Delhi District Court
Rishika Kanojia Etc vs Ram Singh Etc on 7 October, 2024
IN THE COURT OF MS. MAYURI SINGH
PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL, EAST,
KARKARDOOMA COURTS, DELHI
____________________________________________________
In the matters of:
(i) MACP No. 683/16
Amit Kanojia v. Ram Singh & Ors.
(ii) MACP No.685/16
Rishika Kanojia v. Ram Singh & Ors.
MACP No. 683/16
Amit Kanojia (Injured)
S/o Sh. Gopal Dass
R/o 95/96, S.F.,
West Guru Angad Nagar, Laxmi Nagar,
Delhi-110092 ............Petitioner
Versus
1. Ram Singh (Driver)
S/o Sh. Attar Singh
R/o Village Mathurapur,
PS Patwahi, Tehsil Shahbad,
District Tampur, U.P.
2. Mohit Maini (Owner)
S/o Sh. Naresh Kumar Maini
R/o Langar Khana Street
PS Kotwali, Tehsil Sadar,
District Rampur, U.P.
3. National Insurance Company Ltd. (Insurer)
124, Level-4, Jeevan Bharti Building Towar-2,
Connaught Place, New Delhi-110001. ....Respondents
MACP no.685/16 Rishika Kanojia (Injured) represented through her father and natural guardian Amit Kanojia _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 1 of 39
R/o R/o 95/96, S.F.,
West Guru Angad Nagar, Laxmi Nagar,
Delhi-110092 ............Petitioner
Versus
1. Ram Singh (Driver)
2. Mohit Maini (Owner)
3. National Insurance Company Ltd. (Insurer).
....Respondents
(Details as above)
Date of Institution : 16.11.2016
Date of reserve of order : not reserved
Date of pronouncement : 07.10.2024
AWAR D
1. By this common award, two claim petitions bearing MACT nos. 683/16 and 685/16 filed on behalf of the petitioners seeking compensation under Sections 166 & 140 of Motor Vehicles Act, 1988, arising out of the same accident, would be decided.
2. Briefly stated the facts as narrated by the petitioners are that on 15.06.2016, the petitioner Amit Kanojia alongwith with his two minor children, wife Meenakshi Bala and her parents were going in their vehicle Wagon R bearing registration No. DL-8CN-5776 from Delhi to Nainital and at about 2:30 pm when they reached near NH-24 at Rampur Bypass, near Ali Nagar Januavi, a truck bearing registration No. UP-22T-0809 being driven by respondent No1 came from Bareilly side, being driven in a rash and negligent manner and at very high speed and smashed the Wagan R Car of the petitioner. Resultantly, the Wagan R Car fell into pothole (Gaddha). Due to this, the _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 2 of 39petitioner Amit Kanojia (MACP No.683/16) and petitioner Baby Rishika Kanojia (MACP No. 685/16) and Smt. Meenakshi Bala, wife of petitioner Amit Kanojia and parents of Smt. Meenakshi Bala received grievous injuries. Meenakshi Bala died at the spot and other injured were taken to the District Hospital, Rampur and further they were shifted to Sai Hospital, Moradabad, U.P. The said accident was the subject-matter of investigation of criminal case vide case crime No.354/16 under section 279/304A/337/338/ 427 of the Indian Penal Code, 1860 (IPC) registered at PS Civil Lines, Rampur, U.P. With these submissions, the petitioners have claimed compensation by way of the present claim petitions.
3. In response to the notice of petition, all the respondents appeared and filed their replies/ written statements.
3.1. The respondent No.1 and 2, in their separate written statements, denied that the respondent No.1 was driving the truck in a rash and negligent manner. They contended that the respondent No.1 was driving the truck with due care and caution.
3.2 The respondent No.3 / insurer, in its written statement, conceded that the truck was insured with it in the name of the respondent No. 2 for the period from 24.11.2015 to 23.11.2016. It contended that the petitioner No.1 was driving the car in a negligent manner & at high speed. It contended that its liability is subject to the driving license of the driver of the truck, registration certificate, fitness and permit.
4. Upon completion of pleadings of the parties, vide order _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 3 of 39dated 06.03.2017, my learned predecessor framed the following issues:
MACT no. 683/16 (In re: injured Amit Kanojia)
i). Whether on 15.06.2016 at 2.30 p.m. near NH-24, at Rampur Bypass, near Ali Nagar Januvi, Rampur, U.P., injured sustained injuries in a road accident, due to rash and negligent driving of offending vehicle bearing Regn No. UP-22T-0809 (Truck) driven by Respondent No.1? OPP
ii). Whether Amit Kanojia was driving Wagon R bearing Regn No. DL-8CN-5776 in a a rash and negligent manner ? OPP
iii). Whether offending vehicle bearing Regn No. UP-22T-
0809 was being used on public road in breach of condition of Insurance Policy?
iv). Whether the petitioner is entitled to the compensation as prayed for, if so, to what amount and for which period?
v). Whether petitioner is entitled to interest on the Awarded amount, if so, to what rate of interest and for which period?
vi). Relief.
MACT no. 685/16 (In re: injured Rishika Kanojia)
i). Whether on 15.06.2016 at 2.30 p.m. near NH-24, at Rampur Bypass, near Ali Nagar Januvi, Rampur, U.P., injured sustained injuries in a road accident, due to rash and negligent driving of offending vehicle bearing Regn No. UP-22T-0809 (Truck) driven by Respondent No.1? OPP
ii). Whether the Amit Kanojia / father of the injured was driving Wagon R bearing Regn No. DL-8CN-5776 in a a rash and negligent manner ? OPP
iii). Whether offending vehicle bearing Regn No. UP-22T- 0809 was being used on public road in breach of _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 4 of 39condition of Insurance Policy?
iv). Whether the petitioner is entitled to the compensation as prayed for, if so, to what amount and for which period?
v). Whether petitioner is entitled to interest on the Awarded amount, if so, to what rate of interest and for which period?
vi). Relief.
5. Both claim cases, arising out of the same accident, have been consolidated for the purpose of inquiry and adjudication and further evidence recorded in the decided claim petition bearing MACP No.684/16 has been considered for these cases as well. During inquiry in the claim petitions filed by / on behalf of the three injured in the accident, one of the claim petitions MACP No. 684/16 ( which was filed by the petitioner as well as his minor daughter as LR of the deceased injured namely Meenakshi Bala) was decided by award dated 31.7.2018. It was observed by the Tribunal in order-sheet dated 07.09.2019 in MACP No.683/16 that common evidence was mentioned to have been recorded in all the claim petitions and as one of those was decided and other two was posted at the stage of remaining PE, MACP No.683/16 was treated as the main case and common further evidence was directed to be recorded in both of the remaining claim petitions and directed to be kept in main case file. Further, the attested copies of the relevant evidence already recorded and kept in decided case / MACP No. 684/16 was directed to be placed in case MACP No. 683/16.
6. In order to prove their cases, the petitioners examined twelve witnesses as under:
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 5 of 39
(i) PW1 Amit Kanojia (injured) examined himself as eye-
witness of the accident and deposed on the strength of his affidavit Ex.PW1/A regarding the manner of accident; grievous injury sustained by him in the accident; medical and other expenses incurred on his treatment; his income and occupation as well as that of his deceased wife and relied upon the following documents:-
• Claim petition Ex.PW1/1• Copy of education qualification documents Ex.PW1/2
• Salary certificate of the deceased Ex.PW1/3(colly) • Copy of income tax return for the assessment years 2013-14, 2014-15 and 2015-16 alongwith Form 16 of the deceased Ex.PW1/4 (colly) • Death certificate Ex.PW1/5 • copy of driving license and election I-card of the deceased and aadhaar card of the petitioner No. 4 and 5 Ex.PW1/6 (colly) • copy of driving license of the respondent No.1 Mark 'A' and copy of registration certificate of the offending vehicle Mark 'B', copy of insurance policy Mark 'C' • Original ambulance bills Ex.PW1/7 (colly) • Certified copy of FIR, report under section 173 Cr.P.C.
• Certified copy of post-mortem report,site plan
Ex.PW1/8 (colly)
• claim petition No. 683/16 Ex.PW1/9
• copy of voter I-card, PAN card and driving license
of Amit Kanojia Ex.PW1/10 (colly)
• Copy of academic certificates of Amit Kanojia
Ex.PW1/11 (colly)
• Income tax return for the assessment year 2014-15,
2015-16 and 2016-17 of Mr. Amit Kanojia
Ex.PW1/12 (colly)
• Monthly income / annual income certificate of Mr.
Amit Kanojia Ex.PW1/13
• Appreciation award Ex.PW1/14
• Increment letter of Mr. Amit Kanojia Ex.PW1/15
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 6 of 39
• Discharge summary and original medical bills of Mr. Amit Kanojia Ex.PW1/16 (colly) • Certificate issued by doctors of MAX Hospital in respect of right upper limb Ex.PW1/17 • Certificate issued by doctors of Vision Plus Eye Centre, Noida Ex.PW1/18 • Claim petition No. 685/16 Ex.PW1/19 • copy of I-card of Rishika Ex.PW1/19A and original medical bills alongwith discharge summary of Rishika Ex.PW1/20.
• Discharge bill / detailed bills of Amit Kanojia dated 04.10.2019 alongwith discharge summary Ex. PW1/22 (colly, 7 sheets) • Discharge bill / detailed bills of Amit Kanojia dated 17.06.2019 alongwith discharge summary Ex. PW1/23 (colly, 7 sheets) • Other original medical bills of Amit Kanojia Ex.
PW1/24 (colly, 14 bills) • Discharge summary of Amit Kanojia and medical bills and treatment record of petitioner Rishika Kanojia Ex. PW1/25 (colly, 12 sheets)
(ii) PW2 Sh. Jitender Meena, Stenographer, Income Tax Department, Ward No. 70(2), Civic Center, New Delhi brought the income tax returns pertaining to Ms. Meenakshi Bala and Mr. Amit Kanojia. He proved the income tax return pertaining to Ms. Meenakshi Bala for the assessment years 2013-14 Ex.PW2/1 (colly), 2014- 15 Ex.PW2/2(colly) and 2015-16 Ex.PW2/3 (colly). He also proved the income tax return pertaining to Mr. Amit Kanojia for the assessment years 2013-14 Ex.PW2/4 (colly), 2014-15 Ex.PW2/5 (colly) and 2015-16 Ex.PW2/6 (colly).
(iii) PW-4 Sh. Saurav Kaushik, Medical Record Keeper, Sri Sai Hospital, Delhi Road, Moradabad, U.P. proved authority letter Ex.PW4/1, medical record of Mr. Amit Kanojia Ex.PW4/2 and baby Rishika Ex.PW4/3, copy of MLC of Mr. Amit Kanojia and baby Rishika Ex.PW4/4 and Ex.PW4/5 respectively.
(iv) PW-5 H.K. Mittra, Orthopaedics Surgeon, District Hospital, Rampur proved admission file of Mr. Amit Kanojia and Rishika Ex.PW5/1 and Ex.PW5/2 _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 7 of 39respectively.
(v) PW-6 SI Desh Pal Singh, PS Bhot, District Rampur,U.P. was Investigating Officer of the criminal case. He placed a copy of the case diary Mark 'X' (colly, 73 pages).
(vi) PW-7 Dr. Ajay Aurora, Director, Vision Plus Eye Centre, Kisan Tower (FF & SF), Gold Marg, Hoshiarpur, Sector-51, Noida proved treatment record of Mr. Amit Kanojia Ex.PW7/A (colly).
(vii) PW-8 Akash Singh, Medical Record Technician, MAX Hospital, Patparganj, Delhi proved the treatment record of Mr. Amit Kanojia and Rishika Ex.PW8/A and Ex.PW8/B respectively, duplicate impatient bill of Mr. Amit Kanojia and Rishika Ex.PW8/C and Ex.PW8/D respectively.
(viii) PW9 Sh. Mahesh Kumar Assistant Manager (Legal), Dr Oetker India Pvt. Ltd, plot No. 211, 1 st floor, Okhla Indl. Estates, Phase-III, New Delhi-110020 has proved the increment letter dated 27.04.2017 of Amit Kanojia Ex. PW9/1 (colly, 2 pages) and copy of full and final settlement statement of Amit Kanojia Ex. PW9/2.
(ix) Dr. Sanjeev Gambhir, Specialist, (Orthopedics), LBS Hospital, Delhi has proved the disability certificate of petitioner Rishika Kanojia as Ex. PW10/A and assessment sheet Ex. PW10/B and deposed that the permanent disability of petitioner Rishika Kanojia was found to the extent of 13% in respect of right lower limb.
(x) PW11 Dr. Komal Prasad Gola, Sr. Resident Orthopedics, GTB Hospital, Delhi has proved the disability certificate of the petitioner Amit Kanojia Ex. PW11/A and assessment sheet Ex. PW11/B and deposed that the petitioner Amit Kanojia was found to have suffered permanent disability to the extent of 90% in respect of right upper limb.
(xi) PW12 Dr. Isha Sharma, GTB Hospital, Delhi has proved the disability certificate of the petitioner Amit Kanojia Ex. PW11/A and assessment sheet Ex.
PW11/B and deposed that the petitioner Amit Kanojia was found to have suffered permanent disability to the extent of 30% in respect of right eye.
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 8 of 397. On the other hand, respondents opted not to lead any evidence.
8. I have heard the final arguments advanced by Sh. Krishan Kumar and Sh. Shivam Bedi, learned counsels for petitioner(s) and Ms. Sarika Goel, learned counsel for R-3 / insurer and perused the evidence and other materials placed on record. Citations are considered. My findings on the issues are as under:-
ISSUE NO.1, 2 & 3(in both two cases):
In MACP no. 683/16 (In re: injured Amit Kanojia) & In MACP no. 685/16 (In re: injured Rishika Kanojia)
9. Issue no.1,2 & 3 being inter-linked in both the cases, shall be decided here together by common findings. It is pertinent to mention here that as per settled proposition of law, an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 9 of 392011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018, Law Suit (SC) 303.
10. As far as the question of rash and negligent driving of the offending vehicle by R-1 as resulting in the accident in question and the issue of contributory negligence and breach of conditions of insurance policy, if any, is concerned, the same are no longer res integra. In the claim petition bearing MACP No.684/16, wherein common evidence was recorded, these issues were discussed at length by this Tribunal and these issues were decided against respondents. It was observed in the award dated 31.07.2018 that Amit Kanojia has deposed the sequence of events leading to the accident, on the strength of affidavit Ex.PW1/A and has testified that on 15.06.2016, he alongwith his wife (the deceased), minor daughters namely Rishika and Saanvi and parents-in-laws were going in Wagon R bearing registration No. DL-8CNB-5776 from Delhi to Nainital and at about 2.30 p.m., when they reached near NH-24 at Rampur Bypass, near Ali Nagar, Januvi, Rampur, U.P., a truck bearing registration No. UP 22T 0809 driven by the respondent No.1 came in high speed from the opposite side (Bareilly side) and had hit the car and due to the impact, the car fell into a pit. He deposed that besides him, daughter Rishika and father-in-law Sh. Narayan Dass sustained grievous injuries and his wife died at the place of the accident. The deceased was taken to District Hospital, Rampur, U.P. where she was declared brought dead. It was further observed by the Tribunal that respondent No.1 made a general denial in his written statement that he was driving the truck in high speed but he neither cross-examined PW1 on this point nor led any _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 10 of 39evidence in his defence and further PW-1 Amit Kanojia was cross-examined by counsel for the respondent No. 3 / insurer and in his cross-examination, he deposed that he was driving the car on his side in single lane road when the truck had hit the car from the opposite side. He deposed that his car overturned twice and fell into a pot hole on the left side of the road and that it was a head-on-collision. Tribunal further observed that there is nothing in cross-examination of Amit Kanojia to discredit him and his testimony remained unchallenged. Tribunal also made reference to the deposition of PW-6 SI Desh Pal Singh / Investigating Officer of the criminal case. He had deposed that during investigation, it emerged that the offending vehicle pertained to Rampur City and he ascertained the name of the owner of the offending vehicle. He had also deposed that he had seized the truck and got the mechanical inspection thereof conducted. He placed a copy of case diary Mark 'X' (colly, 33 sheets). Tribunal observed and gave finding that site plan of the place of the accident performing part of the case diary Mark 'X' showed that the truck was coming from Bareilly side and it took left turn and in that process, it came into the lane in which the car was moving from Moradabad side to Bareilly on the National Highway. It was also observed by the Tribunal that the respondent No. 1 was driving a medium goods vehicle on the National Highway and failed to explain why he could not avoid the collision and why he came into the lane in which PW-1 Amit Kanojia was driving his car.
11. Tribunal also observed that the respondent No. 1 is a professional driver and he was driving a medium goods vehicle _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 11 of 39on the public way and should have observed precaution while driving such commercial vehicle on the public road and should not have come into the lane of the car without any indication and signal. A finding was given by the Tribunal that :
"It is evident that the respondent No. 1had not observed requisite precaution while driving the truck on the public way. It is evident that the accident was caused due to rash and negligent driving of the truck."
12. The medical documents on record of the petitioners Amit Kanojia and minor petitioner Rishika Kanojia proved on record show that grievous injuries were sustained by them in the accident. Coming to issue No. 2, which is common in the claim petitions, it was also decided in Award with respect to MACP No.684/16 only and finding was given by the Tribunal that R-3 has failed to elicit any fact from cross-examination of Mr. Amit Kanojia to attribute any negligence to him and that there is no proposition of law that in every case of head-on-collision, the driver of both the vehicles are equally responsible. Coming to issue No. 3, the Tribunal also observed that R-3 / insurer has not demonstrated or proved breach of any term and condition of the insurance policy. Accordingly, issue No. 1, 2 & 3 are decided in favour of the petitioners and against the respondents.
ISSUE NO.4
13. In view of the finding on issue no.1,2 & 3, petitioners in both the claim cases are entitled to get compensation, however, the quantum of compensation still needs to be adjudicated.
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 12 of 39COMPUTATION OF COMPENSATION
14. Section 168 of Motor Vehicles Act, 1988 enjoins upon the claim Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation, which appears to be just and reasonable. As per settled law, compensation is not expected to be windfall or a bonanza nor it should be pittance A man is not compensated for the physical injury, he is compensated for the loss which he suffers as a result of that injury (Baker v. Willoughby (1970) Ac 467 at page 492 per Lord Reid).
15. The scope of compensation in injury cases has been considered by Hon'ble Supreme Court in case titled as Mr. R.D. Hattangadi v. M/S Pest Control (India) Pvt. Ltd., 1995 AIR 755. The relevant extract is as under:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 13 of 39
suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, discomfort, disappointment, hardship, frustration and mental stress in life."
16. In Raj Kumar v. Ajay Kumar & another (2011) 1 SCC 343, Hon'ble Supreme Court of India laid down general principles for computation of compensation in injury cases. The relevant paras of the judgment are reproduced as under:
4. The provisions of the Motor Vehicles Act, 1988 ("the Act", for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 14 of 39
as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary Damages (special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment.
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-Pecuniary Damages (general damages)
(iv) Damages to pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii), (a) and (iv). It is only in serious cases of injury, where _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 15 of 39
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.
17. In the light of the aforementioned judgments, the compensation to which the petitioners in injury cases are entitled shall be as under:-
MACP no.685/16(In re : injured Rishika Kanojia).
PECUNIARY DAMAGES :
Medical Expenses :
18. Petitioner has laid claim to the medical bills only for a total sum of Rs.4,31,709/-, as mentioned in the break up of medical bills as claimed by the petitioner. Said bills pertain to hospitalization and pharmacy. All these bills are in original and are found in order and have not been challenged on any serious count. Therefore, Rs.4,31,709/- is granted to the petitioner Baby Rishika Kanojia under this head.
Loss of earning during treatment :
19. The petitioner was merely 07 years old at the time of accident and was studying in 2nd standard. Hence, there was no loss of earning to the child victim during treatment and no sum of money is being given under this head.
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 16 of 39Special Diet & Conveyance Charges :
20. The petitioner was hospitalized pursuant to the grievous injuries and the medical documents manifest that she was hospitalized multiple times and remained under treatment over a period of several months. She was last hospitalized in Max Hospital on 13.04.2017 for a period of about 09 days. Thus, considering the nature of injuries and period of treatment, an inference can be drawn that guardian of the petitioner had to spend a reasonable amount on her special diet for the purpose of early recovery, post surgery and even after discharge from hospital, she had to visit the hospital a number of times for further treatment/ follow ups. Therefore, considering the nature of injury and period of treatment, a sum of Rs.50,000/- towards special diet and Rs.50,000/- towards conveyance charges would be just and fair compensation to the petitioner. Hence, a total sum of Rs.1,00,000/- is awarded to the petitioner under this head.
Attendant Charges :
21. No document has been filed from petitioner side to show that services of any attendant were hired during her treatment and recovery. The medical documents on record suggests that the minor petitioner sustained grievous injuries and had fractures in her right lower limb. Further, she had to be admitted several times in the hospital in connection with her treatment and post complications. It is to be borne in mind that the unfortunate accident in which she sustained injuries in question, took away life of her mother and caused serious injuries to her father, who himself remained under treatment for a long period of time and suffered from considerable permanent _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 17 of 39disability. It is further seen that in the absence of her parents to take care of her at home, hospital and while being taken for her treatment, family and friends of her parents must have come forward, leaving their work and rendered 24X7 assistance to the minor, particularly considering the young age of the victim. Needless to say, when children are very young, even under normal circumstances, parents find it tough to leave the child alone with any caretaker or nanny and when child is sick and infirm, in most cases assistance of family is also required. for claiming compensation, necessity of employing a professional attendant/ care taker is not required and the petitioner should be compensated for the value of services of the family members, which has been or would be necessitated by the wrong doing of the driver. (Refer: DTC & Ors v. Lalita, 1983 ACJ 253). Accordingly, a sum of Rs.80,000/- is granted to the petitioner towards attendant charges.
NON PECUNIARY DAMAGES :
Pain & Sufferings already undergone and to be suffered in future, mental and physical shock,hardship, inconvenience and discomforts etc., and loss of amenities in life on account of permanent Disability, loss of marriage prospects :
22. Aadhar card of the petitioner shows that the date of birth of injured is 27.07.2009 (the school I.D. card copy Ex.PW1/19A is not legible and hence counsel for the petitioner was asked to place on record clear copy and he instead filed copy of aadhar card) and the accident took place on 15.06.2016, her age was about 07 years on the date of accident. The minor child was very young and she is stated to be studying in class 2nd at _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 18 of 39the time of the accident. As per the disability certificate Ex. PW10/A, she suffers from 13% disability in relation to right lower limb. It was submitted by Ld. Counsel for petitioner that disability was permanent and re-evaluation was not recommended by the Board.
23. Ld. Counsel for insurance company submitted that under non pecuniary head, a lump sum compensation has to be granted to the petitioner, keeping in mind the guidelines in the judgment Malliakarjun Vs. Divisional Manager. On the other hand, Ld. Counsel for petitioner relied on the citations Master Ayush Vs. Branch Manager, Reliance General Insurance Co. Ltd & Anr. 2022 (7) SCC 738; Kajal Vs. Jagdish Chand & Ors., 2020 (4) SCC 413 and ; Minor Roopa Vs. The Divisional Manager, New India Assurance Company Ltd, decided on 03.08.2022, by Hon'ble Supreme Court of India. Ld. Counsel for the insurance company distinguished the case of the petitioner from the facts of those judgments relied on by the petitioner stating that those cases pertain to exceptional situations where minor suffered from such permanent disability to an extent where accident ruined their lives in such a way so as to render their functional disability to be absolute and 100%. Ld. Counsel for the petitioner conceded that the disability suffered by the minor victims in the cases relied on by him was significant and absolute and not partial as in this case and also stated that Mallikarjun Judgment is not overruled.
24. In Civil Appeal No. 7139 of 2013 titled Master Mallikarjun Vs. Division Manager, decided on 26.08.2013, Hon'ble Supreme Court examined the issue regarding the non _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 19 of 39pecuniary compensation in case of children suffering from disability. As held, the compensation is to be worked out under the non pecuniary heads in addition to the actual amounts incurred for treatment, transportation, assistance of attendant etc. The main elements of damage in the case of child victim are pain, shock, frustration, deprivation of ordinary pleasure and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation etc. As further held:
Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be , if the disability is above 10 % and upto 30 % to the whole body, Rs. 3 lakhs; upto 60 %, Rs. 4 lakhs; upto 90 % , Rs. 5 lakhs and above 90 %, it should be Rs. 6 lakhs, For permanent disability upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick.
In the case at hand, I am of the considered view that Mallikarjun judgment is squarely applicable and further the _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 20 of 39
judgment relied on by the petitioners pertain to the cases of amputation, total permanent disability /considerable disability and can be distinguished from the facts and circumstances of this case and no departure from Malliarjun judgment, in my considered view, is warranted.
25. The judgment above-cited pertain to the year 2013 whereas the accident took place in the year 2016 and inflation increased and further keeping in mind the rate of inflation, the passage of 3 years and the fact that the petitioner is a girl child, I consider it proper to grant lump sum amount of Rs. 4 lakhs to the minor petitioner under this head.
26. Thus, the compensation awarded to the petitioner is summarized as under:-
Head of compensation Amount
Sl. No.
1. Medical Expenses Rs.4,31,709/-
Loss of Earnings Nil
2.
(during treatment)
3. Special Diet & Conveyance Rs.1,00,000/-
4. Attendant Charges Rs.80,000/-
Pain & Sufferings already Rs.4,00,000/-
undergone and to be suffered in
future, mental and physical
shock,hardship, inconvenience
5.
and discomforts etc., and loss of
amenities in life on account of
permanent Disability, loss of
marriage prospects
Total Rs.10,11,709/-
rounded off to
Rs. 10,12,000/-
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 21 of 3927. Accordingly, petitioner Rishika Kanojia is entitled for a total compensation of Rs.10,12,000/-.
MACP no.685/16(In re: injured Amit Kanojia) PECUNIARY DAMAGES :
Medical Expenses :
28. Under this head, actual medical expenses are reimbursed. Petitioner claims to have met Rs.5,82,737/- towards medical expenses from his own pocket and he is claiming this amount only under this head as compensation. The bills regarding these expenses are proved on record and the bills are not disputed. Hence, a sum of Rs.5,82,737/- as claimed is granted to the petitioner under this head. No evidence has been led on aspect of future medial surgery, if any required and expenses to be met on the same and hence no amount is being granted towards future medical expenses.
Loss of income during treatment :
29. Petitioner deposed in his cross-examination dated 14.11.2017 that due to accident he could not attend his office for a total period of 04 months and that his salary was deducted for the said period. He denied that he did not suffer from loss of income due to the accident. As per the leave record, on account of the accident, petitioner Amit Kanojia was absent from 15.06.2016 to September 2016. Further, he resumed duty for half a day regularly from October onwards with doctor's approval and w.e.f. 23.11.2016, he resumed full time duty with the company. As per the submissions of counsel for the petitioner on _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 22 of 39clarification sought by the Tribunal, and as per the copy of bank statement filed on record during final arguments, petitioner received full salary in hand for the month of May, June, July & August 2016 in sum of Rs.93,177/- per month. Further, for the month of September and October 2016, he received salary only in the sum of Rs.36,938/- and Rs.70,180/- respectively. Ld. Counsel for petitioner submitted that in the month of September and October 2016, petitioner received reduced salary on account of his leaves due to accident. Therefore, the deficient amount in salary has to be compensated for the said months which comes to Rs.79,236/-(56,239 + 22,997).
30. There is nothing brought on record to suggest that petitioner suffered from any other loss of income during the period of medical treatment and leave from office. Ld. counsel for petitioner submitted that petitioner was on leave for about 04 ½ months and thereafter half day leave for a month and half and hence, the leaves may be liquidated in cash as compensation, as the leaves could have been utilized otherwise by the petitioner or encashed. However, I do not find any merit in this submission. At first, it is seen that the petitioner did not produce before the Tribunal any document relating to leave policy of the employer and no evidence has been led to suggest what kind of leave had been applied for and granted to the petitioner by the employer. Petitioner was in private job. Even if it is assumed that petitioner was on earned leaves, it is an admitted case of the petitioner that he continued in the same company only for about an year from the date of accident and thereafter resigned. No evidence has been led to suggest that at the time of his resignation, he suffered _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 23 of 39from any loss of income due to his leaves taken on account of the accident. There is no evidence to suggest that as per the policy of employer, any leave was encashable at the time of resignation, termination or retirement. In any case, petitioner did not continue with the same job profile and in the same company as an employee and thus, no question of loss of leave or leave encashment arises for consideration.
31. Thus an amount of Rs79,236/- is granted to the petitioner under this head.
Loss of income on account of permanent disability :
32. In the instant case, it is evident on record that as a consequence of injuries sustained in the accident, petitioner suffered 90% locomotor disability in relation to right upper limb and further he also suffered from 30% permanent disability in relation to right eye. The total physical impairment of the petitioner has been assessed as 90%. The disability certificate, bearing no.72/28/02/2022, dated 05.02.2022, issued by Medical Board of GTB Hospital, Delhi, has been duly proved on record by PW11 Dr. Komal Prasad Gola, clearly reflecting the aforesaid extent of disability. The disablement and loss of earning capacity are two different aspects and not substitute to each other and the loss of income has to be seen considering the profession in which petitioner was engaged at the time of accident effect of disability on his earning capacity and his future prospects.
33. As per evidence led by the petitioner, he was working as Sr. Manager, Logistics with Dr. Oetkar India Pvt. Ltd since _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 24 of 3901.08.2003. In his cross-examination dated 14.11.2017, he deposed that he was still working with the same employer / company at the same position. He also volunteered that he had been asked by the Management to resign w.e.f. 01.01.2018 as he was unable to work efficiently with his right hand and could not see from his right eye. Even though he admitted in his cross-examination that no document had been placed on record in this regard, it is relevant to mention that in the testimony of PW9 / Mahesh Kumar, Asst. Manager, Legal, Dr. Oetkar India Pvt. Ltd, it has come that the petitioner Amit Kanojia resigned from the services on 30.12.2017 and he was relieved w.e.f. 01.01.2018. He also testified that after accident dated 15.06.2016, Mr Amit Kanojia was unable to perform his duty well due to disability in his right hand and right eye and that his performance prior to accident was outstanding. It is thus suggested that the petitioner quit his job after about 1½ years of accident under compelling circumstances. PW9 also deposed that increment of Mr. Amit Kanojia was due w.e.f. 01.01.2018.
34. PW9 Sh Mahesh Kumar, Asst. Manager (legal), Dr. Oetker India Pvt. Ltd deposed that after the accident dated 15.06.2016, petitioner Amit Kanojia was unable to perform his duty well due to disability in his right hand and right eye and therefore, he resigned from services on 30.12.2017 and on 01.01.2018, he was relieved from the services and that his performance prior to the accident was outstanding and further that his increment was due on 01.01.2018 as per the company policy of credit of increment w.e.f Ist January every year. He denied the suggestion that he was deposing falsely to help the _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 25 of 39petitioner to receive higher compensation from insurance company, being his friend / office colleague. He admitted that he had not produced any document to show company's policy regarding increment and to show the outstanding performance of the petitioner. PW1 /Mr. Amit Kanojia deposed in his cross-examination dated 14.11.2017, admitting the suggestion that he was still working with same employer /company at the same position and that there had been a nominal increment in his salary w.e.f. January 2017 on sympathetic ground. He also disclosed by volunteering that he has been asked by the Manager to resign from 01.01.2018 as he was unable to work efficiently with his right hand and could not see from his right eye. He admitted that he had not placed any document in this regard as well as did not original qualification document before the Tribunal but could produce if directed / required. He denied the suggestion that he did not suffer loss of income due to the accident. PW7 Dr. Ajay Aurora, produced the treatment record Ex. PW7/A and deposed that petitioner underwent operation. He also deposed in his cross-examination that total cataract in the right eye for which petitioner had underwent surgery had been developed in all probability due to concussional injury to the eye and deposed that this was further substantiated by the fact that the cataract was minimally sub-luxated.
35. The permanent disability of the petitioner is considerable but as far as the functional disability is concerned, permanent disability does not automatically convert to functional disability to the same percentage and functional disability has to be seen to determine the loss of earning capacity of the petitioner _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 26 of 39in this case. Income Tax Returns of the petitioner post accident for the years 2017-18, 2018-19 and 2019-20 shows considerable increase in the income and ITR also reflects that the income of the petitioner has not decreased even after resignation from the previous job. Hence, clarification was sought from Ld. Counsel for the petitioner and it was orally submitted that post his resignation, petitioner has been doing the work of 'Agency', having been provided by the same employer i.e. Dr. Oetkar India Pvt. Ltd. and further some income is also generated through fixed deposits. It was also submitted that it is not known how long the petitioner will be able to continue with the Agency work and his income would have possibly otherwise increased manifold if he was continuing with the same job profile as at the time of accident. No document regarding employment /work of the petitioner post his resignation and income generated has been filed and proved on record. Ld. Counsel for the petitioner argued that though the petitioner has been given an agency work by the same employer considering his disability, after his resignation from the job, still considering that petitioner suffered from permanent disability to the extent of 90% in right upper limb & 30% in right eye and also considering that nature of work being done by petitioner is not nature of permanent employment and further his capacity including vision in the healthy eye is also going to be affected in future, the functional disability must be considered on higher side. Ld. Counsel for the insurance company submitted that post his resignation as well, income of petitioner did not decrease and rather same is on an increase and _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 27 of 39income tax return of the petitioner for the assessment year 2017- 18, 2018-19 and 2019-20 reflect so. Hence, his functional disability is negligable. Ld. Counsel for the petitioner submitted that post his resignation, the employer of the petitioner offered him an agency, on his past credibility as good employer on compassionate ground and though his earnings from the agency work has led to increase in his income as reflected in the ITRs but the future of petitioner is still uncertain and it is not known how long he will be able to continue with the agency and even otherwise loss of job is indicative of loss of future prospects and income of the petitioner, which could have otherwise increased substantially, if he was continuing in the same job profile.
36. The facts and circumstances of the present case are unique. It is seen that post accident and leaves taken, petitioner joined office with the same job profile and continued to work till December 2017. Hence, it cannot be concluded that the petitioner was absolutely incapable to work with his employer post accident. It cannot be lost sight that petitioner resigned from his job by the end of year 2017, whereas the accident is of June 2016. It is also relevant here to note that PW9, who is from the office of the employer of the petitioner himself deposed that Mr. Amit kanojia was unable to perform his duty well due to disability sustained by him in the accident and thus resigned. Here, it is also relevant to mention that PW1 long before he quit his job, had testified before the Tribunal that company / his employer had asked him to resign. Mr. Amit Kanojia, was as per the testimony of PW9, an outstanding performer /employee and the very fact that such an employer had to resign and did not even _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 28 of 39take up any other job and instead chose to do the agency work, is indicative of the adverse impact the disability sustained by Mr.Amit Kanojia has had on his career and future prospects. There is no denial of the fact by the insurance company that Mr. Amit Kanojia is no longer continuing in the same employment. Even though his earnings from the agency work might have led to increase in his income as reflected in the ITRs but the future of petitioner is no longer secure as before and I find merit in the submission of Ld. Counsel for the petitioner that it is not known how long he will be able to continue with agency work and even otherwise, loss of job is indicative of loss of future prospect and income of the petitioner which could have otherwise increased substantially, if he was continuing with the same job profile.
37. It is seen that petitioner had to quit his job on account of permanent disability suffered by him and regardless of the fact that he continued generating income through his efforts made in the side business / work of agency carried out post quitting from the job, there can be no denial of the fact that the permanent disability suffered by the petitioner has adversely affected his finances and income. The fact that the petitioner is still managing to generate income post his resignation on account of his disability, only points out towards his resilience perseverance, talent and zeal to make both ends meets and remain engaged in suitable work. The possibility of him not being able to carry out the work of agency or any other work in future or the possibility of not having the same capability to work in future with passage of time and age,on account of permanent disability suffered, cannot be ruled out. In any case, the _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 29 of 39permanent disability sustained, though has not diminished the will power of the petitioner, the same has certainly impacted his performance and ability to work as before. As far as the submission regarding increase in the income of petitioner post- accident and resignation is concerned, the same does not take away from the fact that the petitioner suffers from physical disability of 90% in relation to right upper limb and the disability sustained may only aggravate and increase his troubles in future with advancing age and considering that his work profile as of now cannot be termed as permanent in nature and sadly the substantial permanent disability sustained by the petitioner may only exacerbate his travails and possibly could come in the way of generating income and in turn, mar his future prospects even more, the permanent disability has to be assessed by the Tribunal. In the judgment bearing citation 2022, live law (SC) 1017 titled Mohd. Sabir @ Shabir Hussain vs. Regional Manager UPSRTC, it has been observed in para no. 20 that: "It is also to be noted that even if the income of the Appellant had increased after the accident, it would not be enough grounds to disable the Appellant from claiming compensation for future prospect as the rise in income may be attributed to manipulate other factors".
38. Now, it is required to be seen that upto what extent the permanent physical disability suffered by the petitioner would affect his earnings so that a just and reasonable compensation may be granted to him under this head. In the opinion of this Tribunal, with 90% permanent physical disability in relation to right upper limb and 30% disability in his right eye, coupled with the fact that petitioner is doubling up ass mother _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 30 of 39and father of minor children and has to take good take care of both of his girls and in view of the discussion above-said, in the circumstances of the case, this Tribunal is of the opinion that functional disability in relation to whole body of the petitioner may be considered to be 65% for the purpose of assessing corresponding loss of his future income.
39. As per the testimony of PW3 Nidhi Dixit, Amit Kanojia was getting salary of Rs.14 lakhs per annum. She proved on record annual salary certificate / package of petitioner Amit Kanojia Ex. PW3/7 and increment letter Ex. PW3/8 and service record of Amit Kanojia Ex.PW3/10. According to document Ex.PW3/7 and increment letter Ex.PW3/8, the salary of petitioner was revised to Rs.14 lakhs w.e.f. 01.01.2016. The document Ex.PW3/7 reflects that the CTC (cost to company) package of petitioner Amit Kanojia was Rs.14 lakhs as per the document dated 29.03.2016 and CTC contains of various components. The bank account statement of the petitioner Amit Kanojia for the period from 04.01.2016 to 21.11.2016 shows regular credit of salary in his bank account. As per the ITR of Mr.Amit Kanojia for the assessment year 2014-15 and 2015-16, his gross total income were respectively Rs.7,63,490/- and Rs.8,08,934/-. As per the ITR for the assessment year 2017-18 (relevant year), the gross total income for the assessment year 2017-18 was Rs.10,70,551/-. As discussed above, the salary in the sum of Rs.79,236/- was the deficient amount not paid to the petitioner. It is seen that income tax deducted as per the ITR was Rs.1,34,980/-. Hence, the annual salary of the petitioner for the relevant year / at the time of accident minus income tax is _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 31 of 39considered as Rs.10,42,739/-{11,49,787/-(10,70,551+79,236/-)- 1,07,048/- =10,42,739}.
40. Further, law is well settled that there should be no departure from the multiplier method in injury cases also [refer:
Sandeep Khanuja vs. Atul Dande & Anr., (2017) 3 SCC 351]. As per secondary school certificate EX.PW1/10, the date of birth of the petitioner is 25.06.1978. Therefore, it becomes clear that on the date of accident (15.06.2016), petitioner was about 38 years of age and thus, multiplier of 15 as applicable to age group between 36-40 years, would be applicable as per settled principle laid down in case of Sarla Verma v. DTC (2009) 6 SCC 121. Moreover, the law has been well settled by the decisions of Supreme Court in the cases of Sandeep Khanuja (supra) and Erudhaya Priya vs. State Express Transport Corporation Ltd., 2020 SCC OnLine SC 601, that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. Thus, considering the petitioner was in a private job and there is nothing to suggest that his job was permanent in nature, he is assumed to be self- employed, an addition of income to the extent of 40% towards future prospects has to be counted.
41. As discussed above, the income of petitioner as per ITR and documents placed on record is assessed to be Rs.10,42,739/- annually. Thus, applying the multiplier 15 and future prospects @ 40% with 65% loss of income on account of whole body functional disability, the total loss of future income would come to Rs.1,42,33,387/- [65% of (10,42,739x 140/100x15)] and same is awarded to the petitioner under this _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 32 of 39head.
Special diet and conveyance:
42. Petitioner has not filed on record any bills in support of special diet. However, two ambulance bills Ex. PW1/7 for a sum of Rs.32,000/- have been filed on record by PW1. Petitioner has claimed an amount of Rs.3 lakhs under these heads. As per the testimony of petitioner post accident, he remained in Sai Hospital, Muradabad to15.06.2016 to 16.06.2016 and thereafter in Max Hospital, from 16.06.016 to 28.06.2016 and thereafter remained on bed rest for about 4 months. PW7 Dr. Ajay Aurora deposed regarding eye surgery of Amit Kanojia in vision plus eye centre on 31.01.2017. He also deposed that cataract in all probabilities had developed due to concussional injury to the eye. The medical documents on record suggest that petitioner underwent treatment in connection with the injuries sustained in the accident and post complications for a considerable period of time. It is observed that he had repeated visits to different hospitals and doctor over a long period of time. Thus, it may be safely assumed that petitioner must have incurred a substantial amount on transportation for the purpose of making such numerous visits to hospitals. Also, he had to appear before the Medical Board for disability assessment. In view of this, I deem it appropriate to grant a reasonable amount towards conveyance charges. Thus, considering the above facts and circumstances of the case, petitioner is awarded a sum of Rs.50,000/- for special diet and Rs.50,000/- for conveyance charges. Accordingly, a total sum of Rs.1,00,000/- is granted to the petitioner under this head.
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 33 of 39Attendant charges :
43. According to the petitioner, he was unable to join his office for a period of 4 months. Though no evidence has been led to show that petitioner had hired any attendant during his treatment, it cannot be ignored that family members of petitioner might have had to render their services for providing assistance to the petitioner for his routine activities and that would definitely suffer their work/job. For claiming compensation, necessity of employing a professional attendant/ care taker is not required and the petitioner should be compensated for the value of services of the family members, which has been or would be necessitated by the wrong doing of the driver. (DTC & Ors Vs. Lalita, 1983 ACJ 253). Therefore, the petitioner is awarded a sum of Rs.80,000/- as attendant charges.
NON PECUNIARY DAMAGES:
Pain & Sufferings, Loss of Amenities & Loss of expectation of Life:
44. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain v. Jai Kishan, FAO No: 709/02, date of decision:
02.02.2007 can be considered:
"12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
13. The objective facts relatable to pain _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 34 of 39
and suffering would be:
(a) Nature of injury.
(b) Body part affected
(c) Duration of the treatment."
45. In this case, as discussed above, petitioner Amit Kanojia remained hospitalized for considerable period. During hospitalization, he had to undergo surgeries for treatment. Even after discharge from the hospital, he had to make numerous visits in OPD of hospital for his treatment. Thus, it is clear that petitioner must have suffered immense pain and suffering during his treatment.
46. According to PW11, petitioner cannot perform desk job due to disability in right upper limb. According to PW12, the working capacity or vision of the left eye due to additional burden on that eye on account of permanent disability sustained in right eye, would not be affected and further that the work on computer, writing using mobile, watching TV etc can be clearly seen provided he has 6/6 vision in his left eye. He also deposed that petitioner may face difficulty in using stairs and his depth perception has been affected. He also deposed that there is no loss of complete vision and the overall loss of vision of right eye will only 30% and due to this disability, he will not face difficulty in his day to day life.
47. It cannot be ignored that petitioner has suffered permanent disability his right upper limb to the extent of 90% and he is also bound to face difficulties and hindrance to enjoy the amenities of life to the fullest due to said disability and therefore, he is entitled to be compensated on account of disfigurement due to disability and also for loss of amenities. _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 35 of 3948. In the case in hand, the petitioner was working as senior manager, Logistics in Dr. Oetkar India Pvt. Ltd and sustained 90% permanent physical disability in relation to right upper limb. Accordingly, petitioner Amit Kanojia is granted a compensation of Rs.2,00,000/- on account of pain and suffering & Rs.2,00,000/- on account of loss of amenities and expectation of life. Thus, a total sum of Rs.4,00,000/-is granted under this head.
Attendant charges for future :
49. Petitioner has also claimed compensation towards lifetime attendant charges but there is no such evidence led by the petitioner to suggest that he requires an attendant for life time. He is working and does not suffer from such a disability, as renders him incapable to carry on his day to day activities without assistance. According to PW11, petitioner cannot perform desk job due to disability in right upper limb. According to PW12, the working capacity or vision of the left eye due to additional burden on that eye on account of permanent disability sustained in right eye, would not be affected and further that the work on computer, writing using mobile, watching TV etc can be clearly seen provided he has 6/6 vision in his left eye. He also deposed that petitioner may face difficulty in using stairs and his depth perception has been affected. He also deposed that there is no loss of complete vision and the overall loss of vision of right eye is only 30% and due to this disability, he will not have face difficulty in his day to day life. It is not the plea taken by the _____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 36 of 39petitioner that he is bed ridden and he had appeared before the Tribunal for his evidence and he is not wheelchair bound and there is no evidence led to suggest that petitioner has ever hired any attendant till date. Ld. Counsel for petitioner relied mainly the case bearing citation Pritam Singh Vs. OIC Ltd. However, this case dealt with a victim suffering from such disability as rendered the claimant in a vegetative state. In my considered view, the judgments relied upon by the counsel for petitioner does not squarely apply to the facts and circumstances of the present case. Hence, no amount is being towards future attendant charges.
50. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses Rs.5,82,737/-
Loss of Income during treatment Rs 79,236/-
2.
Loss of Future Earnings Rs.1,42,33,387/-
3.
(on account of disability)
4. Special Diet & Conveyance Rs.1,00,000/-
5. Attendant Charges Rs.90,000/-
Pain & Sufferings, Loss of Rs.4,00,000/-
6. Amenities & Loss of expectation
of life
7. Attendant charges for future Nil
Total Rs.1,54,85,360/-
51. Accordingly, petitioner Amit Kanojia is awarded a total compensation of Rs.1,54,85,000/- (rounded off).
_____________________________________________________________ MACP No. 683/16 ; Amit Kanojia Vs. Ram Singh & Ors.
MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 37 of 39INTEREST ON AWARD
52. Petitioner(s) in all the aforementioned two cases shall also be entitled to interest @ 7.5% per annum on the award amount from the date of filing of the petition till its realization.
LIABILITY
53. Now, the question arises as to which of the respondents is liable to pay the compensation amount. As insurance company has contractual and statutory liability to indemnify the insured. Insurance company has not examined any witness to prove the objections raised by them in its written statements or to prove that any term or condition of insurance policy was breached/ violated by insured. In view of above, it is held that respondent no.3/ insurer shall only be entitled to pay the compensation amount in all the three cases.
MACP No. 683/16(In re: injured Amit Kanojia)
54. In view of the aforesaid, this Tribunal awards a compensation of Rs.1,54,85,000/- (Rupees one crore fifty four lakhs eighty five thousand only) to the petitioner along with interest @ 7.5% per annum from the date of filing of petition till realization to be paid by the respondent no.3 / National Insurance Company Ltd to the petitioner. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. This award amount is required to be deposited by the insurance company within 30 days.
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MACP No. 685/16 ; Rishika Kanojia Vs. Ram Singh & Ors. Page 38 of 39 MACP no.685/16(In re: Rishika Kanojia )
55. In view of the aforesaid, this Tribunal awards a compensation of Rs.10,12,000/- (Rupees Ten lakhs twelve thousand only) to the petitioner along with interest @ 7.5% per annum from the date of filing of petition till realization to be paid by the respondent no.3 / National Insurance Company Ltd to the petitioner. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. This award amount is required to be deposited by the insurance company within 30 days.
56. With these observations, both of the claim petitions are disposed of.
57. Files be consigned to Record Room.
Digitally signed
MAYURI by MAYURI
SINGH
SINGH Date: 2024.10.07
16:56:58 +0530
Announced in the open (Mayuri Singh)
Court on 07.10.2024 Presiding Officer-MACT (East)
Karkardooma Courts, Delhi
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