Both R/O E365 vs Naseem on 16 April, 2018

[Cites 18, Cited by 0]

Delhi District Court

Both R/O E365 vs Naseem on 16 April, 2018

                Sh. G. N. Pandey,  Motor Accident Claims Tribunal( Pilot Court) 
                                 Karkardooma Courts, Delhi.




                       In the Court of Sh. G. N Pandey 
                 Motor Accident Claims Tribunal(Pilot Court) 
                     Karkardooma Courts, Delhi.                                    

                    MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15

                                               MACT No. 14615/15

IN THE MATTER OF :

        (1)      Rajesh Kumar Shukla S/o Sh. Radhey Shyam 
                 aged about 27 years/ Father 

        (2)      Satish Kumari W/o Sh. Rajesh Kumar Shukla
                 aged about 26 years/ Mother 

                 Both R/o E365, E Block, Jagjit Nagar, Delhi53 
                                                  ............ Petitioners

                                        V E R S U S

        1.       Naseem Ahmed S/o Gayasuddin 
                 R/o Parmod Transport Co.
                 Rampur Road, Moradabad, UP 

        2.       M/s Sparsh Transport Carrier Pvt. Ltd.
                 Through its Manager/ Managing Director
                 Piprola, Shahjahanpur, UP 

                 Also at: C/o Sanjay Transport Co.
                 Bareilly, UP 

        3.       United India Insurance Co. Ltd.
                 Through its Manager
                 8th Floor, Kanchanjunga Bldg,
                 18 Barakhamba Road, New Delhi. 
                                                 ........ Respondents

MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 1 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Date of Institution of petition : 31.07.2015 Date of Judgment/Order : 16.04.2018 MACT No. 15128/15 IN THE MATTER OF : Anushka Shukla D/o Sh. Sandeep Kumar Shukla aged about 6 years, also known as Pranjal ( Minor through his natural guardian/ father Sandeep Kumar Shukla) R/o E363, Gali No. 5, Jagjeet Nagar, Delhi53 ............ Petitioner V E R S U S

1. Naseem Ahmed S/o Gayasuddin R/o Parmod Transport Co.

Rampur Road, Moradabad, UP

2. M/s Sparsh Transport Carrier Pvt. Ltd.

Through its Manager/ Managing Director Piprola , Shahjahanpur, UP Also at: C/o Sanjay Transport Co.

Bareilly, UP

3. United India Insurance Co. Ltd.

Through its Manager 8th Floor, Kanchanjunga Bldg, 18 Barakhamba Road, New Delhi.

........ Respondents Date of Institution of petition : 04.08.2015 Date of Judgment/Order : 16.04.2018 MACT No. 15129/15 IN THE MATTER OF : MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 2 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Meena Shukla W/o Sh. Sandeep Kumar Shukla aged about 29 years, also known as Meenu Shukla R/o E365, Gali No. 5, Jagjeet Nagar, Delhi53 ............ Petitioner V E R S U S

1. Naseem Ahmed S/o Gayasuddin R/o Parmod Transport Co.

Rampur Road, Moradabad, UP

2. M/s Sparsh Transport Carrier Pvt. Ltd.

Through its Manager/ Managing Director Piprola , Shahjahanpur, UP Also at: C/o Sanjay Transport Co.

Bareilly, UP

3. United India Insurance Co. Ltd.

Through its Manager 8th Floor, Kanchanjunga Bldg, 18 Barakhamba Road, New Delhi.

........ Respondents Date of Institution of petition : 04.08.2015 Date of Judgment/Order : 16.04.2018 MACT No. 15182/15 IN THE MATTER OF : Vansh Shukla S/o Sh. Sandeep Kumar Shukla aged about 9 months ( Minor through his natural guardian/ Father Sandeep Kumar Shukla) R/o E365, Gali No. 5, Jagjeet Nagar, Delhi53 ............ Petitioner MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 3 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

V E R S U S

1. Naseem Ahmed S/o Gayasuddin R/o Parmod Transport Co.

Rampur Road, Moradabad, UP

2. M/s Sparsh Transport Carrier Pvt. Ltd.

Through its Manager/ Managing Director Piprola, Shahjahanpur, UP Also at: C/o Sanjay Transport Co.

Bareilly, UP

3. United India Insurance Co. Ltd.

Through its Manager 8th Floor, Kanchanjunga Bldg, 18 Barakhamba Road, New Delhi.

........ Respondents Date of Institution of petition : 04.08.2015 Date of Judgment/Order : 16.04.2018 A W A R D:

1. By this order, I shall dispose off four connected claim petitions bearing No. 14615/15, 15128/15, 15129/15 & 15182/15. Petitioners have filed the claim petitions under Sec. 166 & 140 of MV Act.

2. These petitions are filed by the petitioners stating that on 09.06.2015, Shaksham Shukla, Anushka Shukla, Meena Shukla and Vansh Shukla alongwith other relatives were going on WagonR No. DL 2 CAL 3562 from Delhi to Faizabad, UP. At about 5:45 hrs, when they reached NH 24 Village Kotra, PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP, in the meanwhile, a speeding truck No. UP 27 5376 coming from opposite side in high speed and in gross violation of MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 4 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

lane driving, hit car No. DL 2 CAL 3562 resulting in road accident and fatal injuries to Shaksham Shukla, grievous injuries to Anushka Shukla, Meena Shukla and Vansh Shukla. The speed of the truck was exorbitantly high. This accident occurred solely due to rash and negligent driving of truck. Petitioner Anushka Shukla suffered head injuries, 7 stitches on nose, three stitches of eye brows right side forehead. The petitioner Anushka Shukla was treated at Sheela Hospital Shahjahanpur, Sahara Hospital Lucknow and private doctors at Delhi. Petitioner Anushka also remained admitted at Sheela Hospital from 09.06.2015 to 11.06.2015 thereafter Sahara hospital from 11.06.2015 to 12.06.2015. Petitioner Meena Shukla suffered multiple fracture of ribs of right side, head injuries. Petitioner was treated at Distt. Hospital Shahjanpur, Sahara Hospital Lucknow. Petitioner Meena Shukla remained admitted at Sahara Hospital from 11.06.2015 to 22.06.2015. Petitioner Vansh Shukla suffered head injuries, right upper limb weakness and abrasion over right side eye and facial region. Petitioner was treated at Distt. Hospital Shahjanpur, Sahara Hospital Lucknow. Petitioner remained admitted at Sahara Hospital from 11,06.2015 to 12.06.2015 due to accident. Regarding accident, FIR No. 16/15 for offence U/s 279/337/338/304A/427 IPC was registered at PS Praswa. Thereafter, petitioners have filed four petitions for compensation i.e. petition No. 14615/15 titled Rajesh Kumar Shukla & Ors V/s Naseem Ahmed & Ors, petition No. 15128/15 titled Anushka Shukla V/s Naseem Ahmed & Ors., petition No. 15129/15 titled Meena Shukla V/s Naseem Ahmed & Ors. & petition No. 15182/15 titled Vansh Shukla V/s Naseem Ahmed & Ors. The respondents in all the petitions are common.

MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 5 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

3. None had appeared on behalf of respondent No. 1 despite service by way of publication and despite repeated calls therefore respondent No. 1 was proceeded ex parte vide order dt. 22.01.2016.

The respondent No. 2 filed WS denying the averments made in the petition contending that this petition is not maintainable and there is no cause of action for filing of the same. As contended, there is no fault of the driver of the vehicle in the accident; abovesaid offending vehicle was insured with the insurance company. It is further contended that driver of the offending vehicle has valid DL. While denying rest of the claim of the petitioner in the petition, the respondent No. 2 prayed to dismiss the petition with cost.

The respondent No. 3/insurance company filed WS of the claim petition contended that vehicle No. UP 27 5376 was insured with the answering respondent being insurance policy No. 0805013114P107786597 valid for the period from 31.12.2014 to 30.12.2015 in favour of M/s Sparsh Transport Carrier Pvt. Ltd.

4. In view of the records, following issues were framed on 22.01.2016 in petition No. 14615/15:

1. Whether deceased Shaksham Shukla died on account of injuries sustained in accident taking place on 09.06.2015 at about 5:45 hrs on NH 24 Village Kotra, PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP within the jurisdiction of PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP due to rash and negligent driving of vehicle bearing No. UP 27 5376 by respondent No. 1. ?OPP

2. Whether petitioners are entitled to compensation? If so, to what amount and from whom? OPP MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 6 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

3. Relief.

5. Following issues were framed in petition No. 15128/15 on 22.01.2016 :

1. Whether petitioner sustained injuries in motor accident caused by rash and negligent driving of vehicle No. UP 27 5376 by respondent No. 1 on 09.06.2015 at about 5:45 hours on NH 24 village Kotra, PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP within the jurisdiction of PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP ?OPP

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

6. Following issues were framed in petition No. 15129/15 on 22.01.2016:

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

7. Following issues were framed in petition No. 15182/15 on 22.01.2016:

1. Whether petitioner sustained injuries in motor accident MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 7 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

caused by rash and negligent driving of vehicle No. UP 27 5376 by respondent No. 1 on 09.06.2015 at about 5:45 hours on NH 24 village Kotra, PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP within the jurisdiction of PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP ?OPP

2. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

3. Relief.

The evidence were recorded in the matter for disposal of the petitions: Evidence in Petition No. 14615/15

8. Father of deceased/ petitioner No. 1 filed his affidavit by way of evidence Ex. PW 1/ A and examined himself as PW1. Witness has relied upon the abovesaid documents i.e. Ex. PW 1/ 1 to Ex PW 1/ 5 and mark A. Petitioners also examined eyewitness of the accident i.e. Sh. Sandeep Kumar Shukla as PW2 by way of affidavit Ex. PW 2/ A who deposed regarding the accident. PE was thereafter closed.

9. Respondent did not lead any RE despite opportunities therefore RE was closed.

Evidence in Petition No. 15128/15

10. Father of petitioner filed his affidavit by way of evidence Ex. PW 1/A and examined himself as PW1. Witness has relied upon the abovesaid documents i.e. Ex. PW 1/ 1 to Ex PW 1/ 3. PE was thereafter closed.

11. Respondent did not lead any RE despite opportunities therefore RE MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 8 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

was closed.

Evidence in Petition No. 15129/15

12. Petitioner filed her affidavit by way of evidence Ex. PW 1/ A and examined herself as PW1. Witness has relied upon the abovesaid documents i.e. Ex. PW 1/ 1 to Ex PW 1/ 6.

Petitioner also examined eyewitness of the accident i.e. Sh. Sandeep Kumar Shukla as PW2 by way of affidavit Ex. PW 2/ A who deposed regarding the accident. PE was thereafter closed.

13. Respondent did not lead any RE despite opportunities therefore RE was closed.

Evidence in Petition No. 15182/15

14. Father of petitioner filed his affidavit by way of evidence Ex. PW 1/ A and examined himself as PW1. Witness has relied upon the abovesaid documents i.e. Ex. PW 1/ 1 to Ex PW 1/ 3. PE was thereafter closed.

15. Respondent did not lead any RE despite opportunities therefore RE was closed.

16. I have heard Ld. Counsel for petitioner and ld. Counsel for insurance company and considered the relevant materials on record. My issue wise findings are as below :

17. My findings on the aforesaid issues are as follows : Issue No. 1 in petition No. 14615/15:

1. Whether deceased Shaksham Shukla died on account of injuries sustained in accident taking place on 09.06.2015 at about 5:45 hrs on NH 24 Village Kotra, PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP within the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 9 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

jurisdiction of PS Praswa, Sub Division Mohamdi, Lakhimpur Kheri, UP due to rash and negligent driving of vehicle bearing No. UP 27 5376 by respondent No. 1. ?OPP Issue No. 1 in petition No. 15128/15:

18. To succeed in the claim petition in view of Section 166 of the MV Act, it is for the claimant to prove that vehicle which caused the accident MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 10 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

was being driven rashly and negligently by its driver. Issue No. 1 in all four cases is taken up together. Petitioner / injured Rajesh Kumar Shukla, Sandeep Kumar Shukla and Meena Shukla were examined and deposed about the facts of the case. They were crossexamined by ld. Counsel for respondents and during crossexamination nothing has come forward in their testimony to disbelieve the version of Pws. On the other hand, respondents did not examine any witness to rebut the contentions and deny the claim of the petitioner and mere denial is not sufficient to rebut the claim of the petitioner. No witness was produced or examined by respondents as well to prove as to how accident occurred due to the negligence of the deceased/ injured; the respondent No. 1 was not at fault and was not driving the vehicle in rash and negligent manner. There is no reason to disbelieve the testimony of witnesses. I have gone through the record and documents in respect of the accident caused to the petitioner which is prima facie suggestive of negligence of respondent No. 1 in driving the vehicle at the time of accident.

Relied judgment in (Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530 and the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC 635 and Kusum Lata v. Satbir, (2011) 3 SCC 646).

Hon'ble Supreme Court in Bimla Devi and Ors. V/s Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 held as under:

"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 11 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

19. In judgment of Hon'ble Delhi High Court in United India Insurance Company Ltd. Vs. Deepak Goel & Ors., 2014 (2), T.A.C. 846 (Del.), it was held that in a case, where FIR is lodged, chargesheet is filed, then the documents mentioned above are sufficient to establish the fact that the driver of the vehicle in question was negligent in causing the accident particularly when there was no defence available from his side. In case of Cholamandalam M.S. General Insurance Co. Ltd. v. Kamlesh, 2009 (3) AD (Delhi) 310, an adverse inference was drawn because the driver of the offending vehicle had not appeared in the witness box to corroborate his defence taken in the written statement. It was noted that there was nothing on record to show that the Claimant had any enmity with the driver of the offending vehicle so as to falsely implicate him in the case.

20. I have gone through the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana to examine the aspect of negligence wherein in the Hon'ble High Court held that: In case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo and the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 12 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.

Further, in Kaushnumma Begum and others V/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.

Further the Hon'ble High Court of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. V/s. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Delhi High Court, held as under:

"The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit.

21. Therefore, in view of the criminal case record and statement of PWs, it is proved that the deceased Shaksham Shukla and injured Anushka MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 13 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Shukla, Meena Shukla and Vansh Shukla sustained fatal injuries / simple and grievous injuries on 09.06.2015 due to rash and negligent driving of offending vehicle bearing No. UP 27 5376 driven by its driver i.e. respondent No. 1. The issue is decided accordingly. Issue No. ii in claim petition No. 14615/15 :

(ii) Whether petitioners are entitled to compensation ? If so to what amount and from whom? OPP

22. The Hon'ble Supreme Court in Nagappa V/s Gurdayal Singh reported as 2003(2) SCC 274 ruled that the main guiding principle for determining the compensation is that it must be just and further that it must be reasonable. As observed in UP State Road Transport corporation V/s Trilok Chandra (1996) 4 SCC 362, the compensation awarded in such cases has primarily two elements; the pecuniary loss to the estate of the deceased resulting from the accident and the pecuniary loss sustained by members of his family on account of his death in addition to the conventional award under non pecuniary heads of damages( e.g. loss of consortium, loss of love and affection, funeral expenses etc).

23 The damages are to be based on the reasonable expectation on pecuniary benefit or benefits reduceable to money value. In General Manager Kerala State Road Transport Corporation V/s Susamma Thomas reported as (1994) 2 SCC 176, the court ruled that in fatal accident action, the measure of damages is the pecuniary loss suffered or likely to be suffered by each dependent as a result of death and that : "9.The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 14 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that that deceased might have got better employment or income or might have lost his employment or income altogether".

24. Hon'ble Supreme Court in Sarla Verma V/s DTC reported as (2009) 6 SCC 121 held as under:

16. ... "Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profits.

17. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While, it may not be possible to have mathematical precision or identical awards, in assessing compensation same or similar facts should lead to award in the same range. When the factors/ inputs are the same, and the formula/ legal principles are the same, consistency and MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 15 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

uniformity and not divergence and freakiness, should be the result of adjudication to arrive at just compensation.

25. No amount of compensation can restore, eliminate or ameliorate the loss suffered on account of death ( or injury with lasting effect) the endeavor by such award is to repair the damage done so as to restore the victim( which includes the dependent) to the extent possible to the preaccidental position. The pecuniary damages are meant to take care of the prospective pecuniary loss of future income and the non pecuniary damages to compensate, to an extent, for pain and suffering , loss of love, companionship, expectation of life etc. The Hon'ble Supreme Court in R. K Malik V/s Kiran Pal reported as 2009 (14) SCC 1 observed as under:

22. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a ground for non payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy.

23. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualised and understood. Perhaps , the only mechanism known to law in this kind of situation is to compensate a person who has suffered non pecuniary loss or damages as a consequence of the wrong done to him by way of damages / monetary compensation. Undoubtedly, when a victim of a MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 16 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness, etc., which is sometimes described as compensation paid for "loss of expectation of life".

26. The method for computation of compensation for the date of death of children appeared to be non informed and consistence. The challenge in determining the ' just and reasonable' compensation in such cases is mainly due to the fact that there is virtually no evidence in actual loss of earning of the deceased child. Hon'ble Supreme Court in R. K. Malik(supra) noted:

25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The courts have therefore used the expression "standard compensation" and conventional amount/ sum"

to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding compensation."

27. In view of the aforesaid legal positions, the question of law concerning the method of calculation of compensation in accident claim cases involving deaths of children in motor Vehicle accident was thoroughly examined and analyzed by Delhi High Court in MAC Apps. No. 554/2010 & Conn. decided on 13.05.2016. The Hon'ble High Court laid down the formula to be adopted for computation of just compensation in case of death of children so that there is no disparity while considering the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 17 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

nature of future prospects and inflationary trends affecting the loss of real value of money. It was considered that there can hardly ever be a clear proof of pecuniary loss resulting from death and the cases for compensation on account of death of children in Motor Vehicle Accident cases ought to be dealt with by considering the claim towards pecuniary damages ( towards loss of estate), in accordance with the age group wise categories as in RK Malik (Supra). The income is to be notionally assumed on the basis of the second schedule of the M.V. Act and the deduction of 1/3rd on account of personal and living expenses would be appropriate. The award of compensation must necessarily take into account non pecuniary damages.

Hon'ble Delhi High Court in para 71 of the judgment noted: Subject to all other requisite conditions being fulfilled, for the foregoing reasons, in order to bring about consistency and uniformity in approach to the issue, it is held that claims for compensation on account of death of children shall be determined as follows:

(i) Till such time as the law is amended by the legislature, or the Central Government notifies the amendment to the Second Schedule in exercise of the enabling power vested in it by Section 163A(3) of the Motor Vehicles Act, 1988, and except in cases wherein the prospects of employability and earnings ( in future or present) of the deceased child are proved by cogent and irrefutable evidence, this having regard, inter alia, to the academic record or training in special talents or skills, for computing the pecuniary damages on account of the loss to estate, the notional income of nonearning persons( Rs. 15,000/ p.a) as specified in the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 18 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

second schedule ( brought in force from 14.11.1994), shall be assumed to be the income of the deceased child, and taken into account after it is inflation corrected with the help of Cost inflation Index (CII) as notified by the Government of India from year to year under Section 48 of the Income Tax , 1961 , by applying the formula indicated hereinafter.

(ii) For inflation correction, the financial year of 19971998 shall be treated as the "base year" and the value of the notional income relevant to the date of cause of action shall be computed in the following manner: Rs. 15,000/ X A /331 {Wherein the figure of Rs. 15,000/ ' represents the notional income specified in the second schedule requiring inflationcorrection; 'A' represent the CII for the financial year in which the cause of action arose (i.e. the accident/ death occurred); and the figure of '331' represent the CII for the 'base year'}.

(iii) After arriving at an appropriate figure of the present equivalent value of the notional income ( i.e. inflation corrected amount), it shall be rounded off to a figure in next thousands of rupees.

(iv) The amount of notional income thus calculated shall be reduced to twothird, the deduction to the extent of one third being towards personal & living expenses of the deceased, the balance taken as the annual loss to estate ( hereinafter also referred to as "the multiplicand").

(v) For assessment of the pecuniary damages on MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 19 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

account of the death of children upto the age of 10 years, the loss to estate shall be calculated, capitalizing the multiplicand, by applying the multiplier of ten (10).

(vi) For children of the age group of more than 10 years upto 15 years, the loss to estate shall be calculated by applying the multiplier of fifteen(15)

(vii) For Children of the age group of more than 15 years but less than 18 years, the loss to estate shall be calculated by applying the multiplier of eighteen (18).

(viii) After the pecuniary loss to estate has been worked out in the manner indicated above, an amount equivalent to the amount thus computed shall be added to it as the composite non pecuniary damages taking care of not only the conventional heads but also towards future prospects as awarded in R. K. Malik V/s Kiran Pal (2009) 14 SCC 1.

(ix) The final sum thus arrived at, appropriately rounded off, if so required to the nearest ( if not next) thousands of rupees, shall be awarded as compensation for the death of the child.

28. I have gone through the testimony of the witnesses alongwith complete records. The petitioners have prayed for compensation of Rs. 50,00,000/ against respondents. It is argued by Ld counsel for respondents that petitioners have not suffered any monetary loss on account of the fatal accident and therefore, they are not entitled for compensation.

There is no dispute at all regarding the offending vehicle nor there is dispute that deceased received fatal injuries due to the accident. The factum of accident as well as death is not denied. I have gone through the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 20 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

postmortem report. As per Ex. PW 1/ 3, the date of birth of deceased is 17.10.2010. The accident took place on 09.06.2015. The age of the deceased is taken as about 5 years on the date of accident.

29. There is no evidence regarding the academic record of the deceased child. The death occurred on 09.06.2015 and therefore the CII (cost inflation index) for the financial year 20152016 i.e. Rs. 1,081/ would apply. The age of the deceased child was about 5 years and therefore the calculation is to be made on multiplier of 10. The inflation calculated notional income comes to Rs. 48,988/ (15,000/ x 1,081 /331), rounded off Rs. 49,000/. After deducting 1/3rd and applying the multiplier of 10, the pecuniary loss to estate is computed as ( Rs. 49,000/ x 1/3 x 10) Rs. 3,26,667/. Adding a similar amount towards composite non pecuniary damages, the total compensation works out to be Rs. (3,26,667/ x 2) = Rs. 6,53,334/.

I accordingly award an amount of compensation of Rs. 6,53,334/ in favour of the Claimant and against Respondents. Issue No. ii in MACT No. 15128/15: ii. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

30. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held:

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 of 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. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising:

MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 22 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

                          (a)       Loss   of   earning   during   the   period   of
           treatment;
                          (b)     Loss   of   future   earnings   on   account   of
           permanent disability. 
                 (iii)    Future medical expenses. 
                 Nonpecuniary 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 earning on account of permanent disability, future medical expenses, loss of amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual 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 MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 23 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

damages items (iv), (v) and (vi) - involves determination of 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.

Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 24 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. 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 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.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(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 MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 25 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

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 injuredclaimant 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.

(iv) The same permanent disability may result in different percentage of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

31. I have gone through the testimony of the witnesses alongwith complete medical records. Ld. Counsel for insurance company argued that injured has not suffered any monetary loss on account of the injury and therefore, she should not be granted any amount on account of loss of income.

32. Father of injured has stated that her daughter aged about 6 years has suffered head injuries with 7 stitches on nose, three stitches on eye brow and right side of forehead. Father of injured further stated that he has spent amount of Rs. 40,000/ on special diet, conveyance and nursing due to the accident.

33. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in her life generally are to be reckoned. From the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 26 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

overall assessment, I assess Rs. 40,000/ as compensation towards Pain, Shock and Suffering to the Claimant.

34. Ld. Counsel for petitioner submits that father of injured has spent amount for treatment of her daughter and medical bills has been filed on record. After perusal of the medical bills, petitioner is awarded an amount of Rs. 28,663/ towards medical bills.

35. The Claimant has not filed any document in support of the fact that she had incurred expenses on keeping an attendant, for conveyance and for extra nutritious diet. However, I guess she must have spent some amount for which she is awarded a lumpsum amount of Rs. 10,000/ for Special Diet and for Conveyance Charges.

36. Keeping in view the nature of injuries suffered by the petitioner and the fact that she was under constant treatment, she needed an Attendant to look after her and the petitioner is therefore, entitled to attendant charges. Petitioner has not filed any record to show that she has received help of special attendant however, some family member must have been attending him. A victim of accident has to be compensated in terms of money even if gratuitous services are under by a family members. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble High Court held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. In the circumstances, where the injured had suffered injury, it is deemed fit that a lump sum of Rs. 10,000/ be awarded as compensation towards Attendant charges.

37. Keeping in view the facts and circumstances, I consider the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 27 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

following amount to be the just compensation to the Claimant :

1. Future Loss of Income Rs. 0/

2. Towards Pain Shock & Suffering Rs. 40,000/

3. Towards Loss of Amenities & Enjoyment of Life Rs. 0/ 4 Towards Servant / Attendant Charges Rs. 10,000/

5. Towards Conveyance & Special diet Rs. 10,000/ 6 Towards medical bills Rs. 28,663/ Total= Rs. 88,663/ I accordingly award an amount of compensation of Rs. 88,663/ in favour of the Claimant and against respondents. Issue No. ii in MACT No. 15129/15: ii. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

38. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held:

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. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( 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. 
                 Nonpecuniary damages (General Damages)


MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15                                  29 of 46

Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

(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 earning on account of permanent disability, future medical expenses, loss of amenities ( and / or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (I) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actual 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 circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant.

Hon'ble Supreme Court further observed regarding MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 30 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 31 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

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 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.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(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 injuredclaimant or who examined him subsequently to assess the extent of his permanent MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 32 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

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.

39. I have gone through the testimony of the witnesses alongwith complete medical records. It is deposed that due to the accident, injured was taken to Distt. Hospital Shahjanpur and thereafter Sheela Hospital and remained admitted from 09.06.2015 to 11.06.2015. It is further deposed that injured was shifted to Sahara hospital and remained admitted from 11.06.2015 to 22.06.2015. The petitioner claimed that she was doing the job of Data entry operator with Aggarwal Marketing and earned Rs. 16,500/ per month and relied upon the documents Ex. PW 1/ 5 but no witness was summoned or examined by the petitioner to prove the income of the injured. Petitioner in her statement as per clause 27 of the MCTAP stated that she has studied upto 12th standard and in support of contentions, she has relied upon the documents Ex. PW 1/ 6 therefore petitioner is entitled to compensation as per minimum wages Act as applicable to matriculate while considering her monthly salary as per prevalent rate at relevant time i.e. 09.06.2015 when accident took place. The income of the injured is assessed as per the minimum wages on the date of accident i.e. 09.06.2015 which was Rs. 10,998/ per month for matriculate.

40. There is nothing on record in support of the affidavit of PW1 that she suffered any loss of earnings from her work. However, with the kind of MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 33 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

injuries suffered by him, it can be safely assumed that she would have been under treatment for about three months. She is thus awarded Rs. 32,994/ (Rs. 10,998/ X 3) for three months for Loss of Wages.

41. The petitioner has claimed amount of Rs. 20,00,000/ from respondent towards compensation. It is also claimed that after the accident, the petitioner could not perform her routine and required attendant/ assistance for her day to day business; she also suffered financial losses due the accident and her family suffered mental pain and agony.

42. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in her life generally are to be reckoned. From the overall assessment, I assess Rs. 40,000/ as compensation towards Pain, Shock and Suffering to the Claimant.

43. Ld. Counsel for petitioner submits that petitioner has spent amount for her treatment and medical bills has been filed in support of her treatment on records. After perusal of the medical bills, petitioner is awarded a sum of Rs. 90,450/ towards medical bills.

44. The Claimant has not filed any document in support of the fact that she had incurred expenses on keeping an attendant, for conveyance and for extra nutritious diet. However, I guess she must have spent some amount for which she is awarded a lumpsum amount of Rs. 5,000/ for Special Diet and Rs. 5,000/ for Conveyance Charges.

45. Keeping in view the nature of injuries suffered by the petitioner and the fact that she was under constant treatment, she needed an Attendant to look after her and the petitioner is therefore, entitled to attendant charges. Petitioner has not filed any record to show that she has received help of special attendant however, some family member must have been attending MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 34 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

him. A victim of accident has to be compensated in terms of money even if gratuitous services are under by a family members. In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a Division Bench of Hon'ble High Court held that there cannot be any deduction if domestic help is obtained from a family member. This judgment was again relied upon by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12. In the circumstances, where the injured had suffered injury, it is deemed fit that a lump sum of Rs. 10,000/ be awarded as compensation towards Attendant charges.

46. Keeping in view the facts and circumstances, I consider the following amount to be the just compensation to the Claimant :

1. Future Loss of Income Rs. 0/

2. Towards Pain Shock & Suffering Rs. 40,000/ 3 Towards Servant / Attendant Charges Rs. 10,000/

4. Towards Conveyance & Special diet Rs. 10,000/ 5 Towards medical bills Rs. 90,450/ 6 Towards loss of Wages Rs. 32,994/ Total= Rs. 1,83,444/ I accordingly award an amount of compensation of Rs. 1,83,444/ in favour of the Claimant and against Respondents. Issue No. ii in MACT No. 15182/15: ii. Whether petitioner is entitled to compensation? If so, to what amount and from whom? OPP

47. Hon'ble Supreme Court in (2011) 1 SCC 343 titled Raj Kumar V/s Ajay Kumar & Anr. examined the general principles relating to compensation in injury cases. As held: MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 35 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

4. The provision of the Motor Vehicles Act, 1988 ( 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 of 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. Subramonia Iyer V. T. Kunhikuttan Nair MANU/SC/0011/1969 : AIR 1970 SC 375, R.D. Hattangadi V. Pest Control ( India) Ltd.

MANU/SC/0146/1995 : 1995 (1) SCC 551 and Baker V. Willoughby 1970 AC 467.

5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages ( Special Damages)

(i) Expenses relating to treatment, MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 36 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earning ( 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. 
                 Nonpecuniary 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).

much difficulty as they involve reimbursement of actual 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 circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant.

Hon'ble Supreme Court further observed regarding assessment of future loss of earnings due to permanent disability that disability refers to any restriction for lack of liability to perform an activity in the manner considered normal for human being permanent disability refers to the residuary in capacity or loss of huge of some part of the body, found existing at the end of the period of treatment and recuperation, after receiving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. The percentage of permanent disability is expressed which reference to the whole body, or more often then an not, with reference to a particularly limb. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the tribunal is the effect of the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 38 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

permanent disability on his earnings capacity of the injured; and after assessing the loss of earnings capacity in terms of percentage of income, it has been pointify in terms of money, to arrive at the future loss of earning( by applying the standard multiplier method used to determine loss of dependency As further held, the trial has to first decide whether there is an permanent disability and if so the extent of such permanent disability. 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 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.

Hon'ble Supreme court laid down the principles in respect of the assessment of compensation regarding injuries as below:

(i) All injuries ( or permanent disabilities arising from MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 39 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

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).

48. I have gone through the testimony of the witnesses alongwith complete medical records. Ld. Counsel for respondent No. 3 argued that as the petitioner failed to prove his income, he is entitled for compensation in accordance with the minimum wages at relevant time. It is further stated that injured has not suffered any monetary loss on account of the injury and therefore, he should not be granted any amount on account of loss of income.

49. PW1/father of injured has stated in his affidavit Ex. PW1/A that MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 40 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

due to accident, injured was taken to Distt. Hospital Shahjanpur thereafter taken to Sheela Hospital, Shahjanpur and remained admitted from 09.06.2015 to 11.06.2015. It is further deposed that injured was shifted to Sahara Hospital and remained admitted from 11.06.2015 to 12.06.2015.

50. Nothing in support of the fact of loss of wages suffered by the petitioner is produced nor it is claimed either in the petition or in the affidavit that injured / petitioner suffered any amount towards loss of wages. The medical record also suggests that the petitioner's medical rest is not proved in support of his contentions.

51. As observed, there is no documents on record regarding injury of the injured therefore injury of the injured is treated as simple injury. During the proceedings, Ld. Counsel for petitioner stated that father of injured has spent amount for treatment of injured and medical bills has been filed in support of contentions. After perusal of the medical bills, petitioner is awarded an amount of Rs. 16,172/ towards medical bills.

52. While fixing compensation for pain and sufferings, as also for loss of amenities of life, the features like the age and unusual deprivation undertaken by a person in his life generally are to be reckoned. From the overall assessment, his age and the fact and gravity of the injury, petitioner is granted the total compensation of Rs. 26,172/ ( Rs. 16,172/ towards medical bills and Rs. 10,000 towards simple injury). As the Claimant failed to prove any grievous injuries to effect his physical discomfort, disappointment and stress for whole of his remaining life, he is not entitled for any amount towards Loss of Amenities and Enjoyment of Life.

I accordingly award an amount of compensation of Rs. 26,172/ in favour of the Claimant and against Respondents. Liability: MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 41 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

53. Respondent No. 3 is the insurance company which admittedly has issued a valid insurance policy of the offending vehicle. There is no evidence on behalf of respondent No. 3 to show that there was any violation of the rules and terms of policy by the respondent No. 1 & 2. Hence, I am of the opinion that respondent No. 3 being insurance company is liable to pay the compensation on behalf of respondent No. 1 & 2. Interim award if any paid to injured/ petitioner be adjusted in the award amount.

Award in MACT No. 14615/15:

54. Resultantly, the Claim petition stands allowed. Insurance company is hereby directed to pay the compensation of Rs. 6,53,334/ within one month to the Claimants. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC).

55. The insurance company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

56. Out of the total award amount of Rs. 6,53,334/, UCO Bank, KKD Courts is directed to keep the amount of Rs. 5,00,000/ in 5 FDRs of Rs. 1,00,000/ each for the maturity period of one year to five years respectively ( at the interval of one year each) with cumulative interest in the name of petitioner No. 2.

57. UCO Bank, KKD Courts is directed to release the remaining amount alongwith interest in favour of petitioner No. 2 in her saving bank account after production of passbook of the bank account near the place of the MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 42 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

58. Withdrawal from the said Account shall be permitted to the petitioner after due verification.

59. All the original FDRs shall be retained by the UCO bank, KKD Courts. However, the statement containing the FDRs number, amount, date of maturity and maturity amount shall be furnished by the UCO Bank to the petitioner/ beneficiary. On expiry of period of each FDR, the Bank shall automatically credit the maturity amount in Savings Account of beneficiary. The beneficiary shall intimate regarding his bank and account number for automatic credit of the maturity amount.

60. No loan, advance or premature discharge of the FDRs shall be permitted without permission of this court.

61. The maturity amount of the FDRs alongwith interest thereon be transferred to the saving bank accounts of the beneficiary.

62. The liberty is given to the petitioner/ injured to approach this court for release of further amount in event of any financial exigency.

63. On request of Claimant, bank shall transfer the Savings Account to any other branch in the name of petitioner and the bank of the petitioner are directed not to issue any cheque book or Debit Card to the account holder.

64. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 43 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

65. FormV shall be read as a part of the judgment. Award in MACT No. 15128/15:

66. Resultantly, the claim petition stands allowed. The Insurance Company is hereby directed to pay the compensation of Rs. 88,663/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). The insurance company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

67. Withdrawal from the said Account shall be permitted to Claimant after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

68. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

69. FormV shall be read as a part of the judgment. Award in MACT No. 15129/15:

70. Resultantly, the claim petition stands allowed. Insurance company is hereby directed to pay the compensation of Rs. 1,83,444/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 44 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Insurance Company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

71. UCO Bank, KKD Courts is directed to release the amount alongwith interest in favour of petitioner in her saving bank account after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

72. Withdrawal from the said Account shall be permitted to the petitioner after due verification.

73. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

74. FormV shall be read as a part of the judgment. Award in MACT No. 15182/15:

75. Resultantly, the claim petition stands allowed. Insurance company is hereby directed to pay the compensation of Rs. 26,172/ within one month to the Claimant. Claimant is also entitled to the interest @ 09 % p.a. on the total compensation amount from the date of filing of petition till realization. (The New India Assurance Co. Ltd. Vs. Gopali & Ors., 2012 ACJ 2131 SC, MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 45 of 46 Sh. G. N. Pandey, Motor Accident Claims Tribunal( Pilot Court) Karkardooma Courts, Delhi.

Jiju Kuruvila & Ors. Vs. Kunjujamma Mohan & Ors., 2013 ACJ 2141 SC, Puttamma Vs. K.L. Naraynan Reddy & Ors., 2014 ACJ 526 SC). Insurance Company is directed to deposit the amount with UCO Bank, KKD Courts Branch, Delhi.

76. UCO Bank, KKD Courts is directed to release the amount alongwith interest in favour of petitioner in his saving bank account after production of passbook of the bank account near the place of the residence with due endorsement that no debit card or cheque book has been issued or debit card / cheque book has been cancelled ( if issued).

77. Withdrawal from the said Account shall be permitted to the petitioner after due verification.

78. The award amount alongwith interest be deposited by Insurance Company, within 30 days. In case, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of Insurance Company with a cost of Rs. 10,000/.

79. FormV shall be read as a part of the judgment.

80. Copy of this judgment be placed in the claim petitions bearing MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15.

                                         GORAKH                         Digitally signed by
                                                                        GORAKH NATH PANDEY
 Announced in open Court                                                Location: Court No.69,

on this day of 16th April, 2018
                                         NATH                           North East District,
                                                                        Karkardooma Court, Delhi
                                                                        Date: 2018.04.16 16:34:32
                                         PANDEY                         +0530

                                              G. N. Pandey

Motor Accident Claims Tribunal(Pilot Court) Karkardooma Courts, Delhi.

MACT Nos. 14615/15, 15128/15, 15129/15 & 15182/15 46 of 46

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