Delhi District Court
Savita Kapoor vs Brham Singh Etc on 18 December, 2023
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING
OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
MACT No.1951/2016
Ashwani Khosla
s/o Premdas Khosla
r/o F-3/28, Lane-3,
F Block, Krishna Nagar, Delhi. ...Petitioner
Versus
(1)Sh.Braham Singh
s/o Nawab Singh
r/o C-350, Gali No.12,
Ganga Vihar, Sabhapur,
Delhi-110094.
(2)Avinash Chander Soni
s/o Sikender Lal Soni
c/o Hari Kishan Singh
20, B.P. Colony, Civil Lines,
Rampur, U.P.
(3)The Oriental Insurance Co. Ltd.
D.O. 80, First Floor F.I.E.,
Patparganj Industrial Area,
Delhi-110092. ...Respondents
AND MACT No.1952/2016 Savita Kapoor w/o Naveen Kapoor r/o A-8D, Vishal Kunj, New F/S Qtrs, Tigore Garden, New Delhi. ...Petitioner Versus MACT Nos.1951/16 & 1952/16 Page 1 (1)Sh.Braham Singh s/o Nawab Singh r/o C-350, Gali No.12, Ganga Vihar, Sabhapur, Delhi-110094.
(2)Avinash Chander Soni s/o Sikender Lal Soni c/o Hari Kishan Singh 20, B.P. Colony, Civil Lines, Rampur, U.P. (3)The Oriental Insurance Co. Ltd.
D.O. 80, First Floor F.I.E.,
Patparganj Industrial Area,
Delhi-110092. ...Respondents
Date of institution : 05.05.2016
Date of arguments : 02.12.2023
Date of pronouncement : 18.12.2023
AWAR D
1. By this common award I would dispose off two claim petitions being MACT No.1951/2016 titled as Ashwani Khosla vs. Braham Singh and ors. and MACT No.1952/2016 titled as Savita Kapoor vs. Braham Singh and ors.
2. Facts of both the claim petitions being similar due to arising out of one accident. In both the above mentioned claim petitions it is mentioned that petitioners were traveling in a bus bearing registration no.UP-22T-4965 from Delhi to Fatehgarh Sahib Gurudwara. On 02- 03.01.2016 at about 5.30 petitioner Ashwani Khosla along with his wife and other passengers including petitioner of MACT No.1952/2016 namely Savita Kapoor were sitting on the back side of above mentioned bus. It is MACT Nos.1951/16 & 1952/16 Page 2 stated that on their way to Fatehgarh Sahib Gurudwara, driver the bus suddenly stopped the bus on the road without giving indicator, without following the rules. As driver forgot the way to reach to Gurudwara Fatehgarh Sahib as at that time there was heavy fog. In the meantime a truck came from behind and hit the above mentioned bus, which was wrongly parked due to which petitioners suffered injuries beside other passengers. Both the petitioners sustained grievous injuries in the accident. It is stated that in respect of accident in question FIR No.15/2016 was registered at PS Sirhind u/s 279, 338, 427 IPC.
3. Upon being served with the notice respondent no.1 and 2 (driver and owner) filed joint WS wherein they simply denied all the averments of the claim petition without pleading any specific facts except to note that the bus in question was duly insured with Oriental Insurance Company.
4. Respondent no.3/insurance company filed the WS taking the plea that there has been an unexplained delay of 53 days in registration of FIR regarding accident in question. Petitioner has not annexed with the claim petition relevant documents of criminal record including MLC, medical record etc. As such respondent no.3 denied involvement of offending bus bearing registration no.UP-22T-4965 in the accident. Respondent no.3 further took the plea that insurance company is entitled to contest the present claim petition on all the grounds in terms of section 170 of M.V. Act, once the owner cum driver had not pleaded anything regarding the accident in question. Respondent no.3 has not denied that offending vehicle being insured under policy no.271700/31/2016/10711. It is stated that DL of the driver is yet to be verified.
5. On the basis of pleadings as come on the record in both the MACT Nos.1951/16 & 1952/16 Page 3 claim petition no.1951/2016 and 1952/2016 following issues were framed by ld. Predecessor of this Tribunal on 05.12.2016 :
(1)Whether respondent no.1 has parked the vehicle bearing no. UP-
22T-4965 on 03.01.2016 at 5.30 am near Sahil Motel, Sirhand Fatehgarh, GT Road, Punjab in a negligent manner as a result truck hit the bus on the rear side due to which occupant of bus namely petitioner sustained injuries? OPP (2)Whether the petitioner is entitled for any compensation, if so and for what amount? OPP (3)Relief.
6. In the same order dated 05.12.2016 it was noted that evidence in both the claim petitions would be recorded in claim petition no.1951/2016.
Evidence in Claim petition no.1951/2016
7. Petitioner Ashwani Khosla in support of his claim petition has examined three witnesses. PW1 is petitioner Ashwani Khosla; PW2 is Dr.Rahul Anshuman from GTB Hospital who proved the disability certificate of petitioner to show that petitioner Ashwani Khosla suffered 75% of permanent disability in relation to his both lower limbs. PW3 is Faisal Yakub Mansoori, Associate Prosthetist and Orthotist, Ottobock Health Care India Private Limited who proved the payment regarding fitment of TT prosthesis upon injured Ashwani Kapoor. Evidence in claim petition no.1952/2016
8. Petitioner Savita Kapoor in support of her claim petition has examined five witnesses. PW4 is petitioner Savita Kapoor; PW5 is Vipin Pandey from Sir Ganga Ram Hospital who proved the medical bills of petitioner Savita Kapoor; PW6 is Ms.Shabnam who had worked as attendant for petitioner Savita Kapoor and testified regarding attendant MACT Nos.1951/16 & 1952/16 Page 4 charges; PW7 is Dr.Divyanshi Khattar from Sant Parmanand Hospital regarding proof of medical bills; PW8 is Dr.Arjun Uppal from GTB Hospital who proved the permanent disability certificate of petitioner Savita Kapoor to show that petitioner suffered 66% of permanent disability in relation to her right lower limb.
9. No evidence has been led by respondent no.1 and 2. Respondent no.3/insurance company examined two witnesses. R3W1 is Ankit Malik from RTO Loni regarding driving licence of respondent no.1 Bhram Singh. Similarly R3W2 is Akarsh Deepak, Assistant Manager of Oriental Insurance Company Limited (respondent no.3). Submissions
10. I have heard Sh.Mohd. Rafi, ld. Counsel for the petitioners as well as Ms.Sarika Goel, ld. Counsel for respondent no.3/insurance company. I have also gone through the written submissions filed on behalf of petitioners and Respondent no.3/insurance company. Issue No.1
11. It is the 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 & MACT Nos.1951/16 & 1952/16 Page 5 Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303.
12. In order to prove the manner in which accident has taken place, both petitioners being PW1 Ashwani Khosla and PW4 Savita Kapoor have in their affidavit of examination in chief, testified that on the morning of 03.01.2016 at 5.30 a.m. when they beside other passengers were traveling in bus no. UP-22T-4965 from Delhi to Fatehgarh Sahib Gurudwara, driver of the said bus suddenly stopped his bus on the road, without giving any indicator and without following the rules of the road. Driver of the said bus forgot the way to reach to Gurudwara Pratap Garh, due to heavy fog. In the meantime a truck came from behind and hit the bus as it was wrongly parked on the road due to which both PW1 and PW4 sustained injuries beside others. Both these witnesses have stated that accident took place due to rash and negligent driving/act of the offending bus no. UP-22T-4965.
13. Both PW1 and PW4 have been duly cross examined, however only on behalf of respondent no.3/insurance company. Respondent no.1 and 2 (driver and owner) after filing of WS did not contest the claim petition, as such never cross examined PW1 and PW4 despite having an opportunity. Having considered the evidence nothing came in the cross examination of PW1 and PW4 to disbelieve the version as given by them regarding the manner in which accident took place as well as regarding negligence of respondent no.1/driver of offending vehicle no. UP-22T- 4965. It is undisputed fact as is proved from the criminal record Ex.PW1/2 proved by PW1 and PW4 that the FIR No.15/2016 was registered at PS Sirhind against respondent no.1 herein namely Braham Singh s/o Nawab Singh. Perusal of translated copy of criminal case documents also indicate MACT Nos.1951/16 & 1952/16 Page 6 that police upon investigation concluded that accident took place on account of wrongfully parking the bus in between the road, without giving any indication etc. As a result as there was fog during those days, driver of the offending vehicle ought to have taken extra care for ensuring that vehicle was parked at proper side of the road. Driver however failed to do so, resultantly one truck came from behind and struck to the bus resulting into causing of injuries to passengers of offending bus no. UP-22T-4965. In view of undisputed testimony of PW1 and PW4 coupled with criminal case record, this Tribunal finds that petitioners have established that vehicle no. UP-22T-4965 was in fact involved in the accident and evidence establish that accident occurred due to rash and negligent driving of respondent no.1. Issue accordingly decided in favour of petitioners and against the respondents.
Issue No.2
14. 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 MACT Nos.1951/16 & 1952/16 Page 7 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."
15. Further, in Raj Kumar v. Ajay Kumar & another (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) MACT Nos.1951/16 & 1952/16 Page 8
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment.
(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.
16. In the light of the aforementioned judgments, the compensation to which the petitioner is entitled shall be as under:-
MACT No.1951/2016PECUNIARY DAMAGES :
Medical Expenses:
17. Petitioner in his affidavit has testified that after the accident he was taken to nearby hospital Nehru Hospital Chandigarh and subsequently MACT Nos.1951/16 & 1952/16 Page 9 had taken to Sir Ganga Ram Hospital. However on the record the treatment record of petitioner of Nehru Hospital is only on the record. Among the other documents lying on the judicial record, there is one document dated 12.01.2016 of Action Medical Institute, wherein it is mentioned that lower limb (below knee) of petitioner Ashwani Khosla was amputated when he remained admitted in that hospital vide CR No.787788. This document though is not properly proved or referred in the evidence of PW1, but judicial notice of this document is being taken on the aspect of the fact that the lower limb of the petitioner was amputated during the treatment.
18. It is matter of record that on account of injuries suffered in the accident, petitioner suffered permanent disability to the extent of 75% in relation to his both lower limbs. This fact has been proved by Dr.Rahul Anshuman (PW2) who proved the disability certificate Ex.PW2/A. Petitioner has also referred in his affidavit Ex.PW1/4 regarding medical expenses of fitment of TT prosthesis. Petitioner examined PW3 Faizal Yakub Mansoori, Associate Prosthetics who proved the fitment of TT prosthesis of petitioner and also stated that Rs.1,22,800/- were charged.
19. It came in the cross examination of PW1 that his all medical bills were reimbursed by his insurance except the bill of Rs.1,22,800/- regarding fitment of artificial limbs. Therefore taking into account the evidence of PW1, PW2 and PW3, this Tribunal finds that petitioner is entitled for Rs.1,22,800/- under the head of medical expenses. Loss of earning during treatment:
20. Petitioner in his evidence has testified that he was earning Rs.15,000/- per month from his work. In cross examination PW1 stated that he was running factory of plastic paints for two months prior to MACT Nos.1951/16 & 1952/16 Page 10 accident. Petitioner however admitted that he was not earning anything at the time of accident. It is probably for that reason petitioner has not placed on record any documentary evidence of his income. In the absence of the same as well as any other document to show the education, skill etc., income of the petitioner is taken to be one at parity with minimum wages of unskilled labour in Delhi, at the time of accident which was Rs.9,048/- per month.
21. Petitioner in his evidence further testified that because of the accidental injuries he received multiple grievous injuries. Petitioner has stated that he could not do his work for 12 months due to accident and suffered loss of income. As noted above the entire medical record of petitioner Ashwani Khosla has not been placed on record, to exactly identify the period of his treatment. However among the documents lying on judicial record of which judicial notice can be taken, it is evident that from the date of accident petitioner took treatment in Nehru Hospital which was a government hospital, thereafter in Action Balaji Hospital, Sir Ganga Ram Hospital as well as also took treatment with Ottobock for fitment of artificial limbs. Therefore this Tribunal finds that given the nature of the injury suffered by the petitioner and that fact that during treatment his limbs were amputated and thereafter artificial limbs were implanted, therefore petitioner must have remained under treatment for 12 months as testified by him.
22. Consequently petitioner is entitled for Rs.1,08,576/- (Rs.9,048/- X 12 months), for loss of income during the treatment period. Loss of future earning due to disability :
23. In case of Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC 343, Hon'ble Supreme Court of India determined the broad criteria for MACT Nos.1951/16 & 1952/16 Page 11 assessment of permanent disability for ascertaining the purpose of future loss of earning and also laid down step by step procedure for assessment of disability and for ascertainment to the effect of the permanent disability on the actual earning capacity. Relevant paras of the judgment are reproduced as under:-
"9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) Whether the disablement is permanent or
temporary;
(ii) If the disablement is permanent, whether it
is permanent total disablement or permanent partial disablement;
(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The tribunal has to first ascertain what activities of the claimant could carry on in spite of the permanent disability and what he could not do as a result of 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 MACT Nos.1951/16 & 1952/16 Page 12 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 so that he continues to earn or can continue to earn his livelihood."
....If doctor has given evidence about percentage of permanent disability, Tribunal will have to seek doctors opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to whole body and if so to what percentage.
13. We may now summarize 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 percentage of loss of earning capacity is the same as 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 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.
MACT Nos.1951/16 & 1952/16 Page 13
(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."
24. Keeping in view the ratio as discussed above, in the present case, petitioner has relied upon disability certificate Ex.PW2/A wherein the medical board assessed the permanent disability to the extent of 75%. In Raj Kumar vs. Ajay Kumar (supra) Hon'ble Apex Court in para 11 and 12 has observed that Tribunal should not be a silent spectator when medical evidence is tendered regarding medical injuries. Tribunal is required to hold inquiry into the claim for determining just compensation by assessing the medical permanent disability as well as functional disability keeping in view nature of work, profession etc. of the injured. The percentage of permanent disability of whole body cannot be presumed to be percentage loss of earning. Therefore Tribunal is bound to assess corresponding functional disability to compute the future loss of income.
25. This Tribunal has already noted that there is no evidence to show exact nature of job, business or work of the petitioner at the time of accident. Therefore this Tribunal above had calculated the income on the basis of minimum wages of an unskilled labour on account of the fact that there was insufficient material available on the record. Be that as it may, taking into account the nature of injuries since two limbs of the petitioner had to be amputated and his permanent disability was found to be 75%, having considered the entire evidence, medical documents reflect that petitioner, his functional disability is assessed to be 50% of his medical permanent disability i.e. 37.5%.
26. Further, law is well settled that there should be no departure MACT Nos.1951/16 & 1952/16 Page 14 from the multiplier method in injury cases also [refer: Sandeep Khanuja vs. Atul Dande & Anr., (2017) 3 SCC 351]. As per photocopy of Aadhar card, his year of birth is 1955. As such age of petitioner as on date of accident i.e. 03.01.2016 was 60 years. As such multiplier to be applied in the present case would be 9 as applicable to age group between 56-60 years, would be applicable as per settled principle laid down in case of Sarla Verma v. DTC (2009) 6 SCC 121. Moreover, the law has been well settled by the decisions of 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 more than 60 years at the time of accident, an addition of income to the extent of 10% towards future prospects has to be counted.
27. As discussed above, the income of petitioner has been assessed as Rs.9,048/- + 10% (Rs.905/-), total Rs.9,953/- (Rs9,048/- + Rs.905/-). Thus applying the functional disability to be 37.5% of Rs.9,953/-, amount comes out to be Rs.3,732/- As such the loss of future income due to disability comes out to be Rs.3,732 X 12 X 9 = Rs.4,03,056/-. Special Diet & Conveyance Charges:
28. So far as special diet given to petitioner/injured is concerned, PW1 deposed that he spent Rs.50,000/- on his diet and Rs.50,000/- for conveyance. Though no documentary evidence has bee placed on record claiming such amounts under the above heads, however fact remains that petitioner suffered permanent medical disability to the extent of 75% in relation to his lower limbs and artificial limbs have been implanted. So this Tribunal assesses the amount of compensation of Rs.50,000/- under the MACT Nos.1951/16 & 1952/16 Page 15 head of special diet and Rs.50,000/- under the head of conveyance charges.
Attendant Charges:
29. So far as attendant charges are concerned, petitioner in his evidence has testified that he hired a attendant for his looking care of and day to day routine activities for about 08 months and paid her Rs.8,000/- per month. However fact remains that no evidence was led by petitioner Ashwani Khosla to prove this fact that any attendant was hired by him. Keeping in view nature of injuries suffered by the petitioner and the fact that his medical permanent disability was assessed to be 75%, this Tribunal takes attendant charges to be one at parity with minimum wages of unskilled labour in Delhi, at the time of accident which was Rs.9,048/- per month. Thus, as claimed by the petitioner in his evidence himself, he is entitled for compensation for a sum of Rs.72,384/- (Rs.9,048/- X 8). NON PECUNIARY DAMAGES :
Pain & Sufferings:
30. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain v. Jai Kishan, FAO No:
709/02, date of decision: 02.02.2007 can be considered:
"12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
13. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected
(c) Duration of the treatment."
MACT Nos.1951/16 & 1952/16 Page 16
31. In the present case petitioner has suffered grievous injuries i.e. amputation of lower limbs for which artificial limbs were implanted due to accidental injuries. Evidence has also come on the record that petitioner remained confined to bed and thereafter under continuous medical treatment and as per assessment of this Tribunal he has been awarded compensation for loss of income during period of treatment for 12 months..
In such circumstance this Tribunal finds that the petitioner has suffered pain and suffering due to grievous and multiple injuries received in the accident in question. It is however very difficult to quantify the pain and suffering of anyone received injuries in an accident, in the circumstances of the present case having regard to medical difficulties faced by petitioner, age, this Tribunal finds that petitioner is certainly entitled for sum of Rs.2,00,000/- on account of pain and suffering. Loss of Amenities:
32. It is evident on record that after receiving injuries in the accident in question, both lower limbs of the petitioner were amputated and thereafter artificial limbs were implanted. As per disability certificate, petitioner suffered permanent medical disability to the tune of 75% which has been assessed to be 37.5% functional disability in relation to whole body of the petitioner by this Tribunal. It cannot be ignored that with the aforementioned disability, petitioner is bound to face difficulties throughout his life and will not be able to enjoy the amenities of life to the fullest. In view of this, the petitioner is granted a compensation of Rs.1,00,000/-
under this head.
Future medical expenses
33. This Tribunal has already noted above that petitioner had MACT Nos.1951/16 & 1952/16 Page 17 suffered permanent disability of 75% on account of amputation of his lower limbs. Artificial limbs were implanted. But it came in the evidence of PW1 that he would have to take treatment whole of his remaining life as well as to replace his artificial limbs after a particular period. PW3 has also testified that yearly maintenance of his artificial limbs (prosthesis) is around Rs.20,0000/- to Rs.40,000/-. Therefore taking into consideration the age of the petitioner being 60 years at the time of accident and presently his age to be around 67 years, his future medical expenses are assessed to Rs.30,000/- on average basis per annum which are multiplied to 05 years. As such petitioner is entitled for sum of Rs.1,50,000/- under the above said head.
Loss of enjoyment of life due to disfigurement
34. Taking into consideration that petitioner suffered 75% of permanent disability due to amputation of his limbs, it is very much obvious that petitioner must have been deprived of his regular life pursuits and must have suffered immensely for in his day to day life for eating, taking bath, roaming around and other issues. No amount of compensation can be ascertained for loss of enjoyment of life due to permanent disability, however considering the amount of compensation already given under different headings, Rs.50,000/- is awarded to the petitioner under this head.
35. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses Rs.1,22,800/-
Loss of earning during Rs.1,08,576/-
2.
treatment
Loss of future earning due Rs.4,03,056/-
3.
to disability
MACT Nos.1951/16 & 1952/16 Page 18
4. Special diet Rs.50,000/-
5. Conveyance charges Rs.50,000/-
6. Attendant charges Rs.72,384/-
7. Pain & Suffering Rs.2,00,000/-
8. Loss of Amenities Rs.1,00,000/-
9. Future medical expenses Rs.1,50,000/-
Loss of enjoyment of life Rs.50,000/-
10.
due to disfigurement
Total Rs.13,06,816/-
36. Thus, the total compensation amount to which the petitioner Ashwani Khosla is entitled comes to Rs.13,06,816/-. INTEREST ON AWARD
37. Petitioner shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization.
In MACT No.1952/2016PECUNIARY DAMAGS Medical Expenses:
38. Petitioner in her affidavit has testified that after the accident she was taken to nearby hospital Nehru Hospital Chandigarh and subsequently had taken to Sir Ganga Ram Hospital and is still under treatment in Sant Parmanand Hospital Civil Lines. Treatment record and medical bills are Ex.PW1/3 and Ex.PW1/4. PW1 in her cross examination stated that she remained in Sir Ganga Ram Hospital for one month and thereafter got treatment in Sant Parmanand Hospital and she is taking treatment even at the time of giving of her evidence.
39. Petitioner has examined PW5 Vipin Pandey from Sir Ganga Ram Hospital who proved medical bills of petitioner in that hospital to be MACT Nos.1951/16 & 1952/16 Page 19 Rs.7,80,410/- along with OPD bill of Rs.430/- vide Ex.PW5/A. PW7 is Dr.Devanshi Khattar who proved the medical bills of petitioner in Sant Parmanand Hospital to be Rs.1,49,839.61 vide Ex.PW7/B. It has also been proved from the evidence of PW8 Dr.Arjun Uppal that petitioner Savita Kapoor suffered permanent disability to the extent of 66% in relation to her right lower limb.
40. Thus taking into account the evidence of PW4, PW5, PW7 and PW8, petitioner has proved the medical expenses incurred by her during treatment to be Rs.9,30,679.61, therefore is entitled for said amount under the above said heading.
Loss of earning during treatment:
41. Petitioner in her evidence has testified that she was earning Rs.15,000/- by giving tuitions. PW4 further says that on account of injuries suffered in the accident she cannot do even her personal work and cannot give tuitions for last 26 months due to accidental injuries. However petitioner has not given any documentary evidence regarding her earning. In her cross examination PW4 stated that she is matriculate and had been giving tuitions to nursery to 5 th standard students and had been charging Rs.300 to Rs.400 per child.
42. Having considered the evidence of petitioner, in the absence of any documentary evidence regarding the earning. The fact that petitioner being matriculate is not disputed in the cross examination. Therefore in such circumstances income of the petitioner is assessed to be parity with minimum wages of skilled worker in Delhi at the time of accident which is Rs.10,998/- per month.
43. Petitioner in her evidence further testified that she could not give tuitions for 26 months on account of accident because of being under MACT Nos.1951/16 & 1952/16 Page 20 treatment due to accidental injuries. In the evidence of PW4 no medical documents have been placed on record to show that petitioner remained under treatment for 26 months and was unable to do her regular pursuits. It came in the evidence of PW4 that she remained hospitalized in Ganga Ram Hospital for one month and thereafter has been taking treatment in Sant Parmanand Hospital, Civil Lines. It be noted that regularly taking treatment does not mean that petitioner remained confined to bed and was unable to pursue his daily routine, work. Petitioner might have been taking follow up treatment in Sant Parmanand Hospital. However taking into account the nature of injury i.e. permanent disability to the extent of 66% proved by disability certificate Ex.PW8/1, this Tribunal finds that petitioner must have remained confined to bed for treatment for 12 months on account of accidental injuries. Therefore her loss of income during treatment is assessed to be Rs.10,998/- X 12 which is Rs.1,31,976/-. Loss of future earning due to disability :
44. In case of Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC 343, Hon'ble Supreme Court of India determined the broad criteria for assessment of permanent disability for ascertaining the purpose of future loss of earning and also laid down step by step procedure for assessment of disability and for ascertainment to the effect of the permanent disability on the actual earning capacity.
45. Keeping in view the ratio as discussed above, in the present case, petitioner has relied upon disability certificate Ex.PW8/1 wherein the medical board assessed the permanent disability to the extent of 66%. In view of the pronouncement in Raj Kumar vs. Ajay Kumar (supra), this Tribunal has already noted that there is no evidence to show exact nature of work of the petitioner at the time of accident. Therefore this Tribunal MACT Nos.1951/16 & 1952/16 Page 21 above had calculated the income on the basis of minimum wages of an skilled worker on account of the fact that there was insufficient material available on the record. Be that as it may, taking into account the nature of injuries since she received grievous injuries in her right lower limb and her permanent disability was found to be 66%, having considered the entire evidence, medical documents reflect that petitioner, her functional disability is assessed to be 50% of his medical permanent disability i.e. 33%.
46. As per photocopy of Aadhar card, year of birth of petitioner Savita Kapoor is 1966. As such age of petitioner as on date of accident i.e. 03.01.2016 was 50 years. As such multiplier to be applied in the present case would be 13 as applicable to age group between 46-50 years, would be applicable as per settled principle laid down in case of Sarla Verma v. DTC (2009) 6 SCC 121. Moreover, the law has been well settled by the decisions of 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 around 50 years of age at the time of accident, an addition of income to the extent of 25% towards future prospects has to be counted.
47. As discussed above, the income of petitioner has been assessed as Rs.10,998/- + 25% (Rs.2750/-), total Rs.13,748/- (Rs.10,998/- + Rs.2,750/-). Thus applying the functional disability to be 25% of Rs.13,748/-, amount comes out to be Rs.3,437/-. As such the loss of future income due to disability comes out to be Rs.3,437 X 12 X 13 = Rs.5,36,172/-.
MACT Nos.1951/16 & 1952/16 Page 22 Special Diet & Conveyance Charges
48. So far as special diet given to petitioner/injured is concerned, PW4 Smt.Savita Kapoor deposed that she spent Rs.1,00,000/- for diet and Rs.75,000/- for conveyance. Though no documentary evidence has bee placed on record claiming such amounts under the above heads, however fact remains that petitioner suffered permanent medical disability to the extent of 66% in relation to her right lower limb. Thus this Tribunal assesses the amount of compensation of Rs.50,000/- under the head of special diet and Rs.50,000/- under the head of conveyance charges. Attendant Charges:
49. So far as attendant charges are concerned, petitioner (PW4) in her evidence has testified that she has been hiring a maid for looking care of her and day to day routine activities for about 26 months and paid her Rs.8,000/- per month. To prove this fact, petitioner has also examined PW6 Ms.Shabnam who deposed that she is the attendant of injured and is working from the date of accident at the house of injured and getting salary of Rs.8,000/- per month. PW6 testified that she is taking care and help of injured Savita Kapoor in her daily routine work after the accident. PW6 stated that she is getting her monthly salary in cash and husband of injured Savita Kapoor paid her salary through vouchers which are Ex.PW4/3 (colly.). During cross examination PW6 though admitted that she is not a trained medical attendant and she used to do attendant work, providing food to patient, cleaning utensils and house keeping. Her working hours were between 7 am to 9 pm and she was working with injured for last three years. Witness stated that she joined the injured against salary of Rs.8,000/- per month. She says that he is regular house maid of injured since beginning and clarified that she is working as medical attendant of MACT Nos.1951/16 & 1952/16 Page 23 injured since accident.
50. Perusal of vouchers Ex.PW4/3 (colly.) shows that since February 2016 i.e. immediately after the accident petitioner Savita Kapoor has been availing service of attendant Shabnam (PW6) and payment of Rs.8,000/- per month is being given to her for services rendered by PW6. There is nothing contrary on the record to the testimony of PW4 and PW6 to this effect. This Tribunal has already assessed the loss of income of petitioner during treatment to be of 12 months. Thus, it would be in the fitness of things to grant attendant charges @ Rs.8,000/- per month to the petitioner for a period of 12 months only. Therefore, this Tribunal awards compensation of Rs.96,000/- (Rs.8,000/- X 12). NON PECUNIARY DAMAGES :
Pain & Sufferings:
51. In view of the pronouncement of Hon'ble High Court of Delhi in Satya Narain v. Jai Kishan, FAO No: 709/02, date of decision:
02.02.2007, in the present case petitioner has suffered grievous injuries i.e. in her right leg due to accidental injuries. Evidence has also come on the record that petitioner remained confined to bed and thereafter under continuous medical treatment and as per assessment of this Tribunal she has been awarded compensation for loss of income during period of treatment for 12 months.. In such circumstance this Tribunal finds that the petitioner has suffered pain and suffering due to grievous and multiple injuries received in the accident in question. It is however very difficult to quantify the pain and suffering of anyone received injuries in an accident, in the circumstances of the present case having regard to medical difficulties faced by petitioner, age, this Tribunal finds that petitioner is certainly entitled for sum of Rs.1,50,000/- on account of pain and suffering.
MACT Nos.1951/16 & 1952/16 Page 24 Loss of Amenities:
52. It is evident on record that in the accident in question petitioner received injuries on her right lower limb. As per disability certificate, petitioner suffered permanent medical disability to the tune of 66% which has been assessed to be 33% functional disability in relation to whole body of the petitioner by this Tribunal. It cannot be ignored that with the aforementioned disability, petitioner is bound to face difficulties throughout her life and will not be able to enjoy the amenities of life to the fullest. In view of this, the petitioner is granted a compensation of Rs.75,000/- under this head.
Loss of enjoyment of life due to disability
53. Taking into consideration that petitioner suffered 66% of permanent disability due to fracture of his right leg, it is very much obvious that petitioner must have been deprived of her regular life pursuits and must have suffered immensely for in her day to day life for eating, taking bath, roaming around and other issues. No amount of compensation can be ascertained for loss of enjoyment of life due to permanent disability, however considering the amount of compensation already given under different headings, Rs.50,000/- is awarded to the petitioner under this head.
54. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses Rs.9,30,679.61
Loss of earning during Rs.1,31,976/-
2.
treatment
Loss of future earnings Rs.5,36,172/-
3.
due to disability
4. Special diet Rs.50,000/-
5. Conveyance charges Rs.50,000/-
MACT Nos.1951/16 & 1952/16 Page 25
6. Attendant charges Rs.96,000/-
7. Pain & Suffering Rs.1,50,000/-
8. Loss of Amenities Rs.75,000/-
Loss of enjoyment of life Rs.50,000/-
9.
due to disability
Total Rs.20,69,827.61
55. Thus, the total compensation amount to which the petitioner Savita Kapoor is entitled comes to Rs.20,69,828/-. INTEREST ON AWARD
56. Petitioner shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization. LIABILITY
57. Now, the question arises as to which of the respondent is liable to pay the compensation amount. This aspect is being decided in respect of both the claim petitions i.e. MACT No.1951/2016 and 1952/2016 as both these petitions arises from one accident and respondents are also common.
58. Insurance company/respondent no.3 in this case has taken the plea that driving licence no.DL0819820096313 of respondent no.1/driver of offending vehicle namely Braham Singh s/o Nawab was not renewed for driving, transport vehicle during the period from 26.01.2011 to 03.03.2017.
This fact has been proved by the evidence of R3W1 Ankit Malik, Junior Assistant from RTO Loni who proved the computer generated details of above mentioned DL of respondent no.1 which is on the record as Ex.R3W1/A. This witness has not been cross examined at all by respondent no.1 and 2 who were duly having notice of present claim petition and opted not to contest the same during the course of proceedings.
59. Beside this respondent no.3 insurance company has further examined R3W2 Akarsh Deepak, Assistant Manager of respondent no.3 i.e. MACT Nos.1951/16 & 1952/16 Page 26 Oriental Insurance Company. R3W2 testified that the bus no.UP-22T-4965 was insured with the respondent no.3 subject to terms and conditions of the policy. Witness states that on the day of accident driver of the offending vehicle Braham Singh was not holding valid and effective licence for driving offending vehicle i.e. bus. PW R3W2 further stated that a notice under Order 12 Rule 8 CPC Ex.R3W2/1 was served to driver through their counsel as well as to the owner of offending vehicle vide postals receipts Ex.R3W2/2 and Ex.R3W2/3. Certified copy of policy terms and conditions are Ex.R3W2/4.
60. Taking into account the unrebutted testimony of above mentioned two witnesses of insurance company, this Tribunal finds that from Ex.R3W1/A it is very much established that DL of the respondent no.1 was valid for other vehicle but he had not renewed his DL for transport vehicle from 26.01.2011 to 03.03.2017 i.e. for a considerable period of about 06 years. It is established law t hat when DL for transport vehicle issued and not renewed for a considerable period of time, during that period driver cannot drive the transport vehicle. In this case respondent no.1 was driving a transport vehicle i.e. bus no.UP-22T-4965, therefore there was a breach of the terms of the insurance policy. In such circumstance this Tribunal finds that insurance company though is liable to pay the amount of compensation to the petitioners in both the claim petitions, however is entitled for recovery rights of the amount of compensation paid from respondent no.1 and 2 being jointly and severally liable.
Relief in MACT No.1951/201661. This Tribunal awards a compensation of Rs.13,06,816/- (Rs.Thirteen Lakh Six Thousand Eight Hundred and Sixteen Only) to the MACT Nos.1951/16 & 1952/16 Page 27 petitioner Ashwani Khosla along with interest @ 8% per annum from the date of filing of petition till realization to be paid by the respondent no.3/insurance company recoverable from respondent no.1 and 2 jointly and severally. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, 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 in MACT No.1951/2016
62. Out of awarded amount, a sum of Rs.1,30,816/- is directed to be released into the saving account of the petitioner and remaining amount of Rs.11,76,000/- along with the interest on the entire award amount is directed to be kept with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) in the form FDR (fixed deposit receipt) to be prepared in the name of petitioner for five years. The amount of FDR on maturity shall directly be released in petitioner's MACT Saving Bank Account.
Relief in MACT No.1952/201663. This Tribunal awards a compensation of Rs.20,69,828/- (Rs.Twenty Lakh Sixty Nine Thousand Eight Hundred and Twenty Eight Only) to the petitioner Savita Kapoor along with interest @ 8% per annum from the date of filing of petition till realization to be paid by the respondent no.3/insurance company recoverable from respondent no.1 and 2 jointly and severally. Amount of interim award, if any, be deducted from MACT Nos.1951/16 & 1952/16 Page 28 the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, 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 in MACT No.1952/2016
64. Out of awarded amount, a sum of Rs.2,09,828/- is directed to be released into the saving account of the petitioner and remaining amount of Rs.18,60,000/- along with the interest on the entire award amount is directed to be kept with UCO Bank, Karkardooma Courts, Delhi in Motor Accident Claims Annuity Deposit (MACAD) in the form FDR (fixed deposit receipt) to be prepared in the name of petitioner for five years. The amount of FDR on maturity shall directly be released in petitioner's MACT Saving Bank Account.
Direction to the petitioners
65. The petitioners shall open a saving bank account near the place of his resident. Further, the bank of petitioner is directed to comply with the following conditions:
(a)The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant 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 MACT Nos.1951/16 & 1952/16 Page 29 (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. The bank shall debit card(s) freeze the account of the claimant so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
(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.
66. File be consigned to Record Room.
Announced in the open Court ( Shailender Malik ) on 18.12.2023 PO MACT-02/SHD/KKD MACT Nos.1951/16 & 1952/16 Page 30