Delhi District Court
Piyush Jain vs Rizwan Saifi on 20 May, 2024
IN THE COURT OF HARVINDER SINGH, DISTRICT
JUDGE-CUM-PRESIDING OFFICER : MOTOR
ACCIDENT CLAIMS TRIBUNAL-01,
(WEST), TIS HAZARI COURTS, DELHI
AWARD/JUDGMENT
MACT Case No.444/2023
CNR No.DLWT01-005247-2023
Piyush Jain
S/o Sh. Mukesh Jain
R/o H. No.136,
M. C. Colony, Hisar,
Haryana - 125 001. ................petitioner
Versus
(1) Rizwan Saifi
S/o Sh. Shakil Saifi
(2) Rubina Saifi
S/o Sh. Shakil Saifi
both R/o RZT - 100,
Nihal Vihar, New Delhi.
(3) United India Insurance Co. Ltd.
At DO 24, Kamla Nagar,
New Delhi - 110 007. ...............respondents
Date of Institution : 01.07.2023
Date of final arguments : 20.05.2024
Date of pronouncement of judgment : 20.05.2024
FORM-XVII
COMPLIANCE OF THE PROVISIONS OF THE
MODIFIED CLAIMS TRIBUNAL AGREED PROCEDURE
1. Date of the accident 20.02.2023
2. Date of filing of Form-I - First Form-1 (FAR) was not Accident Report (FAR) filed in the present matter Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.1 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:11:21 +0530
3. Date of delivery of Form-II to Form-II was not filed in the victim(s) the present matter
4. Date of receipt of Form-III from Form-III was not filed in the Driver the present matter
5. Date of receipt of Form-IV from Form-IV was not filed in the Owner the present matter
6. Date of filing of the Form-V- Form-V (IAR) was not Interim Accident Report (IAR) filed in the present matter
7. Date of receipt of Form-VIA and Form VIA & VIB were Form-VIB from the Victim(s) not filed in the present matter.
8. Date of filing of Form-VII - 01.07.2023 Detailed Accident Report (DAR)
9. Whether there was any delay or Yes deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not Mentioned Designated Officer by the Insurance Company
11. Whether the Designated Officer No of the Insurance Company submitted his report within 30 days of filing of petition/DAR?
12. Whether there was any delay or Written Statement was deficiency on the part of the filed by Insurance Designated Officer of the Company on 05.09.2023. Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the Legal offer was not made claimant(s) to the offer of the by respondent insurance Insurance Company company in this matter.
14. Date of the award 20.05.2024
15. Whether the claimant(s) Yes was/were directed to open savings bank account(s) near their place of residence?
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.2 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:11:28 +0530
16. Date of order by which 01.07.2023 claimant(s) was/were directed to open savings bank account(s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook
17. Date on which the claimant(s) 20.05.2024 produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address H. No.136, M. C. Colony, of the claimant(s) Hisar,Haryana - 125 001.
19. Whether the claimant(s) savings Yes bank account(s) is near his place of residence?
20. Whether the claimant(s) Yes was/were examined at the time of passing of the award to ascertain his/their financial condition?
FACTUAL POSITION & PLEADINGS
1. Vide this judgment/award, this Tribunal shall decide petition/application/DAR filed for compensation on account of the injuries sustained by injured Piyush Jain in a road vehicular accident which took place on 20.02.2023 at about 12:45 pm at Near T-Point of Street No.01, Dr. Major Ashwani Karnav Marg, A-1 Block, Paschim Vihar, New Delhi.
CASE OF THE PETITIONER SIDE
2. Succinctly, the case put forth vide petition/application/DAR is that on 20.02.2023, Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.3 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:11:37 +0530 petitioner/claimant was going from Preet Vihar to Chander Vihar, Nilothi, New Delhi on his scooty bearing registration number HR-20AF-4858. At about 01:10 pm, when he reached at Near T- Point of Street No.01, Dr. Major Ashwani Karnav Marg, A-1 Block, Paschim Vihar, New Delhi, then suddenly one car bearing registration number DL-9CAZ-4901 came from opposite side in very fast speed, took right turn in rash and negligent manner without giving any signal and hit his scooty with great force. He received injuries upon his right leg in the incident. Incident took place due to negligence of driver/respondent no.01 of the offending vehicle/car. He was taken to Sri Balaji Action Medical Institute Hospital, Paschim Vihar, New Delhi by the respondent no.01/driver of offending car. The petitioner/injured was examined vide MLC No.10421 dated 20.02.2023. He has incurred expenses of Rs.2,00,000/- on his medical treatment, Rs.15,000/- to Rs.25,000/- upon conveyance, Rs.20,000/- to Rs.25,000/- upon his diet and Rs.25,000/- upon repair of scooty. He was doing private job with Tata Consultancy Service at Sector
- 62, Noida and was getting salary of Rs.27,000/- per month. The petitioner/claimant has sought handsome amount as compensation from the respondents.
MISCELLANEOUS PROCEEDINGS
3. Notice(s) of the application/DAR was issued to the respondents, they appeared, respondent no.03/Insurance Company filed its written statement, however, respondent no.01 and 02 have not filed their written statement/response despite grant of number of opportunities.
RESPONSE OF THE RESPONDENT NO.03
4. In gist, the response of respondent no.03 as Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.4 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:11:46 +0530 discernible from its written statement is that respondent no.01/driver of the offending vehicle was not having valid driving license to drive the offending car. Vehicle in question was duly insured with it vide policy no.0209003122P105318438 for the period from 07.09.2022 to 06.09.2025 covering the date of incident. The incident happened due to negligence of the driver of scooty/petitioner only. It has denied all averments of the petitioner side and prayed for dismissal of the petition/DAR. ISSUES 5.1 The Scholarly Predecessor of this Tribunal framed following issues on 08.01.2024 : -
(i) Whether the injured Piyush Jain suffered injuries in the accident that took place on 20.02.2023 at about 12:45 pm due to rash and negligent driving of offending vehicle (car) bearing registration number DL-9CAZ-4901 by the respondent no.01, being owned by respondent no.02 and being insured by respondent no.03? OPP
(ii) Whether the petitioner/claimant/injured is entitled to compensation, if yes, at what amount and from whom? OPP
(iii) Relief.
5.2 Thereafter, matter was fixed for evidence of petitioner side.
PETITIONER SIDE EVIDENCE 6.1 The petitioner/claimant/injured Piyush Jain examined himself as PW1 to establish his claim. He tendered his evidence by way of affidavit Ex.PW1/A reiterating and supporting the contents of his application/petition. He relied upon the documents i.e. (i) photocopies of his medical treatment records/discharge slip Ex.PW1/1, (ii) photocopies of his medical bills Ex.PW1/2, (iii) copy of his salary certificate Ex.PW1/3, Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.5 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:11:56 +0530
(iv) Copy of his driving license Ex.PW1/4, (v) Copy of RC of his vehicle Ex.PW1/5, (vi) Complete DAR Ex.PW1/6, (vii) Copy of rejection of claim of scooty Ex.PW1/7 and ; (viii) Copy of bills of repair of scooty Ex.PW1/8 in his evidence. PW1 was examined, cross-examined by Ld. Counsel for the respondent no.03 Insurance Company, not cross-examined by the respondent no.01 and 02 despite opportunity given and was discharged. 6.2 No other witness was examined by petitioner side and petitioner evidence was closed on 26.10.2023. RESPONDENT SIDE EVIDENCE 7.1 The respondent no.03 Insurance Company examined their witness/deputy manager Sh. Praveen Gupta as R3W1 to establish their defence who tendered his evidence by way of affidavit Ex.R3W1/A reiterating and supporting the contents of their response. He relied upon the documents i.e. (i) attested copy of policy Ex.R3W1/1, (ii) copy of notice Ex.R3W1/2, (iii) Postal receipts Ex.R3W1/3 and Ex.R3W1/4, (iv) Tracking reports of legal notice Ex.R3W1/5 and Ex.R3W1/6 in his evidence. He has deposed that respondent no.01 and 02 have not produced the valid driving license of the respondent no.01 till date despite service of notice. R3W1 was examined and discharged.
7.2 No further evidence was lead by respondent side. Respondent evidence was closed vide orders dated 29.04.2024 and thereafter, matter was fixed for final arguments. FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 8.1 Submissions/contentions of the petitioner side are that the petitioner side has positively proved that the incident took place due to rash and negligent driving of the respondent Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.6 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:12:05 +0530 no.01/driver. The injured has received multiple injuries in the incident and award may be passed by this Tribunal as per entitlement/claim of applicant/injured. 8.2 In gist, submissions/contentions of the respondent no.03 Insurance Company are that the petitioner/applicant has failed to prove that incident took place due to rash and negligent driving of respondent no.01. The incident in question took place due to negligence of the scooty driver/petitioner. The driver of said car had no valid driving license to drive the same. The respondent no.03 is not liable to pay any compensation in the matter. In case, this Tribunal comes to the conclusion that petitioner is entitled for compensation and directs respondent no.03 to pay the same, then recovery rights be granted against the respondent no.01 and 02. With these main submissions/ contentions, the respondent no.03 has prayed for dismissal of the petition/DAR.
8.3 No arguments have been addressed by the respondent no.01 and 02 despite opportunity for the same. ANALYSIS/FINDINGS ON ISSUES Issue No.(1) : whether the injured Piyush Jain suffered injuries in the accident that took place on 20.02.2023 at about 12:45 pm due to rash and negligent driving of offending vehicle (car) bearing registration number DL-9CAZ-4901 by the respondent no.01, being owned by respondent no.01 and being insured by respondent no.02? OPP 9.1 Before adverting to the facts of the present petition for deciding the above issue, at the very outset, it would be apposite to note here that the procedure followed by an accident claim tribunal is similar to what is followed by a civil Court. In civil matters the facts are required to be established by way of Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.7 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:12:13 +0530 preponderance of probabilities only and not by strict rules of evidence or beyond reasonable doubt as is required in a criminal prosecution. The burden of proof in a civil case is not as heavy as it is in a criminal case and in a claim petition under The Motor Vehicles Act, this burden is even lesser than a civil case. Reference in this regard can be made to the prepositions of law laid down by Hon'ble Supreme Court of India in case of "Bimla Devi and others Vs. Himachal Road Transport Corporation and Ors." reported in (2009) 13 SC 530, which were reiterated in the subsequent judgments in the case of "Parmeshwari Vs. Amir Chand and Ors." 2011 (1) SCR 1096 (Civil Appeal No.1082 of 2011) and "Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors.", 2018 Law Suit (SC) 303 etc. 9.2 Now keeping in mind the aforesaid legal principle/preposition for decision of the present issue, this Tribunal has gone through the testimony of the witnesses and entire material available on record. This Tribunal has also given thoughtful consideration to arguments addressed by Ld. Counsels for both side.
9.3 The petitioner/applicant/injured has specifically deposed in his evidence that the respondent no.01 was driving the offending car in question in rash manner, in negligent manner and at high speed at the time of incident. He has also specifically deposed that he hit his vehicle in his scooty from opposite side while driving his vehicle in said manner. He promptly denied the suggestion in his cross-examination that incident happened due to his rash and negligent driving. So, nothing supporting the case of the respondent side on the aspect of rash and negligent driving came in his cross-examination.
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.8 of 26
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2024.05.21
17:12:21 +0530
9.4 The petitioner has also identified DAR as Ex.PW1/6
in his evidence. The site plan, mechanical inspection report of the vehicle, seizure memo(s) and the fact that respondent no.01/driver was challaned for offences punishable under Section 279/338 of The Indian Panel Code, 1860 and under Section 3/181 of The Motor Vehicles Act, 1988 after conclusion of investigation also supports and affirms the deposition of petitioner side as to the manner of incident.
9.5 The respondent no.01/driver was the best witness who could have rebutted the case of rashness and negligence of driving of the offending vehicle. But, respondent no.01/driver has chosen not to appear in witness box to disprove the case of the petitioner side on said aspect. He has also not lead any evidence to prove/substantiate his defence that the incident has not happened due to rashness and negligence in driving of the vehicle bearing registration number DL-9CAZ-4901 by him. It is not even pleaded by the respondent side that the incident happened due to brake failure or any other mechanical defect beyond the control of the respondent no.01/driver. In given circumstances, adverse inference also needs to be drawn against the respondents. Reliance can be placed upon the decision of the matter of "Cholamandalam M. S. General Insurance Company Ltd. Vs. Kamlesh" 2009 (3) AD (Delhi) 310 on said issue. 9.6 In totality of circumstances, this Tribunal is of the opinion that the claimant side has been able to bring on record such facts which proves almost at the scales of preponderance of probabilities that the incident in question took place due to rash and negligent driving of vehicle bearing registration number DL- 9CAZ-4901 by the respondent no.01 on the date and time of Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.9 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:12:39 +0530 incident. Accordingly, issue no.01 is decided in favour of the petitioner/claimant/applicant and against the respondents.
Issue No.(2) : whether the petitioner is entitled to compensation, if yes, at what amount and from whom? OPP 10.1 The petitioner is certainly entitled for compensation in view of decision of above issue. Before proceeding further to decide the present issue, it would be apposite to encapsulate the law laid down by Hon'ble Supreme Court of India in its guiding lamp post judgment for ascertaining just compensation in road vehicular injury cases. 10.2 Hon'ble Supreme Court of India in its division bench decision in matter of "Raj Kumar Vs. Ajay Kumar & Ors." (2011) 1 SCC 343 has held : -
"General principles relating to compensation in injury cases
4. The provision of The Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi Vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
5. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.10 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:12:48 +0530 have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items
(iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability.
6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.11 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:12:58 +0530 or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.12 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:13:05 +0530 standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities 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 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 Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.13 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:13:13 +0530 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."
10.3 In view of the above law laid down by Hon'ble Supreme Court of India, in routine injury cases, award needs to be passed only under heads of medical expenses, loss of earning during treatment period and damages for pain, suffering and trauma. In cases of serious injuries, where there is specific medical evidence corroborating the claim/evidence of the claimant, award additionally needs to be passed under the heads of loss of future earnings on account of permanent disability suffered, future medical expenses, loss of amenities (including loss of prospects of marriage) and loss of expectation of life. The assessment of future medical expenses would depend upon specific medical evidence/advise for further treatment and costs thereof. The determination of damages on account of pain and Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.14 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:13:22 +0530 suffering, loss of amenities and loss of expectation of life would depend upon the age of victim, nature of injury(ies)/deprivation/disability suffered by victim and the effect thereof on life of claimant. The process would involve determination/assessment of lump-sum amounts under those heads. In case of assessment of loss of future earnings on account of permanent disability, the Tribunal needs to first ascertain whether the disability noted/assessed by the medical board is temporary or permanent in nature. If the disability is permanent in nature, then whether it is a total permanent disablement or partial permanent disablement. If the disablement has been referred/expressed in percentage terms, in reference to any specific limb then the effect of such disablement of the limb on the function of entire body. Once, the permanent disability is ascertained, then the Tribunal needs to determine whether such permanent disability has affected or will affect the earning capacity of the claimant. To ascertain same, the Tribunal needs to ascertain the avocation, profession and nature of work of the claimant before the incident. The Tribunal also needs to ascertain his age and then needs to ascertain what activities the claimant could carry on in spite of permanent disability and what he could not do as result of same. The Tribunal then also needs to ascertain whether the claimant is totality disabled from earning any kind of livelihood or whether in spite of the permanent disability, the claimant could still effectively carry on activities and functions which he was carrying on earlier or whether the claimant is prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions to earn or can continue to earn Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.15 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:13:29 +0530 his livelihood despite permanent disability suffered. After ascertaining the functional disability vide above process, then Tribunal needs to workout the loss of earning capacity per month. The Tribunal is thereafter required to workout loss of earning capacity per annum. An appropriate multiplier needs to be ascertained as per judgment of Hon'ble Supreme Court of India in matter of "Sarla Verma Vs. DTC" 2009 ACJ 1298 SC according to age of the injured/victim. The total loss of earning capacity then needs to be worked out multiplying appropriate multiplier ascertained with ascertained annual loss of earning capacity. This is a case where no permanent disability is claimed, hence, this Tribunal now proceeds further step by step to decide the compensation/award under different heads applicable to the present matter in light of above preposition. DETERMINATION OF INJURIES AND DURATION OF TREATMENT 10.4 It would be appropriate to first ascertain the nature of injuries suffered by the injured/claimant and duration of treatment as they need to be kept in mind while ascertaining the compensation under different heads applicable. The petitioner side has filed on record medical documents/MLC as part of Ex.PW1/1 (collectively) to prove the nature of injuries. As per said document(s), the injured has suffered grievous injuries. He was examined in Sri Balaji Action Medical Institute Hospital, Paschim Vihar, New Delhi vide MLC No.10421 dated 20.02.2023 and was under regular treatment for long time. DETERMINATION OF MEDICAL EXPENSES 10.5 The claimant/injured has filed copies of his medical bills/treatment records as Ex.PW1/2 (collectively). The total Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.16 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:13:37 +0530 amount of bills/invoices/receipts submitted by petitioner/injured and paid by him are of Rs.47,331/- only. Hence, the petitioner has been able to prove that he is entitled for a sum of Rs.47,331/- on account of medical bills/expenses. Accordingly, the petitioner is awarded Rs.47,331/- on account of medical expenses.
AWARD TOWARDS FUTURE TREATMENT 10.6 Petitioner has not claimed any amount required for future treatment. He has also not filed any document/medical evidence on record to show that he requires any future treatment, hence, he is not entitled for any amount under this head. PAIN & SUFFERINGS 10.7 A particular amount cannot be fixed of pain and sufferings applicable to all cases as it varies from case to case. Judicial notice can be taken of the fact that since the petitioner has received number of serious/grievous injuries, therefore, he/she must have suffered acute pain and sufferings owing to the said injuries. Considering the nature of injuries and duration of the treatment of the petitioner in the hospital, this Tribunal hereby grant compensation of Rs.50,000/- towards pain and sufferings to the petitioner.
DETERMINATION OF LOSS OF INCOME DURING TREATMENT PERIOD 10.8(i) The injured/petitioner/claimant has claimed that he was doing private job with Tata Consultancy Service at Sector - 62, Noida at the time of incident and was getting salary of Rs.27,000/- per month. The injured has placed on record payment/leave details vide Ex.PW1/3. Hence, he has proved his income being Rs.27,143/- at the time of incident. So, the income Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.17 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:13:52 +0530 of the injured needs to be assessed/taken as Rs.27,143/- per month on the date of accident i.e. 20.02.2023. 10.8(ii) Hence, the monthly income of the injured is considered as Rs.27,143/- per month on the date of accident. 10.8(iii) Considering the nature of injuries and duration of the treatment of the injured/petitioner, this tribunal is of the opinion that injured/petitioner must have not been able to work for about 02 months. Accordingly, this Tribunal hereby grant compensation of sum of Rs.54,286/- (Rs.27,143/- x 2) towards loss of income during treatment period.
AWARD QUA SPECIAL DIET 10.9 Though, there is no cogent evidence on record of money spent by the petitioner upon special diet, yet considering the nature of injuries suffered by the injured/petitioner and duration of his treatment in the hospital(s), this Tribunal is of the opinion that petitioner must have spent some money under this head. Hence, this Tribunal hereby grant compensation of Rs.10,000/- towards expenses incurred on special diet. AWARD TOWARDS ATTENDANT CHARGES 10.10 Though, there is no cogent evidence on record for the money spent by the petitioner upon attendant, yet considering the nature of injuries suffered by the petitioner and the duration of the treatment of the petitioner in the hospital, this tribunal is of the opinion that petitioner must have spent some money under this head also. Hence, this Tribunal hereby grant compensation of Rs.10,000/- towards attendant charges. AWARD QUA CONVEYANCE 10.11 Though, there is no cogent evidence on record of money spent by the petitioner upon conveyance, yet considering Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.18 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:13:59 +0530 the nature of injuries suffered by the injured/petitioner, this Tribunal is of the opinion that injured/petitioner must have spent some money under this head. Hence, this Tribunal hereby grant compensation of Rs.10,000/- towards expenses incurred on conveyance.
AWARD QUA VEHICLE DAMAGE 10.12 Petitioner/claimant has also claimed damages of his scooty incurred vide Ex.PW1/8. Hence, this Tribunal hereby grant compensation of Rs.18,675/- towards damages of vehicle. IN THE CIRCUMSTANCES OF THE CASE, THIS TRIBUNAL AWARD THE COMPENSATION AS TABULATED HEREIN BELOW : -
S.No Heads of Compensation Amount
1. Reimbursement of medical expenses Rs.47,331/-
2. Compensation on account of future NIL
treatment
3. Pain and Suffering Rs.50,000/-
4. Conveyance Rs.10,000/-
5. Special diet Rs.10,000/-
6. Attendant charges Rs.10,000/-
7. Loss of Income during treatment period Rs.54,286/-
8. Compensation on account of disability NA
9. Compensation on account of vehicle Rs.18,675/-
damage
Total Rs.2,00,292/-
R E LI EF:-
11. This Tribunal hereby pass an award of Rs.2,00,292/- (Rupees Two Lakhs Two Hundred and Ninety Two Only) as compensation with interest at the rate of 7% per annum including interim award, if any from the date of filing the DAR/claim petition i.e. 01.07.2023 till the date of the payment of the award amount, in favour of petitioner/claimant and against the respondents on account of their liability being joint and several.
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.19 of 26
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2024.05.21
17:14:08 +0530
APPORTIONMENT OF LIABILITY
12. It is contended by the respondent no.03 Insurance Company that driver/respondent no.01 was not holding a valid and effective driving license to drive the offending vehicle in question at the time of incident. Respondent no.03 Insurance Company has examined its Deputy Manager Sh. Praveen Gupta as R3W1 who has also filed his affidavit of evidence Ex.R3W1/A reiterating their case and has relied upon documents i.e. (i) attested copy of policy Ex.R3W1/1, (ii) copy of notice Ex.R3W1/2, (iii) Postal receipts Ex.R3W1/3 and Ex.R3W1/4,
(iv) Tracking reports of legal notice Ex.R3W1/5 and Ex.R3W1/6 in his evidence. It is deposed that respondent no.01 & 02 have not provided the driving license of respondent no.01 despite notice. IO of the case has also filed challan under Section 3/181 of The Motor Vehicles Act, 1988 against the respondent no.01 in this matter. So, it stands established on record that the respondent no.01 was not holding any valid driving license to drive the vehicle in question at the time of incident. Hence, respondent no.3/Insurance Company is entitled for recovery rights against the respondents no.01 & 02 in this matter, but only after depositing the award amount with this Tribunal. Recovery rights are granted to the respondent no.03/Insurance Company against respondent no.01 & 02 in said terms. MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP)
13. Hon'ble High Court of Delhi in FAO No.842/2003 titled as "Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors." has formulated MACAD (Motor Accident Claims Annuity Deposit Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.20 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:14:16 +0530 Scheme) vide its order dated 07.12.2018 which was made effective from 01.01.2019. The State Bank of India, Tis Hazari, Delhi is directed to disburse the amount in accordance with MACAD formulated by Hon'ble High Court of Delhi.
14. Keeping in mind the guidelines laid down by Hon'ble High Court of Delhi, the respondent no.03 Insurance Company is directed to deposit the award amount of Rs.2,00,292/- (Rupees Two Lakhs Two Hundred and Ninety Two Only) with interest as stated herein above with State Bank of India, Tis Hazari, Delhi in the MACT Account of this Tribunal having Account No.40711767202 CIF No.90891362578, IFSC Code - SBIN0000726, Tis Hazari, Delhi in favour the petitioner(s)/applicant(s)/ claimant(s) as stated herein above.
15. Manager, State Bank of India, Tis Hazari, Tis Hazari Court Complex, Delhi is directed to release Rs.2,00,292/- (Rupees Two Lakhs Two Hundred and Ninety Two Only) with interest in account of injured/petitioner bearing no.3292000108043295 having IFSC Code PUNB0329200 maintained with Punjab National Bank at Dabra Chowk Branch, Hisar, Haryana.
16. The compensation to the petitioner/injured shall be distributed/disbursed as follows : -
Sr. Name of Age/ Relation Award Amount of Amount kept Period of FDRs No. petitioner DOB with Amount award to be in FDRs with cumulative / injured/ released interest claimant deceased
1. Piyush 19.03. Self Rs.2,00,292/- Rs.2,00,292/- NIL NIL Jain 2001 TOTAL Rs.2,00,292/-
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.21 of 26 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2024.05.21 17:14:26 +0530
17. In accordance with the orders dated 08.02.2019 passed by Hon'ble High Court of Delhi in FAO no. 842/2003 in "Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors." Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone No.022-22741336/9414048606 and email-ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court of Delhi as given in the orders dated 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by Hon'ble High Court of Delhi.
18. The respondent no.03 Insurance Company shall deposit the award amount with the account of this Tribunal within 45 days. Nazir of this Tribunal shall prepare a separate file regarding the status of deposition/non-deposition of the award amount by the respondent no.03 Insurance Company after making necessary entry on CIS on 05.07.2024.
19. A copy of this award be given to the insurance company as well as to the petitioners free of costs.
20. A copy of this award be sent to the concerned Ld. Metropolitan Magistrate as well as DSLSA as per the provisions of the MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE (MCTAP).
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.22 of 26
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2024.05.21
17:14:32 +0530
21. File be consigned to Record Room after due Digitally signed compliance. by HARVINDER HARVINDER SINGH Announced in the open Tribunal SINGH Date:
2024.05.21 on 20.05.2024. 17:14:40 +0530 (HARVINDER SINGH) DJ-cum-PO:MACT-01, West/THC/Delhi/20.05.2024 Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.23 of 26 FORM-XVI SUMMARY OF THE COMPUTATION OF AWARD AMOUNT IN INJURY CASE
1. Date of accident : 20.02.2023
2. Name of the injured : Piyush Jain
3. Age of the injured : 19.03.2001 (DOB)
4. Occupation of the injured: Private Job
5. Income of the injured : Rs.27,143/- per month
6. Nature of injury : Grievous
7. Medical treatment taken : From 20.02.2023 to 24.05.2023
8. Period of Hospitalization : 20.02.2023 to 25.02.2023
9. Whether any permanent disability ?
If yes, give details : NIL
10. Computation of Compensation
S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss :-
(i) Expenditure on Rs.47,331/-
treatment
(ii) Expenditure on Rs.10,000/-
conveyance
(iii) Expenditure on special Rs.10,000/-
diet
(iv) Cost of Rs.10,000/-
nursing/attendant
(v) Loss of earning capacity NIL
(vi) Loss of Income Rs.54,286/-
(loss of earning during
treatment period)
(vii) Any other loss which NIL
may require any special (Rs.18,675/- on account of treatment or aid to the damage of vehicle) injured for the rest of his life
12. Non-Pecuniary Loss :-
(i) Compensation for NIL
mental and physical
shock
(ii) Pain and suffering Rs.50,000/-
(iii) Loss of amenities of life NIL
(iv) Dis-figuration NA
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.24 of 26
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2024.05.21
17:14:50 +0530
(v) Loss of marriage NA
prospects
(vi) Loss of earning, NA
inconvenience,
hardships,
disappointment,
frustration, mental
stress, dejectment and
unhappiness in future
life etc.
13. Disability resulting in loss of earning capacity :-
(i) Percentage of disability NIL
assessed and nature of
disability as permanent
or temporary
(ii) Loss of amenities or NIL
loss of expectation of
life span on account of
disability
(iii) Percentage of loss of NIL
earning capacity in
relation to disability
(iv) Loss of future income - NIL
(Income x% Earning
Capacity x Multiplier)
14. TOTAL Rs.2,00,292/-
COMPENSATION
15. INTEREST AWARDED 7% per annum
16. Interest amount up to Rs.12,423/-
the date of award (w.e.f. 01.07.2023 to
20.05.2024 i.e. 10 months
and 19 days)
17. Total amount including Rs.2,12,715/-
interest (Rs.2,00,292/- +
Rs.12,423/-)
18. Award amount released Entire amount including
interest released
19. Award amount kept in NIL
FDRs
20. Mode of disbursement Mentioned in the award
of the award amount to
the claimant (s).
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.25 of 26
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2024.05.21
17:14:57 +0530
21. Next date for 05.07.2024
compliance of the
award.
Digitally signed
by HARVINDER
HARVINDER SINGH
SINGH Date: 2024.05.21
17:15:07 +0530
(HARVINDER SINGH)
DJ-cum-PO:MACT-01,
West/THC/Delhi/20.05.2024
Piyush Jain Vs. Rizwan Saifi & Ors. MACT No.444/2023 Page No.26 of 26