Delhi District Court
Mukesh Kumar vs Ashok Chadha on 9 December, 2024
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 373/2018
FIR no. 926/2017
PS Indirapuram, Ghaziabad
U/s 279/338 IPC
CNR No.: DLSE01 001777-2018
Mukesh Kumar Vs. Ashok Chaddha & Ors.
Mukesh Kumar
S/o Sh. Kamal Singh
R/o H. No. 1078, VPO-
Jargawan, Distt. Bulandshahar,
Uttar Pradesh.
.....Petitioner
Versus
1. Ashok Chaddha
S/o Prithvi Chand Chaddha
R/o H. No. 118, TF, Vinova Puri
Lajpat Nagar-II, New Delhi.
...R-1/ driver cum owner
2. SBI Gen. Ins. Co. Ltd.
7B, Ground Floor, Pusa Road,
Rajendra Park Road, New Delhi.
...R-2/ Insurance Company
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3. Zedex Nissan
Plot No. 89, FIE, Patparganj, Delhi.
.......Respondent no.3.
Date of accident : 22.03.2017
Date of filing of petition : 01.03.2018
Date of Decision : 09.12.2024
AWARD
1. This is a claim petition filed under Section 166 and 140
M.V. Act on 22.03.2017 by Sh. Mukesh Kumar (hereinafter
called the claimant/ injured) on account of injuries suffered by
him in a Road Traffic Accident (RTA) with vehicle bearing Reg.
No. DL 1CQ 9213 (hereinafter referred as offending vehicle),
driven & owned by Sh. Ashok Chaddha (hereinafter called R-1/
driver), and insured with SBI Gen. Ins. Co. Ltd (hereinafter
called R-2/ Owner).
Brief facts of the case:
2. On 22.03.2017, at about 10.00 PM, claimant was pulling
rickshaw loaded with vegetables on Mohan Nagar Road that a
car bearing Reg. No. DL 1CQ 9213, being driven speedily in a
rash and negligent manner rammed into his rickshaw in front of
41, PAC Battalion seriously injuring him. Claimant was rushed
to hospital by PCR van. It is alleged that the accident was caused
due to rash and negligent driving of offending car. FIR was
registered on the statement of claimant. A sum of Rs. 20 lakhs
has been sought as compensation.
Reply:
3. Notice of the petition was sent to the respondents. In
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response to claim petition, Written Statement on behalf of R-1
was filed wherein he asserted that the accident never happened
with the alleged offending vehicle and as such, R-1 was
travelling from Vaishali towards UP Gate, Red Light when he
spotted a person lying on the road with his rickshaw / rehdi and
stopped his car to help him who was subsequently lifted by PCR
car to the hospital. It is stated that the FIR has been registered as
an afterthought and that the allegations are totally false and
motivated. It is submitted that the delay of over 3 months from
the date of accident till registration of FIR has not been
explained. Subsequently, counsel for Insurance Company
informed that counsel for R-1 & 2 has given the information
about death of R-1 as noted in the order dated 13.05.2024 upon
which notice was re-issued to R-1/ legal heirs. Report in this
respect was filed by HC Manoj Kumar with the verification that
R-1 has expired as intimated by his wife Smt. Rita Chaddha who
provided a copy of Death Certificate of R-1 as annexed with the
report. Notice was re-issued to legal heirs of R-1 through HC
Manoj Kumar who informed that he made several visits on
address on record as well as one mentioned on the Death
Certificate but has not been able to serve them. Further, it was
informed that Smt. Rita Chaddha refused to reveal her address,
even though notices of the court were served upon her through
Whatsapp. LRs of Ashok Chaddha were accordingly taken to be
impleaded in this matter vide order dated 18.09.2024 for all legal
consequences.
4. In WS filed on behalf of R-2, it is stated that there has
been unjustified delay of over 90 days in lodging the FIR.
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Further the negligence and involvement of offending vehicle has
been specifically denied. Other general defences were taken.
5. None appeared on behalf of R-3/ Zedex Nishan and
therefore, it was proceeded against ex parte. Subsequently,
counsel for R-3 had appeared on 18.09.2024 and stated that it
was only a dealer who had sold the car to R-1 Ashok Chaddha
and has no further role to play.
Issues:
6. From the pleadings of parties, following issues were
framed dated 08.04.2019:
i). Whether the injured suffered injuries in a road traffic accident
on 22.03.2017 due to rash and negligent driving of vehicle no. DL
1CQ 9213 being driven by R1 & owned by R2 ? OPP.
ii). Whether the claimants are entitled to any compensation, if so, to
what extent and from whom?OPP
iii). Relief.
7. An application for assessment of disability was allowed
vide order dated 08.03.2019 against which a Disability Report
dated 30.04.2019 with 59 % permanent physical impairment in
left lower limb was given.
8. Thereafter matter was listed for recording of evidence.
Evidence:
9. PW-1 Sh. Mukesh Kumar stepped in the witness box and
tendered his evidentiary affidavit as Ex.PW1/A. He relied upon
following documents:
(a) Ex.PW1/1- Photocopy of PAN Card Election ID Card
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(b) Ex.PW1/2- Original Discharge Summary
(c) Ex.PW1/3- Original Medical Bills
(d) Ex.PW1/4- Certified copy of criminal case record along
with FIR no.926/2017, Site Plan, Challan
(e) Ex.PW1/5- Original Copy of disability certificate
(f) Mark A- Photocopy of daily diary with concern to FIR
no.926/2017.
(g) Mark B and Mark B-1- Photocopy of DL and Aadhar
Card of respondent no.1
(h) Mark C- Photocopy of NCR about missing of Registration
Certificate of offending vehicle bearing No. DL 1CQ 9215
(I) Mark D- Photocopy of Aadhar Card
PW-1 was cross examined by counsel for Insurance
Company. PE was then closed vide order dated 29.04.2024.
10. Matter was then listed for Respondent Evidence. However,
any Respondent Evidence has not been led by any of the
respondents and hence Respondent Evidence was closed vide
order dated 18.09.2024.
Final Arguments:
11. Counsel for claimant argued that there was no negligence
on the part of injured who had to endure substantial disability all
his life without any fault of his. It is stated that he is still unable
to walk by himself and has to be dependent upon others even for
walking as well as for other basic activities. It is stated he was a
vegetable seller at the time of accident and earning Rs. 25,000/-
to 30,000/- per month. He asserted that accident was solely
caused due to rash and negligent driving of the offending vehicle.
Counsel for insurance company, on the other hand, disputed
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involvement as well as negligence on the part of the offending
vehicle stating that the unexplained delay in registration of FIR
itself creates doubt on the genuineness of the matter. Counsel for
any other respondents did not appear to advance arguments.
Discussion:
12. On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
ISSUE NO. 1
i). Whether the injured suffered injuries in a road traffic accident
on 24.11.2019 due to rash and negligent driving
of vehicle no. UP 14ET 3588 being driven by R1 & owned
by R2 ? OPP.
13. It is well settled that the proceedings before the Claims
Tribunal are in the nature of inquiry and the finding of rash and
negligent driving by driver of the offending vehicle is to be
returned only at the touch stone of preponderance of
probabilities. {support drawn from the cases of Bimla Devi &
Ors. Vs. Himachal Road Transport Corporation & Ors, (2009) 13
SC 530, Kaushnumma Begum and others v/s New India
Assurance Company Limited, 2001 ACJ 421 SC, and from the
case of National Insurance Co. Ltd Vs. Pushpa Rana cited as
2009 ACJ 287}
14. PW-1 deposed in his evidentiary affidavit Ex.PW1/A that
he was hit by a speedy and rashly driven offending vehicle while
pulling the vegetable cart sustaining serious injuries. During
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cross examination by counsel for insurance company that a
complaint dated 25.06.2017 was an afterthought and that any
such accident did not occur with the offending vehicle. There is
absolutely no other question or clarification about mode or
manner of the accident put to the witness or was asked to explain
or narrate, hinging upon the circumstances of the accident,
specially touching upon the negligence on the part of offending
vehicle in causing the accident. It is mentioned in the FIR itself
that the injured was rushed to Meenakshi Hospital after the
accident from where he was referred to GTB Hospital. It is also
mentioned in the FIR itself that he was admitted in the hospital
from 22.03.2017 till 12.05.2017. further, it also explains that
injured suffered serious injuries in his abdomen because of which
it was not possible for him to immediately act to get the FIR
registered. Further, it is clear from the record that the police
officials were well informed about the accident as PCR was
already there at the spot. Further, the details of Sh. Jai Singh of
PCR, 44, Kaushabi Police Chowki are duly mentioned in the
MLC Ex.PW1/6. Counsel for the insurance company sought
clarification about the name of one Madan Kumar, mentioned on
the MLC Ex.PW1/6 to which, PW-1 explained that Madan
Kumar was his uncle (chacha) who came there after the accident.
He also mentioned in the cross examination that he was taken
from the accident spot to the Meenakshi Hospital by R-1 Ashok.
Therefore, as R-1 himself was present all along therefore, there
cannot be any dispute with respect to his identification and also
about involvement of the offending vehicle. R-1 has been charge
sheeted upon conclusion of the investigation for negligence in
driving the offending vehicle causing the accident and injuring
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claimant in the process. In the site plan, filed as part of charge
sheet, it can be seen that both the accidental rickshaw and the
offending vehicle were on the same side of the road and the
rickshaw has been hit by the offending vehicle from the back
pushing the rickshaw puller with the jolt because of which the
rickshaw handle pierced into his abdominal area. The after effect
of accident clearly shows the impact which the claimant had to
endure at the time of accident. There is no alternative version
presented by any of the respondent to dispute the affirmation of
the PW-1 wherein he has unequivocally asserted the speedy and
rashly driven offending vehicle having caused the accident. There
is no reason why the testimony of PW-1 should be doubted.
There is no reason to spell doubt on the creditworthiness of
PW-1. It is settled that delay in FIR by itself cannot be termed
fatal to the compensation case and it is on the appreciation of the
evidence and truthfullness or genuineness of the contents of the
FIR which would define the admissibility to the claim of
compensation. The registration number of the offending vehicle
and the name of of the driver thereof has been clearly mentioned
in the complaint made by claimant which became the basis for
the registration of FIR. There is no apparent contradiction
between the complaint or the statement given to the police by
claimant and the affirmations made by him in the court.
15. In view of the discussion made above, it is concluded that
driver of the offending vehicle drove rashly and negligently to
cause the accident whereupon claimant suffered injuries. Issue
no.1 is decided in favour of the petitioners and against the
respondents.
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ISSUE NO. 2
"Whether the injured is entitled to any
compensation, if so, to what extent and from whom?
OPP"
16. Sec. 168 MV Act enjoins the Claim Tribunals to hold an
enquiry into the claim to make an effort determining the amount
of compensation which appears to it to be just and reasonable.
Same is reproduced hereunder for ready reference:
"(1) Award of the Claims Tribunal.--On receipt of an
application for compensation made under section 166,
the Claims Tribunal shall, after giving notice of the
application to the insurer and after giving the parties
(including the insurer) an opportunity of being heard,
hold an inquiry into the claim or, as the case may be,
each of the claims and, subject to the provisions of
section 162 may make an award determining the
amount of compensation which appears to it to be just
and specifying the person or persons to whom
compensation shall be paid and in making the award
the Claims Tribunal shall specify the amount which
shall be paid by the insurer or owner or driver of the
vehicle involved in the accident or by all or any of
them, as the case may be: Provided that where such
application makes a claim for compensation under
section 140 in respect of the death or permanent
disablement of any person, such claim and any other
claim (whether made in such application or otherwise)
for compensation in respect of such death or
permanent disablement shall be disposed of in
accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies
of the award to the parties concerned expeditiously and
in any case within a period of fifteen days from the
date of the award.
(3) When an award is made under this section, the
person who is required to pay any amount in terms of
such award shall, within thirty days of the date of
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announcing the award by the Claims Tribunal, deposit
the entire amount awarded in such manner as the
Claims Tribunal may direct."
17. Before putting in frame the position of law, it is noted that
the process of determining the compensation by the court is
essentially a very difficult task and can never be an exact science.
Perfect compensation is hardly possible, more so in claims of
injury and disability. (As observed by Hon'ble Supreme Court of
India in the case of Sidram Vs. The Divisional Manager United
India Insurance Company Ltd, SLP (Civil) No. 19277 of 2019.
18. The basic principle in assessing motor vehicle
compensation claims, is to place the victim in as near a position
as she or he was in before the accident, with other compensatory
directions for loss of amenities and other payments. These
general principles have been stated and reiterated in several
decisions. [Support drawn from Govind Yadav v. New India
Insurance Co. Ltd., (2011) 10 SCC 683.]
19. This Tribunal has been tasked with determination of just
compensation. The observation of Hon'ble Supreme Court of
India in Divisional Controller, KSRTC v. Mahadeva Shetty and
Another, (2003) 7 SCC 197, needs mention here (para 15):
"Statutory provisions clearly indicate that the
compensation must be "just" and it cannot be a
bonanza; not a source of profit but the same should
not be a pittance. The courts and tribunals have a
duty to weigh the various factors and quantify the
amount of compensation, which should be just. What
would be "just" compensation is a vexed question.
There can be no golden rule applicable to all cases
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for measuring the value of human life or a limb.
Measure of damages cannot be arrived at by precise
mathematical calculations. It would depend upon the
particular facts and circumstances, and attending
peculiar or special features, if any. Every method or
mode adopted for assessing compensation has to be
considered in the background of "just" compensation
which is the pivotal consideration. Though by use of
the expression "which appears to it to be just", a wide
discretion is vested in the Tribunal, the determination
has to be rational, to be done by a judicious approach
and not the outcome of whims, wild guesses and
arbitrariness.. ..."
20. Delineating the damages as pecuniary and non pecuniary,
Hon'ble Supreme Court of India, in case of R. D. Hattangadi Vs.
Pest Control (India) Pvt Ltd, 1995 AIR 755, made following
observations:
"9....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 are
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 up to 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 and 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
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normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship, discomfort,
disappointment, frustration and mental stress in life."
21. Certain principles for delineating just compensation were
enumerated in the case of Raj Kumar Vs. Ajay Kumar & Anr.,
(2011) 1 SCC 343, by Hon'ble Supreme Court of India.
Following observations are relevant in the context:
"40.General principles relating to compensation in injury
cases
5. The provision 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. [See C.K.
Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3
SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest
Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995
SCC (Cri) 250] and Baker v. Willoughby [1970 AC
467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)]
.]
6. The heads under which compensation is awarded
in personal injury cases are the following:
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Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been injured,
comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of
normal longevity).
In routine personal injury cases, compensation will
be awarded only under heads (i), (ii)(a) and (iv). It
is only in serious cases of injury, where there is
specific medical evidence corroborating the
evidence of the claimant, that compensation will
be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings
on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of
prospects of marriage) and loss of expectation of
life.
7. Assessment of pecuniary damages under Item (i) and
under Item (ii)(a) do not pose much difficulty as they
involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the head
of future medical expenses--Item (iii)--depends upon
specific medical evidence regarding need for further
treatment and cost thereof. Assessment of non-pecuniary
damages--Items (iv), (v) and (vi)--involves
determination of lump sum amounts with reference to
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circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant
and the effect thereof on the future life of the claimant.
Decisions of this Court and the High Courts contain
necessary guidelines for award under these heads, if
necessary. What usually poses some difficulty is the
assessment of the loss of future earnings on account of
permanent disability--Item (ii)(a). We are concerned
with that assessment in this case.
Assessment of future loss of earnings due to permanent
disability
8. Disability refers to any restriction or lack of ability to
perform an activity in the manner considered normal for
a human being. Permanent disability refers to the
residuary incapacity or loss of use of some part of the
body, found existing at the end of the period of
treatment and recuperation, after achieving the
maximum bodily improvement or recovery which is
likely to remain for the remainder life of the injured.
Temporary disability refers to the incapacity or loss of
use of some part of the body on account of the injury,
which will cease to exist at the end of the period of
treatment and recuperation. Permanent disability can be
either partial or total. Partial permanent disability refers
to a person's inability to perform all the duties and
bodily functions that he could perform before the
accident, though he is able to perform some of them and
is still able to engage in some gainful activity. Total
permanent disability refers to a person's inability to
perform any avocation or employment related activities
as a result of the accident. The permanent disabilities
that may arise from motor accident injuries, are of a
much wider range when compared to the physical
disabilities which are enumerated in the Persons with
Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 ("the Disabilities Act",
for short). But if any of the disabilities enumerated in
Section 2(i) of the Disabilities Act are the result of
injuries sustained in a motor accident, they can be
permanent disabilities for the purpose of claiming
compensation.
9. The percentage of permanent disability is expressed
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by the doctors with reference to the whole body, or
more often than not, with reference to a particular limb.
When a disability certificate states that the injured has
suffered permanent disability to an extent of 45% of the
left lower limb, it is not the same as 45% permanent
disability with reference to the whole body. The extent
of disability of a limb (or part of the body) expressed in
terms of a percentage of the total functions of that limb,
obviously cannot be assumed to be the extent of
disability of the whole body. If there is 60% permanent
disability of the right hand and 80% permanent
disability of left leg, it does not mean that the extent of
permanent disability with reference to the whole body is
140% (that is 80% plus 60%). If different parts of the
body have suffered different percentages of disabilities,
the sum total thereof expressed in terms of the
permanent disability with reference to the whole body
cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as
a result of injuries, the assessment of compensation
under the head of loss of future earnings would depend
upon the effect and impact of such permanent disability
on his earning capacity. The Tribunal should not
mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of
earning capacity. In most of the cases, the percentage of
economic loss, that is, the percentage of loss of earning
capacity, arising from a permanent disability will be
different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity,
and consequently, if the evidence produced show 45%
as the permanent disability, will hold that there is 45%
loss of future earning capacity. In most of the cases,
equating the extent (percentage) of loss of earning
capacity to the extent (percentage) of permanent
disability will result in award of either too low or too
high a compensation.
11. What requires to be assessed by the Tribunal is the
effect of the permanent disability on the earning
capacity of the injured; and after assessing the loss of
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earning capacity in terms of a percentage of the
income, it has to be quantified in terms of money, to
arrive at the future loss of earnings (by applying the
standard multiplier method used to determine loss of
dependency). We may however note that in some cases,
on appreciation of evidence and assessment, the
Tribunal may find that the percentage of loss of earning
capacity as a result of the permanent disability, is
approximately the same as the percentage of permanent
disability in which case, of course, the Tribunal will
adopt the said percentage for determination of
compensation. (See for example, the decisions of this
Court in Arvind Kumar Mishra v. New India Assurance
Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri)
1258 : (2010) 10 Scale 298] and Yadava Kumar v.
National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether
there is any permanent disability and, if so, the extent of
such permanent disability. This means that the Tribunal
should consider and decide with reference to the
evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of
such disablement of the limb on the functioning of
the entire body, that is, the permanent disability
suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding
further and determining the loss of future earning
capacity. But if the Tribunal concludes that there is
permanent disability then it will proceed to
ascertain its extent. After the Tribunal ascertains
the actual extent of permanent disability of the
claimant based on the medical evidence, it has to
determine whether such permanent disability has
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affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent disability (this is also relevant for awarding
compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation,
profession and nature of work before the accident, as
also his age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on the
activities and functions, which he was earlier carrying
on, or (iii) whether he was prevented or restricted from
discharging his previous activities and functions, but
could carry on some other or lesser scale of activities and
functions so that he continues to earn or can continue to
earn his livelihood.
.
.
.
.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
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(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability.
The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
22. The above-said principles have been placed reliance upon in a recent judgment reported as Sidram Vs. The Divisional Manager United India Insurance Co. Ltd and Anr., arising out of SLP (Civil) no. 19277 of 2018 passed by Hon'ble Supreme Court of India as decided on 16.11.2022.
23. It is settled proposition of law as held in catena of judgments that "just compensation" should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives.
PECUNIARY DAMAGES
24. Damages under pecuniary heads primarily involves reimbursement of actual amount spent on account of injury MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 18 of 48 suffered in an accident to undo the monetary loss, suffered by the claimant, as ascertainable from the evidence on record. Given hereunder are various heads under which compensation for pecuniary damages is assessed:
Expenditure on Medical Treatment:
(i) Claimant has filed original medical bills as Ex.PW1/3 for totaling of Rs. 34,177/-. A sum of Rs.5,000/- is additionally awarded towards the sundry medical expenses. Hence claimant is awarded Rs. 39,177/- (Rs. 34,177/- + Rs.5,000/-).
Expenditure on Conveyance:
(ii) Claimant has not filed any transportation bills, however, as he suffered accident in Ghaziabad and then remained admitted in GTB Hospital in Delhi for about 62 days and also remained under active medical treatment for several months, he would have entailed substantial conveyances expenses, an amount of Rs. 30,000/- is awarded towards conveyance. Expenditure on Special Diet:
(iii) Claimant has not filed any prescription mentioning about any special diet. However, considering the nature of injury, a good diet for early recovery would have been necessary. An amount of Rs. 30,000/- is awarded towards special diet.
Expenditure for attendant:
(iv) PW-1 has not deposed anything about attendant charges entailed for assisting him during treatment and for prompt recovery. It is evident from the medical documents that he was required to visit hospital at short intervals for the dressings over MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 19 of 48 wounds. It is also evident that he had to be operated upon during the treatment. Even in February 2019, he was again hospitalized for about 2 days as he developed infection in his implant.
Considering the nature of injuries, it is evident that he would have to be dependent upon services of an attendant including his family members for travelling, for basic daily activities, for bandaging and for his recovery. An amount of Rs. 50,000/- is awarded towards attendant charges to the injured.
Loss of Earning
(v). PW-1 deposed that he was making his living as vegetable vendor and earning about Rs. 25,000/- to Rs.30,000/- per month. In fact, he was pulling the vegetables cart when he met with an accident. He has filed his voter ID card as well as PAN card as Ex.PW1/1 colly and as per the Patient Discharge Summary Ex.PW1/2, he was a resident of Uttar Pradesh at the time of accident. Record shows that accident took place in Uttar Pradesh. It is evident that he was residing and was working for gain in Uttar Pradesh. PW-1/ injured has not relied upon any educational or technical qualification. In cross examination, he stated that he is permanent resident of Buldanshahar. He also admitted that he has not placed on record any documentary proof regarding his income/ employment / occupation. Therefore, minimum wages for an unskilled labour, applicable in the State of Uttar Pradesh as on the date of accident is taken as his monthly earning which was Rs. 7,214/-.
(vi) Claimant has in his cross examination that he has not been able to resume his work as doctor has advised him not to lift MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 20 of 48 weight. He admitted having not placed any medical prescription so advising him. Medical documents placed on record indicate that he was operated upon and was advised to continue daily dressing at least for about 2 months. He was also referred for plastic surgery in the month of May 2017. Subsequently, in January 2022, he was again complained about pain in abdomen and blood in his stools. He was subsequently admitted for two days for infection in his implant. Considering the nature of injury in the backdrop of the medical documents relied by the claimant, and the nature of work that he was required to be indulged for his earnings, it can be reasonably inferred that he would not have been in a position to resume his work for at least six months post accident.
Thus total loss of income comes to Rs. 7,214/- x 6 = Rs 43,284/-
Loss of future earning
(vii) It is settled that a person is required to be compensated not just for the physical injury but also for the loss he has suffered as well as the loss which he might entail for the rest of his life on account of those injuries which he sustained in the accident. This necessarily means that he is required to be compensated for his inability to lead a full life, his inability to enjoy normal amenities, which he would have enjoyed but for the injury, his inability to earn as much as he used to earn or could have earned. (Support drawn from the judgment titled as C. K. Subramania Iyer v. T. Kunhikuttan Nair (1969) 3 SCC 64.
(viii) Claimant was directed to be assessed for his disability vide order dated 08.03.2019, Disability Assessment Certificate was MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 21 of 48 received as per which he was opined to have suffered 59% permanent physical disability in left lower limb.
(ix) Before proceeding further, it is important to understand as to what disability means and also types thereof. This aspect has been delved into by Hon'ble SC in Raj Kumar (supra):
"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
(x) The term 'disability' means the decrements to the functional efficacy of body of injured whereas 'functioning' MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 22 of 48 encompass all the body functions and activities for an independent life. Functional disability is to determine the extent of loss or extent of restrictive functionality considering the nature of activities required to be necessarily performed in efficient discharge of duties and the limb effected. This computes the extent of adverse effect of physical disability upon the functional efficacy of an injured person, in turn adversely impacting his earning capacity. The process entails understanding and enumerating the skill set required for performing specific activities. To sum up, functional disability basically measures the extent of ability having been compromised to carry out basic everyday tasks or even more complex tasks required for and independent living. The limitations may occur on account of disability in the personal sphere, in the social sphere and in the occupational sphere. In the personal sphere it may encompass the daily activities of a person, his body function and his involvement in basis life situations. At the societal level, it could mean difficulty in involvement and participation in social and community activities interfering the interpersonal interaction and relationship adversely impacting the civic life. When disability restricts the vocation or employment avenues to make earning for his living, it falls in the category of disability in the occupational sphere. The disability might occur on account of age or any illness and in the case at hand by way of an accident. A person living a normal life in particular set of circumstance and making his living by engaging in any work has suffered disability which might impead his daily life activities, both on a personal and social scale and might also impact his ability to continue earning as much as before and his future employment avenues.
MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 23 of 48
(xi) What is thus required to be assessed is the effect and impact of disability upon the working efficiency of injured and whether it would adversely impact his earning capabilities in future. It is settled that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity.
(xii) Hon'ble SC laid down certain guidelines for the Tribunal to be able to arrive at an objective figure to quantify the loss for the purpose of computing the compensation in the judgment of Raj Kumar (supra). Relevant extracts of this judgment for the purpose of further discussion are reproduced hereunder:
"Assessment of future loss of earnings due to permanent disability
9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 24 of 48 under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 25 of 48 should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 26 of 48 .
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19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability.
The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
(xiii) Further in the case of "Mohan Soni v Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC), the question at hand was deliberated and following observations as relevant in the context were made:
"In the context of loss of future earning, any MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 27 of 48 physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle- rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle- rickshaw-puller.
(xiv) The question of assessment of impact of disability on the earning capacity has been dealt in several cases but it is understood that each case has to be evaluated on its contextual dynamics established by way of evidence at hand. It brings us to a question whether extent of permanent disability as medically determined can simply be taken to be the extent of functional disability and hence, the loss of earning capacity. It has been held in various pronouncements of Hon'ble Supreme Court of India and Hon'ble High Court that equating the two as a criteria would result in an inobjective and absurd compensation. There however, might be certain cases where the two would correspond to each other but it cannot be mechanically applied rather requires MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 28 of 48 evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
(xv) In the case of Raj Kumar (supra) the physical functional disability of left leg was assessed to be 75% and total body disability at 37.5 %. In this case, functional disability was also assessed at 75% and it was observed that the extent of physical functional disability has to be considered so as to grant just and proper compensation towards loss of future earning as the earning capacity of injured was totally negated having been rendered incapable of doing any manual work. It was also held that if permanent disability in relation to particular limb renders the injured permanently disabled from pursuing his normal vocation or any other similar work, there is no reason as to why compensation should be granted on the basis of physical disability in relation to whole body. In another matter of Syed Sadiq Etc vs Divisional Manager,United India AIR 2014 SUPREME COURT 1052, where functional disability was considered to be 65% by Hon'ble High Court in case of a vegetable vendor whose right leg had to be amputated was set aside and it was observed that loss of limb is often equivalent to loss of livelihood specially in manual labour cases and determined the functional disability at 85 percent. In another matter of Arvind Kumar Mishra (supra), injured suffered grievous injuries and remained in coma for about 2 months and was held to be permanently disabled to the extent of 70% with his right hand amputated whereas his loss of earning capacity was held to be 90%. Similarly in case of K Janardhan v United India Insurance Company AIR 2008 Supreme Court 2384, MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 29 of 48 Hon'ble Supreme Court of India, held that a tanker driver suffered 100% functional disability and incapacity to earn as a tanker driver as his right leg was amputated from the knee. In the case of Pappu Deo Yadav v Naresh Kumar, AIR 2020 SUPREME COURT 4424 injured suffered loss of an arm and therefore, was unable to carry out his functions as a typist / data entry operator and thus acknowledging the impact of injury upon the income generating capacity of victim, the extent of functional disablement and loss of income generating earning capacity was equated with the extent of permanent disablement as medically assessed at 89%. Similarly, in the case of Sidram (supra), injured suffered paraplegia due to accident and was medically assessed with permanent disability to the tune of 45%, however, he was held to have suffered 100% loss of earning capacity.
(xvi) It is part of record that petitioner suffered 59% permanent physical disability in relation his left lower limb. PW-1 had testified himself to be self employed as vegetable seller. It is evident from the nature of his work that he would be required to perform manual labour which needed easy mobility so as to purchase or fetch vegetables from the farmer or market and then bring / transport the produce to the end user or the retailers for selling. It is evident from the nature of injury that his mobility has been adversely affected substantially. His capacity, capabilities and efficiency would take a toll on account of profound disability in one of the limbs. Considering the above mentioned discussion, his functional disability is assessed to be 40%.
MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 30 of 48 Future Prospect:
(xvii) It is also held therein that future prospect (as laid down in the well considered judgment of National Insurance Company v Pranay Sethi (2017) 16 SCC 680) shall be payable, not only in fatal cases but also in the case of permanent disability. The observations made in the said case as relevant to the context are reproduced hereunder:
"6. The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions.
7. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683. This court referred to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551; Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1; Reshma Kumari v. Madan Mohan (2009) 13 SCC 422; Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. Govind Yadav spelt out these principles by stating that the courts should, "in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." These decisions were also followed in ICICI Lombard General Insurance Co. Ltd. v. Ajay Kumar Mohanty, (2018) 3 SCC 686. prospects too; and two, the extent of disability. On the first question, the High Court no MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 31 of 48 doubt, is technically correct in holding that Pranay Sethi involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three-judge bench decision in Jagdish was not binding, but rather that the subsequent decision in Anant10 to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi11 is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases -
and admits such possibility of future prospects, in case of the victim's death.
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(xviii). Hon'ble Supreme Court further discussed several cases involving permanent disability and observed as under:
20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. .
.
....What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected".
(xix). PW-1 has filed his PAN Card as Ex.PW1/1 on record as per MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 32 of 48 which his date of birth is 08.05.1983, therefore, his age as on the date of accident was about 34 years. Since the injured was under
the age of 40 (at the time of accident) and was employed on a fixed salary, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 40 % upon application of category of ''self-employed or on a fixed salary''.
Multiplier:
(xx) The multiplier method was coined by Hon'ble Supreme Court of India in the case of Sarla Verma v Delhi Transport Corporation & Anr. Civil Appeal No. 3483 of 2008, decided on 15.04.2009 to ascertain the future loss of income in relation to the age of the deceased, in order to bring about the uniformity and consistency in determination of compensation payable in fatal and serious injuries matters. Relevant observations with respect to the multiplier method in the abovementioned case read as under:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
(xxx) The standard multiplier method was directed to be applied not only to ascertain the loss of dependancy in fatal accident case MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 33 of 48 but also to determine future loss of earning in serious disability matters as well {as laid in the case of Raj Kumar (supra)}. In a recent Judgment of Pappu Dev Yadav (supra), Hon'ble Supreme Court of India relied upon and reiterated the principles laid in various judgments passed by it in the case of Sr. Antony @ Antony Swamy v Managing Director KSRTC, Civil Appeal No. 2551 of 2018 and held that stereotypical or myopic approach must be avoided and pragmatic reality of life must be taken into account to determine the impact of extent of disability upon the income generated capacity of victim.
(xxii) The income of the injured per annum as determined upon appreciation of evidence, thus, forms the multiplicand. A table of multiplier with reference to the age was laid down by Hon'ble Supreme Court of India. The appropriate multiplier, applicable in this case would be 16 (for age group below 40 years).
(xxiii) In view of the above discussion of law, the calculation under future loss of income in the present case is as under:
(a) Annual income (Rs. 7,214/- x 12) = Rs.86,568/-
(b) Future prospect (40% of Rs.86,568/-) = Rs. 34,627/-
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(c) Total = Rs. 1,21,195/-
(d) Thus, Multiplicand = Rs. 1,21,195/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 34 of 48 Percentage of Functional Disability (Multiplicand X Multiplier).
40% (Rs.1,21,195/- X 16) = Rs. 7,75,648/-
NON-PECUNIARY LOSS
(xxiv) Injured is entitled to both, pecuniary as well as non-
pecuniary damages. As the name suggests, pecuniary damages are designed to make good the pecuniary loss which can be ascertained in terms of money whereas non pecuniary damages are general damages to compensate the injured for mental and physical shock, pain, suffering, loss of expectation of life, inconvenience, hardship, frustration, stress, dejectment and unhappiness suffered by him on account of injuries sustained in the accident. It takes into account all the aspects of a normal life which deluded injured on account of accident. Given the nature of heads covered, it is bound to involve guess work on the part of Tribunal involving some hypothetical consideration as well, primarily considering the special circumstances of the injured and the effect of those upon his future life.
(xxv) Regarding non-pecuniary loss, following was stated in Halsbury's Laws of England, 4 th Edition, Vol. 12 (page 446):
"Non-pecuniary loss: the pattern: Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 35 of 48 (As also referred in the case of Sidram.....................)
7. In Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667, the Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non- pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.
8. In Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.
(referred and relied in the case of rupin A. Rupin Manohar Through Sh. S. Anandha vs Mohd. Ansari & Ors. on 17 August, 2017 JUDGMENT DELHI HIGH COURT (xxvi). To sum up, Compensation under non-pecuniary heads involves objective assessment of the damages in a bid to undo the loss, the injured would incur on account of his inability to a normal life and earn as much as he could, but for the injuries sustained. The whole idea behind assessment for damages for compensation is to put the claimant in the same position in so far as money can. The very nature of these damages, compulsorily involves some guesswork and hypothetical considerations, however, efforts should be made to adjudicate these on the basis of objective parameters rather than guided by subjective MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 36 of 48 sympathy. The nature and severity of injury, the age, nature of disability are some of those parameters. Given hereunder are various heads under which compensation for non-pecuniary loss (general damages) is assessed:
A Damages for pain, suffering and trauma on account of injuries:
(xxvii) The mental and physical loss cannot always be arithmetically computed in terms of money. These form the intangible losses suffered by injured for no fault of his. Although any form of human suffering cannot be equated in money, however, the object remains to compensate in so far as the money can compensate. Certain observations made by the Supreme Court of India in R. D. Hattangadi are relevant in the context:
"10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.
(xxviii) Certain factors were also laid down for consideration in the case of The Divisional Controller, KSRTC vs Mahadeva Shetty And Anr Appeal (Civil) 5453 of 2003 further relied in the case of Sidram (supra) for awarding compensation for pain and suffering. The observations made in the aforesaid case as relevant to the context are reproduced hereunder:
MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 37 of 48 "113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)] (xxix). Hon'ble Supreme Court of India in the case of K. Suresh (supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity. (as relied in the case of Jagdish v Mohan AIR 2018 SUPREME COURT 1347, by Hon'ble Supreme Court of India).
(xxx). The injured has suffered 59% permanent physical disability in left lower limb. It is settled that each case has to be MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 38 of 48 evaluated upon his special circumstances in the backdrop of deprivation which disability would cause on his future life. It is a case of substantial permanent disability which is likely to have adverse impact on mental, emotional and psychological health of a person having to live with the feeling that he is no longer a normal person, relegated and pushed into the difficult world of a disabled person. There is no methodology to weigh the sufferings in terms of money, however, the Tribunal is required to engage in some guess work objectively to consider the peculiar circumstances of the case at hand to be able to award suitable compensation with the object to place the victim in as near a position as the victim was in before the accident. An amount of Rs. 1,00,000/- is awarded to the injured against pain, suffering and and trauma sustained in the accident.
Loss of amenities of life:
(xxxi). It compensates the victim on account of his inability to enjoy the basis amenities of life as any other normal person can, taking into account the age and the deprivation he would have to undergo and suffer due to injuries. Certain observations were made by Hon'ble High Court of Gujrat in the case of Vijaykumar Babulal Modi vs State Of Gujarat SPECIAL CIVIL APPLICATION NO. 20488 of 2017 referred by HSC in the case of Sidram (supra) which is reproduced hereunder:
"It appears that the claim under this head is to the tune of Rs.3 lac. However, the Tribunal has not awarded any sum under the head 'loss of amenities'. We are of the opinion that this head must take into account all aspects of a normal life that have been lost due to the injury caused. As per R.D. Hattangadi's case (supra), this includes a variety of matters such as the inability to walk, run or sit, etc. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 39 of 48 ability to freely move or travel without assistance...."
(xxxii) Injured would not be able to perform several tasks on his own and has become dependent even for basic activities upon his family members or the services of the attendants, his personal identity as well as his social identity considering the prejudice such people are likely to face specially against the backdrop of their educational, family and social settings, he is going to evidently lose much more than what we can possibly contemplate. Least would be to mention that he would be far from the sense of normalcy of an average human being. Accordingly an amount of Rs. 20,000/- is awarded towards loss of amenities considering the nature of injury and the extent of disability.
Longevity of life (xxxiii) There is no evidence on record that the nature of disability would have any effect on the longevity of injured therefore any amount is not awarded under this head.
25. The compensation awarded against pecuniary and non- pecuniary damages under various heads is being sequentially put in a tabulated form hereunder for ease of reference to all concerned:
26. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
1. Pecuniary loss : - Quantum
(i) Expenditure on treatment :
Rs. 39,177/-
MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 40 of 48
(ii) Expenditure on Conveyance : Rs. 30,000/-
(iii) Expenditure on special diet : Rs. 30,000/-
(iv) Cost of nursing / attendant : Rs. 50,000/-
(v) Loss of income : Rs. 43,284/-
(vi) Loss of Future Income: Rs. 7,75,648/-
2. Non-Pecuniary Loss :
(I) Compensation of Pain and Suffering Rs.1,00,000/-
as well as mental and physical shock :
(iii) Loss of amenities of life : Rs.20,000/-
Total Compensation Rs.10,88,109/-
Interest As directed
below
27. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no.
433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty, learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 41 of 48 Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MV Act 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case.
Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
28. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 42 of 48 SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
LIABILITY
29. Since there is no statutory defence, therefore, such principal award amount/compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of petition till actual realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
30. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 00000042706870765 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any to the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
31. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 43 of 48 Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
32. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
33. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 44 of 48 should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 45 of 48 Court in the case of minors, illiterate claimants and widows and in the case of semi literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 46 of 48 invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
34. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same, in the same manner in which he would have otherwise earned.
35. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, apportionment of award amount for injured is given as under:
Out of total award amount, Rs. 8,00,000/- is kept in form of monthly FDR of Rs. 10,000/-. Remaining amount be released in the bank account of claimant near his place of residence.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 22.03.2017 2 Name of injured Mukesh Kumar 3 Age of the injured 34 years MACT No.: 373/2018 Mukesh Kumar Vs. Ashok Chaddha & Ors. Page No. 47 of 48 4 Occupation of the Not proved injured 5 Income of the injured Minimum wages for unskilled person applicable in the State of Uttar Pradesh.
6 Nature injury Grievous injury and 59% disability in relation to left lower limb 7 Medical treatment taken As per record.
by the injured:
8 Period of Hospitalization As per record.
9 Whether any permanent Grievous injury and 59% disability? disability in relation to left lower limb
36. Copy of this award be given to the parties free of cost. The copy of award be sent to Ld. Secretary, DLSA and Ld. Concerned Criminal Court. Digitally signed by SHELLY SHELLY ARORA Announced in the open court ARORA Date:
on 09.12.2024 2024.12.09
16:10:21
+0530
Shelly Arora
PO (MACT)-02, SE/Saket/Delhi
09.12.2024
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