Delhi District Court
Moin Khan (I)(Fir202/18/Timarpur) vs Naveen Gupta (Hdfc Ergo) on 6 June, 2024
IN THE COURT OF DR. RUCHI AGGARWAL ASRANI
PRESIDING OFFICER, MACT-01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
DLCT010160452018
MACT No. : 1006/2018
FIR No. : 202/2018
PS : Timar Pur
u/s : 279/338 IPC
Mr. Moin Khan (injured/petitioner)
S/o Mr. Ahmed Ali Khan,
R/o H.No. 4429, Arya Pura, Subzi Mandi,
Malka Ganj, SO, North Delhi, Delhi-110007.
......Petitioner
Versus
1. Sh. Naveen Gupta (driver-cum-owner)
S/o Sh. Narain Gupta,
R/o B-5/30, Sultanpuri, Delhi-110086.
2. HDFC ERGO General Insurance Co. Ltd. (insurer)
5th Floor, Tower I, Stellar IT Park,
C-25, Sector-62, Noida, UP-201301.
......Respondents
Date of filing of DAR : 29.11.2018
Judgment reserved on : 14.05.2024
Date of Award : 06.06.2024
AWAR D
The Detailed Accident Report (DAR) filed on 29.11.2018
was registered as a Motor Accident Claim petition. The DAR revealed
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 1 of 57
that a Road Traffic Accident took place on 09.09.2018 at about
07:00PM at Wazirabad Chowk under Wazirabad flyover, Timarpur,
Delhi wherein the petitioner, Moin Khan, had sustained grievous
injuries. The accident took place with a vehicle bearing registration No.
DL-8CAL-3510 driven and owned by respondent no.1, Sh. Naveen
Gupta and insured with respondent no.2, HDFC ERGO General
Insurance Company Limited.
BRIEF FACTS OF THE CASE:
2. The brief facts that have emerged from the DAR and the claim petition are that the information of an accident was received at P.S. Timar Pur vide DD No.45A. SI Yogesh Kumar along with Ct. Sachin went to the spot i.e. Wazirabad Flyover, where they found one Scooty TVS Jupiter No. DL-12SE-9307 and offending vehicle Kwid car bearing no. DL-8CAL-3510 were stationed at the spot. No eye witness was found at the spot. They got to know that the injured was taken to Trauma Centre Hospital by PCR and they collected his MLC No.10486/18. As per MLC prepared by the doctor, the injured was unfit for statement. Therefore, on the basis of MLC of the injured, case was registered under section 279/337 IPC and investigation was initiated. Thereafter, the Scooty and offending vehicle were taken into custody. IO had prepared the site plan. Mechanical inspection of both the vehicles were conducted. Notice under Section 133 M.V. Act was issued to the registered owner. Thereafter, driver of the offending vehicle was apprehended and on enquiry, arrested. Since the offence was bailable, he was released on bail on furnishing of bail bonds. The offending vehicle MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 2 of 57 was seized by the IO and sent to Malkhana. The DL, RC and insurance of the offending vehicle were taken into the custody of the IO. The documents pertaining to the offending vehicle were found to be correct after verification from the concerned authority. The statement of the injured could not be recorded. Thereafter, IO had collected the MLC of the injured after final opinion and the injury was shown as 'grievous' on the MLC of the petitioner and therefore, section 338 of IPC was added. On completion of investigation, chargesheet under section 279/338 IPC was filed against the driver Naveen Gupta and DAR was filed before the court on 29.11.2018.
3. Written statement on behalf of respondent no.1 was filed on 08.01.2019. Reply on behalf of respondent no.2 insurance company was filed on 11.03.2019.
ISSUES FRAMED
4. On the basis of the pleading of the parties, vide order dated 11.03.2019, this Tribunal had framed the following issues:
(i) Whether the petitioner Sh. Moin Khan suffered injuries in an accident that took place on 09.09.2018 at about 07.00 P.M. involving Car bearing registration no. DL-48CAL-3510 driven and owned by the Respondent no.1 rashly and negligently and insured with the Respondent no. 2? (OPP.)
(ii) Whether the petitioner is entitled for compensation? If so, to MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 3 of 57 what amount and from whom? (OPP.)
(iii) Relief.
EVIDENCE
5. To prove his case, the petitioner examined himself as PW-1 and Dr. Deepa Sharma as PW-2. The petitioner closed his evidence. Respondent no.1 examined himself as R1W1. Respondent no.2 examined Mr. Rajender Kumar, Branch Operation and Service Manager, Bajaj Allianz General Insurance Company as R2W1. Inadvertently, Ms. Simarpreet Kaur, Assistant Manager, HDFC Ergo General Insurance Co. Ltd. was also examined as R2W1. For the sake of convenience and clarity, her evidence shall be read as that of R2W1.
6. The Petitioner filed the Form XIV. Financial statement of the petitioner has been recoded. Final arguments were heard on behalf of the petitioner and respondent no. 2.
FINDINGS & OBSERVATIONS
7. I have heard Ld. Counsel for the petitioners and Ld. Counsel for respondent no. 2 and perused the record. My findings on the various issues are as under:-
ISSUE No. 1:
Whether the petitioner Sh. Moin Khan suffered injuries in an accident that took place on 09.09.2018 at about 07.00 P.M. involving Car bearing registration no. DL-48CAL-3510 driven and owned by the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 4 of 57 Respondent no.1 rashly and negligently and insured with the Respondent no. 2? (OPP.)
8. Before delving into the facts of the current case to decide the aforementioned issues, it is pertinent to highlight that it is firmly established in legal precedents that the proceedings conducted before the Claims Tribunal are in the nature of an inquiry. Further, procedural approach adopted by an accident claims' tribunal mirrors that of a civil court (National Insurance Co. Ltd. vs. Smt. Pushpa Rana & Ors. 2009 ACJ 287). In civil proceedings, the establishment of facts hinges on a preponderance of probabilities, rather than being bound by the strict rules of evidence or the higher standard of beyond reasonable doubt, as required in criminal cases. The burden of proof in civil cases is lighter than in criminal cases, and the burden to decide claim petition under The Motor Vehicles Act is even lesser as compared to a civil litigation. In Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors (2009) 13 SC 530, it has been held by Hon'ble Supreme Court of India that negligence must be decided on the touchstone of preponderance of probabilities and a holistic view must be adopted in reaching a conclusion.
9. Keeping in mind the aforementioned legal principle for adjudicating the present issue, this Tribunal has thoroughly gone through the testimony of the witnesses and all the material available on record. Also, careful consideration has been given to the arguments addressed by the Learned Counsels for all the parties.
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 5 of 57The factum of accident:
10. In this matter to prove the occurrence of the accident as well as the rashness and negligence on the part of the driving of offending vehicle by respondent no.1, the petitioner (PW-1) in his evidence by way of affidavit Ex. PW1/A had deposed as under:-
"1...
2. That the deponent was coming from Wazirabad to Aryapur from his scooty and at Wazirabad Chowk under Wazirabad Flyover, Timarpur the offending vehicle hit the injured from the front side because the offending vehicle was coming from the wrong side and the said incident the deponent found very serious injuries in the body parts.
3.That after the incident the PCR accompanied the injured and went to the Sushruta Trauma Centre, Civil Lines, Delhi.
4. That after the first aid treatment the family members of the deponent accompanied him and went to the Sir Ganga Ram Hospital.
5. That the time of the incident the deponent was aged about 36 years and was running his own business and earning an amount of Rs. 25,000/- to Rs. 30,000/- per month.
6. That from the date of incident the deponent was admitted into the hospital about 3-4 times and is regularly under the medical treatment.
7. That the physiotherapist is also coming to the home for the purpose of exercise because the body of the deponent is not working/moving properly.
8. That the doctor had advised to the deponent that for the better treatment one surgery will also be done in the month of October 2019 and about 2-3 surgeries had already been done in past. The bills of the medical treatment are enclosed herewith.MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 6 of 57
..."
11. PW-1 Sh. Moin Khan in his additional affidavit Ex.PW-1/B deposed as under:
1. That the applicant is the injured in the above mentioned matter who met with a road accident on 09.09.2018. Having FIR no. 202/18 u/s, 279/338 IPC, PS Timarpur.
2. That the applicant is still under doctor's observation and is admitted to the hospital frequently as he is 90% permanent disable and applicant want to file some undergoing treatment record/medical bills in this Hon'ble court.
3. That the applicant found some bills of back dated and some are of present undergoing treatment. The bills are of around Rs.7,66,478/-.
4. That the applicant/petitioner now submit that the additional medical records/bills may kindly be taken on record which applicant had already filed in this Hon'ble court. That deponent relied on following documents:
i) Original medical bills of One Plus Health Care exhibited as EX PW1/4 (colly)
ii) Original medical bills of Discount Medicos EX PW1/5 (Colly).
iii)Original medical bills of Kalra brain & spine clinic exhibited as EX PW1/6 (Colly).
iv)Original medical bills of Jain Surgical Traders exhibited as EX PW1/7 (Colly).
v) Original medical bills of Orbit Imaging & Path lab exhibited as EX PW1/8 (colly).
vi) Original Medical bills of Star Imaging & Path lab exhibited as EX PW1/9 (colly).
vii) Original medical bills of City Pharmacy MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 7 of 57 exhibited as EX PW1/10 (colly).
viii) Original medical bills of Sir Ganga Ram Hospital exhibited as EX PW1/11 (colly)
ix) Original medical bills exhibited as EX PW1/12 (colly)
12. PW-1 has proved the factum of the accident and the identity of respondent no.1. He has unequivocally testified that respondent no.1 was driving the offending vehicle in a rash and negligent manner which led to the accident in question. He has deposed that on the date of the accident, he was coming from Wazirabad to Aryapur on his scooty and at Wazirabad Chowk under Wazirabad Flyover, Timarpur the offending vehicle hit him from the front side because the offending vehicle was coming from the wrong side. He also deposed that due to the said incident, he sustained grievous injuries. The deposition of PW-1 as to the manner of the accident and the driving of the offending vehicle in a rash and negligent manner by the respondent no. 1 remained unshaken during cross-examination of the said witness and in fact was strengthened during the same.
13. Moreover, the petitioner had no prior acquaintance with respondent no.1 before the accident, and it is undisputed that there existed no pre-existing animosity between them. Therefore, it defies every logic as to why the petitioner would falsely implicate respondent no.1 if he was not the one driving the offending vehicle. PW-1 has denied the suggestion that no accident took place with the offending vehicle. Further, respondent no.1, who was the driver cum owner of the vehicle, examined himself as PW-1 and deposed that "...while the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 8 of 57 petitioner negligently drove his vehicle which caused in accident as such the petitioner is not entitled to any relief...". Thus, respondent no. 1 has admitted the factum of the accident but has stated that the injured was himself responsible for the accident. Respondent no. 1 has not explained anywhere as to why and how the petitioner was responsible for the accident. A mere bald statement cannot help him escape his liability. No convincing material has been brought on record by the respondent no. 1 to show that the accident did not take place due to his fault or that he was not rash and negligent while driving the offending vehicle. From the testimony of PW-1 and entire record, it stands proved that respondent no.1 acted in a rash and negligent manner while driving his vehicle due to which the petitioner suffered grievous injuries.
14. Furthermore, in view of filing of DAR containing the charge-sheet for the offences u/s 279/338 IPC and other relevant documents against the respondent no. 1 and in terms of the judgment in the case of National Insurance Co. Vs. Pushpa Rana & Ors. 2009 ACJ 287 Delhi, respondent no. 1 Naveen Gupta (driver cum owner of the offending vehicle) is held to be negligent on the basis of preponderance of probability. From the DAR, it also stands established that the offending vehicle was insured with respondent no. 2, HDFC ERGO General Insurance Co. Ltd. vide policy no. 231120242040990000 valid from 08.09.2018 to 07.09.2019. However, Ld. Counsel for respondent no. 2 has submitted that the insurance policy was obtained on the basis of fraud and misrepresentation and thus, the same cannot be considered to be valid and consequently, the insurance company is not liable to indemnify respondent no. 1. This issue will be MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 9 of 57 discussed in detail at a later stage.
The injury:
15. The petitioner (PW-1) testified that due to the accident, he sustained grievous injuries and there was swelling all over his body. He asserted that upon the accident, he was taken to Lok Nayak Hospital where he was treated vide MLC no. 10486/2018 dated 09.09.2018 and the alleged history has been mentioned as "road traffic accident". Thereafter, he was admitted in Sir Ganga Ram Hospital where he was diagnosed with Right Fronto-Temporo Parietal Acute Subdural Hematoma with Multiple Skull Bone Fractures. He remained admitted in Sir Ganga Ram Hospital till 14.11.2018. His discharge summary shows that the petitioner/injured was admitted in the hospital from 17.07.2021 till 27.07.2021.
16. Furthermore, the petitioner had filed an application to be examined for assessment of physical disability. He was examined by the Medical Board at Dr. Ram Manohar Lohia Hospital and vide certificate bearing No. Addl.M.S.(PK)/CMB-140/2019/RMLH dated 06.02.2020, it has been observed that the petitioner is a case of "RTA (09.09.2018) with head injury with SDH right FTP region and the Board was of the opinion that he has significant visual impairment (visual disability 90%) and physical disability 23%. It has also been observed that his total PPI is 90% with respect to whole body.
17. To prove the disability, the petitioner also examined Dr. MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 10 of 57 Deepa Sharma as PW-2 who deposed as under:
"I have brought the summoned record. On 06.02.2020,patient namely Moin Khan was examined by the Disability Examination Board constituted by Medical Superintendent of our hospital. I was the member of that Board. The patient was found to have suffered 90% visual disability & physical disability 23%. His total PPI is 90% (Ninety Percent) with respect to whole body. I have brought the office records of the disability certificate. The disability certificate is cc Ex. PW2/1 which bears my signatures at point A. The copies of assessment sheets are exhibited as Ex. PW2/2 (Colly) (Running into 04 pages). (The office record matched, seen and returned)."
18. From the above deposition and in totality of the circumstances, this Tribunal is of the opinion that the petitioner has been able to bring on record sufficient facts so as to prove at the scales of preponderance of probabilities that the accident in question took place due to rash and negligent driving of offending vehicle bearing registration number DL-8CAL-3510 by its driver/respondent no. 1 on the date and time of the accident and that due to the said accident, the petitioner had suffered grievous injury and permanent disability of 90 % in relation to his whole body. Accordingly, issue no.1 is decided in favour of the petitioner and against the respondents.
Issue no. 2:
Whether the petitioner is entitled for compensation? If so, to what amount and from whom? (OPP)
19. The onus of proving the above issue was upon the petitioner/injured. It has already been concluded in the preceding MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 11 of 57 paragraphs while deciding the issue no. 1, that the petitioner had suffered grievous injury and he has permanent disability of 90 % in relation to his whole body.
20. The petitioner is certainly entitled for compensation in view of decision of the discussion on the above issues. 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. In the case of Raj Kumar Vs. Ajay Kumar & Ors. (2011) 1 SCC 34, Hon'ble Supreme Court held as under:
"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).MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 12 of 57
5. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages 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 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 13 of 57 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 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 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 14 of 57 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 standard MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 15 of 57 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 vs. 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 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 16 of 57 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 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 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 17 of 57 loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
21. In view of the above law laid down by Hon'ble Supreme Court of India, in 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. However, in cases of serious injuries, where there is specific medical evidence corroborating the claim 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 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 the petitioner. The process would involve determination/assessment of lump-sum amounts under those heads. In the case of assessment of loss of future earnings on account of permanent disability, this 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 disability or partial permanent disability. If the disability has been referred/expressed in percentage terms, in reference to any specific limb then the effect of such disability of the limb on the function of entire body has to be ascertained. Once, the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 18 of 57 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 the 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 his livelihood despite permanent disability suffered. After ascertaining the functional disability through the above process, the 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 permanent disability is claimed and compensation is also demanded qua future loss of earnings on account of permanent disability, hence, this Tribunal now proceeds further step by step to decide the compensation/award under different heads applicable to the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 19 of 57 present matter in light of above preposition.
Determination of Injuries and Duration of the Treatment:
22. It would be appropriate to first ascertain the nature of injuries suffered by the petitioner/ injured and duration of treatment as they need to be kept in mind while ascertaining the compensation under different applicable heads. The petitioner has filed his medical record to prove his nature of injuries as per which, injured has suffered grievous injuries in the incident in question. It has also been proved that he has suffered 90% disability in relation to his whole body. It has also been proved that the petitioner was hospitalised from the date of accident i.e. 09.09.2018 till 14.11.2018 first in Loknayak Hospital and then in Ganga Ram Hospital. Thus, his compensation is computed as follows:
Medical expenses:
23. The petitioner has claimed Rs. 33,15,361/- towards medical expenses in his evidence. In this regard, the petitioner has placed reliance on the following original medical bills:Table No. 1
S. HOSPIAL/PHARMACY BILL NO. BILL DATE AMOUNT No. NAME
1. Sir Ganga Ram Hospital 2018- 10/09/2018 14,14,593 2019/Ca/I/00395 25
2. Sir Ganga Ram Hospital 2018- 19/10/2018 4,50,840 2019/Ca/I/00442 34
3. Sir Ganga Ram Hospital 18-19/10292 28/11/2018 1,37,154 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 20 of 57
4. Sir Ganga Ram Hospital 2018- 01/12/2018 1,56,683 2019/Ca/I/00486 59
5. Sir Ganga Ram Hospital 2018- 16/03/2019 67,449 2019/Ca/I/00672 94
6. Sir Ganga Ram Hospital 2019- 11/11/2019 1,59,204 2020/Ca/I/00447 91
7. The Pharmacy 70844 19/10/2018 5200
8. Batra Medicos 16513 14/11/2018 2030.60
9. Aditya Medicos 35963 15/11/2018 1526
10. Aditya Medicos 35965 15/11/2018 359
11. The Pharmacy 803208 18/11/2018 190
12. Grover Medical Store 3981 18/11/2018 1226
13. Aditya Medicos 36528 19/11/2018 895
14. One Plus Health Care 48 2411/2018 2410
15. Singh Medicos 8700 27/11/2018 2100
16. The Pharmacy 86749 07/12/2018 25,900
17. Medi Max Medicos 25399 11/12/2018 400
18. EK Health Care 15318 12/12/2018 12897
19. EK Health Care 15376 13/12/2018 536
20. Discount Medicos 0088648 13/12/2018 240
21. Discount Medicos 0088646 13/12/2018 380
22. EK Health Care 15652 19/12/2018 1001 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 21 of 57
23. One Plus Health Care 341 19/12/2018 280
24. One Plus Health Care 340 19/12/2018 4336
25. Singh Medicos 9561 19/12/2018 630
26. Holy Basil Pharmacy 24817 23/12/2018 932
27. Batra Medicos 19832 24/12/2018 58.20
28. Discount Medicos 0093017 26/12/2018 4492
29. One plus Health Care 511 26/12/2018 6193
30. One plus Health Care 704 04/01/2019 10,463
31. Discount Medicos 0096156 04/01/2019 1969
32. EK Health Care 16331 04/01/2019 21
33. Kalra Brain and spine 1976 13/04/2019 600 Clinic
34. Discount Medicos 0099156 13/01/2019 5810
35. Discount Medicos CN07539 13/01/2019 22
36. Discount Medicos 0099158 13/01/2019 36
37. One Plus Health Care 1025 15/01/2019 220
38. One Plus Health Care 1137 19/01/2018 4154
39. One Plus Health Care 1206 20/01/2019 737
40. One Plus Health Care 67 20/01/2019 1932
41. One Plus Health Care 16947 20/01/2019 12 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 22 of 57
42. Discount Medicos 0101802 21/09/2021 87
43. Discount Medicos 0103100 24/01/2019 1302
44. One Plus Health Care 1302 24/01/2019 1001
45. Discount Medicos 0104372 28/01/2019 430
46. Batra Medicos 22734 29/01/2019 422
47. Discount Medicos 0104637 29/01/2019 50
48. Discount Medicos 0104636 29/01/2024 87
49. One Plus Health Care 1525 31/01/2019 1805
50. Discount Medicos 0105510 31/01/2019 160
51. Discount Medicos 0107915 07/02/2019 2896
52. Discount Medicos 0107916 07/02/2019 40
53. Sab Ka Chemist 6619 07/02/2019 2825
54. Kalra Brain and Spine 2017 20/01/2019 600 Clinic
55. Kalra Brain and Spine 1930 02/01/2019 600 Clinic
56. Kalra Brain and Spine 1890 26/12/2018 600 Clinic
57. Kalra Brain and Spine 1737 04/11/2018 600 Clinic
58. Kalra Brain and Spine 1729 19/11/2018 800 Clinic
59. Kalra Brain and Spine 1746 04/12/2018 600 Clinic
60. Kalra Brain and Spine 1891 19/12/2018 600 Clinic MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 23 of 57
61. One Plus Health Care 2072 14/02/2019 4314
62. One Plus Health Care 2845 05/03/2019 3367
63. One Plus Health Care 3674 23/03/2019 3226
64. One Plus Health Care 137 03/04/2019 762
65. One Plus Health Care 382 08/04/2019 242
66. One Plus Health Care 551 11/04/2019 3047
67. One Plus Health Care 1782 03/05/2019 2137
68. One Plus Health Care 1048 19/04/2019 133
69. One Plus Health Care 2280 14/05/2019 296
70. One Plus Health Care 2401 17/05/2019 214
71. One Plus Health Care 2532 20/05/2019 3698
72. One Plus Health Care 2883 27/05/2019 338
73. One Plus Health Care 3218 04/06/2019 292
74. One Plus Health Care 3494 10/06/2019 4573
75. One Plus Health Care 4347 29/06/2019 5867
76. One Plus Health Care 5694 26/07/2019 5940
77. Sab Ka Chemist 3185 26/08/2019 5383
78. One Plus Health Care 8230 25/09/2019 5766
79. Sab ka Chemist 4597 25/10/2019 2402 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 24 of 57
80. One Plus Health Care 10491 25/11/2019 3585
81. EK Health Care 14574 27/11/2018 557
82. One Plus Health Care 10814 03/11/2019 898
83. One Plus Health Care 11106 10/12/2019 2075
84. One Plus Health Care 12267 10/01/2020 5530
85. One Plus Health Care 6362 12/03/2024 5077
86. One Plus Health Care 366 10/05/2020 3247
87. One Plus Health Care 765 10/05/2020 77
88. One Plus Health Care 366 10/03/2020 3286
89. One Plus Health Care 2026 25/06/2020 4732
90. One Plus Health Care 3512 10/08/2020 3653
91. One Plus Health Care 4146 27/08/2020 1288
92. One Plus Health Care 5321 24/09/2020 6031
93. One Plus Health Care 6520 20/10/2020 1924
94. One Plus Health Care 7586 16/11/2020 1016
95. One Plus Health Care 10168 18/11/2019 2876
96. One Plus Health Care 10201 19/11/2019 5792
97. One Plus Health Care 8130 01/12/2020 2588
98. One Plus Health Care 8351 07/12/2020 993 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 25 of 57
99. One Plus Health Care 8920 21/12/2020 3693
100. One Plus Health Care 9757 11/01/2021 222
101. One Plus Health Care 10104 19/01/2021 1591
102. One Plus Health Care 4422 29/01/2021 3086
103. One Plus Health Care 5088 01/03/2021 335
104. One Plus Health Care 11850 01/03/2021 3496
105. One Plus Health Care 12386 13/03/2021 165
106. One Plus Health Care 13129 28/03/2021 635
107. One Plus Health Care 244 05/04/2021 3569
108. One Plus Health Care 158 05/04/2021 750
109. One Plus Health Care 1516 06/05/2021 4750
110. One Plus Health Care 2626 07/06/2021 6756
111. One Plus Health Care 4509 20/07/2021 6500
112. One Plus Health Care 4806 27/07/2021 3026
113. One Plus Health Care 6721 04/09/2021 6768
114. One Plus Health Care 3644 04/09/2021 3759
115. One Plus Health Care 7821 25/09/2021 432
116. One Plus Health Care 9103 20/10/2021 10,941
117. One Plus Health Care 960 02/12/2021 222 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 26 of 57
118. One Plus Health Care 11117 02/12/2021 10,302
119. One Plus Health Care 13367 18/01/2022 9,603
120. One Plus Health Care 15130 24/02/2022 14,314
121. One Plus Health Care 580 12/04/2022 11,153
122. One Plus Health Care 1189 24/04/2022 118
123. One Plus Health Care 2875 25/05/2022 11,987
124. One Plus Health Care 6016 26/07/2022 15,885
125. One Plus Health Care 9212 26/09/2022 13,412
126. One Plus Health Care 12225 23/11/2022 1320
127. One Plus Health Care 12405 26/11/2022 9529
128. One Plus Health Care 12848 05/12/2022 1910
129. One Plus Health Care 13912 26/12/2022 6565
130. One Plus Health Care 15362 27/01/2023 5849
131. One Plus Health Care 16080 10/02/2023 1312
132. One Plus Health Care 18053 20/03/2023 1508
133. One Plus Health Care 18221 23/03/2023 8234
134. One Plus Health Care 1332 23/03/2023 128
135. Discount Medicos 0116297 02/03/2019 1701
136. Discount Medicos 0122157 19/03/2019 1278 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 27 of 57
137. Discount Medicos 0122098 18/03/2019 850
138. Discount Medicos 0122093 18/03/2019 576
139. Discount Medicos 0124082 23/03/2019 850
140. Discount Medicos 0126947 31/03/2019 762
141. Discount Medicos 0003155 06/04/2019 1701
142. Discount Medicos 0033895 29/06/2019 170
143. Discount Medicos 0063328 04/10/2021 35
144. Discount Medicos 0063286 04/10/2021 175
145. Discount Medicos 006328 04/10/2021 295
146. Discount Medicos 0091989 16/11/2019 1,456
147. Discount Medicos 0091991 16/11/2019 320
148. Discount Medicos 0121917 30/01/2020 183
149. Discount Medicos 0131942 22/02/2020 223
150. Kalra Brain & Spine 2251 05/03/2019 600 Clinic
151. Kalra brain & Spine 063 11/04/2019 600 Clinic
152. Kalra Brain & Spine 079 19/04/2019 600 Clinic
153. Kalra Brain & Spine 1607 25/04/2019 700 Clinic
154. Kalra Brain & Spine 096 02/05/2019 600 Clinic
155. Kalra Brain & Spine 141 20/05/2019 600 Cinic MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 28 of 57
156. Kalra Brain & Spine 192 04/06/2019 600 Clinic
157. Kalra Brain & Spine 211 10/06/2019 600 Clinic
158. Kalra Brain & Spine 563 26/07/2019 600 Clinic
159. The Physiotherapy 099 29/06/2019 1400 Clinic
160. Kalra Brain & Spine 810 26/08/2019 700 Clinic
161. Kalra Brain & Spine 1088 25/09/2019 700 Clinic
162. Kalra Brain & Spine 1337 25/10/2019 700 Clinic
163. Kalra Brain & Spine 1505 18/11/2019 700 Clinic
164. Kalra Brain & Spine 1530 03/12/2019 700 Clinic
165. Kalra Brain & Spine 1508 03/12/2019 600 Clinic
166. Kalra Brain & Spine 1557 10/12/2019 700 Clinic
167. Kalra Brain & Spine 2346 01/02/2020 250 Clinic
168. Kalra Brain & Spine 2343 12/03/2020 700 Clinic
169. Kalra Brain & Spine 1740 27/08/2020 700 Clinic
170. Kalra Brain & Spine 1803 24/09/2020 700 Clinic
171. Kalra Brain & Spine 2032 17/10/2020 700 Clinic
172. Kalra Brain & Spine 2124 16/11/2020 700 Clinic
173. Kalra Brain & Spine 2165 01/12/2020 700 Clinic
174. Kalra Brain & Spine 2218 21/12/2020 700 Clinic MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 29 of 57
175. Orbit Imaging & Path 073 06/12/2020 1,000 Lab Pvt. Ltd
176. Kalra Brain & Spine 2270 19/01/2021 700 Clinic
177. Kalra Brain & Spine 2310 29/01/2021 700 Clinic
178. Kalra Brain & Spine 2431 01/03/2021 700 Clinic
179. Kalra Brain & Spine 2591 05/04/2021 700 Clinic
180. Kalra Brain & Spine 3813 07/06/2021 700 Clinic
181. Kalra Brain & Spine 6516 02/12/2021 700 Clinic
182. Kalra Brain & Spine 7806 18/01/2021 700 Clinic
183. Kalra Brain & Spine 252 12/04/2022 800 Clinic
184. Kalra Brain & Spine 5855 05/12/2022 800 Clinic
185. Kalra Brain & Spine 017 02/05/2019 2700 Clinic
186. Kalra Brain & Spine 9632 27/01/2023 800 Clinic
187. Kalra Brain & Spine 021 02/05/2019 1400 Clinic
188. Kalra Brain & Spine 065 29/06/2019 2000 Clinic
189. Kalra Brain & Spine 1619 17/02/2020 1400 Clinic
190. Kalra Brain & Spine 1115 12/03/2022 1300 Clinic
191. Kalra Brain & Spine 1535 27/08/2020 2500 Clinic
192. Kalra Brain & Spine 1116 12/03/2022 500 Clinic
193. Jain Surgical Traders (P) 12/11/2018 13,350 LTD.MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 30 of 57
194. Jain Surgical Traders (P) 14/11/2018 7,900 LTD.
195. Orbit Imaging & Path 366 02/05/2019 1,600 Lab Pvt. Ltd
196. Orbit Imaging & Path 947 06/11/2019 3,200 Lab Pvt. Ltd
197. Orbit Imaging & Path 044 17/02/2020 1,500 Lab Pvt. Ltd
198. Orbit Imaging & Path 1085 12/03/2020 900 Lab Pvt. Ltd
199. Orbit Imaging & Path 10/20-21/4335 27/08/2020 700 Lab Pvt. Ltd
200. Orbit Imaging & Path 10/22-23/2314 05/12/2022 4,000 Lab Pvt. Ltd
201. Star Imaging & Path Lab 301902140026 14/02/2019 4,000 Pvt. Ltd.
202. Star Imaging & Path Lab 301905020061 02/05/2019 4,000 Pvt. Ltd.
203. Star Imaging & Path Lab 301905030051 03/05/2019 350 Pvt. Ltd.
204. Star Imaging & Path Lab 301911040064 04/11/2019 4,000 Pvt. Ltd.
205. Star Imaging & Path Lab 302000270018 27/01/2020 7,600 Pvt. Ltd.
206. Star Imaging & Path Lab 302010170045 17/10/2020 4,000 Pvt. Ltd.
207. City Pharmacy 07310318316 29/11/2018 2,969
208. Provisional Bill 29/11/2018 20,904
209. Provisional Bill 29/11/2018 50,000
210. Provisional Bill 30/11/2018 55,050
211. City Pharmacy 30/11/2018 11,070.88
212. Sir Ganga Ram Hospital 2018- 16/03/2019 67,449 2019/Ca/I/00672 94 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 31 of 57
213. Sir Ganga Ram Hospital 2019- 28/10/2019 1,000 2020/Ca/O/0609 740
214. Sir Ganga Ram Hospital 2019- 20/01/2020 1,500 2020/Ca/O/0829 803
215. Sir Ganga Ram Hospital 2019- 27/01/2020 1,500 2020/Ca/O/0846 790
216. Sir Ganga Ram Hospital 2019- 28/01/2020 1,500 2020/Ca/O/0850 798
217. Sir Ganga Ram Hospital 2019- 15/02/2020 1,500 2020/Ca/O/0900 922
218. Sir Ganga Ram Hospital 2022- 24/01/2023 2,000 2023/Ca/O/0671 585
219. Sir Ganga Ram Hospital 2018- 12/12/2018 1,000 2019/Ca/O/0708 416
220. Sir Ganga Ram Hospital 2018- 19/12/2018 1,000 2019/Ca/O/0726 816
221. Sir Ganga Ram Hospital SGRH- 14/02/2019 90 PHC/158411/18- 19
222. Sir Ganga Ram Hospital 2018- 16/03/2019 1060 2019/Ca/E/00348 28
223. Sir Ganga Ram Hospital 2019/180957 18/03/2019 17,949
224. Sir Ganga Ram Hospital 2018- 23/03/2019 1,000 2019/Ca/O/0971 267
225. Sir Ganga Ram Hospital 2019- 03/04/2019 1,000 2020/Ca/O/00110 45
226. Sir Ganga Ram Hospital 107514/22-23 24/01/2023 126
227. Sir Ganga Ram Hospital 2019- 20/01/2020 9,920 2020/Ca/O/0830 409
228. Sir Ganga Ram Hospital 2019- 07/02/2020 1,050 20209/Ca/O/088 0421
229. Sir Ganga Ram Hospital 2019- 22/02/2020 2,730 2020/Ca/O/0922 960
230. Sir Ganga Ram Hospital 2021- 13/10/2021 5,560 2022/Ca/O/0334 968 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 32 of 57
231. Sir Ganga Ram Hospital 2022- 24/01/2023 2,890 2023/Ca/O/0671 596
232. Dr. Pooja Khosla 316 14/02/2019 900
233. Oncquest 45343 28/10/2019 1,500
234. Oncquest 45348 28/11/2019 1,500
235. First Step IVF 2847 04/02/2020 35,000 TOTAL 31,98,005.68 /-
24. Ld. Counsel for respondent no. 2 argued that the bills are not accompanied with the receipts or prescription. However, the bills show payment of money and considering the nature of injuries suffered by the injured, it cannot be denied that he must have incurred a huge expense on his treatment. All the bills are proper except bills mentioned at serial nos. 193 and 194 which are only estimates and bills at serial numbers 208,209 and 210 which are provisional. Thus, they amounting to Rs. 1,02,204/- cannot be reimbursed. Hence, the petitioner is entitled to get the compensation for the bills mentioned in aforesaid Table No. 1 minus bills mentioned at serial nos. 193, 194, 208, 209 and 210 i.e. Rs.
30,95,801.68/-. Therefore, the petitioner/ injured Moin Khan shall be entitled to Rs. 30,95,801.68/- towards medical expenses.
Loss of income:
25. Coming to the aspect of loss of income, the petitioner Moin Khan claimed that he was self employed and was earning Rs. 25,000/- to Rs. 30,000/- per month, however, he has not filed any document on MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 33 of 57 record to prove the same. Thus, his income will have to be assessed as per the minimum wages. The petitioner has filed on record his Aadhar card bearing no. 4330 8081 4388 as per which he was a resident of Delhi but no educational qualification or special skill has been placed on record. Therefore, in the absence of proof of employment and income and considering his address to be of Delhi, the minimum wages for an unskilled labour prevalent in Delhi at the time of the accident (on 09.09.2018) i.e. Rs. 13,896/- is taken as the income of the petitioner/ injured Moin Khan. Therefore, it is held that the monthly income of the petitioner/ injured Moin Khan at the time of the accident i.e. on 09.09.2018 was Rs. 13,896/-. Further, the petitioner has claimed that he was not able to work for 69 months but he has not filed any such document on record to prove that he was not able to work at all for 69 months. However, keeping in view the nature of injuries sustained by the petitioner as well as his period of hospitalisation, it is held that the petitioner shall be entitled to the Loss of Income for 6 months i.e. Rs. 13,896/- x 6 = Rs. 83,376/-.
Pain and Suffering:
26. The petitioner/ injured has claim Rs. 5,00,000/- under the head pain and suffering. It is true that a particular amount cannot be fixed under the head pain and suffering which could be 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 grievous injuries, therefore, petitioner must have suffered pain and sufferings owing to the said injuries. Considering the nature of injuries suffered by the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 34 of 57 injured/petitioner as mentioned in the MLC as well as the disability certificate, this Tribunal hereby grants compensation of Rs.1,00,000/-
towards pain and sufferings to the petitioner.
Mental shock:
27. The petitioner/ injured has claim Rs. 5,00,000/- under the head mental and physical shock. Though there cannot be any proof of the mental shock suffered by anyone and the same cannot be quantified in terms of money but a claim of Rs. 5,00,000/- has not been justified by the petitioner. Therefore, considering the nature of injuries suffered by the injured/petitioner as mentioned in the MLC as well as the disability certificate, this Tribunal hereby grants compensation of Rs.1,00,000/-
towards pain and sufferings to the petitioner.
Special Diet:
28. The petitioner has claimed Rs. 5,00,000/- under the head special diet but there is no cogent evidence on record regarding money spent by the petitioner upon special diet. However, considering the nature of injuries suffered by the injured/petitioner, this Tribunal is of the opinion that petitioner must have spent some money under this head.
Hence, this Tribunal hereby grant compensation of Rs. 50,000/- towards expenses incurred on special diet.
Conveyance charges:
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 35 of 5729. The petitioner has claimed Rs. 2,00,000/- under the head conveyance charges but there is no cogent evidence for the same.
However, considering the nature of injuries suffered by the injured/petitioner, this Tribunal is of the opinion that petitioner must have incurred some expense on conveyance. Hence, this Tribunal hereby grant compensation of Rs. 50,000/- towards conveyance charges.
Attendant charges:
30. The petitioner/ injured has not claimed any amount under this head.
Compensation for disfiguration:
31. The petitioner/ injured has claimed Rs. 5,00,000/- under this head. Taking into account the injuries suffered by him and also noticing the disability suffered by him, Rs. 1,00,000/- is awarded to the petitioner under this head.
Compensation for loss of amenities:
32. The petitioner/ injured has claimed Rs. 10,50,000/- under this head. The petitioner has not filed anything on record to prove his claim to the extent of Rs. 10,50,000/- towards loss of amenities.
However, taking into account the injuries suffered by him and also noticing the disability suffered by him, Rs. 5,00,000/- is awarded to the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 36 of 57 petitioner under this head.
Future medical expenses:
33. The injured has claimed Rs. 57,60,000/- towards future medical expenses, however, he has not filed any document to prove that he needs such a huge amount towards future medical treatment. In the case of Master Ayush v The Branch Manager, Reliance General Insurance Co. Ltd. & Anr. (Civil Appeal nos. 2205-2206 of 2022), Hon'ble Supreme Court of India had devised a formula to calculate the future medical expense. It had laid down that the injured would require at least Rs. 1,000/- per month for his medical expense and accordingly, the Hon'ble court held that the said amount be multiplied by 12 months and then the multiplier to arrive at a reasonable figure regarding future medical expense. Applying the said formula in the present case, the petitioner shall be entitled to Rs.1,80,000/- (1000 x 12 x 15) towards future medical expense.
Future attendant charges:
34. The injured has claimed Rs. 26,68,032/- towards future attendant charges, however, he has not filed any document to prove that he needs such a huge amount towards future attendant charges. In fact, he has not claimed any amount towards past expense on attendant charges. However, in the case of Master Ayush (supra), Hon'ble Supreme Court of India had devised a formula to calculate the future attendant charges. It had laid down that the monthly expense on an attendant can be fixed at Rs. 2,000/- per month and accordingly, the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 37 of 57 Hon'ble court held that the said amount be multiplied by 12 months and then the multiplier to arrive at a reasonable figure regarding future attendant charges. Applying the said formula in the present case, the petitioner shall be entitled to Rs.3,60,000/- (2000 x 12 x 15) towards future medical expense.
Compensation for loss of earning, inconvenience, hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc.:
35. The petitioner/ injured has claimed Rs. 10,00,000/- under this head. It is correct that compensation for loss of earning, inconvenience, hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life cannot be computed in terms of money, however, considering the nature of injuries and the disability suffered by the injured, Rs.5,00,000/- is awarded to the petitioner under this head.
Future loss of income:
36. The petitioner Moin Khan has claimed loss of future earning to the extent of Rs.37,35,168/- in his Form XIV. It has already been established that the petitioner has suffered 90% disability in relation to the whole body. The petitioner has pleaded that the functional disability of the petitioner shall be considered to be 100% as 90% is as good as complete loss of capability to earn. However, this Tribunal is of the view that even though the petitioner has not been able to prove that MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 38 of 57 he was doing business of puja goods but even if it is considered to be his business then even with 90% disability, he can carry out his business to some level. Therefore, the functional disability of the petitioner is assessed at 90% in relation to the whole body even for the purposes of calculating the compensation. The income of the petitioner has been assessed as Rs. 13,896/- as on the date of accident.
37. As per the Aadhar Card, the date of birth of the injured/ petitioner Moin Khan Chet Singh is 01.01.1983, thus, as on the date of accident i.e. 09.09.2018, the petitioner was aged 37 years 8 months and 8 days old. Thus, he was more than 37 years old and less than 38 years of age. Accordingly, the Multiplier of fifteen (15) is taken for purposes of calculating the loss of income of the petitioner (Reliance is placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs Pranay Sethi & Ors., Special Leave Petition (Civil) No. 25590 of 2014, date of decision - 31.10.2017). Further, by adopting the principles laid down in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 ACJ 2700 (SC), the future prospects of Moin Khan shall be 40% as he was self employed and was below the age of 40 years at the time of accident on 09.09.2018.
38. As already discussed in the preceding para, the income of the petitioner has been taken as Rs. 13,896/-In view of the above, the loss of Income on account of functional disability is calculated as under:
Monthly income Rs. 13,896/-
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 39 of 57
Annual Income Rs. 13,896/- x 12 =
Rs. 1,66,752/-
Add Future Prospects @ 40% Rs. 1,66,752/- x 40% =
Rs. 66,700.80/-
Total income Rs. 2,33,452.80/-
Disability @ 90% Rs. 2,33,452.80/- x 90%= Rs.
2,10,107.52/-
Loss of Income after multiplier (15) Rs. 2,10,107.52/- x 15 = Rs.
31,51,612.80/-
(rounded off to Rs.31,51,613/-)
39. Thus, keeping in view the nature of injuries sustained by the petitioner as well as the disability suffered by him, it is held that the petitioner shall be entitled to Rs. 31,51,613/- under the head future loss of income.
40. Accordingly, keeping in view the facts and circumstances, the material on record, and the settled principles and guidelines governing the injury cases like the present one, the compensation is being derived in the present case as under:-
NAME OF HEAD AMOUNT (in Rupees)
Expenditure on Treatment Rs. 30,95,801.68 /-
Monthly income of injured Rs. 13,896/-
Loss of income for 06 months Rs. 83,376/-
Add future prospects @ 40% Rs. 13,896 x 12 x 40% =
Rs. 66,700.80/-
Loss of future income (income X % 2,33,452.80 x 90% x 15 = Earning Capacity X Multiplier) Rs. 31,51,612.80/-
(rounded off to Rs.31,51,613/-) Any other loss/expenditure Nil.
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 40 of 57Mental & Physical Shock & Pain & 1,00,000 + 1,00,000= Suffering Rs. 2,00,000/-
Special diet Rs. 50,000/- Attendant charges Nil. Conveyance charges Rs. 50,000/- Loss of amenities Rs. 5,00,000/- Disfiguration Rs. 1,00,000/- Loss of Marriage prospects Nil.
Loss of earning, inconvenience, Rs. 5,00,000/-
hardship, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
Future medical expenses Rs. 1,80,000/-
Future attendant charges Rs. 3,60,000/-
Total Rs. 82,70,790.68/-
(rounded off to Rs. 82,70,791/-)
41. In the case of Benson George v Reliance General Insurance Co. Ltd. in Civil Appeal No. 1540 of 2022 decided on 25.02.2022, Hon'ble Supreme Court had awarded an interest of 6% per annum. Therefore, it is held that the petitioner shall be entitled to interest @ 6% per annum from the date of filing of DAR i.e. 29.11.2018 till realization.
DISBURSEMENT
42. The Financial Statement of the petitioner/injured was recorded by this Court/Tribunal. As per the said statement, the monthly expenses of his family are approximately Rs. 25,000/- to 30,000/- per MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 41 of 57 month.
43. Keeping in view the above as well as the fact that the petitioner has already spent a huge amount on his treatment, it is held that on realization of the award amount of Rs. 82,70,791/- (Rupees Eighty Two Lacs Seventy Thousand Seven Hundred and Ninety One only), Rs. 32,70,791/- (Rupees Thirty Two Lacs Seventy Thousand Seven Hundred and Ninety One only) plus entire interest amount be released to the petitioner/claimant Moin Khan and the balance amount of Rs. 50,00,000/- (Rupees Fifty Lakhs only) shall be put in 100 monthly fixed deposits in his name in MACAD account of equal amount of Rs. 50,000/- (Rupees Fifty Thousand only) each for a period of 01 month to 100 months respectively, with cumulative interest, in terms of the directions contained in FAO No. 842/2003 dated 07.12.2018 & 08.01.2021. Besides the above said amount, amount of FDRs on maturity, shall automatically be transferred in his saving account maintained in a nationalized bank situated near the place of his residence without the facility of cheque book and ATM card.
44. It is clarified that the amount shall be released to the petitioner only on submitting the copy of passbook of such saving account in a bank near his residence with endorsement of the bank that no cheque book facility and ATM card has been issued or if it has been issued the said ATM Card has been withdrawn and shall not be issued without the prior permission of this Tribunal.
45. The above FDR(s) shall be prepared with the following MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 42 of 57 conditions as enumerated by the Hon'ble Delhi High Court vide orders dated 07.12.2018 & 08.01.2021 in FAO No. 842/2003 under the title Rajesh Tyagi & Ors. Vs. Jaivir Singh & Ors.:
(i) The bank shall not permit any joint name to be added in the saving account or fixed deposit accounts of the claimants i.e. saving bank accounts of the claimants shall be an individual saving bank account and not a joint account.
(ii) 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 claimants.
(iii) The maturity amount of the FDRs be credited by the ECS in the saving bank account of the claimant near the place of their residence.
(iv) No loan, advance or withdrawal or premature discharge be allowed on the fixed deposits without the permission of the court.
(v) The concerned bank shall not issue any cheque book and/or debit card to claimants.
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. The bank shall debit card(s) freeze the account of claimants so that no debit card be issued in respect of the account of claimants from any other branch of the bank.
(vi) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque books and/or debit card have been issued and shall not be issued without the permission of the Court and the claimant shall produced the passbook with the necessary endorsement before the Court for compliance.
46. In compliance of the directions given by Hon'ble High MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 43 of 57 Court in FAO No. 842/2003 dated 08.01.2021, Summary of the Award in the prescribed Format-XVI is as under:
SUMMARY OF AWARD:
1. Date of Accident: 09.09.2018
2. Name of the Injured: Moin Khan
3. Age of the Injured: 37 years
4. Occupation of the Injured: Unskilled labour
5. Income of the Injured: Rs. 13,896/-
6. Nature of Injury: Grievous
7. Medical Treatment taken: Sushruta Trauma Centre, Delhi and Ganga Ram Hospital.
8. Period of Hospitalization: 09.09.2018 to 14.11.2018
9. Whether any permanent 90% disability?
COMPUTATION OF COMPENSATION Sr. Heads Awarded by the Claims Tribunal No.
1. Pecuniary Loss:
(i) Expenditure on Treatment Rs. 30,95,801.68/-
(ii) Expenditure on Special Diet Rs. 50,000/-
(iii) Expenditure on Nil.
Nursing/Attendant charges
(iv) Expenditure on Conveyance Rs. 50,000/-
(v) Monthly income of injured Rs. 13,896/-
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 44 of 57
(vi) Loss of income of 06 months Rs. 83,376/-
(vii) Add future prospects @ 40 % Rs. 13,896 x 12 x 40% =
Rs. 66,700.80/-
(viii) Any other loss which may Rs. 1,80,000 + Rs. 3,60,000=
require any special treatment or Rs. 5,40,000/-
aid to the injured for the rest of
his life: future treatment and
future attendant charges.
2.
(i) Compensation for mental and Rs. 1,00,000 + 1,00,000=
physical shock Rs. 2,00,000/-
(ii) Pain and Sufferings
(iii) Loss of amenities of life Rs. 5,00,000/-
(iv) Disfiguration
Rs. 1,00,000/-
(v) Loss of marriage prospects Nil.
(vi) Loss of earning, inconvenience, Rs. 5,00,000/-
hardships, disappointment,
frustration, mental stress,
dejectment and unhappiness in
future life etc.
3. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed 90% Permanent and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Nil expectation of life span on account of disability
(iii) Percentage of loss of earning 90% capacity in relation to disability
(iv) Loss of future income - (income 2,33,452.80 x 90% x 15 = MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 45 of 57 x % earning capacity x Rs. 31,51,612.80/-
Multiplier) (rounded off to Rs.31,51,613/-)
4. Total Rs. 82,70,790.68/-
1(i+ii+iv+vi+viii) (rounded off to Rs. 82,70,791/-) +2(i+ii+iii+iv+vi) + 3(iv)
5. Total Compensation Rs. 82,70,791/-
Interest awarded 6%
6. Earlier award amount (which has
already been received by the
petitioner in terms of previous
award passed by Ld. -
Predecessor) to be deducted
from present award amount .
7. Interest amount upto the date of Rs. 26,97,656.32/-
award (05 years 05 months and
07 days)
8. Total amount including Interest Rs. 1,09,68,447.30/-
(rounded off to Rs. 1,09,68,447/-)
. Award amount released As mentioned in para no. 43
10. Award amount kept in FDRs As mentioned in para no. 43
11. Mode of disbursement of the As mentioned in para no. 43
award amount of the claimant(s)
12. Next date for compliance of the 06.07.2024
award
LIABILITY:
47. The offending vehicle was being driven and owned by respondent no. 1 Naveen Gupta and insured with respondent no. 2, MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 46 of 57 HDFC ERGO General Insurance Co. Ltd.
48. Ld. Counsel for respondent no. 2 has sought to avoid the liability of the insurance company to pay the compensation amount on the basis that the previous insurance policy was fake as interpolation was done on the period of the policy. He argued that the current policy cannot be considered to be a valid policy as it was obtained on the basis of fraud and misrepresentation as the period of policy is an important particular on which the issuance of a policy depends. It is the case of respondent no. 2 that thus, the insurance policy for the current period is void ab initio. On the other hand, Ld. Counsel for the petitioner argued that the petitioner has not carried out any interpolations on the previous policy or any other policy. He also submitted that the current policy is a valid policy and the petitioner cannot be made to pay and suffer at this stage.
49. In order to prove its defence, respondent no. 2 has examined Ms. Simarpreet Kaur as R2W1 (to be read as R2W2) who has deposed as follows:
"1. That the deponent is the duly authorized person of the respondent no. 2 insurance company and is fully conversant with the facts of the case. He is competent to depose for and on behalf of the respondent no. 3.
2. I say that as per the DAR, the accident took place on 09.09.2018 and the insurance policy no.23112024204990000 issued for the period 8.9.2018 to 7.9.2019 in respect of the vehicle bearing regd. no. DL-8CAL-3510, as produced by the respondent no. 2 during investigation to the police, has been filed in the DAR. Being a close proximity case, the matter was investigated by the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 47 of 57 respondent no. 1 and after investigation it has been revealed that at the time of obtaining the insurance policy from respondent no.1, the respondent no. 1 has disclosed that the aforesaid car was previously insured with Bajaj Allianz General Insurance Co. Ltd. Against policy no. 0G-18-1103-1801-00000135 for the period 8.9.2017 to 7.9.2018. On further investigation from the previous insurer i.e. Bajaj Allianz General Insurance Co. Ltd. it was found that the aforesaid policy no. 0G-18-1103-1801-00000135 has not been issued in the name of respondent no. 1 Naveen Gupta for insuring his car no. DL-8CAL- 3510 for the period 8.9.2017 to 7.9.2018. This clearly shows that the previous policy so produced by the respondent no. 1 showing that vehicle no. DL- 8CAL-3510 was allegedly insured with Bajaj Allianz General Insurance Co. Ltd. for the period 8.9.2017 to 7.9.2018 while obtaining the current insurance policy for the period 8.9.2018 to 7.9.2019 from respondent no. 2 Ins. Co. was a fake and manipulated policy. In fact, in order to avoid the pre-inspection of vehicle no. DL-8CAL-3510 involved in the present accident, the respondent no. 1 has produced the false insurance policy of earlier insurance policy issued from M/s. Bajaj Allianz General Insurance Co. Ltd. and has misrepresented the facts while obtaining insurance from the respondent no. 2. In fact, the respondent no. 1 has obtained the insurance policy from the respondent no. 2 vide policy no.231120242040990000 after the occurrence of the alleged accident. Thus the respondent no. 1 has played fraud upon the respondent no. 2 at the time of obtaining the insurance in respect of the vehicle no. DL-8CAL- 3510 by filing false and frivolous document of previous insurance and has also prevented the respondent no. 2 to pre-inspect the vehicle in question while obtaining the insurance cover for the period 8.9.2018 to 7.9.2019.
3. I say that the previous insurance particulars furnished by the respondent no. 1 of the vehicle purported to have been issued by M/s. Bajaj Allianz General Insurance Co. Ltd. was the basis of the contract which was accepted by the respondent no. 2 in good faith. The intentions of the respondent no. 1 MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 48 of 57 behind producing a manipulated insurance policy purported to have been issued by M/s. Bajaj Allianz General Insurance Co. Ltd. before the respondent no. 2 was to show the continuation of the policy in order to avoid the pre-inspection of his vehicle which might have already met with an accident by the time the insurance policy was obtained by the respondent no. 1 from the respondent no. 2.
4. I say that the respondent no. 1 has obtained the insurance policy by the representation of facts which were false in material particular, the respondent no. 2 insurance company has issued the policy to cover the risk of the alleged offending car no. DL-8CAL- 3510 for the period 8.9.2018 to 7.9.2019 on the basis of misrepresentation and fraud played by the respondent no.1. Therefore, the policy of insurance becomes null, void and ab-initio.
5. I say that as the respondent no. 1 has obtained the insurance cover from the respondent no. 2 in respect of vehicle no. DL-8CAL-3510 after playing fraud and by misrepresenting the facts, the respondent no. 1 has violated the terms and conditions of the insurance policy. It has been categorically mentioned in the policy that in case any declaration made by the respondent no. 1 is found false or fraudulent or suppression of material facts, then the policy issued by the respondent no. 2 shall be void and all the rights to recover thereunder in respect of past or future accidents shall be forfeited.
6. I say that since the policy issued in the present case by the respondent no. 2 is null, void and ab- initio, then the respondent no.3 insurance company has no liability to indemnify the respondent no. 1 or to pay any amount of compensation to the claimant. The copy of the insurance policy as per records of the respondent no. 2."
50. R2W2 has sought to prove that respondent no. 1 has raised three major issues towards proving her defence. The first issue is that Bajaj Allianz had not issued any such policy as claimed by respondent MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 49 of 57 no. 1. However, respondent no. 2 itself examined Sh. Rajender Kumar, Branch Operation and Service Manager, Bajaj Allianz General Insurance Co. Ltd. As R2W1 who deposed that "... As per the record brought by me, the insurance policy bearing no. OG-18-1103-1801-00000135 has been issued with respect of vehicle bearing registration No.DL-8C-AL- 3510 in the name of Sh. Naveen Gupta for the period 12.03.2017 to 11.03.2018. Computer generated records brought by me are Ex.R2W1/1 (colly) (running into five pages)." The testimony of R2W1 as well as the policy shows that the policy bearing no. OG-18-1103-1801-00000135 has been issued by Bajaj Allianz in favour of Sh. Naveen Gupta with respect to car bearing registration no. DL-8CAL-3510. Thus, the first issue raised by respondent no. 2 is dismissed.
51. The second issue that has been raised by respondent no. 2 is that respondent no. 1 had taken the policy with respondent no. 1 after the occurrence of the accident. The period of coverage in the present policy is 08.09.2018 to 07.09.2019 while the accident took place on 09.09.2018. The injured/ petitioner has categorically deposed in his evidence that the accident took place on 09.09.2018 and the DAR also confirms that the accident took place on 09.09.2018, thus, there is no doubt upon the fact that the current policy Ex. R2W1 (to be read as R2W2 (colly.)) issued by HDFC ERGO covers the accident as the same was issued one day prior to the accident.
52. The third issue raised by respondent no. 2 is that there are interpolations on the policy with respect to the period of policy. However, the insurance company has not been able to prove that it was the petitioner who carried out the said interpolations. Further, the said MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 50 of 57 allegedly manipulated previous policy must have been filed by the petitioner at the time of buying the current policy and it cannot be denied that it is the duty of the insurance company to carry out due diligence at the time of giving the insurance policy. If it was a document submitted at the time of obtaining the insurance policy, the insurance company should have seen it at that time and rejected the policy instead of raising it as a defence in the present proceedings. Also, it has been admitted by R2W2 that they "have not filed any case or complaint regarding the fake/tampered policy because it does not relate to our insurance policy." The fact that respondent no. 2 has not taken any action regarding the issuance of policy on the basis of fake or misrepresented policy also goes on to show that they do not believe the same to be obtained on the basis of fraudulent and misrepresented policy.
53. Furthermore, there is nothing on record to show that the policy has been cancelled or that premium has been returned to the petitioner. R2W2 deposed that "I have no knowledge if the respondent no. 1 was informed about the cancellation of policy due to it be issued on the basis of tampered policy. (Vol. The said matter is dealt with by another department and I am from the legal department.) I cannot say if the said policy was cancelled or was it continuing." R2W2 has further deposed that "It is correct that at the time of the accident, the car was insured with our company. It is correct that our policy was covering the car on the date of the accident."
54. Clearly, nothing has been placed on record to prove that the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 51 of 57 policy was cancelled and the RTO and respondent no.1 were informed about the same. Further, there is not even an iota of whisper in the whole defence that the premium has been returned. Reliance is placed on the judgment of Reliance General Insurance Co. Ltd. v. Usha Devi & Ors. 2010 ACJ 606 where the policy was cancelled for dishonour of cheque but Hon'ble Delhi High Court held that "It is well settled that if the cancellation of the policy is not intimated to the Road Transport Authority, the insurance company remains liable towards the third party."
55. From the above, it stands established that respondent no. 2 had issued insurance policy (Ex. R2W2) in respect of the offending vehicle bearing registration no. DL 8CAL 3510 for the period 08.09.2018 to 07.09.2019. Although, it is the case of respondent no. 2 that the said policy was issued on the basis of a tampered policy but respondent no. 2 has not been able to prove that one, the interpolations were carried out by respondent no.1; two, that the current policy was cancelled and three, that the factum of cancellation was communicated to the RTO and respondent no.1. Further, R2W1 has proved the issuance of policy by Bajaj Allianz with respect to the offending vehicle. Apparently, there is a gap between the period of coverage as the Bajaj Allianz policy expired on 11.03.2018 while the HDFC ERGO policy started on 08.09.2018 but there is nothing on record to show that the Bajaj Allianz policy was tampered or that the accident took place out of the period of policy coverage. Clearly, the accident took place one day after respondent no. 1 took the policy with HDFC ERGO. Insurance company has failed to prove that the current policy was obtained on the MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 52 of 57 basis of fraud and misrepresentation or that the policy was duly cancelled. In view of the above, it is concluded that the policy issued by HDFC ERGO was valid and effective and thus, the insurance company/ respondent no.2 is liable to pay the compensation amount to the petitioner being duty bound to indemnify third party risk insured by it by virtue of the insurance policy issued in respect of offending vehicle for the period in question. Thus, respondent no. 2 shall pay the award amount to the petitioner.
Issue No. 2 is decided accordingly.
RELIEF
56. The respondent no.2 - HDFC ERGO General Insurance Co. Ltd. is directed to deposit a sum of Rs. 82,70,791/- (Rupees Eighty Two Lakhs Seventy Thousand Seven Hundred and Ninety One only) along with interest @ 6% from the date of filing of DAR i.e. 29.11.2018 till realization with the Civil Nazir of this Tribunal within 30 days under intimation to the claimant, failing which the said respondent shall be liable to pay interest @ 7.5% per annum for the period of delay beyond 30 days.
57. Ahlmad is directed to e-mail an authenticated copy of the award to the insurance company for compliance within the time granted as directed by the Hon'ble Supreme Court of India in WP (Civil) No. 534/2020 titled as Bajaj Allianz General Insurance Co. Pvt. Ltd. Vs. Union of India & Ors. on 16.03.2021. The said respondent is further directed to give intimation of deposit of the compensation amount to the claimant and shall file a compliance report with the Claims Tribunal MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 53 of 57 with respect to the deposit of the compensation amount within 15 days of the deposit with a copy to the Claimant and his counsel.
Ahlmad shall also e-mail an authenticated copy of the award to Branch Manager, SBI, Tis Hazari Courts for information.
A digital copy of this award be forwarded to the parties free of cost.
Ahlmad is directed to send the copy of the award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial nos. 39, 40 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A)].
Civil Nazir is directed to place a report on record on 06.07.2024 in the event of non-receipt/deposit of the compensation amount within the time granted.
Further Nazir is directed to maintain the record in Form XVIII in view of Central Motor Vehicles (fifth Amendment) Rules, 2022 [(Directions at serial no. 41 of Procedure for Investigation of Motor Vehicle Accidents (under Rule 150A).
Ahlmad is further directed to comply with the directions passed by the Hon'ble High Court of Delhi in MAC APP No. 10/2021 titled as New India Assurance Company Ltd. Vs. Sangeeta Vaid & Ors., date of decision : 06.01.2021 regarding digitisation of the records.
File be consigned to Record Room after due compliance.
Digitally signed
Announced in the open Court today RUCHI by RUCHI
AGGARWAL
AGGARWAL ASRANI
th ASRANI
on this 06 day of June, 2024. Date: 2024.06.06 17:35:16 +0530 (Dr. RUCHI AGGARWAL ASRANI) PO, MACT-01, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 54 of 57FORM - XVII COMPLIANCE OF THE PROVISIONS OF THE SCHEME TO BE MENTIONED IN THE AWARD 1 Date of Accident 09.09.2018 2 Date of filing of Form-I -
First Accident Report Not mentioned
(FAR)
3 Date of delivery of Form-II
to the victim(s) Not mentioned
4 Date of receipt of Form-III
from the Driver Not mentioned
5 Date of receipt of Form-IV
from the Owner Not mentioned
6 Date of filing of Form-V-
Particulars of the Not mentioned
insurance of the vehicle
7 Date of receipt of Form-
VIA and Form VIB from Not mentioned
the Victim(s)
8 Date of filing of Form-VII
- Detail Accident Report 29.11.2018
(DAR)
9 Whether there was any
delay or deficiency on the
part of the Investigating No.
Officer? If so, whether any
action/direction warranted?
10 Date of appointment of the
Designated Officer by the
Insurance Company 08.01.2019
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 55 of 57
11 Whether the Designated
Officer of the Insurance
Company admitted his Yes.
report within 30 days of the
DAR?
12 Whether there was any
delay or deficiency on the
part of the Designated No.
Officer of the Insurance
Company? If so, whether
any action/direction
warranted?
13 Date of response of the
claimant(s) to the offer of No response
the Insurance Company.
14 Date of award 06.06.2018
15 Whether the claimant(s)
were directed to open Yes.
savings bank account(s)
near their place of
residence?
16 Date of order by which
claimant(s) were directed to
open Savings Bank
Account(s) near his place of
residence and produce PAN 29.11.2018
card and Aadhar Card and
the direction to the bank not
to issue any cheque
book/debit card to the
claimant(s) and make an
endorsement to this effect
on the passbook(s).
17 Date on which the 02.04.2024
claimant(s) produced the
passbook of their savings
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 56 of 57
bank account(s) near the
place of their residence
alongwith the endorsement,
PAN card and Aadhaar
Card?
18 Permanent residential As per Award.
address of the claimant(s).
19 Whether the claimant(s)
savings bank account(s) is
Yes.
near their place of
residence?
20 Whether the Claimant(s)
were examined at the time
Yes. The Financial Statement of the claimant of passing of the Award to was recorded 02.04.2024.
ascertain his/their financial condition?
Digitally
signed by
RUCHI
RUCHI AGGARWAL
AGGARWAL ASRANI
ASRANI Date:
2024.06.06
17:35:34
+0530
(Dr. Ruchi Aggarwal Asrani)
PO, MACT-01 (Central),
Tis Hazari Courts, Delhi
06.06.2024
MACT No.1006/2018 Moin Khan Vs. Naveen Gupta and anr. Page 57 of 57