaid amount of medical bills, an amount of Rs. 59,427/ had been paid by the insurance company under mediclaim policy and remaining amount of Rs. 19,164/ had been paid by the petitioner. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 19,164/ is awarded to the petitioner under this head.
LOSS OF INCOME
76. PW5 has categorically deposed in her evidence by way of affidavit(Ex PW5/A) that she was doing private job with M/s. P.L. Aggarwal Financial Insurance Services, Ghaziabad and was drawing monthly salary of Rs. 30,000/ at the time of accident. She further deposed that due to the injuries suffered by her in the accident, she could not attend her job. Thus, she has suffered loss of income. For this, she has relied upon copy of her ITRs for the year 201516 Ex. PW5/5(colly). During her crossexamination on behalf of insurance company, she deposed that her father in law was filing her ITRs.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 45 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
77. The medical treatment record i.e. Discharge Summary (which is part of Ex. PW5/3 colly) of Jaipur Golden Hospital, in respect of petitioner/injured, would reveal that she was admitted in the said hospital on 29.06.2015 and discharged on 03.07.2015. The medical treatment record i.e. Discharge Summary (which is part of Ex. PW5/4 colly) of Jaypee Hospital, in respect of petitioner/injured, would reveal that she was admitted in the said hospital on 20.07.2015 and discharged on 25.07.2015. As per the said record, the petitioner is found to have sustained fracture occipital condyle i.e. fracture left acetabulum(undisplaced) with multiple fracture rib left side.
78. Apart from the aforesaid documents produced by petitioner, she has failed to file any other medical treatment record in order to show the exact period upto which she had received the medical treatment. Nevertheless, it can not be overlooked that the petitioner had sustained fracture occipital condyle i.e. fracture left acetabulum(undisplaced) with multiple fracture rib left side as mentioned above due to the accident. Considering the nature of injuries sustained by the petitioner, it is presumed that she would not have been able to work atleast for a period of 3 months or so.
79. In order to prove her earnings, the petitioner has examined PW6 Sh. Gaurav from the office of Income Tax Department who had produced the income tax returns for the assessment year 201516 in Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 46 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 respect of petitioner Ms. Garima Aggarwal and exhibited the same as Ex. PW7/1(colly). During his crossexamination on behalf of insurance company, he admitted that he had not fed the contents of Ex. PW7/1 to Ex. PW7/3 in the system. He deposed that the aforesaid document was not accompanied by Certificate u/s. 65B of Indian Evidence Act.
80. After referring to the testimonies of PW5 & PW7 and the documents filed by the said witnesses, Ld. counsel for petitioner vehemently argued that annual income of petitioner should be taken as Rs. 3,40,593/ minus actual tax paid by the petitioner. For said purpose, he relied upon ITR for the Assessment Year 201516 (Ex. PW7/1 colly) filed on record. He, therefore, urged that appropriate amount of compensation may be awarded on the basis of said ITR. On the other hand, Ld. counsel for insurance company vehemently argued that the petitioner has failed to lead any cogent evidence to prove her actual income at the time of accident and thus, her income may be taken as per Minimum Wages Act applicable during the relevant period.
81. The aforesaid argument raised on behalf of insurance company, is not tenable in the eyes of law for the simple reason that the petitioner was regularly filing the income tax return and was filing ITRs since much prior to the date of accident. A bare perusal of ITR for the Assessment Year 201516 (Ex. PW7/1 colly) as available on record, would show that same was filed by the petitioner with Income Tax Department on Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 47 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 07.10.15 i.e. about 3 months after the date of accident which occurred on 28.06.2015. It is relevant to mention here that the income tax return is a statutory document on which reliance may be placed to determine the annual income of any individual. Hence, there is no reason to discard the said document in order to calculate the loss of income suffered by petitioner. (Ref: United India Insurance Co. Ltd. Vs. Indiro Devi, decided on 03.07.2018 by Hon'ble Supreme Court of India in SLP(Civil) No. 71047105).
82. The income tax return for the assessment year 201516 shows the gross total income of petitioner to be Rs. 3,40,593/ on which no tax has been paid. Thus, the annual income of the petitioner is taken as Rs. 3,40,593/ for the calculation of her loss of income. Thus, a sum of Rs. 51,000/ (rounded off) (Rs. 3,40,593/12 x 3) is awarded in favour of petitioner under this head and against the respondents.
PAIN AND SUFFERING
83. 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: " 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 Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 48 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 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".
84. PW5 has deposed in her evidence by way of affidavit (Ex PW5/A) that she had sustained grievous injuries in the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by her, I hereby award a sum of Rs. 50,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
85. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries in the accident. Thus, she would not be able to enjoy general amenities of life after the accident in question and her quality of life has been definitely affected. In view of the nature of injuries and her continued treatment, I award a notional sum of Rs. 40,000/ towards loss of general amenities and enjoyment of life to the petitioner.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 49 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
86. Ld. Counsel for petitioner argued that petitioner had spent considerable amount on special diet, conveyance and attendant charges but she has failed to lead any cogent evidence on record in respect of amount incurred by her under the aforesaid heads. At the same time, it cannot be overlooked that she had sustained grievous injuries in the accident in question. Thus, she 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 her regular check up & follow up during the period of her medical treatment. She would have been definitely helped by some person either outsider or from her family, to perform her daily activities as also while visiting the hospital during the course of her medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 10,000/ each for conveyance, special diet and attendant charges to the petitioner.
Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 19,164/
2. Loss of income Rs. 51,000/
3. Pain and suffering Rs. 50,000/
4. Loss of general amenities and Rs. 40,000/ enjoyment of life Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 50 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
5. Conveyance, special diet and Rs. 30,000/ attendant charges Total Rs. 1,90,164/ Rounded off to Rs. 1,90,000/ Compensation in MACP No. 270/17 (Injured Master Samarth Aggarwal) MEDICAL EXPENSES
87. PW2 Sh. Bharat Aggarwal (father of minor injured Master Samarth Aggarwal, aged about 5 years) deposed in his evidence by way of affidavit(Ex. PW2/A) that after the accident, his son was taken to Brij Health Hospital, Vrindavan, however, due to lack of sufficient medical facility, he was referred to Maheshwari Hospital, Mathura and thereafter, he was taken to Jaipur Golden Hospital, Rohini, Delhi, where he remained admitted from 28.06.2015 to 03.07.2015. He further deposed that his minor son had sustained grievous injuries in the accident. He has relied upon medical bills of his minor son as Ex. PW2/8 (colly).
88. It is relevant to note that PW2 has relied upon medical bills (Ex. PW2/8 colly) to the tune of Rs. 79,276/. A bare perusal of document Ex. PW2/8 reveals that out of the aforesaid amount of medical bills, an amount of Rs. 75,296/ had been paid by the insurance company under mediclaim policy and remaining amount of Rs. 3,980/ had been paid by the Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 51 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 petitioner. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 3,980/ is awarded to the petitioner under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
89. PW2 has deposed that he had spent considerable amount upon the conveyance, attendant and special diet of his son, due to injuries suffered by him in the accident. However, no definite evidence whatsoever has been led to prove the same. Nevertheless, the injured Samarth Aggarwal is shown to have sustained 5% permanent disability in relation to his right lower limb due to the accident in question. Thus, it would involve guess work on the part of Tribunal to award notional amount under this head since petitioner would have definitely taken rich protein diet for his speedy recovery. He would have also used the facility of conveyance for visiting the hospital from time to time as OPD patient during the period of his treatment. 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. In these facts and circumstances, I hereby award a sum of Rs. 10,000/ on account of special diet and Rs. 15,000/ each on account of conveyance charges and attendant charges to the petitioner.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 52 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 LOSS OF STUDIES
90. PW2 has deposed in his evidence by way of affidavit (Ex. PW2/A) that injured Samarth Aggarwal was 5 years old and he was student at the time of accident. He further deposed that injured Samarth Aggarwal remained absent from his school for about 4 months. During his crossexamination on behalf of insurance company, he deposed that his son Samarth Aggarwal was the student of 1st class at the time of accident.
91. During the course of arguments, Ld. counsel for injured argued that injured had suffered loss of studies as he could not attend his school for considerable period. Therefore, appropriate compensation amount may be awarded to him. On the other hand, Ld. counsel for insurance company argued that no cogent evidence has been led on behalf of claimant to show that loss of studies suffered by the injured, no amount of compensation should be awarded under this head.
92. The medical treatment record of the petitioner reveals that he had suffered fracture right middle 1/3 of femur. It can not be overlooked that studies of injured would have been definitely affected due to the injuries sustained by him on account of accident. The claimant would have to incur extra amount in order to make up for the loss of his studies during the relevant Academic Session. Thus, a notional sum of Rs. 30,000/ is awarded in favour of petitioner and against the respondents under this head.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 53 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 Compensation under nonpecuniary heads
93. PW1/father of minor injured deposed in his evidence by way of affidavit(Ex. PW1/A) that the minor injured was student at the time of accident. PW2 filed the copy of Aadhaar Card of minor injured Ex. PW2/1 which shows his year of birth as 2010. The date of accident in the present case is 28.06.2015. Thus, injured was aged about 5 years at the time of accident. PW2 has deposed that due to the accident, his son had sustained grievous injuries resulting into 5% permanent disability in relation to his right lower limb. For this purpose, the testimony of PW9 Dr. Tarun Duggal, SR, Ortho, BSA Hospital, is relevant. He deposed that injured Master Samarth Aggarwal had suffered 5% permanent disability in relation to his right lower limb which is likely to continue throughout his life. He further deposed that on account of said disability, injured would have moderate difficulty in walking on plain surface, walking on slope and in taking turns.
94. As already noted above, injured was of tender age of 5 years at the time of accident. During the period of his childhood, he unfortunately met with an accident and has suffered 5% disability in relation to his right lower limb which is of permanent nature. He was definitely ray of hope for his parents and other family members and due to those injuries, the quality of his life has definitely been affected to a great extent. No amount of money would be sufficient to compensate the injured as money can not Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 54 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 restore his childhood and the activities/functions which would have been done by him in his youth as well as in latter part of his life. Still, notional amount of compensation has to be awarded, in an attempt to alleviate his sufferings.
95. Hon'ble Apex Court in the celebrated decision in the case of "Master Mallikarjun Vs. Divisional Manager, the National Insurance Company Ltd. & Anr. (s) " in Civil Appeal No. 7139/2013 decided on 26.08.13, while dealing with the question of assessment of compensation in case of children suffering disability on account of motor vehicular accident, held that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs. 4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Rs.1 lakh.
96. Now turning back to the facts of the present case, as already noted above, child namely Master Samarth Aggarwal had suffered 5% disability in this case, as proved in view of testimony of PW9 Dr. Tarun Duggal as well as the disability certificate dated 23.07.2019. While relying upon the decision in Master Mallikarjun's case(supra), I hereby award a sum of Rs. 1,00,000/ in favour of petitioner and against the respondents under this head.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 55 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 LOSS OF MARRIAGE PROSPECTS
97. Ld. Counsel for petitioner argued that the chances of marriage prospect of minor injured have decreased due to his permanent physical impairment. He therefore, urged that reasonable amount of compensation should be awarded to him under this head. Per contra, Ld. counsel for insurance company vehemently argued that there is no evidence led on this aspect during the course of inquiry and thus, no amount of compensation should be awarded under this head.
98. After considering the rival submissions made on behalf of both the sides, I find substance in the submissions raised on behalf of petitioner/claimant. In view of permanent physical impairment to the extent of 5% sustained by the injured, his chances of getting married have definitely been considerably reduced. He was aged somewhere about 5 years at the time of accident. It has been established from the testimony of PW9 Dr. Tarun Duggal that disability suffered by the child is likely to continue throughout his life. Thus, compensation under the head of loss of marriage prospects also deserves to be awarded in favour of petitioner. Hence, notional sum of Rs. 50,000/ is awarded to him under this head.
PAIN & SUFFERING CAUSED TO THE PARENTS
99. Ld. Counsel for claimant has also relied upon decision of Hon'ble Apex Court in the matter titled as "Kumari Kiran Vs. Sajjan Singh & Ors.", (2015) 1SCC 539, in support of his contention that appropriate Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 56 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 compensation should also be awarded on account of pain and suffering caused to parents of the injured child.
100. In the above cited decision, Hon'ble Apex Court while following the view taken in Master Mallikarjun(supra), calculated the compensation awardable to minor children who were rendered permanently disabled to the extent of 30% and 20% respectively, added Rs. 1,00,000/ each on account of pain and suffering in addition to the amount of compensation awarded under nonpecuniary heads of agony to parents, transportation, special diet, nutrition and future medical expenses, besides the actual expenditure under the heads of medical expenses and attendant.
101. Now reverting back to the facts of the present case. As already noted above, minor child namely Master Samarth had sustained permanent physical impairment to the extent of 5% in relation to his right lower limb. Thus, while following the decision rendered by Hon'ble Apex Court in Kumari Kiran(supra), I hereby award compensation of Rs. 25,000/ towards pain and suffering caused to the parents of injured child.
102. Thus, the total compensation is assessed as under:
1. Medical bills Rs. 3980/
2. Conveyance, special diet & attendant Rs. 40,000/ charges.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 57 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
3. Compensation under nonpecuniary heads Rs. 1,00,000/
4. Loss of marriage prospects Rs. 50,000/
5. Pain and suffering caused to the parents Rs. 25,000/ Total Rs. 2,18,980/ Rounded off to Rs. 2,19,000/
103. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. The insurance company/R3 has taken statutory defence that the respondent no. 1 was not having valid and effective driving licence at the time of accident in question. Per contra, Ld counsel for petitioners vehemently argued that there was valid and effective driving licence at the time of accident and thus, insurance company is liable to pay the compensation amount to the petitioners. For the said purpose, Ld. Counsel for petitioners has relied upon the testimony of PW1 Sh. Uday Aggarwal who produced the copy of driving licence of respondent no. 1 and marked the same as Mark D.
104. A bare perusal of document Mark D reveals that the respondent no. 1 was having valid and effective driving licence at the time of accident. In view of the aforesaid discussion, it is held that the insurance co has failed to prove that there was fundamental breach in the terms and conditions of insurance policy on the part of insured or that it is entitled to recovery rights against the insured. Consequently, it is held that insurance company is liable to pay the compensation amount so determined herein above, to the petitioners. Issue no. 2 is decided accordingly.
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 58 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 ISSUE NO. 3 RELIEF
105. In view of my findings on issues no. 1 & 2, following order is passed after relying upon judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016.
a) A sum of Rs. 17,38,000/(Rupees Seventeen Lakhs and Thirty Eight Thousand only) (including interim award amount, if any) in MAC Petition No. 271/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 22.03.17(except for the period of delay w.e.f. 18.04.2019 till 31.01.2020) till the date of its realization.
b) A sum of Rs. 9,61,000/(Rupees Nine Lakhs and Sixty One Thousand only) (including interim award amount, if any) in MAC Petition No. 267/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 22.03.17(except for the period of delay w.e.f. 18.04.2019 till 31.01.2020) till the date of its realization.
c) A sum of Rs. 5,48,000/(Rupees Five Lakhs and Forty Eight Thousand only) (including interim award amount, if any) in MAC Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 59 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 Petition No. 268/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 22.03.17(except for the period of delay w.e.f. 18.04.2019 till 31.01.2020) till the date of its realization.
d) A sum of Rs. 1,90,000/(Rupees One Lakh and Ninety Thousand only) (including interim award amount, if any) in MAC Petition No. 269/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 22.03.17(except for the period of delay w.e.f. 18.04.2019 till 31.01.2020) till the date of its realization.
e) A sum of Rs. 2,19,000/(Rupees Two Lakhs and Nineteen Thousand only) (including interim award amount, if any) in MAC Petition No. 270/17 alongwith interest @ 7% per annum in favour of petitioners and against the respondents w.e.f. date of filing of the petition i.e. 22.03.17(except for the period of delay w.e.f. 18.04.2019 till 31.01.2020) till the date of its realization.
Issue no. 3 is decided accordingly.
APPORTIONMENT
106. Statements of petitioners in terms of Clause 29 MCTAP were recorded on 17.11.2022. Having regard to the facts and circumstances of Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 60 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 the case and in view of their statements, it is hereby ordered that out of total compensation amount in MAC Petition No. 271/17, a sum of Rs. 5,38,000/(Rupees Five Lakhs and Thirty Eight Thousand Only) shall be immediately released to the petitioner Sh. Uday Aggarwal through his saving bank account no. 520402010275960 with Union Bank of India, CSCII, Sector - 9, Rohini, Delhi, having IFSC Code UBIN0552046 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 30,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
107. in MAC Petition No. 267/17, a sum of Rs. 3,61,000/(Rupees Three Lakhs and Sixty One Thousand Only) shall be immediately released to the petitioner Smt. Kanta Aggarwal through his saving bank account no. 520402010275956 with Union Bank of India, CSCII, Sector - 9, Rohini, Delhi, having IFSC Code UBIN0552046 and remaining amount alongwith interest amount are directed to be kept in the form of FDRs in the multiples of Rs. 20,000/ each for one month, two months, three months and so on and so forth having cumulative interest.
108. In MACP No. 268/17, the entire award amount of Rs. 5,48,000/ (Rupees Five Lakhs and Forty Eight Thousand Only) alongwith interest shall be immediately released to the petitioner Ms. Nidhi Aggarwal through her saving bank account no. 520402010275941 with Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 61 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 Union Bank of India, CSCII, Sector - 9, Rohini, Delhi, having IFSC Code UBIN0552046.
109. In MACP No. 269/17, the entire award amount of Rs. 1,90,000/ (Rupees One Lakh and Ninety Thousand Only) alongwith interest shall be immediately released to petitioner Ms. Garima Aggarwal through her saving bank account no. 520402010275962 with Union Bank of India, CSCII, Sector - 9, Rohini, Delhi, having IFSC Code UBIN0552046.
110. In MACP No. 270/17, the entire award amount of Rs. 2,19,000/ (Rupees Two Lakhs and Nineteen Thousand Only) alongwith interest shall be immediately released to petitioner Master Samarth Aggarwal through his saving bank account no. 520402120000272 with Union Bank of India, CSCII, Sector - 9, Rohini, Delhi, having IFSC Code UBIN0552046.
111. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(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).
Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 62 of 65MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023
(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 premature 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 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. Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 63 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 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.
112. Respondent no. 3, being insurer of 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 the respective amounts of petitioners in their aforesaid saving bank accounts mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimants approach the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimants. Copy of this award be also given dasti to counsel for insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of both the petitioners, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP. Signed copy of this Award Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 64 of 65 MACP Nos. 271/17, 267/17, 268/17, 269/17 & 270/17; FIR No. 268/15 DOD: 01.02.2023 be placed on the judicial record of MAC Petition Nos. 267/17 to 270/17 as per the rules.
Announced in the open Court on 01.02.2023 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 65 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Uday Aggarwal, Kanta, Nidhi,Garima & Samarth Vs. Shahun & Ors. Page 65 of 65