Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 15, Cited by 0]

Delhi District Court

Sh. Shahid vs Sh. Manish Kumar on 18 March, 2023

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur                           DOD: 18.03.2023


       IN THE COURT OF SH. VINOD YADAV, PRESIDING OFFICER,
                MOTOR ACCIDENT CLAIMS TRIBUNAL,
               NORTH DISTRICT, ROHINI COURTS, DELHI

MAC Petition No. 4362/16
CNR/UID No. DLNT01­000265­2015

         Sh. Shahid,
         S/o Sh. Mustak Khan,
         R/o D­365A, Sanjay Amar Colony,
         Vishwas Nagar, Shahadra,
         Delhi.
                                                                 ........Petitioner
                                                  VERSUS
1.       Sh. Manish Kumar,
         S/o Sh. Ranbir,
         R/o H.No. 290, Nehru Enclave,
         Village Alipur, Delhi.
         (Driver)

2.       Smt. Saroj Devi,
         W/o Sh. Ranbir,
         R/o H.No. 290, Nehru Enclave,
         Village Alipur, Delhi.
         (Registered Owner)

3.       National Insurance Company Ltd.
         Connaught Place,
         New Delhi - 15.
         (Insurance company)
                                                           ........Respondents
Date of Institution                    : 10.07.2015
Date of Arguments                      : 18.03.2023
Date of Decision                       : 18.03.2023

Shahid Vs. Manish Kumar & Ors.                                             Page 1 of 44
 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur                                DOD: 18.03.2023


APPEARANCES:

Sh. Amit Tanwar, Ld. Counsel for petitioner/injured. Sh. Ramesh Chander, Ld. Counsel for driver and owner. Sh. V.K. Gupta, Ld. Counsel for Insurance co.

Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD

1. The petitioner aged about 25 years had sustained grievous injuries in a motor vehicular accident which took place on 03.09.2014 at about 10:00 pm near Bhaktawarpur Govt. Girls School, Hiranki Road, Delhi, within the jurisdiction of PS. Alipur, involving Swift Dzire Car bearing registration no. DL4C­ND­6000 (offending vehicle) being driven by respondent no. 1 in a rash and negligent manner.

2. According to DAR, the petitioner/injured was working as a vegetable vendor at the time of accident and on 03.09.2014, the petitioner and his nephew namely Saeed Ahmad were returning to their houses on cycle rickshaw. At about 10:00 PM, when they reached at Hiranki Road, Bhaktawarpur, Near Govt. Girls School, Delhi, the offending vehicle which was being driven by its driver/respondent no. 1 at a very high speed, in a rash and negligent manner, came from behind and hit rickshaw of petitioner as well as three other rickshaws with a great force, as a result of which, petitioner and other rickshaw pullers fell down on road and sustained grievous injuries. Thereafter, he was removed to SRHC Hospital, Narela, Shahid Vs. Manish Kumar & Ors. Page 2 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 Delhi, where he was medically examined and thereafter, he was referred to Lok Nayak Jai Prakash Hospital, Delhi. It is claimed that the accident had taken place due to rash and negligent driving of offending vehicle by its driver/Respondent no. 1, owned by Respondent no. 2 and insured with National Insurance Company Ltd/Respondent no. 3 during the period in question. FIR No. 816/14, u/s. 279/337 IPC was registered at PS. Alipur with regard to accident in question.

3. In their joint WS, the respondents no. 1 & 2 i.e. driver and registered owner raised preliminary objection that accident had not taken place due to the negligence of respondent no. 1. It has been claimed that the offending vehicle was recovered by the police after a gap of 7­8 months of accident. It has been further claimed that the offending vehicle was insured with respondent no. 3 at the time of accident and as such, they are not liable to pay any compensation to the petitioner. On merits, they have denied the averments made in the DAR and prayed for its dismissal.

4. In its WS, the respondent no. 3 i.e. insurance company has not raised any statutory defence as provided in section 149(2) of M.V. Act. It has been claimed that accident had taken place on 03.09.2014, whereas the offending vehicle was identified by the nephew of petitioner on 08.05.2015 and thus, the offending vehicle has been falsely implicated by the petitioner in the present case.

Shahid Vs. Manish Kumar & Ors. Page 3 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

5. From the pleadings of the parties, the following issues were framed vide order dated 28.10.2015 passed by my Ld. Predecessor:­

1. Whether the injured Shahid suffered injuries in road traffic accident on 03.09.2014 at about 10:00 pm at Hiranki Road, Bakhtawarpur, near Govt Girls School, Delhi within the jurisdiction of PS. Alipur due to rashness and negligence on the part of the Manish Kumar who was driving Car bearing registration no. DL­4CND­6000, owned by Smt. Saroj Devi and insured with National Insurance Co Ltd? OPP

2. Whether the injured is entitled to any compensation if so to what amount and from whom?OPP.

3. Relief.

6. In support of his claim, the petitioner has examined ten witnesses i.e. himself as PW1, PW2 Dr. Rajesh Kumar, PW3 Sh. Saheed Ahmed, PW4 Sh. Aabid, PW5 Dr. Deepak Arora, Associate Consultant, Orthopedics Department, Max Super­Specialty Hospital, Parparganj, PW6 Dr. R.K. Sachdeva, MS, Orthopedics, Kosmos Superspecialty Hospital, PW7 Dr. Shailesh Sahay, PW8 Dr. Rakesh Sehrawat, MS, Orthopedics, SR, Lok Nayak Hospital, PW9 Sh. Kapil Kaushik Deputy Manager, Endolite India Ltd and PW10 Dr. Ahmed Abdul, SR, GTB Hospital and his evidence was closed vide order dated 17.09.2022. On the other hand, the respondents no. 1 & 2 have examined one witness i.e. respondent no. 1 Shahid Vs. Manish Kumar & Ors. Page 4 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 himself as R1W1. The respondent no. 3/insurance company has examined one witness i.e. ASI Ashok Kumar as R3W1 and respective RE of respondents was closed vide order dated 17.09.2022.

7. I have heard arguments advanced at bar by Ld counsels for the petitioner and insurance company. I have also gone through the material available on record.

ISSUE NO. 1

8. For the purpose of this issue, the testimonies of PW1 Sh. Shahid (injured himself) and PW3 Sh. Saheed Ahmed are relevant. In their respective evidence by way of affidavits (Ex. PW1/A & Ex. PW3/A respectively), they both have deposed on the similar lines of averments made in the DAR. PW1 has relied upon the following documents:­ Serial Description of document Remarks No.

1. Medical treatment record Ex. PW1/1(colly)

2. Medical bills Ex. PW1/2(Colly)

3. Copy of voter I Card Ex. PW1/3

4. Discharge Summary of Ex. PW1/4 LNJP Hospital

5. Estimate of cost of artificial Ex. PW1/5 limb Shahid Vs. Manish Kumar & Ors. Page 5 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

6. Copy of FIR alongwith Ex. PW1/6(colly) DAR

9. During cross­examination on behalf of respondents, PW1 deposed that there was not much traffic on the road at the time of accident as accident had taken place during night hours. He further deposed that he was driving cycle rickshaw at the time of accident and his nephew Saheed Ahmed was sitting on the back portion of said cycle rickshaw at the time of accident. He deposed that there was complete darkness at the place of accident. He deposed that there was no reflector/light installed on rear portion of his cycle rickshaw at the time of accident. He deposed that he could not see driver of the offending vehicle which had caused the accident. He further deposed that he had also not seen the registration number of the offending vehicle. He volunteered that the registration number of offending car was told to him by Saheed Ahmed. He deposed that he got entangled in the cycle rickshaw due to the accident. He further deposed that the offending vehicle was a car of white colour. He deposed that his statement was recorded by police at his house after about 6 months of the accident. He deposed that after the accident, he became unconscious and regained consciousness at the place of accident itself after sometime. He deposed that police official never visited him either in the hospital or at any other place prior to the date on which his statement was recorded. He further deposed that his nephew Saheed Ahmed had told him in Lok Nayak Hospital that the driver of the offending vehicle had also hit other cycle Shahid Vs. Manish Kumar & Ors. Page 6 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 rickshaws before hitting his cycle rickshaw on that day. He further deposed that he had been returning back to his house after selling vegetables in weekly market. He deposed that there was no divider on the road where the accident had taken place. He denied the suggestion that he was driving the cycle rickshaw on wrong side of the road or that the accident had taken place due to said reason. He further denied the suggestion that accident was not caused by offending vehicle or that accident was caused by some other vehicle. He denied the suggestion that there was no negligence on the part of driver of offending vehicle.

10. During cross­examination on behalf of respondents, PW3 deposed that he was going from Hiranki towards Bakhtawar side on the day of accident. He further deposed that cycle rickshaw on which he was sitting alongwith injured was on the left side of the road when the accident had taken place. He further deposed that petitioner was driving the said cycle rickshaw and he was sitting on the back side. He further deposed that the offending vehicle had hit the cycle from back side. He deposed that the offending vehicle was Swift Dzire car of cream colour bearing registration no. DL4C­ND­6000. He deposed that he himself had seen the registration number of the offending vehicle. He further deposed that the front side of the offending vehicle had hit against the back side portion of their cycle rickshaw. He volunteered that the driver of offending vehicle had already hit other rickshaws before hitting their cycle rickshaw. He deposed that he had Shahid Vs. Manish Kumar & Ors. Page 7 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 also sustained minor injuries and his MLC was also prepared at Lok Nayak Hospital. He further deposed that initially, he alongwith petitioner had been removed to SRHC Hospital, Narela, Delhi but his MLC was not prepared in the said hospital. He denied the suggestion that he was not present at the spot or that he had not seen the accident in question. He deposed that he had seen the face of the driver of offending vehicle at the time of causing the accident and subsequently, he had again seen the driver of the offending vehicle near Surya Garden Farm House situated at G.T. Road after about 5­6 month from the date of accident. He deposed that he had not told the police on the date of accident that he had seen the face of driver of the offending vehicle, however, he had told the police that he had seen driver of the offending vehicle near Surya Garden Farm House on the next day of the date of accident when he had seen him and his statement was recorded by the police at that time in PS but he did not remember the name of the police official who had recorded his statement. He further deposed that the bumper and bonnet of offending car had got bended inside after the accident. He deposed that his statement for the first time was recorded by some police official in PS. Alipur after about three months of the date of accident and at that time, he had accompanied his maternal uncle Sh. Abid alongwith 4­5 persons to the PS. He deposed that he himself had not visited the PS at any time prior to said date in order to inform the police about the registration number of the offending vehicle or any other detail. He denied the suggestion that accident was not caused by Shahid Vs. Manish Kumar & Ors. Page 8 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 the offending vehicle or that the same was not being driven in rash and negligent manner as claimed or that the said vehicle had been falsely involved in the criminal case in order to extort money from the respondents.

11. As already noted above, the respondents no. 1 & 2 have examined one witness i.e. respondent no. 1 himself in order to rebut the case of petitioner. R1W1 deposed in his evidence by way of affidavit Ex. R1W1/A that respondents no. 1 & 2 have been falsely implicated in the present case and the police officials registered the FIR in the present case on 03.09.2014 and offending vehicle was impounded by the police after a gap of about six months. He further deposed that at the time of accident, the planted eyewitness noted down the vehicle number of offending vehicle as DL­4C­6000 instead of DL­4CND­6000. He deposed that he was having valid and effective driving licence at the time of accident and offending vehicle was also insured with respondent no. 3. During his cross­ examination on behalf of petitioner, he admitted that his car bearing no. DL4C­ND­6000 (offending vehicle) was a white Swift Dzire. He further admitted that document Ex. R1W1/P1 was related to his aforesaid car. He deposed that he could not say as to how much expense had occurred on the repair of his car as the amount had been paid by insurance company. He further deposed that his car got damaged from the front side and same was got repaired by Maruti Service Master. He volunteered that the driver of a truck which was moving ahead of his car had suddenly applied brake at Shahid Vs. Manish Kumar & Ors. Page 9 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 the Swaroop Nagar Flyover due to which his car got struck against the said truck and due to said reason, his car got broke down and he left his car at the spot and next day, his car got towed by private crane to abovesaid service centre. He deposed that he did not remember the date and time of aforesaid accident with the truck. He further deposed that he did not note down the registration number of the aforesaid truck. He deposed that he did not make any PCR call or any police complaint regarding the accident with the said truck. He further deposed that he could not tell the registration number of crane which had towed his car after the accident due to lapse of time. On being asked whether he had mentioned the fact of accident with the aforesaid truck in his written statement, he deposed that the fact of accident was mentioned in the written statement, however, the same is not there in his written statement. He admitted that the written statement and supporting affidavit bore his signatures at relevant points. He exhibited the said written statement alongwith supporting affidavit as Ex. R1W1/P2(colly). He denied the suggestion that he had hit the petitioner on 03.09.2014 at about 10 PM at Hiranki Road, Bakhtawarpur, near Government Girls School, Delhi with offending vehicle due to which the petitioner had suffered grievous injuries. He further denied the suggestion that he had been driving offending vehicle in rash and negligent manner due to which the accident had taken place. He denied the suggestion that after the accident, he had run away from the spot with offending vehicle. He denied the suggestion that in the accident in question, offending vehicle had Shahid Vs. Manish Kumar & Ors. Page 10 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 got damaged and he got it repaired from Maruti Service Master vide Job Card No. JC14013527 dated 04.09.2014. He admitted that repair of his car was done from Maruti Service Master vide Job Card No. JC14013527 dated 04.09.2014. He volunteered that offending vehicle was damaged in an accident with a truck on a highway. He denied the suggestion that no accident of offending vehicle with truck had taken place on National Highway, near Swaroop Nagar. He further denied the suggestion that on the next day, his car was not towed by crane to the service station from Swaroop Nagar. He denied the suggestion that since no accident with truck had taken place, he did not make any PCR call or any complaint to the police against the aforesaid truck. He further denied the suggestion that since no accident had taken place with the aforesaid truck that is why he had not mentioned this fact in his written statement as well as in his affidavit Ex. R1W1/A. He denied the suggestion that eyewitness Sahid Ahmad had recognized him and offending vehicle at Surya Garden. He further denied the suggestion that he had run away from Surya Garden when confronted by eyewitness Sahid Ahmad. He denied the suggestion that contents of his written statement and affidavit Ex. R1W1/A were false.

12. During his cross­examination on behalf of insurance company, he deposed that he was alone in the offending vehicle at the time of accident with the said truck. He further deposed that he was having his mobile number 9911202542 in working condition at that time. He deposed Shahid Vs. Manish Kumar & Ors. Page 11 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 that he did not remember whether the police had taken his mobile number or not. He denied the suggestion that he was in collusion with the petitioner or that he was indirectly supporting the petitioner in the present case. He admitted that he had not caused the accident in which the petitioner had suffered injuries.

13. Ld. Counsels for the respondents vehemently argued that the petitioner has failed to prove negligence on the part of respondent no. 1 in causing the accident. For this purpose, they have heavily relied upon the testimony of R1W1 as discussed above. Per contra, Ld. counsel for petitioner argued that the testimony of R1W1 should not be believed as he is an interested witness. He further submitted that respondent no. 1 has been facing trial in the criminal case in accident in question.

14. So far as, the testimony of respondent no. 1 examined as R1W1 is concerned, it may be noted that the said witness is blowing hot and cold in the same breath inasmuchas he has nowhere deposed in his examination in chief that offending vehicle had got damaged in some other accident with an unknown truck and the said fact had been told by him for the first time during his cross­examination by Ld. Counsel for petitioner. He had also not raised this defence in his written statement that offending vehicle had got damaged in some other accident with a truck. At this juncture, it may also be noted that R1W1 admitted during his cross­ Shahid Vs. Manish Kumar & Ors. Page 12 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 examination that he had not made any PCR call or any police complaint regarding the accident of offending vehicle with an unknown truck. Thus, R1W1 is an interested witness and has every reason to depose falsely in order to save him from the criminal case registered against him with regard to accident in question. Even otherwise, his testimony is not free from doubt and does not inspire confidence. Had respondent no. 1 been falsely implicated in the criminal case, no one would have stopped him from lodging any complaint against IO either before higher police authorities or before any other government authority. What is more important to note is that both the respondents did not raise any specific defence in their joint WS that the offending vehicle had was got damaged in some other accident with an unknown truck. In other words, the defence raised by respondent no. 1 is beyond pleadings and thus, not admissible.

15. Moreover, it is evident from the testimonies of PW1 & PW3 that respondents could not impeach their testimonies through litmus test of cross­examination. Said witnesses are found to have successfully withstood the test of cross­examination. It is an undisputed fact that FIR No. 816/14 u/s 279/337 IPC was registered at PS. Alipur with regard to accident in question. Copy of said FIR (which is part of DAR), would show that same was registered on 03.09.2014 on the basis of DD Entry No. 30A with regard to accident call received in PS. Alipur on 03.09.2014. Furthermore, said FIR is shown to have been registered on 03.09.2014 i.e. on the date of Shahid Vs. Manish Kumar & Ors. Page 13 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 accident itself. Thus, there is no possibility of false implication of driver and / or false involvement of offending vehicle at the instance of the petitioners. The respondents no. 1 & 2 have failed to substantiate the plea that petitioner had any kind of ill will or enmity against them so as to falsely implicate respondent no. 1 in criminal case or to depose falsely against them during the course of inquiry.

16. Not only this, the respondent no. 1 namely Sh. Manish Kumar (accused in State case) has been charge sheeted (which is part of DAR) for offences punishable U/s 279/338 IPC by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had occurred due to rash and negligent driving of offending vehicle by him. Same would also point out towards the rash and negligent driving of tempo by respondent no. 1.

17. Apart from above, the copy of MLC (which is part of DAR) of injured prepared at SRHC Hospital, Narela, Delhi shows that he had been removed to said hospital on 03.09.2014 at 11:10 pm i.e. on the date of accident itself with alleged history of RTA. On his local examination, he was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in a motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.

Shahid Vs. Manish Kumar & Ors. Page 14 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

18. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of pre ponderence of probabilities that he had sustained multiple injuries in road accident which took place on n 03.09.2014 at about 10:00 pm near Bhaktawarpur Govt. Girls School, Hiranki Road, Delhi, due to rash and negligent driving of offending vehicle by respondent no. 1. Thus, issue no. 1 is decided in favour of the petitioner and against the respondents.

ISSUE NO. 2

19. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.

MEDICAL EXPENSES

20. PW1 Sh. Shahid i.e. the injured himself, has deposed in his evidence by way of affidavit Ex. PW1/A that after the accident, he was removed to SRHC Hospital, Narela, Delhi, wherefrom he was referred to Lok Nayak Jai Parkash Hospital, Delhi. He further deposed that he had also received treatment from Max Hospital, Shalimar Bagh, Delhi. He further deposed that he had incurred more than Rs. 5,00,000/­ on his medical Shahid Vs. Manish Kumar & Ors. Page 15 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 treatment. He has relied upon medical bills Ex. PW1/2(colly). During his cross­examination on behalf of respondents, he denied the suggestion that he had not spent Rs. 5,00,000/­ on his medical treatment.

21. In order to prove the medical treatment taken by the petitioner, he has examined PW5 to PW9. PW5 Dr. Deepak Arora, Associate Consultant, Orthopedic Department, Max Super Specialty Hospital, Parparganj, Delhi, has produced the treatment record of petitioner who was under treatment for fracture left femur which was operated twice. He further deposed that petitioner was presented to them as a case of infected gap non­union left femur with below knee amputation of right lower limb and he was operated on 10.04.2016 for the same. He deposed that during the surgery, plates already fixed in right lower limb of the petitioner, had been removed as he was having severe infection at that time. He exhibited the discharge summary of the petitioner as Ex. PW5/1(colly). He deposed that the petitioner was again operated by Dr. (Prof.) Anil Arora and himself on 16.03.2017, during which bone grafting and adjustment of fixator was done in right lower limb and exhibited the discharge summary of the petitioner as Ex. PW5/2(colly). He further deposed that even thereafter, the petitioner was under his treatment on OPD basis regularly. He exhibited the OPD treatment record as Ex. PW5/3(colly). He further deposed that the petitioner was receiving medical treatment in respect of his left lower limb. He further deposed that after the fracture of left femur of left lower limb is united, the Shahid Vs. Manish Kumar & Ors. Page 16 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 petitioner would be advised to undergo physiotherapy as well in future. During his cross­examination on behalf of insurance company, he admitted that it was not mandatory that the petitioner would definitely required to undergo bone grafting and plating in respect of left lower limb in future. He volunteered that there might be possibility for the same.

22. PW6 Dr. R.K. Sachdeva, MS, Orthopedics, Kosmos Superspecialty Hospital produced the treatment record of petitioner who was admitted in their hospital with alleged history of RTA. He further deposed that the case of petitioner was of non­union fracture shaft femur which was operated upon by him on 02.03.2015 with implant and bone grafting and he was discharged on 05.03.2015 in satisfactory condition. He further deposed that there was non healing infected wound left flank of lower abdomen and exhibited the discharge card of petitioner as Ex. PW6/1. He testified that the medical bills Ex. PW2/1(colly) were issued by their hospital. He further deposed that the petitioner came for follow up to his clinic at Usha Memorial Orthopedic Centre on 13.10.2015 and there was pus discharge from the left thigh wound and he was advised surgery again for debriment and exhibited the said medical prescription as Ex. PW6/2. During his cross­examination on behalf of insurance company, he deposed that there might be possibility that the petitioner might have faced the problem of pus discharge for not taking proper care of the wound including not following the medicine chart advised by the doctor. He further Shahid Vs. Manish Kumar & Ors. Page 17 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 deposed that on the basis of bill Ex. PW2/1(colly) that the entire payment of said bill was duly received by their hospital from the petitioner. He deposed that he had not brought the office record regarding receipt of payment of said bill. He denied the suggestion that their hospital had not received any payment against the aforesaid bill or that is why, he had not brought the office record in that regard. He volunteered that the original receipts regarding payment of said bills which were eight in number and after seeing the same, he deposed that the payment was received by their hospital against the said bill. On being asked as to how much is the possibility of an open wound of the kind as was there on he left lower abdomen of petitioner getting infected, he deposed that there was high probability of such kind of wounds getting infected because of the present open wound in lower part of abdomen. On being further asked as to what could be the possible reasons for pus discharge on left thigh of aforeasid patient, he deposed that apart from the reason already stated in his cross­examination, it could also occur because of infection in open wound appearing on lower abdomen due to spread of infection through blood.

23. PW7 Dr. Shailesh Sahay, Senior Consultant, Urology & Renal Transplant, Max Hospital, Delhi had deposed that on 29.03.2017, petitioner had attended OPD of their hospital and had consulted him with regard to Urethral injury. He further deposed that he had advised him to get his MCU and RGU conducted and thereafter to attend OPD with him after one week.

Shahid Vs. Manish Kumar & Ors. Page 18 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 After seeing the original prescription dated 28.03.2017, he deposed that petitioner was having complete stricture in the Urethra that needed surgical correction and exhibited the said prescription as Ex. PW7/1 and report Ex. PW7/2. He further deposed that on the basis of report Ex. PW7/2, he had advised the petitioner to undergo surgery i.e. Urethroplasty plus CLT, however, the petitioner did not turn up either as OPD or as an indoor patient under his treatment thereafter. During his cross­examination on behalf of insurance company, he deposed that as per his opinion, the wound appearing on the petitioner at the relevant place, could have healed up within 10­15 days or so with the help of medication and dressing and thereafter, the petitioner could have very well undergone surgery as advised to him by him. He admitted that no date was mentioned at the place in document Ex. PW7/1 whereby the petitioner was advised to undergo surgery. He volunteered that the petitioner would have come only after the investigation report was received by him on or after 04.05.2017 but he did not recollect the exact date when he had advised the aforesaid surgery. He admitted that it was not mentioned in investigation report Ex. PW7/2 that the case of the petitioner was that of complete stricture but same was the subjective opinion of the concerned doctor who had prepared the said report but in his opinion, the case of the petitioner was actually that of complete stricture. He deposed that as per medical jurisprudence, the chances of recovery in the medical condition of petitioner were about 70­75% in case he would have undergone the aforesaid surgery as advised Shahid Vs. Manish Kumar & Ors. Page 19 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 by him to the petitioner. He denied the suggestion that the case of the petitioner was not that of complete stricture.

24. PW­8 Dr. Rakesh Sehrawat has produced the entire medical treatment record of petitioner and submitted that petitioner remained admitted in their hospital from 04.09.2014 till 20.11.2014 in department of Orthopedics and department of Surgery. He further deposed that so far as department of Orthopedic was concerned, petitioner remained under treatment of team of doctors headed by Dr. A.K.Gupta, and he was also part of the said team. He exhibited the original discharge summary of petitioner as Ex. PW8/1 (OSR). He also exhibited the office copy of medical treatment record of petitioner as Ex. PW8/2 (colly). He deposed that during the course of medical treatment of petitioner, his right lower limb below knee had been amputated on account of injuries sustained by him as he was admitted in their hospital having crush injury of right leg. He further deposed that petitioner was also having fracture of left femur bone of left lower limb and had also sustained fracture of pelvis. During his cross­ examination on behalf of insurance company, after seeing the MLC Ex. PW2/1, he denied that the injuries of patient mentioned in Ex. PW8/1 and Ex. PW8/2 had no co­relation with the injuries as mentioned in his MLC Ex. PW2/1. He denied the suggestion that he was not part of the team of doctors in Orthopedic department of LNJP Hospital which had provided requisite medical treatment to the petitioner during the aforesaid period.

Shahid Vs. Manish Kumar & Ors. Page 20 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

25. The entire medical treatment record of various Hospitals in respect of petitioner/injured, would reveal that he had obtain treatment from various hospital for the injuries suffered by him in the accident. As per the discharge summary of Lok Nayak Hospital, the case of the petitioner was of crush injury right foot with below knee amputation with fracture SOF left with extraperitoneal bladder injury with urethral injury with CLW over abdomen. It is also relevant to mention here that as per discharge summary of Max Hospital(Ex. PW5/1), the petitioner had also suffered infected gap non­union left femur with implant in SITU. As per discharge summary of Kosmos Superspecialty Hospital, the case of petitioner was of non­union fracture shaft of femur left.

26. As per the aforesaid treatment record produced by the petitioner as well as relevant witnesses, it can be safely presume that he had received treatment for the injuries sustained by him for a considerable period and might have spent considerable amount on his treatment. Nevertheless, it can not be overlooked that the petitioner had suffered crush injury right foot with below knee amputation with fracture SOF left with extraperitoneal bladder injury with urethral injury with CLW over abdomen due to the accident. Apart from this, he was also found to have sustained permanent disability to the extent of 70% in relation to his right lower limb and 4% permanent disability for scarring at lower abdomen and thigh left side.

Shahid Vs. Manish Kumar & Ors. Page 21 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

27. It is relevant to note that petitioner has filed medical bills to the tune of Rs. 1,69,546/­. It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. They have also not led any evidence in rebuttal so as to create any doubt on the genuineness of said bills. Accordingly, a sum of Rs. 1,69,546/­ is awarded to the petitioner under this head.

ARTIFICIAL LIMB AND ITS MAINTENANCE EXPENSES

28. PW1 Mohd. Shahid deposed in his evidence by way of affidavit (Ex. PW1/A) that in future, he would need artifical limb due to the amputation and the same would cost around Rs. 9,00,000/­. During his cross­examination on behalf of respondents, he admitted that he had not placed any document showing that the estimated cost of artificial limb should be around Rs. 9,00,000/­ He further admitted that in the document Ex. PW1/5, the total estimated cost of fitment of endolite below knee system was mentioned as Rs. 2,36,800/­. He denied the suggestion that he did not require any artificial limb or that Ex. PW1/5 was forged or fabricated document.

29. Apart from the ocular testimony of PW1, the petitioner has also examined PW9 Sh. Kapil Kaushik who is the official from Endolite India Company Ltd, which deals in artificial limb. He deposed that on the basis of Shahid Vs. Manish Kumar & Ors. Page 22 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 record available in their company, petitioner had visited their office on 27.09.2016 and after his examination by Ms. Shamina Khan, Senior Prosthetist and Manager of their company, quotation for endolite below knee system alongwith relevant accessories dated 27.09.2016 was issued to him. He deposed that prices of artificial prosthesis has been revised on account of imposition of GST. He further deposed that at that time, the cost of prosthesis was Rs.2,64,000/­. He deposed that the average life of such type of artificial limb was about 5­6 years and its main component called socket was having an average life of about 6 months and it may vary depending upon the condition of patient and the way in which it is maintained by the patient. He further deposed that the cost of said socket was about Rs.15,000/­ to Rs. 20,000/­ or so. During his cross­examination on behalf of insurance company, he deposed that he was not medically qualified to make any comment regarding the kind of disability sustained by the petitioner and requirement for installation of artificial limb by the petitioner. He further deposed that their company did not manufacture the artificial limbs but imports the same and then fits the artificial limbs upon the patients as per their requirements. He further deposed that no internal examination sheet was prepared at the time of examination of petitioner for the purpose of issuance of quotation by their company. He admitted that no break up of the cost of different accessories alongwith artificial limb, was mentioned in Ex. PW1/5. He deposed that he could not tell about the said break up. He volunteered that price list containing prices thereof was Shahid Vs. Manish Kumar & Ors. Page 23 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 maintained in the office of their company, however, he had not brought the said price list with him that day. He denied the suggestion that he had not brought any such price list as no such price list is maintained by their company. He deposed that it was not within his knowledge if any other company which dealt in fitment of such type of artificial limbs, were also available in the market or not. He denied the suggestion that he was aware about the same or that he was deliberately not disclosing about it as the cost of fitment of such type of artificial limbs was much lower than the cost as mentioned in Ex. PW1/5. He further denied the suggestion that the cost of aforesaid artificial limb had not been revised to Rs.2,64,000/­ as claimed above. He denied the suggestion that Ex. PW1/5 was issued by their company by inflating cost of fitment of artificial limb at the instance of petitioner. He deposed that as per their record, the petitioner had not visited the office of their company for fitment of the aforesaid artificial limb till that day. He deposed that after fitment of artificial limb, the position of patient in respect of that particular limb, was restored to its normal condition to a great extent. He denied the suggestion that petitioner never visited their company or that he was never examined by Ms. Shamina Khan as claimed above or that the petitioner was not required to get any such artificial limb fitted. He admitted that document Ex. PW1/5 was silent about the average life of aforesaid artificial limb or that its main component i.e. socket is having average life of 6 months or that its cost was Rs.15,000/­ to Rs.20,000/­. He denied the suggestion that same was not mentioned as the Shahid Vs. Manish Kumar & Ors. Page 24 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 average life of such prosthesis was lifelong or that it never required any kind of replacement or maintenance. He deposed that he had not brought any record regarding fitment of such type of prosthesis by their company in respect of other patients today. He volunteered that same were not summoned from them.

30. During the course of arguments, Ld. counsel for petitioner argued that artificial limb is to be provided to the petitioner and same is required to be replaced after every 5­6 years as deposed by PW9. He also contended that cost of Endolite below knee system with demountable BK Assy in the year 2016 was Rs. 2,36,800/­ as per quotation (Ex. PW1/5) given by Endolite India Limited. He therefore urged that appropriate compensation amount may also be awarded to the petitioner under this head.

31. On the other hand, Ld. counsel for insurance company vehemently argued that no amount should be awarded to the petitioner under this head.

32. After bestowing my thoughtful consideration to the respective submissions made on behalf of both the sides, I find substance in the arguments raised on behalf of petitioner/claimant. The condition of right Shahid Vs. Manish Kumar & Ors. Page 25 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 lower limb of the petitioner was noticed by Claims Tribunal during the course of arguments.

33. There is another reason which persuades me to accept the contention raised on behalf of claimant. In case, the argument raised on behalf of insurance company is accepted, it would lead to injustice in the sense that the cost of artificial limb to be provided to the claimant in this case, is stated to be Rs. 2,36,800/­ as per quotation of Endolite India Ltd and it is not one time cost, rather, said artificial limb is required to be replaced after every 5­6 years. It goes without saying that it is a beneficial legislation enacted by our Parliament in order to compensate the victims of road accidents and to alleviate their sufferings to some extent. Hence, I am of the considered opinion that notional amount representing the cost of artificial limb required by petitioner to lead normal life, should also be awarded separately to him under this head.

34. After carefully perusing the deposition of PW1 & PW9 and keeping in view the fact that petitioner has suffered below knee amputation of right lower limb and consequently, he has suffered 70% permanent disability in relation to his right lower limb and the installation of prosthesis would definitely minimize the sufferings of petitioner or would help him to lead normal life, I hereby award a notional sum of Rs. 10,00,000/­ under this head for installation of artificial limb and its maintenance.

Shahid Vs. Manish Kumar & Ors. Page 26 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 PAIN AND SUFFERING

35. Hon'ble High Court of Delhi in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under:­ " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".

36. Injured has deposed in his evidence by way of affidavit (Ex PW1/A) that he has suffered grievous injuries in the accident. Moreover, as per Disability Certificate Ex. PW10/1, the petitioner is also found to have sustained 70% permanent disability in relation to his right lower limb and 4% permanent disability for scarring at lower abdomen and thigh left side. Thus, he would have undergone great physical sufferings and mental shock on account of the accident in question. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by him and the permanent disability suffered by him, I hereby award a sum of Rs. 2,50,000/­ towards pain and sufferings to the petitioner.

Shahid Vs. Manish Kumar & Ors. Page 27 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 CONVEYANCE AND SPECIAL DIET

37. The petitioner has failed to lead any cogent evidence on record in respect of amount incurred by him on conveyance and special diet. Looking at the medical treatment and disability of the petitioner, notice can be taken of the fact that the petitioner would have incurred considerable amount towards conveyance charges while commuting to the concerned hospital at Delhi as OPD patient for his regular check up & follow up during the period of his medical treatment. The petitioner would have also taken special rich protein diet for his speedy recovery. In these facts and circumstances, I hereby award a sum of Rs. 50,000/­ each for conveyance and special diet. Thus, a total sum of Rs. 1,00,000/­ is awarded under this head.

LOSS OF EARNING CAPACITY

38. As already stated above, the petitioner is shown to have sustained 70% permanent disability in relation to his right lower limb and 4% permanent disability for scarring at lower abdomen and thigh left side. Same is quite evident from Disability Certificate of Medical Board of SRHC Hospital, Narela, Delhi. The petitioner has also testified in this regard while examining himself as PW1 during inquiry. He has not been cross­examined by the respondents on this aspect.

Shahid Vs. Manish Kumar & Ors. Page 28 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

39. As per the testimony of PW10 Dr. Ahmed Abdul, who was one of the members of Medical Board constituted at Guru Teg Bahadur Hospital, Delhi, the petitioner was found to have suffered 70% permanent disability in relation to his right lower limb and has also suffered 4% permanent disability for scarring at lower abdomen and thigh left side. He deposed that the aforesaid Medical Board assessed the disability of the petitioner to be permanent in nature which was not likely to improve in future. He exhibited the Disability Certificate as Ex. PW10/1. During his cross­examination on behalf of insurance company, he deposed that the members of disability board had considered the medical treatment record including MLC of the patient at the time of assessing his disability. He further deposed that he could not tell the functional disability of petitioner in relation to whole body. He denied the suggestion that the disability suffered by the petitioner had no co­relation with the injuries sustained by him in the accident in question.

40. It is argued on behalf of petitioner that petitioner was a vegetable seller who used to sell vegetables on his rickshaw at the time of accident. It is further argued that since the petitioner has suffered disability to the extent of 70% in relation to his right lower limb, he is unable to do any work from the date of accident as his avocation involves proper movement of his all limbs and due to aforesaid disability, he can not ride his cycle rickshaw and thus, the loss of earning capacity be taken as 100%.

Shahid Vs. Manish Kumar & Ors. Page 29 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 For this, he has relied upon judgment passed by Hon'ble Apex Court in case titled "Mohan Soni Vs. Ram Avtar Tomar & Ors., Civil Appeal No. 237 of 2012, decided on 10.01.2012, wherein the Hon'ble Court has been pleased to hold in para no. 10 as under:­ xxxx "10. In light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellant's earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross­ examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995) or in case of the vast multitude who earn their Shahid Vs. Manish Kumar & Ors. Page 30 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. We, accordingly, find and hold that the compensation for the loss of appellant's future earnings must be computed on that basis"

Xxxxx
41. Per contra, it is argued on behalf of insurance company that the disability of the petitioner is not that much extent which could amount to 100% loss of earning capacity.
42. With regard to assessment of functional disability in the accident cases, I am guided by the decision of Hon'ble Apex Court in case titled as Raj Kumar Vs. Ajay Kumar & Anr., CIVIL APPEAL NO.8981 OF 2010 (Arising out of SLP (C) No. 10383 of 2007) wherein Hon'ble Apex Court has been pleased to held as under:
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or Shahid Vs. Manish Kumar & Ors. Page 31 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may".

43. Now coming back to the facts of present case it is noted that the petitioner was a vegetable vendor and he has suffered 70% permanent disability in relation to his right lower limb. PW­10 Dr. Ahmed Abdul, Senior Shahid Vs. Manish Kumar & Ors. Page 32 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 Resident, GTB Hospital has deposed that the disability of the petitioner is permanent in nature and same is not likely to improve. It is pertinent to mention here that any type of work requires physical dexterity in limbs and digits to operate hand and power driven tools and equipment commonly used in the profession of fabrication, physical ability to lift, carry and ability to continually walk, stand, climb, stoop, bend, kneel, reach in all directions, etc. It may be noted here that petitioner used to sell vegetables at his cycle rickshaw at the time of accident and it is quite obvious that for pulling any cycle rickshaw, proper movement of lower limbs are very necessary which is not possible in the case of petitioner due to the aforesaid disability suffered by him in the accident. The petitioner has suffered 70% permanent physical impairment in relation to his right lower limb, which is going to adversely affect his avocation. In view of case (supra), I am of the considered opinion that due to disability suffered(permanent physical impairment in relation to his right lower limb) in the present accident, the petitioner will suffer 100% loss of earning capacity. Hence, the functional disability of the petitioner is considered as 100% towards loss of earning capacity.

44. Petitioner has categorically deposed in his evidence by way of affidavit(Ex PW1/A) that he was working as vegetable vendor and was earning Rs. 20,000/­ per month at the time of accident. He further deposed that due to the injuries suffered by him in the accident, he would not be able Shahid Vs. Manish Kumar & Ors. Page 33 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 to work. For this, he has relied upon his medical treatment record of various hospitals. During his cross examination on behalf of insurance company, he denied the suggestion that he had not suffered any disability or loss of earning capacity due to the injuries sustained by him in the accident.

45. Apart from the bald statement made by petitioner in his affidavit Ex. PW1/A that he was working as a Vegetable Vendor and earning more than Rs. 20,000/­ per month, no definite evidence whatsoever has been brought on record to prove his monthly income at the time of accident in question. Petitioner has also failed to file his educational qualification documents. In the absence of any such document, I am of the view that loss of income of the petitioner has to be assessed while taking the income of an unskilled person under Minimum Wages Act applicable during the period in question. The minimum wages of an unskilled person were revised to Rs. 8,632/­ w.e.f. 01.10.2014. The accident in question had taken place on 03.09.2014 i.e. just 27 days before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 8,632/­ in order to calculate the loss of earning capacity under this head. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS. ", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.) Shahid Vs. Manish Kumar & Ors. Page 34 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

46. In the copy of PAN Card of the petitioner, his date of birth is mentioned as 01.01.1989. The date of accident is 03.09.2014. In view of said document, his age was 25 years as on the date of accident. Hence, the appropriate multiplier would be 18 in view of pronouncement made by Constitutional Bench of Apex Court in the case titled as "National Insurance Company Ltd. Vs. Pranay Sethi & Ors.", passed in SLP(Civil) No. 25590/14 decided on 31.10.17. The monthly notional income of petitioner has been taken as Rs.8,632/­ per month as discussed above. Thus, the loss of monthly income from the date of accident would be Rs. 8,632/­(100%). The total loss of earning would be Rs. 26,10,316.80 (Rs. 8,632/­x140/100x12x18). Thus, a sum of Rs. 26,10,000/­ is awarded in favour of petitioner under this head.

ATTENDANT CHARGES

47. The petitioner has deposed in his evidence by affidavit (Ex. PW1/A) that due to the injuries and permanent disability suffered by him, he would have to depend upon the services of the attendant throughout his remaining life.

48. It is apparent from record that petitioner has suffered grievous injuries in the accident. Apart from the injuries, he has also suffered permanent disability to the extent of 70% in relation to his right lower limb.

Shahid Vs. Manish Kumar & Ors. Page 35 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 Looking at the medical treatment and disability of the petitioner, notice can be taken of the fact that since the petitioner has suffered permanent disability to the extent of 70% in relation to his right lower limb, there is requirement of attendant during his whole life as he might not be able to lead normal life as he was leading before the accident and he would require escort of a person during his whole life till he is alive. Notice can also be taken of the fact that he would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his medical treatment. Since the petitioner has suffered 70% permanent disability in relation to his right lower limb, which has been considered as 100% with respect to loss of earning capacity(as discussed above), he will require assistance of an attendant throughout his life.

49. Hon'ble High Court of Delhi in the case titled as " Pritam Singh Vs. Oriental Insurance Co. Ltd. & Ors." (supra) has been pleased to held that in a case where the claimant has been rendered permanently disabled to the extent of 100%, he would definitely require consistent presence of attendant throughout his life. It was further held that in such circumstances, the proper course would be to take care of attendant charges incurred during the treatment as well as for future on the assumption that injured would need to engage an attendant on regular basis. It was also held that the expenditure towards this end, could be Shahid Vs. Manish Kumar & Ors. Page 36 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 computed on the basis of minimum wages of an unskilled worker prevalent as on the date of accident and to adopt the multiplier as per the age of injured at that time.

50. Hon'ble Supreme Court in the case titled as " Abhimanyu Pratap Singh Vs. Namita Sekhon & Anr.", Civil Appeal No. 4648 of 2022, decided on 06.07.2022 has been pleased to hold in para no. 14 that in a case where the claimant has been rendered permanently disabled to the extent of 100%, it would not be justified to grant compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years. In fact, the said amount should be determined applying the multiplier method.

51. Turning back to the facts of the present case the minimum wages of an unskilled worker were revised to Rs. 8,632/­ w.e.f. 01.10.2014. The accident in question had occurred on 03.09.2014 i.e. just 27 days before the date from which minimum wages were revised by the government. In these facts and circumstances, I am inclined to take the minimum wages at the rate of Rs. 8,632/­in order to calculate the attendant charges. (Reliance placed on unreported decision in the matter titled as "THE ORIENTAL INSURANCE CO.LTD. Vs. CHHOTEY LAL & ORS.

", in MAC. APP. 1074/2016 decided on 15.05.2017 by Hon'ble Delhi High Court.) The age of injured was 25 years as on the date of accident Shahid Vs. Manish Kumar & Ors. Page 37 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 and multiplier of 18 is applicable. Accordingly, a sum of Rs. 18,65,000/­ (Rs. 8,632/­ X 12 X 18) is awarded to the petitioner under this head.
LOSS OF MARRIAGE PROSPECT

52. Ld. Counsel for petitioner argued that the chances of marriage prospect of petitioner have decreased considerably due to his permanent physical impairment. He therefore, urged that reasonable amount of compensation should be awarded to him under this head. Per contra, Ld. counsel for insurance company vehemently argued that there is no evidence led on this aspect during the course of inquiry and thus, no amount of compensation should be awarded under this head.

53. After considering the rival submissions made on behalf of both the sides, I find substance in the submissions raised on behalf of petitioner/claimant. Petitioner is found to have sustained permanent physical impairment to the extent of 70% in relation to his right lower limb. In view of the aforesaid disability suffered by the petitioner, his chances of getting married have definitely been considerably reduced. He was aged somewhere about 25 years at the time of accident. It has been established from the testimony of PW10 that disability suffered by the injured is likely to continue throughout his life and the same was permanent in nature. Thus, compensation under the head of loss of marriage prospects also deserves Shahid Vs. Manish Kumar & Ors. Page 38 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 to be awarded in favour of petitioner. Hence, notional sum of Rs. 1,50,000/­ is awarded to him under this head.

Thus, the total compensation is assessed as under:­

1. Medical Expenses Rs. 1,69,546/­

2. Artificial limb and its maintenance Rs. 10,00,000/­ expenses

3. Pain and suffering Rs. 2,50,000/­

4. Conveyance & Special diet Rs. 1,00,000/­

5. Attendant Charges Rs. 18,65,000/­

6. Loss of earning capacity Rs. 26,10,000/­

7. Loss of marriage prospects Rs. 1,50,000/­ Total Rs. 61,44,546/­ Rounded off to Rs. 61,45,000/­

54. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence as it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.

Shahid Vs. Manish Kumar & Ors. Page 39 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 ISSUE NO.3/RELIEF

55. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 61,45,000/­ (including interim award amount, if any) alongwith interest @ 7% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 10.07.2015 till the date of its realization (Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors bearing MAC. APP. 165/2011 decided on 22.02.2016). Issue no. 3 is decided accordingly.

56. It is made clear that interest @ 7% per annum shall be paid only on the amount of Rs. 51,45,000/­ (Rs. 61,45,000/­ minus Rs. 10,00,000/­ awarded under the head artificial limb and its maintenance) by the insurance company.

APPORTIONMENT

57. Statement of petitioner in terms of Clause 29 MCTAP was recorded on 02.12.2022. Having regard to the facts and circumstances of the case and in view of the said statement, it is hereby ordered that out of the awarded amount, a sum of Rs. 10,00,000/­(Rupees Ten Lakhs Only) Shahid Vs. Manish Kumar & Ors. Page 40 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 shall be immediately released to the petitioner through his saving bank account no. 37704186390 with State Bank of India, Vishwas Nagar, Delhi, having Branch Code 13762 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 1,50,000/­ each for a period of one month, two months, three months and so on and so forth, having cumulative interest. It is also ordered that a sum of Rs. 10,00,000/­ under the head of artificial limb shall be released to the petitioner only after production of original bill and certificate of doctor.

58. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:­

(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).

(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).

(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.

Shahid Vs. Manish Kumar & Ors. Page 41 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.

(e) No loan, advance, withdrawal or pre­mature discharge be allowed on the fixed deposits without permission of the Court.

(f) The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount.

(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.

(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.

(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.

(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.

Shahid Vs. Manish Kumar & Ors. Page 42 of 44

MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023

59. Respondent no. 3/National Insurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer a sum of Rs. 10,00,000/­ in the aforesaid saving bank account of petitioner, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of the award be given dasti to the petitioner and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & Form XVII in terms of MCTAP are annexed herewith as Annexure­A. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.

Announced in the open Court on 18.03.2023 (VINOD YADAV) Judge MACT­2 (North) Rohini Courts, Delhi Shahid Vs. Manish Kumar & Ors. Page 43 of 44 MACP No. 4362/16; FIR No. 816/14.; PS. Alipur DOD: 18.03.2023 Certified that above award contains 44 pages and each page is signed by me.

(VINOD YADAV) Judge MACT­2 (North) Rohini Courts, Delhi Shahid Vs. Manish Kumar & Ors. Page 44 of 44