Delhi District Court
Raju Gupta vs Amit on 29 May, 2024
IN THE COURT OF SH. SACHIN GUPTA,
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL-02,WEST,TIS HAZARI COURTS, DELHI
MACT Case No. 326/2021
DLWT010066842021
Sh. Raju Gupta
S/o Sh. Ganga Prasad,
R/o H. No. 38, Nilothi Village,
Nilothi, Delhi-110041. .....Petitioner
Versus
1. Sh. Amit
S/o Sh. Kashi Ram
R/o Jhau Lal Pura, Bah,
Agra, UP-283104.
2. Jitender Kumar
S/o Sh. Prem Singh
R/o RZ-F/4, Kh. No. 34/2,
Nihal Vihar, Nangloi,
Delhi.
3. Liberty General Insurance Limited
Office at:
10th Floor, Tower A, Peninsula Business Park
Ganpat Rao Kadam Marg,
Lower Parel, Mumbai,
Maharashtra. .....Respondents
Date of Institution : 20.09.2021
Date of reserving order/judgment : 21.05.2024
Date of pronouncement : 29.05.2024
SACHIN Digitally signed by
SACHIN GUPTA
GUPTA Date: 2024.05.29
16:47:44 +0530
MACT No. 326/2021 Date of Award: 29.05.2024
Raju Gupta Vs. Amit & Ors. Page No. 1 of 25
AWAR D
1. Proceedings in the present case arises from filing of DAR by the investigating officer in FIR No. 725/2019 PS Ranhola regarding the accident in question. As per the documents annexed with the DAR, on 03.12.2019 at about 9.30 AM, while the petitioner Sh. Raju Gupta was going on his Scooty bearing registration no. DL4SCU-2005 and when he reached at Ganda Nala Road, Kunwar Singh Nagar, near Naveen Scrap Dealer Shop, Delhi, suddenly, a vehicle bearing registration no. DL1LAB-1461(White colour Bolero) (offending vehicle) being driven by respondent no. 1 (Mr. Amit) in high speed and in rash and negligent manner, hit against the Scooty of the petitioner and due to the forceful impact of hitting, the petitioner fell down on the road alongwith his Scooty and sustained grievous injuries. It is further stated that petitioner was medically examined at Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi vide MLC No. 19628 dated 03.12.2019.
2. IO filed the DAR giving details of respondent No. 1 being the driver, the respondent no.2 being the owner of the offending vehicle and the respondent no.3 being the Insurer of the offending vehicle. DAR was also accompanied with other relevant documents including final report U/s 173 CrPC, MLC of injured, mechanical inspection report of both the vehicles, seizure memos of both vehicles, its documents, site plan, arrest memo of accused (respondent no. 1 herein), notice U/s 133 M.V. Act and its reply etc.
3. A joint written statement has been filed on behalf of the respondent no. 1 and 2, wherein it is stated inter alia that SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:47:54 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 2 of 25 alleged accident had not taken place on account of alleged rash and negligent driving on the part of respondent no.1; that on the date of accident, the Bolero no. DL1LAB-1461 was in the care and custody of the respondent no.2/Jitender Kumar, who is its owner; that the respondent no.1 was driving the Bolero no. DL1LAB1461 for the last several years and having a valid and effective driving license bearing No. UP8020180022253; that the offending vehicle was duly insured with Liberty General Insurance Limited vide its policy no. 2013-200102-19-8001213- 00-000 covering the insurance risk from 01.09.2019 to 31.08.2020 in the name of respondent no.2 Jitender Kumar and as per the contract of insurance, the insurer is liable to indemnify the insured; that on the date of alleged accident, the Bolero no. DL1LAB1461 was having a valid certificate of fitness; that the claim of the petitioner is highly inflated and exaggerated for which petitioner is not entitled under the law.
4. A reply has been filed on behalf of the insurance company/respondent no.3, wherein it is stated inter alia that the vehicle bearing registration No. DL1LAB1461 was insured with respondent no. 3 for the period from 01.09.2019 to 31.08.2020, subject to the terms and conditions incorporated in the insurance policy and the liability of the insurance company is subject to terms and conditions of the insurance policy and provisions of Motor Vehicle Act; that there is no other independent eye-witness who is stated to have seen the accident caused by the aforesaid vehicle; that there are reasonable doubt regarding the involvement of the insured vehicle in the alleged accident; that respondent no. 1 was not holding a valid and effective driving license at the time of accident to drive the aforesaid vehicle, SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:48:03 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 3 of 25 which was a light goods vehicle; that respondent no. 2 has violated the terms and conditions of the insurance policy and therefore, insurance company is not liable to indemnify the respondent no. 2 or to pay any compensation amount to the petitioner; that petitioner had sustained injuries due to his own negligence while driving the Scooty and he was not holding any driving license authorizing him to drive it.
5. From the pleadings of the parties, following issues were framed by the Ld. Predecessor of this Tribunal on 18.05.2023:-
1. Whether the injured Raju Gupta suffered injuries in a vehicular accident that took place on 05.12.2019 at 9.30 am at Ganda Nala Road, Kunwar Singh Nagar, Delhi involving a vehicle no.DL1LAB1461 (offending vehicle) being driven by respondent no.1/Amit in a rash and negligent manner, owned by respondent no.2/Jitender Kumar and insured with respondent no.3 Liberty General Insurance Limited? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
6. In order to prove his case, injured/petitioner examined himself as PW1, who tendered his evidence by way of affidavit Ex.PW1/X.
7. Respondent no.2 Jitender Kumar examined himself as R2W1 in respondent evidence. Whereas, on behalf of respondent no. 3/Insurance Co., one witness i.e. R3W1 Dr. Pravendra Singh was examined.
8. I have heard arguments advanced by Ld. counsel for petitioner as well as Ld. counsel for respondents. I have also SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:48:18 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 4 of 25 gone through the record carefully and my issue wise findings are as under :
ISSUE No.1
9. It is settled proposition of law that an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303.
10. The onus to prove this issue was placed on the petitioner. Petitioner/PW-1 Raju Gupta tendered his affidavit in evidence which is Ex.PW1/X and relied upon the documents i.e.
(i) Copy of his Aadhar Card Ex.PW1/1; (ii) Copy of his PAN Card Ex.PW1/2; (iii) Copy of his Driving license Ex.PW1/3; (iv) Original treatment record Ex.PW1/4 (Colly); (v) Original medical bills Ex.PW1/5 (Colly); (vi) Copy of ITR marked as Mark PW1/6; (vii) Photograph of injured showing injuries Ex.PW1/7; (viii) DAR Ex.PW1/8 and (ix) Disability certificate Ex.PW1/9.
11. In his cross-examination done by the Ld. counsel for SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:48:26 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 5 of 25 the respondent no.3, PW-1 stated that the position of his Scooty was on the left side of the road on the date of accident; that there was no divider on the road where the accident had taken place;
that the offending vehicle hit his scooty from its front side and he had not seen the offending vehicle prior to the accident as it came all of a sudden at high speed. In his cross-examination done by the Ld. Counsel for the respondent no.1 and 2, PW1 denied that the accident did not occur due to the fault of the offending vehicle.
12. PW-1 deposed in lines with the petition and has well explained the mode and manner of the accident. From the careful perusal of the testimony of the injured / PW-1 including his cross examination, there is nothing material has been elicited to disbelieve the version of accident as given by PW-1. Rather evidence of PW-1 remained consistent on the aspect of accident, having been caused by rash and negligent driving of respondent no.1 (driver of offending vehicle). It is evident from the testimony of PW-1 that respondents could not impeach his testimony through litmus test of cross-examination. Said witness is found to have successfully withstood the test of cross- examination. PW-1 himself is the injured having sustained injuries due to the accident in question. There is no reason as to why he would depose falsely against respondent no.1. The testimony of PW-1 remained unimpeachable on the aspect of accident in question. There is no possibility of false implication of respondent no. 1 and/or false involvement of offending vehicle at the instance of petitioner herein.
13. Not only this, the respondent no. 1 namely Amit (accused in State case) has been charge-sheeted (which is part of SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:48:34 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 6 of 25 copies of criminal case available on record) for offences punishable u/s 279/338 IPC Act by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending vehicle by him.
14. Petitioner in his evidence has also placed reliance on the DAR, which include the report u/s 173 Cr.P.C. filed by IO in FIR No. 725/2019 PS Ranhola, site plan of the accident, MLC of injured, mechanical inspection report of both the vehicles, seizure memos of both vehicles, its documents, site plan, arrest memo of accused (respondent no. 1 herein), notice U/s 133 M.V. Act and its reply etc. Same also points out towards the rash and negligent driving of aforesaid vehicle by respondent no. 1 and corroborates the ocular testimony of PW1 to that extent.
15. Moreover, apart from petitioner, the respondent no. 1 Amit was the other material witness who could have thrown sufficient light as to how and under what circumstances, the accident in question took place. However, he did not enter into witness box during the course of inquiry. Thus, an adverse inference is liable to be drawn against him for not entering into the witness box, to the effect that the accident occurred due to rash and negligent driving of offending vehicle by him. Plea of the respondents that it was injured who was negligent due to which accident caused, has not been substantiated by any cogent evidence.
16. The respondent no.2 Jitender Kumar examined himself and filed an affidavit in evidence Ex.R2W1/X and relied upon the documents i.e. (i) Copy of driving license of respondent no.1 Amit Mark 1/R2W1, (ii) Copy of Fitness certificate of SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:48:43 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 7 of 25 vehicle Mark 2/R2W1; (iii) Copy of Registration certificate Mark 3/R2W1; (iv) Copy of application/information/robkar dated 05.12.2019 Mark 4/R2W1; (v) Copy of insurance policy Mark 5/R2W1 and (vi) Copy of his Aadhar Card Mark 6/R2W1. However, since, respondent no. 2 (owner of offending vehicle) is not an eye-witness to the accident in question, hence, his testimony offers no help to the respondent no.1 to absolve him of his alleged rash and negligent driving of offending vehicle.
17. Thus, in view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of preponderance of probabilities that he had sustained injuries in road accident which took place on 03.12.2019 at about 9.30 AM at Ganda Nala Road, Kunwar Singh Nagar, near Naveen Scrap Dealer Shop, Delhi, due to rash and negligent driving of offending vehicle by the respondent no. 1 (driver of offending vehicle). Accordingly, issue no.1 stands decided in favour of petitioner. ISSUE No.2
18. In view of the finding on issue no.1, petitioner is entitled to get compensation, however, the quantum of compensation still needs to be adjudicated. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall or a bonanza nor it should be pittance. A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) Ac 467 at page 492 per Lord Reid).
SACHIN Digitally signed by
SACHIN GUPTA
GUPTA Date: 2024.05.29
16:48:55 +0530
MACT No. 326/2021 Date of Award: 29.05.2024
Raju Gupta Vs. Amit & Ors. Page No. 8 of 25
COMPUTATION OF COMPENSATION
19. The scope of compensation in injury cases has been considered by Hon'ble Supreme Court in case titled as Mr. R.D. Hattangadi v. M/s Pest Control (India) Pvt. Ltd., 1995 AIR
755. The relevant extract is as under:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, discomfort, disappointment, hardship, frustration and mental stress in life."
20. Further, in Raj Kumar v. Ajay Kumar & another SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:49:04 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 9 of 25 (2011) 1 SCC 343, Hon'ble Supreme Court of India laid down general principles for computation of compensation in injury cases. The relevant paras of the judgment are reproduced as under:
4. The provisions of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary Damages (special
damages)
(i) Expenses relating to treatment,
hospitalization, medicines,
SACHIN Digitally signed by
SACHIN GUPTA
GUPTA Date: 2024.05.29
16:49:11 +0530
MACT No. 326/2021 Date of Award: 29.05.2024
Raju Gupta Vs. Amit & Ors. Page No. 10 of 25
transportation, nourishing food and
miscellaneous expenditure.
(ii) Loss of earnings (and other
gains) which the injured would have
made had he not been injured,
comprising:
(a) Loss of earning during the
period of treatment.
(b) Loss of future earnings on
account of permanent disability.
(iii) Future medical expenses.
Non-Pecuniary Damages (general
damages)
(iv) Damages to pain, suffering and
trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii), (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii), (b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
21. In the light of the aforementioned judgments, the compensation to which the petitioner is entitled shall be as under:-
Medical Expenses:
22. PW-1 i.e. the injured himself, has deposed inter alia SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:49:19 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 11 of 25 in his evidence by way of affidavit Ex.PW1/X that after the accident, he was removed to Sanjay Gandhi Hospital, Delhi and thereafter he got his treatment from RML Hospital, Delhi, where he remained admitted from 07.01.2020 to 11.10.2020 and he also got his treatment from private hospital/doctors. Petitioner has filed on record the medical treatment record Ex.PW1/4 (Colly) and medical bills Ex.PW1/5 (Colly). In his cross-examination done by the Ld. Counsel for the respondent no.3, he admitted that he got himself treated from the government hospital. It is noted that the petitioner/injured has filed medical bills to the tune of Rs.24,054/- in all (which are part Ex.PW1/5 Colly). It is quite evident that respondents have not disputed the authenticity and genuineness of the said medical bills and there is no reason to disbelieve the same. Accordingly, a sum of Rs.24,054/- is awarded to the petitioner under this head. Loss of income during treatment period
23. PW-1 has deposed inter alia in his evidence by way of affidavit Ex.PW1/A that he was running a proprietorship firm and earning Rs.45,000/- per month. In his cross examination by Ld. Counsel for respondent no. 3 / Insurance Co., he stated that he was running the factory of power press machine since 2017 for which he did not have any license. He denied that he was not earning Rs.45,000/- per month. He has also filed his income tax return (ITR) acknowledgement form for the assessment year 2019-2020 Mark PW1/6.
24. As per the income tax return (ITR) acknowledgement form of the petitioner for the assessment year 2019-2020, the gross total income of petitioner for the assessment year 2019-2020 is Rs.3,09,440/-. It is well settled that SACHIN Digitally signed by SACHIN GUPTA GUPTA 16:49:28 +0530 Date: 2024.05.29 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 12 of 25 the income tax return is a statutory document on which reliance may be placed to determine the annual income of injured. (In this regard, reference is craved to the Judgment of the Hon'ble Supreme Court in the case of Malarvizhi & Others Vs. United India Insurance Company Limited & Another, 2019 SCC online SC 1579).
25. As per the aforesaid income tax return (ITR) acknowledgement form of the injured for the assessment year 2019-20, the gross total income of injured was Rs.3,09,440/-. Hence, having considered the material placed on record and taking note of the gross total income as reflected as per income tax return of injured, this Tribunal assesses the annual income of the injured Sh. Raju Gupta to be at parity with his gross total income as reflected in his aforesaid ITR, which is Rs.3,09,440/- per year. As such, the monthly income of the injured, comes out to be Rs.25,786.6/- per month (Rounded off to Rs.25,787/- per month).
26. Petitioner / PW-1 has deposed that after the accident, he was taken to Sanjay Gandhi Hospital, Delhi and thereafter he had taken his treatment from Dr. RML Hospital, Delhi, where he remained admitted from 07.01.2020 to 11.10.2020 and thereafter he got his treatment from private hospital/doctors; that due to the accident, he had suffered multiple and grievous injuries fracture Humerus (Rt), Galeazi (Lt.) with undisplaced fracture DER (Rt.) and other injuries all over his body. As per discharge summary of petitioner, which is part of Ex.PW1/4, he remained hospitalized from 07.01.2020 to 11.10.2020 in Dr. Ram Manohar Lohia Hospital, New Delhi. Further, petitioner has also relied upon his Disability Certificate SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:49:37 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 13 of 25 issued by Janakpuri Super Speciality Hospital, New Delhi, which is Ex.PW1/9, which shows that petitioner has suffered permanent disability to the extent of 40% (under the category of Chronic Neurological Conditions) [Post RTA (Rt.) Brachial Pletopathy (mRS Score-2)]. Hence, keeping in view of the medical treatment record, nature of injuries and duration of his admission in hospital and the treatment of the injured/petitioner as well as surrounding circumstances, this Tribunal is of the opinion that injured/petitioner would not be able to work for a period of about 12 months. Accordingly, this Tribunal hereby grant compensation of sum of Rs. 3,09,444/- (Rs. Rs.25,787/- x 12) to the petitioner under this head towards loss of income during treatment period. Compensation on account of loss of future earnings due to permanent disability
27. Coming now to the question of permanent disability, petitioner has relied upon the disability certificate issued from Janak Puri Super Speciality Hospital, Janak Puri, Delhi and as per the Disability Certificate Ex.PW1/9, the petitioner's permanent disability has been assessed as 40% permanent disability (under the category of Chronic Neurological Conditions) [Post RTA (Rt.) Brachial Pletopathy (mRS Score-2)].
28. It is well settled that where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. Same injury suffered by two different persons may affect them in different ways. Loss of leg by a farmer or by a rickshaw puller may be an end of road for his earning capacity, in comparison to a person who does some desk SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:49:45 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 14 of 25 work in office. There is no doubt to the legal proposition that the evidence on the record is to be assessed, for the purpose of ascertaining the functional disability of the petitioner on account of medical permanent disability to assess how much the medical disability adversely affected on the functional capacity of the petitioner/injured so that just and fair amount of compensation can be ascertained under the heading of future loss of earning. In the present case, it is evident on record that as a result of the injuries sustained by petitioner in an accident, he suffered 40% permanent disability (under the category of Chronic Neurological Conditions) [Post RTA (Rt.) Brachial Pletopathy (mRS Score-2)]. Now question arises how much 40% of his permanent disability has effected on the functional ability of petitioner.
29. The respondent no.3/insurance company has examined Dr. Pravendra Singh from Janak Puri Super Speciality Hospital as R3W1 and he deposed that the disability of Raju Gupta was assessed as 40% in relation to post RTA [Right (RT) Brachial Plexopathy] (mRS score-2). He further deposed that the patient suffered head injuries with loss of consciousness, fracture of right proximal humerous with fracture galeazza with undisplaced fracture of left distal end of left radius with right brachial plexopathy. He also deposed that the patient has history of head injury followed by loss of consciousness and right brachial plexopathy.
30. It came in the deposition of PW-1 that due to the accident in question, petitioner was not in the position to continue his work till date and suffered complete loss of earning. It has come on record that at the time of accident, petitioner was running his proprietorship firm. Since, petitioner is a SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:49:55 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 15 of 25 businessman and the nature of his work would require his full involvement in the activities of his business, his constant supervision as well as moving around to solicit customers for his business, however, 40% of permanent disability (under the category of Chronic Neurological Conditions) [Post RTA (Rt.) Brachial Pletopathy (mRS Score-2)], would certainly affect the functional ability of the petitioner to some extent. Keeping in view the overall facts and circumstances of the case and material placed on record including the nature of injuries sustained by petitioner as well as the disability suffered by him, this Tribunal assess the functional disability of the petitioner to the extent of 30% for the purpose of assessing corresponding loss of his future income.
31. Further, law is well settled that there should be no departure from the multiplier method in injury cases also [refer:
Sandeep Khanuja vs. Atul Dande & Anr., (2017) 3 SCC 351]. As per PAN Card of the petitioner Ex. PW1/2, his date of birth is 14.01.1969. As such, age of petitioner as on date of accident i.e. 03.12.2019 was about 50 years and 10.5 months. As per settled principle laid down in case of Sarla Verma v. DTC (2009) 6 SCC 121, the multiplier as applicable to the age group between 46-50 years is 13 and the multiplier as applicable to the age group between 51-55 years is 11. In the present matter, since, on the date of accident, the petitioner has not completed 51 years of age, as such, multiplier to be applied in the present case would be 13. (In this regard, reliance is placed on the Judgments of the Hon'ble High Court of Delhi in the case titled as "United India Insurance Company Limited V/s Smt. Neelam & Ors.", MAC APP.No.613/2012, date of decision: 26.11.2015 and the case SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:50:02 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 16 of 25 titled as "U.P State Road Transport Corporation V/s Rajan Raut & Anr.", MAC.APP.No.586/2017, date of decision:
22.08.2022).
32. Moreover, the law has been well settled by the decisions of Hon'ble Supreme Court in the cases of Sandeep Khanuja (supra) and Erudhaya Priya vs. State Express Transport Corporation Ltd., 2020 SCC OnLine SC 601, that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. Thus, considering the petitioner being 50 years and 10.5 months of age at the time of accident, an addition of income to the extent of 10% towards future prospects has to be counted.
33. As discussed above, the income of petitioner has been assessed as Rs. 25,787/- + 10% (Rs. 2,578.7/-), total Rs. 28,365.7/- (Rs. 25,787/- + Rs. 2,578.7/-). Thus applying the functional disability to be 30% of Rs. 28,365.7/-, amount comes out to be Rs. 8,509.71/-. As such the total loss of earning capacity in future income due to disability comes out to be Rs. 8,509.71/- X 12 X 13 = Rs. 13,27,514.76/-. Thus, a sum of Rs. 13,27,515/- (rounded off) is awarded in favour of petitioner under this head. Special Diet, Conveyance Charges & Attendant Charges:
34. During the course of arguments, Ld. Counsel for the petitioner argued that petitioner had spent considerable amount on special diet, conveyance and attendant. Though petitioner has filed on record his medical bills, but no documentary evidence in the form of bills of transportation, special diet and attendant charges has been placed on record to substantiate his claim that he has incurred any expenses towards conveyance, special diet SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:50:10 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 17 of 25 and on attendant. At the same time, it cannot be overlooked that he had sustained grievous injuries and disability in the accident. 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 checkup and follow up during the period of his medical treatment. He would also 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 the absence of any such documentary proof, this Tribunal while taking into consideration period of hospitalization of petitioner, seriousness of injuries suffered by him as well as his regular follow up with the concerned hospital, finds it appropriate to grant a notional amount i.e. a sum of Rs.20,000/- towards conveyance charges, a sum of Rs.30,000/- towards special diet and a sum of Rs.1,00,000/- towards attendant charges to the petitioner.
Pain & Sufferings
35. Hon'ble Delhi High Court 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.
SACHIN Digitally signed by
SACHIN GUPTA
GUPTA Date: 2024.05.29 16:50:23
+0530
MACT No. 326/2021 Date of Award: 29.05.2024
Raju Gupta Vs. Amit & Ors. Page No. 18 of 25
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".
36. Petitioner/Injured has deposed to the effect that he has suffered mental pain, bodily pain and agony due to the accident. Petitioner / injured had sustained multiple injuries including permanent disability due to the accident in question. He suffered permanent disability to the extent of 40%. Ocular testimony is duly corroborated with the medical record of the petitioner placed on record. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record, I hereby award a sum of Rs.50,000/- towards pain and sufferings to the petitioner. (Reliance placed on Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors bearing MAC.APP. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court). Compensation towards loss of amenities of life
37. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had suffered multiple injuries due to the accident in question. He has also sustained permanent disability to the extent of 40%, which is duly established from the disability certificate issued by Janak Puri Super Speciality Hospital, Delhi. Thus, he would not be able to enjoy general amenities of life after the accident in question, during rest of his life. In view of the nature of injuries including permanent disability suffered by him and his continued treatment, I award a notional sum of Rs.25,000/-
SACHIN Digitally signed by
SACHIN GUPTA
GUPTA Date: 2024.05.29
16:50:31 +0530
MACT No. 326/2021 Date of Award: 29.05.2024
Raju Gupta Vs. Amit & Ors. Page No. 19 of 25
towards loss of amenities of life to the petitioner. (Reliance placed on Oriental Insurance Co Ltd Vs. Manjeet Singh & Ors bearing MAC.APP. 359/2009 decided on 10.04.2017 by Hon'ble Delhi High Court).
Compensation towards disfiguration
38. Considering the facts and circumstances of the present facts, the nature of injuries suffered by the petitioner including the permanent disability to the extent of 40% and material placed on record as discussed herein before, I finds it appropriate to grant a notional sum of Rs. 25,000/- on account of loss of disfiguration.
39. Thus, the compensation awarded to the petitioner is summarized as under:-
S Heads of Compensation Amount
No.
1. Medical expenses Rs. 24,054/-
2 Loss of income during Rs. 3,09,444/-
treatment period
3. Compensation on account of Rs. 13,27,515/-
loss of future earning due to
permanent disability
4. Special diet Rs. 30,000/-
5. Conveyance Rs. 20,000/-
6. Attendant charges Rs. 1,00,000/-
7. Pain and Suffering Rs. 50,000/-
8. Loss of amenities of life Rs. 25,000/-
9. Disfiguration Rs. 25,000/-
Total Rs. 19,11,013/-
40. Thus, the total compensation amount to which the petitioner is entitled comes to Rs. 19,11,013/- (Rupees Nineteen Lakh Eleven Thousand and Thirteen Only). INTEREST ON AWARD
41. Petitioner shall also be entitled to interest at the rate SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:50:40 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 20 of 25 of 7% per annum on the award amount from the date of filing of the DAR i.e. 20.09.2021 till realization. LIABILITY
42. Now the question arises as to which of the respondent is liable to pay the compensation amount. Respondent no. 3 has sought to avoid his liability on the ground that the respondent no.1 was not holding a valid and effective driving license at the time of accident to drive the vehicle in question bearing no. DL1LAB 1461, which was a light goods vehicle. Thus, the insurance company is not liable to indemnify the insured and is not liable to pay any compensation to the petitioner.
43. In order to appreciate the aforesaid submission, it would be relevant to refer to the relevant document i.e. Driving License (which is part of DAR Ex. PW1/8 colly) in the name of respondent no. 1. The perusal of copy of driving license of respondent no. 1 Sh. Amit, would show that said DL was issued in respect of LMV (Light Motor Vehicle) and MCWG (Motorcycle with Gear) on 20.09.2018 having validity upto 19.09.2038 (date of accident being 03.12.19). The same remained unimpeachable on the part of the respondent no. 3 / Insurance Company. There is no evidence brought on record by the respondent no. 3 to show that the driving license of the respondent no. 1 Amit was not valid for the purpose of driving of vehicle in question. Moreover, as per the copy of registration certificate of the offending vehicle filed alongwith the DAR, it shows its class as "Goods Carrier" and its unladen weight is 1595 kg. As per the fitness certificate of offending vehicle, its category is 'LGV'. That being so, it falls in the category of LMV as per SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:50:48 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 21 of 25 definition contained in Section 2(21) of M.V. Act. The position in law has been settled by Hon'ble Supreme Court of India in "Mukund Dewangan Vs. Oriental Insurance Company Ltd.", 2017 (7) SCALE 731, wherein it has been held that even where the driver was holding a driving licence which was valid for LMV, whereas the vehicle involved is light goods vehicle (LGV), the insurance company is not entitled to any recovery rights. Similar view has been taken by Hon'ble Delhi High Court in "New India Assurance Company Limited Vs. Subhash Rastogi & Ors.", MAC APP No. 438/2009 decided on 25.07.17 and in another decision in the case of " Ram Narayan Verma Vs. Rajani & Ors. (Reliance General Insurance Company Ltd.), MAC APP No. 478/2017 decided on 27.07.17.
44. Furthermore, the difference between the category of LMV(NT) and that of LMV (Commercial) has been done away with by Ministry of Road Transport and Highways, Government of India vide its Circular No. RT-11021/44/2017-MVL dated 16.04.2018, while following the dictum of law laid down by Hon'ble Apex Court in Mukund Dewangan's case (supra).
45. Moreover, the plea of the insurance company that injured was not having valid driving license to drive the Scooty is also not found sustainable in view of the copy of driving license of petitioner placed on record by him, which is Ex.PW1/3 (OSR) and the same is valid from 30.10.2019 to 13.01.2029 (NT). The same also remained unimpeachable on the part of the respondent no. 3 / Insurance Co.
46. In view of aforesaid discussion and keeping in view the existence of valid insurance policy, the insurance company is held liable to pay the compensation amount to the petitioner. It SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:50:56 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 22 of 25 cannot be allowed to escape from its liability to indemnify the insured so far as payment of compensation amount is concerned. Hence, it is held that the insurance company is liable to pay the compensation amount as it is duty bound to indemnify the insured under the law. Issue no. 2 is decided accordingly. RELIEF
47. In view of my finding on issues no. 1 and 2, this Tribunal awards a compensation of Rs. 19,11,013/- (Rupees Nineteen Lakh Eleven Thousand and Thirteen Only) (including interim award amount, if any) alongwith interest at the rate of 7% per annum in favour of petitioner and against the respondents w.e.f. date of filing of DAR i.e. 20.09.2021 till realization, to be paid by the respondent no.3/insurance company. The respondent no.3/insurance company is directed to deposit the award amount with State Bank of India, Tis Hazari Courts, Delhi in the MACT Account of this Tribunal having Account no. 40714429271, IFSC Code. SBIN0000726 Tis Hazari Courts, Delhi, within 30 days from today. The respondent no. 3 is also directed to give notice regarding deposit of the said amount to the petitioner.
Disbursement of Award Amount
48. Statement of petitioner in terms of provisions of MCTAP was recorded on 21.05.2024. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the award amount, a sum of Rs. 3,11,013/- (Rupees Three Lacs Eleven Thousand and Thirteen Only) shall be immediately released to the petitioner through his saving bank account and remaining amount of Rs. 16,00,000/- (Rupees Sixteen Lacs Only) along with the interest on the entire SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.05.29 16:51:04 +0530 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 23 of 25 award amount is directed to be kept in the form FDRs (fixed deposit receipts) in the multiples of Rs. 20,000/- each for a period of one month, two months, three months and so on and so forth, having cumulative interest and subject to the following directions:-
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant i.e., the savings bank account of the claimant shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d) The maturity amounts of the FDR be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(e) No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant. 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.
(g) The bank shall make an endorsement on the passbook of the claimant 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 shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
SACHIN Digitally signed by SACHIN GUPTA GUPTA 16:51:11 +0530 Date: 2024.05.29 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 24 of 25
49. Respondent no. 3 i.e. Liberty General Insurance Limited, being insurer of offending vehicle, is directed to deposit the compensation amount with State Bank of India, Tis Hazari 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, State Bank of India, Tis Hazari Courts branch is directed to transfer the amount of Rs. 3,11,013/- in the MACT saving bank account of claimant/petitioner, on completing necessary formalities as per rules.
50. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of State Bank of India, Tis Hazari Courts branch, Delhi for information and necessary compliance.
51. Form XVI and Form XVII in terms of MCTAP are annexed herewith as Annexure-A.
52. A separate file be prepared for compliance report by the Nazir .
53. A copy of this award be given to the parties free of cost.
54. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the Modified Claim Tribunal Agreed Procedure (MCTAP).
SACHIN Digitally signed by SACHIN GUPTA GUPTA 16:51:21 +0530 Date: 2024.05.29 Announced in the open Court (SACHIN GUPTA) On 29th May, 2024 PO-MACT-02(WEST) THC/Delhi/29.05.2024 MACT No. 326/2021 Date of Award: 29.05.2024 Raju Gupta Vs. Amit & Ors. Page No. 25 of 25