Delhi District Court
Akhilesh Kumar (Dar) vs Shohail Sharma (263/20Jp) on 14 May, 2024
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 337/20
FIR no. 263/20
PS: Jaitpur
U/s 279/338 IPC & 3/181, 146/196, 5/180, MV Act
CNR No. DLSE01-004322-2020
Akhilesh Kumar Vs. Shohail Sharma & Ors.
Akhilesh Kumar
S/o Kapil Dev
R/o H. No. 8, Gali no.1, Mithapur
Extension, Badarpur, New Delhi.
...Claimants/LRs of deceased
Versus
1. Shohail Sharma
S/o Prem Sharma
R/o H. No. 190A, Gali no.2, Ekta Vihar,
Mithapur Extension, Badarpur
New Delhi.
..... Driver /R-1
2. Suraj Kumar
S/o Prem Kumar
R/o H. no. 1, Gali no. 6,
Shakti Vihar, Opp- Kanishka Garden,
Jaitpur, New Delhi.
..... Possession Holder/R-2
MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 1 of 23
3. Surjit Singh
S/o Bikar Singh
R/o H. No. 5N, 51A, Kl Mehta Road
BK Hospital, Nursing Staff Quarters
Faridabad, Haryana.
..... Registered Owner/R-3
Date of accident : 13.07.2020
Date of filing of DAR : 27.10.2020
Date of Decision : 14.05.2024
AWARD
1. Detailed Accident Report (hereinafter referred as DAR) pertaining to
alleged accident of injured Akhilesh Kumar (hereinafter referred as claimant),
by vehicle bearing Reg. No. HR 51AC 0910 (hereinafter referred as offending
vehicle), which was driven by its driver Sh. Shohail Sharma (hereinafter
referred as Respondent No.1/ driver), possessed by Sh. Suraj Kumar
(hereinafter referred as R-2/ Possession Holder) and registered with Sh. Surjeet Singh (hereinafter referred as R-3/ Registered Owner) was filed by IO HC Babu Lal in terms of provisions of Motor Vehicle Act, which is being treated as Claim Petition under Section 166 (1) read with Section 166 (4) MV Act.
2. Preliminary information regarding accident was received at PS Jaitpur recorded vide DD no. 57A dated 11.07.2020, upon receipt of which IO HC Babu Lal along with Ct. Ashu reached at the place of accident at Shivpuri Colony, Pall Road, near Mithapur Chowk, where they did not find any injured or vehicle. Thereafter police officials contacted PCR caller who intimated that he was going from there and saw that accident had already been taken place and MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 2 of 23 that he called at 100 number and thereafter, PCR reached and took the injured to the hospital. Subsequently, upon receipt of DD no. 69A dt. 11.07.2020 regarding MLC, they reached AIIMS Trauma Center where they received MLC of injured Akhilesh opined to be unfit for statement. Having not been able to locate any eye witness, FIR under Sec.279/337 IPC was registered by the IO on the basis of information received from PCR caller vide GD no. 0057A.
3. On 13.07.2020, at about 06.30 am, injured himself along with his friend Mahesh Thakur reached the police station and got his statement recorded before the police. He told to IO HC Babu Lal that he was a vegetable vendor and was plying his rickshaw loaded with vegetable back to his home from vegetable market Saraswati Colony, Faridabad, Haryana. At about 09.30 pm, when they reached near Shivpuri Colony, towards Mithapur at Canal Road, the driver of offending vehicle bearing Reg. no. HR 51AC 0910 forcefully hit his cycle rickshaw from back side due to which he fell down and sustained multiple injuries. Thereafter someone called PCR which later rushed to him to the hospital. He also disclosed the name of driver of offending vehicle as Shohail Sharma S/o Prem Sharma. Thereafter, IO also recorded the statement of Sh. Mahesh Thakur, friend of injured who corroborated the factual outline of accident. He also stated that public persons had apprehended the driver of offending vehicle who disclosed his name as Sohail Sharma. However, the driver of such offending vehicle later dodged and managed to flee away with his car. He further stated that family of injured later shifted the broken rickshaw from the spot along with them. PCR reached and rushed the injured to hospital where he was treated and discharged on 12.07.2020. Thereafter, IO prepared site plan at the instance of Mahesh Thakur. IO also got verified the details of registration number of the vehicle from concerned RTO as per which, Surjit MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 3 of 23 Singh S/o Bikar Singh was found to be Registered owner. Notice u/s 133 MV was also served upon the said registered owner Surjit who stated that he had already sold the vehicle to one Suraj Kumar. Thereafter, IO reached the address of current owner of vehicle namely Suraj Kumar who stated that he has not transferred the said vehicle in his name. He also disclosed that he did not have any valid and effective insurance on date of accident. His statement u/s 161 CrPC was recorded.
4. Mechanical Inspection was got conducted by IO. MLC of injured was received as per which nature of injury was found to be grievous. After collecting aforesaid information and conducting investigation, charge sheet was filed u/s 279/338 IPC & 3/181, 146/190, 5/180 MV Act before concerned Ld. Ilaka MM while DAR was filed before this Tribunal.
Reply/ Response:
5. In response to DAR, R-1 / driver and & R-2/ possession holder appeared. Registered owner/ R-3 never appeared before the Court despite knowledge of LR's requisition to appear before the Court. They were also directed to file show cause notice as to why they should not be directed to furnish security deposit to the tune of Rs. 1 lakh, dated 27.10.2020 in form of FDR. However, neither did they furnish any response to notice or furnish deposit nor did they even file any reply to DAR. Thus, their right to file reply was closed on 02.04.2022 and their right to contest the present case was closed vide order dated 02.11.2022.
6. In course of proceedings, efforts were made by R-1 & 2 as well as claimant to settle the matter in National Lok Adalat, but no such settlement took place.
MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 4 of 23 Issues:
7. From the pleadings of parties, following issues were framed vide order dated 02.04.2022:
1) Whether the injured suffered injury in a road traffic accident on 13.07.2020 due to rash and negligent driving of vehicle no. HR 51AC 0910 being driven by R-1 & owned by R-
2? OPP.
2) Whether the petitioners are entitled to any compensation, if so, to what extent and from whom ? OPP.
3) Relief.
8. Perusal of Issue no. 1 reflects that status of R-3 was inadvertently not reflected therein thus same is being reframed as under:
1) Whether the injured suffered injury in a road traffic accident on 13.07.2020 due to rash and negligent driving of vehicle no.
HR 51AC 0910 being driven by R-1/ Shohail, actually owned and possessed by R-2/ Suraj and registered in the name of Surjeet? OPP.
9. Thereafter, matter was listed for PE. Claimant appeared in the witness box as PW-1 and tendered his examination in chief by way of affidavit Ex.PW1/1. He relied upon following documents:
DAR- Ex.PW1/A Medical Bills- Ex.PW1/B Aadhar Card - Ex.PW1/C MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 5 of 23
10. No one turned up on behalf of respondents to cross examine PW-1. PE was closed vide order dated 14.03.2024. No evidence was adduced by respondents. RE was closed vide order dated 08.05.2024.
11. Arguments were advanced by counsel for claimant wherein he urged for matter to be disposed on the basis of material available on record asserting that claimant has suffered on account of rash and negligent driving on part of R-1 and must be adequately compensated.
12. On the basis of material on record, evidence adduced and arguments addressed, issue wise findings are as under :-
ISSUE NO.1
1) Whether the injured suffered injury in a road traffic accident on
13.07.2020 due to rash and negligent driving of vehicle no. HR 51AC 0910 being driven by R-1/ Shohail, correctly owned by R-2/ Suraj and registered in the name of Surjeet? 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. The factors noted above are sufficient to conclude that preponderance of probability is made out showing negligence of respondent no.1 in causing the accident.
14. Police after investigation had filed charge-sheet against respondent no.1 U/s 279/337 IPC & 3/181, 146/196, 5/180 MV Act which is also suggestive of negligence of respondent no.1 in causing the accident. The IO has filed Detailed Accident Report before this Tribunal. In National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of chargesheet under relevant section are sufficient proof of MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 6 of 23 negligence of the driver of the offending vehicle.
15. It is also settled that if driver of offending vehicle does not enter the witness box, an adverse inference can be drawn against him as observed by Hon'ble High Court of India in the case of Cholamandlam insurance company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310. In this case also, R-1 / driver has not adduced any evidence to controvert the affirmation on the part of claimant that the accident did not occur on account of any negligence on the part of Respondent no.1.
16. PW-1 affirmed that he was rammed by alleged offending vehicle from the back with great force which was also corroborated by statement made by his friend Mahesh Thakur before the police. Mahesh Thakur also narrated as to how driver of the offending vehicle was also apprehended by the public persons but he dodged them and fled away from his car. Perusal of the site plan shows that place of accident has been marked as Mark A on Agra Canal Road which is single lane without any divider while accident took place at extreme left to the road going towards Mithapur Chowk. Mechanical Inspection Report also shows fresh damages on alleged offending vehicle as well as cycle rickshaw of injured. PCR call was recorded vide GD entry no. 57A at about 09.55 pm which has been placed on record. Accordingly, there is nothing which does not fit in to the narrative and therefore, puts the factum of accident in doubt.
17. In this case, injured as well as his friend narrated the mode and manner of the accident. None appeared on behalf of respondents to cross examine the witness on the aspect. Even they did not file any reply to to answer the allegation made against them as part of DAR. Apart from claimant, it was only R-1 who could have clarified about the factual matrix of the accident, which he chose not to do. The driver was identified in the police station by injured as well MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 7 of 23 as his friend Mahesh Thakur, who was also named in the FIR. Notice under section 133 MV Act was also served upon owner which also established the identification of the driver, with no denial about involvement of the offending vehicle in the accident.
18 As such, in view of the evidence proved on record and charge-sheet against R-1 and that R-1 did not appear in the witness box to deny the rash and negligence on the part of driver, in backdrop of the discussion made above, nothing remains in contention any further. It is held that rash and negligent driving of the offending vehicle was responsible for causing injuries to injured. Issue No.1 is decided accordingly, in favour of the petitioner and against respondent.
ISSUE NO. 2ii). Whether the petitioner is entitled to any compensation, if so, to what extent and from whom?OPP
19. Section 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 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 8 of 23 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 announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
20. 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).
21 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] .
MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 9 of 23
22. 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 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.. ..."
23. 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 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 10 of 23 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 normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
24. 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. MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 11 of 23 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:
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 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 12 of 23 lump sum amounts with reference to 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."
25. 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.
26. PW-1/ injured deposed that he was in the business of selling vegetables and earning Rs. 35,000/- per month. He also deposed that he has incurred Rs. 50,000/- on account of medical expenses. Injured as well as his friend Mahesh Thakur mentioned in statement recorded by police official that injured was in business of selling vegetables. Even it has also come on record that he was returning with his cycle rickshaw loaded with vegetables at the time of accident which prima facie established that he was vegetable vender at the time of accident. Perusal of the record shows that any income proof or educational certificate has not been filed by the claimant. In absence of any proof, it is not possible to ascertain that injured was actually earning Rs. 35,000/- per month. In such case, his income shall be assessed as per minimum wages applicable in MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 13 of 23 Delhi for an unskilled workman at the time of accident which was Rs. 14,842/-.
27. He further deposed in his affidavit that due to accident, he did not continue his business due to physical inability. MLC (part of DAR Ex.PW1/A) reflects injuries as "multiple abrasion and different location of body and laceration over occiptal". As per discharge summary, injured was hospitalized for 1 day wherein he was diagnosed for right clavicle tenderness and advised for arm sling immobilizer. There are some medical bills upto September 2020 which shows that injured continued to pursue medical treatment. However, no prescription was available on record suggesting bed rest to the injured. No disability application ever moved by injured in support of his averments either. After perusal of nature of injuries, medical bills and treatment record, his loss of income is assessed for at least 3 months from the date of accident.
28. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment: Rs. 3,822/-
Claimant deposed that he has incurred medical bills worth Rs. 50,000/- however he has only filed medical bills Ex.PW1/B totaling of Rs. 3822/-.
(ii) Expenditure on Conveyance : No Rs. 10,000/- bills in respect of conveyance has been filed on record however, considering the nature of injury, it can be considered that claimant would not have been in a position to use public transport.
(iii) Expenditure on special diet: no Rs.10,000/- bill placed on record by claimant against any special diet. There is also no MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 14 of 23 prescription suggesting him for any special diet. Therefore, by guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant :
Claimant also not filed any bills for Rs.10,000/- nursing / attendant. He has also not mentioned that whether he needed any support for any attendant for his day to day activity. However considering that nature of injuries was grievous even in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : as discussed above Rs.44,526/-
(vi) Cost of artificial limbs (if NA applicable) :
(vii) Any other loss / expenditure : NA
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.25,000/-
physical shock : The nature of injuries are grievous and he would have undergone great mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 25,000/- for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
(iii) Loss of amenities of life : The Rs.10,000/- nature of injuries are grievous
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning capacity MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 15 of 23 (I) Percentage of disability assessed N/A and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability : The nature of injuries are grievous
(iii) Percentage of loss of earning N/A capacity in relation to disability: As already discuss above.
(iv) Loss of future Income: N/A
(v) Future medical expenses Nil
Total Compensation Rs.1,38,348/-
Deduction, if any, Nil
Total Compensation after deduction Rs.1,38,348/-
Interest As directed
below
29. 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 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 16 of 23 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 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 liability 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."
30. 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 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 from the date MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 17 of 23 of filing of DAR till realization.
Liability :-
31. In this case offending vehicle was not insured which is a matter of record. Further as per material on record, R-1 was the driver of the offending vehicle and R-2 is the possession holder of the vehicle whereas R-3 is the registered owner/ RC holder. It is noted that none of the respondent filed any reply to DAR as well as show cause notice respect of depositing security amount. It is further noted that R-3/ Surjit Singh was the RC holder of the alleged offending vehicle while R-2 Suraj was the possession holder. Even the said facts have not been denied by them during investigation. Investigation also concludes R-2 to be possession holder & R-3 to be registered owner. 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 Supreme court and Hon'ble High Court of Delhi, all three respondents no.1, 2 & 3 are held to be liable to pay jointly and severely the compensation and award amount in question to the petitioner as held above.
32. Accordingly, R-1/ driver/ Shohail, R-2/ Possession Holder/ Suraj and registered owner & R-3/ Surjit Singh are jointly and severally are directed to deposit the amount of Rs.1,38,348/- along with simple interest @ 9% p.a. from the date of filing of DAR till its 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. Further, if any auction proceedings is received, same be adjusted in the final award amount).
33. 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 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 18 of 23 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.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
34. 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 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:-
35. 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.
36. 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 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 19 of 23 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 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 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 20 of 23 this 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 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....."
MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 21 of 23
37. 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.
38. Keeping in view the entirety of the facts and circumstances involved in the present case and the above-said guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, entire award amount along with interest, be released to the petitioner/injured in his bank account near his place of residence as per rule/ directions.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 13.07.2020 2 Name of injured Akhilesh Kumar 3 Age of the injured 36 years 4 Occupation of the Not proved.
injured 5 Income of the injured Minimum wages applicable in Delhi for unskilled person on the date of accident to the tune of Rs.14,842/- shall be applicable 6 Nature injury Grievous 7 Medical treatment As per record.
MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 22 of 23 taken by the injured:
8 Period of As per record.
Hospitalization 9 Whether any No. permanent disability?
39. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate. Digitally signed by SHELLY
40. Put up on 15.07.2024 for compliance. SHELLY ARORA ARORA Date:
2024.05.14 Announced in the open court 10:38:52 on 14.05.2024 +0530 Shelly Arora PO (MACT)-02, SE/Saket/Delhi 14.05.2024 MACT No. 337/20 Akhilesh Kumar Vs. Shohail Sharma & Ors. Page No. 23 of 23