Delhi District Court
Lal Ji Yadav vs Abdul Salam (61515 Svr) on 28 March, 2024
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 4213/2016
FIR no. 615/2015
PS Sarita Vihar
U/s 279/338 IPC
CNR No.: DLSE01 002079-2015
Lalji Yadav Vs. Abdul & Ors.
Lalji Yadav
S/o Sh. Rama Pati Yadav
R/o H. No. 853, Gali no. 30A
Molar Band Extension, Badarpur, Delhi.
.....Petitioner
Versus
1. Abdul Salam
S/o Sh. Montu Sheikh
R/o Mahrajpur, Distt. Malda Town
West Bengal
.....R-1/ Driver
2. Nitin Dhingra
S/o Subhash Dhinghra
R/o IIB-34, Sadhna Apartment
Vaishali, Ghaziabad.
.....R-2/ Owner
3. Reliance Gen. Ins. Co. Ltd.
570, Naigaum Cross Road,
Next to Royal Industrial Estate, Wadala, Mumbai.
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....R-3/ Insurance Co.
Date of accident : 06.08.2015
Date of filing of DAR : 12.10.2015
Date of Decision : 28.03.2024
AWARD
"The measure of compensation must reflect a genuine attempt
of the law to restore the dignity of the being. Our yardsticks of
compensation should not be so abysmal as to lead one to
question whether our law values human life. If it does, as it
must, it must provide a realistic recompense for the pain of loss
and the trauma of suffering. Awards of compensation are not
law's doles. In a discourse of rights, they constitute
entitlements under law. Our conversations about law must shift
from a paternalistic subordination of the individual to an
assertion of enforceable rights as intrinsic to human dignity."
(As observed by Hon'ble Supreme Court of India in case of National Insurance Company
Limited. v Pranay Sethi And Others (2017 SCC Online Sc 1270)
1. Detailed Accident Report (hereinafter referred as DAR)
pertaining to alleged accident of injured Sh. Lalji Yadav
(hereinafter referred as claimant), by vehicle bearing Reg. No.
UP 14AD 1167 (hereinafter referred as offending vehicle), which
was driven by its driver Sh. Abdul Salam (hereinafter referred as
Respondent No.1) and owned by Sh. Nitin Dhingra (hereinafter
referred as R-2) and insured with Reliance Gen. Ins. Co. Ltd
(hereinafter referred as R-3) was filed by IO HC Virender Singh
in terms of provisions of Motor Vehicle Act, which is being
treated as Claim Petition under Section 166 (1) read with Section
166 (4) MV Act.
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2. Preliminary information about the accident was received
on 06.08.2015, recorded vide DD no.43A at PS Sarita Vihar in
response to which, HC Virender Singh along with Ct. Maharaj
Singh rushed to the spot where they found a motorcycle bearing
Reg. No. UP 14AD 1167 and its driver Abdul Salam. They
apprehended the driver and took the motorcycle in their
possession. Upon receipt of DD no. 4A dated 07.08.2015, HC
Virender Singh collected the MLC of injured from AIIMS
Trauma Center however, statement of injured could not be
recorded as the patient already got discharged. Then IO reached
the address of injured, mentioned in the MLC, where he met
injured Lalji Yadav who gave a written complaint alleging of
rash and negligent driving of offending vehicle having caused
accident. He narrated the factual aspect of the accident stating
that on 06.08.2014 at about 09.20 PM near Sarita Vihar Flyover,
Mathura Road while waiting near the pavement to cross the road,
suddenly a speeding motorcyclist hit him forcefully due to which
he fell down and sustained injuries. Public persons apprehended
the driver of such offending motorcycle who disclosed his name
as Abdul Salam, a resident of Malda, West Bengal. Then some
public person informed police. PCR van subsequently shifted
injured to the hospital.
3. FIR was registered on the statement of injured and on the
basis of MLC collected by IO from AIIMS Trauma Centre u/s
279/337 IPC. Relevant documents were collected. Driver of
offending vehicle was arrested. Result on MLC was obtained
which opined nature of injury to be grievous. Upon conclusion of
investigation, Charge-sheet u/s 279/338 IPC was filed before Ld.
Ilaka MM against accused Abdul Salam while DAR was filed in
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the Tribunal for adjudicating the compensation under Motor
Vehicles Act.
Proceedings:
4. All the contesting parties appeared before the court except
R-2/ Registered Owner. Reply/ WS was filed by R-1/ driver as
well as Insurance Company. R-2 was served through his mother
but failed to appear before the Court hence he was proceeded
against ex parte vide order dated 27.07.2016.
Reply:
5. In reply filed by R-1, it is stated that accident took place
due to negligence of victim himself. It is further stated that he
has been falsely implicated in this case. He further stated that he
was having valid and effective driving license at the time of
alleged accident.
6. In reply filed by Insurance Company, it is stated that the
offending vehicle in question was not insured with the
Respondent Insurance Company as alleged policy has never been
issued by Insurance Company. Further that the driver of
offending vehicle did not hold any valid Driving License as his
driving license authorised him to drive only LMV and made no
mention of two wheeler/ motorcycle.
Issues:
7. From the pleadings of parties, following issues were
framed vide order dated 27.07.2016:
i). Whether the petitioner suffered injuries in a road
vehicular accident that took place on 06.08.2015 due to
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rash and negligent driving of vehicle bearing no. UP
14AD 1167 by R-1/ Abdul? OPP.
ii). Whether the injured is entitled to any compensation, if
so, to what extent and from whom?OPP
iii). Relief.
8. Perusal of Issue No.1 reflects that it is incomplete as
details of owner as well as Insurance Company has not been
mentioned. Therefore, to avoid any confusion, Issue no. 1 is
reframed as under:
i). Whether the petitioner suffered injuries in a road vehicular
accident that took place on 06.08.2015 due to rash and negligent
driving of vehicle bearing no. UP 14AD 1167 driven by R-1/
Abdul, owned by Reg. Owner Nitin Dhingra and Insured with
Reliance Gen. Ins. Co. /R-3? OPP.
9. Matter was then listed for PE. However, During the course
of proceedings, directions were issued to the concerned Medical
Board for disability assessment vide order dated 29.04.2027
which opined that injured suffered 8% physical impairment in
relation to his right lower limb.
Evidence:
10. Thereafter matter was kept pending for evidence on one
pretext and other as such interest on award was also stopped
from the date of framing of issues till the evidence is led vide
order dated 08.01.2018. On 05.05.2018, claimant / Sh. Lalji
Yadav stepped in the witness box and tendered his evidence by
way of affidavit as Ex.PW1/A. He relied upon various documents
description of which are as follows:
i) Salary Slip - Ex.PW1/1
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(ii) ESI Card - Ex.PW1/2 (OSR)
(iii) His MLC Dated 06.08.2015 of Trauma Centre, New
Delhi - Ex.PW1/3.
(iv) Treatment documents - Ex.PW1/4 (colly)
(v) Treatment Records of ESI Hospital - Ex.PW1/5 to
Ex.PW1/7
(vi) Discharge Summary dated 13.08.2015 of Saket City
Hospital and other treatment papers of the same hospital-
Ex.PW1/8 to Ex.PW1/10.
(vii) Medical Bills - Ex.PW1/11 to Ex.PW1/18.
(viii) Copy of Aadhar Card - Ex.PW1/19
(ix) DAR- Ex.PW1/20
(x) Disability Report with 8% permanent disability with
respect to his right lower limb.
11. PW-1 was duly cross examined by Counsel for insurance
company. However, no one appeared on behalf of R-1 & 2 to
cross examine such witness.
12. Preeti, Jr. MRT ESIC Hospital, Okhla, New Delhi was
examined as PW-2 who produced record i.e. OPD Register which
shows claimant's presence noted vide entry no. 37466 dated
07.08.2015 as Ex.PW2/1 as well as entry no. 38756 dated
13.08.2015 as Ex.PW2/2.
13. Claimant also examined Sh. Radhey Shyam, Assistant
Branch Office ESIC, Okhla, New Delhi as PW-3 who produced
summoned records including copy of E-Pehchan Patra,
contribution details of Employer Code, ledger sheet, details of
medical certificate as Ex.PW3/1 (colly).
14. Sh. Arun Singh Rawat, Assistant, ESIC was examined as
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PW-4 who produced ESIC covered policy of claimant Lalji
Yadav placed on record as E.PW4/2. He also clarified the amount
of Rs. 17,367/- on the basis of record provided that was lastly
received by the claimant towards extended sickness benefit.
15. PW-5 Ms. Elizabeth Sali Prasad, Sr. MRT, ESIC produced
on record OPD details of claimant referred as Ex.PW5/2.
16. Petitioner's Evidence was closed vide order dated
28.03.2022.
17. Matter was then listed for Respondent's Evidence. No
evidence was led on behalf of R-1 & R-2. However, Respondent
no.3 Insurance Company examined its Legal Claims Manager
R3W1 Sh. Sayok Bandyopadhyay who tendered evidentiary
affidavit as Ex.R3W1/A and relied upon following documents:
i. Ex.R3W1/1- The letter/ report of Respondent no. 3
regarding verification of said fake policy given to IO.
ii. Ex.R3W1/2- The attested copies of sample insurance
policy of two wheelers issued by R-3.
iii. Ex.R3W1/3- Copy of written complaint regarding fake
policy to SSP, Ghaziabad, Uttar Pradesh
iv. Ex.R3W1/4- The Verification Report of DL of Respondent
no.1
18. RE was closed vide Order dated 13.10.2022.
Arguments:
19. Final Arguments were advanced on behalf of claimant as
well as Insurance Company. Written Submissions were also filed
by claimant as well as by Insurance Company.
20. Counsel for the petitioner argued that respondent no. 1
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drove offending motorcycle speedily and in zig zag manner
without adhering to basic traffic rules and impactfully hit
claimant, causing serious injury on his hand as well as on his
right leg. It is argued that the claimant remained hospitalised for
about 7 days post accident and remained under active treatment,
unable to join back his duty for more than 6 months. He further
argued that his family consists of his wife and two children, who
were dependent upon his earning but he was unable to deliver
efficiently post accident adversely affecting his career
progression. He also argued that the claimant did not receive
salary for the period of his absence from duty on account of his
medical treatment. Counsel for the claimant also argued that the
accident of claimant did not take place during the course of his
discharging duty in the employment and therefore, the claim of
compensation is maintainable under the Motor Vehicles Act and
is not hit by statutory bar under Section 53 of ESI Act as the
injury cannot be termed to be an 'employment injury' within the
meaning of ESI Act. It is asserted that the claimant was duly
insured with the ESI and therefore, took benefit of insurance with
the employer company towards loss of salary based on the
contribution of the petitioner with the ESI. It is clarified that the
claimant had undertaken treatment from the ESI hospital on
account of financial constraints. He relied upon case titled as
United India Insurance Vs. Vanita & Ors.
(Manu/PH/3173/2019) to state that the benefits and claim under
the enactment of ESI and Motor Vehicles Act are totally different
laying down the conditions of applicability of statutory bar u/s 53
of ESI Act. It is also argued that the insurance company has not
examined the person who had reported the insurance policy of
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offending vehicle produced by owner as fake and invalid. It is
asserted that the driver, owner as well as insurance company are
jointly, severally are liable to pay compensation for the injuries
sustained in the accident arising out of use of motor vehicle on
account of rash and negligent driving by R-1 of vehicle owned
by R-2 and allegedly insured with R-3.
21. Counsel for the insurance company primarily based his
arguments on the contention that the alleged offending vehicle
was not insured with the respondent no.3 on the date of accident,
to prove which, Legal Claims Manager of company was
examined and therefore, R-3 is not liable to indemnify the owner
of the offending vehicle against any liability arising out of
accident in question. It is asserted that the alleged insurance
policy relied upon by R-2 is a forged and fabricated document as
respondent no.3 declined having issued the alleged insurance
policy to Mr. Nitin Dhingra against insurance of the offending
vehicle. It is pointed out that the insurance policy issued by R-3
are of 16 digits whereas the policy filed on record consists of 20
digits. Further that the said policy never existed as per the
company record. It is pointed out that the Investigating Officer
had applied for the verification of the policy before filing of
DAR wherein the insurance company specifically denied the
factum of insurance and issued verification report in writing to
the investigating officer concerned that the alleged insurance
policy is a fake and fabricated document as the policy is not in
standardized format applied by R-3 to the policies issued during
the concerned period, with the premium certificate issued during
that time bearing a number not exceeding 16 digits, with the
name of intermediary along with corresponding code mentioned
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in all the sample policies whereas the policy relied only has a
code number for corresponding intermediary without specifying
a name or any contact details. It is argued that the insurance
company had duly lodged a written complaint against fake and
forged insurance policy alleged issued by R-3 to the SSP,
Ghaziabad, UP. Additionally, it is contended that the driver of the
offending vehicle was not even holding a valid DL on the date of
accident which was well within the knowledge of owner which
constituted deliberate breach of the prime term and conditions of
the general insurance policies as the DL produced by R-1 was
only for driving LMV (NT) for the period w.e.f. 11.02.2015 to
10.02.2035 and thus DL was not issued to drive any two-wheeler
or motorcycle with those specific endorsement upon the DL in
that respect and thus R-1 was not authorised to drive the
motorcycle at the time of accident. Further that the driver or
owner of the offending vehicle have not led any evidence and
thus adverse inference can be drawn against them. It is asserted
that the liability of payment of compensation fall solely on the
driver and owner of the offending vehicle and R-3 be exonerated
of any liability towards the claimant against the injuries sustained
in accident due to alleged rash and negligent driving of offending
vehicle.
22. Final arguments not advanced by R-1 as R-1 as well as his
counsel stopped appearing before the court while R-2 was
proceeded against ex parte.
23. On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
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Issue No.1
i). Whether the petitioner suffered injuries in a road
vehicular accident that took place on 06.08.2015 due to
rash and negligent driving of vehicle bearing no. UP
14AD 1167 driven by R-1/ Abdul, owned by Reg. Owner
Nitin Dhingra and Insured with Reliance Gen. Ins. Co. /R-
3? OPP.
24. What is required to be ascertained is whether rash and
negligent driving of offending vehicle was responsible for
sustaining injury by injured.
25. As such rashness and negligence per se have neither been
defined in the MV Act nor in the IPC. Rashness primarily is
inferred when one acts without giving due weightage to the result
it might produce, although, knowing well the possible
consequences. So, it basically targets an action or inaction with
gross indifference towards adverse consequences it might entail.
Therefore, any haste or unmindful act would qualify to be a rash
act. The action in the contextual sense is unmindful driving of a
motor vehicle on a public way and the possible consequence is
causing hurt or injuries to other person on account of such use.
26. Negligence, however, refers to the failure on the part of a
person to behave as expected of any reasonable person under the
same circumstance. Thus, subject is not expected to go out of
way to save other or be utterly cautious rather he is expected to
display prudent conduct within the applicable circumstance. Any
person driving on a public way is bound to follow the traffic
rules and regulations and is expected to act with a duty of care
towards other commuters expecting to use or ply on the public
way, also at the same time exercising caution to value his own
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life while so driving. Thus, negligent driving entails liability
from lack of a standardized behavior in discharging
responsibility to protect public from an unreasonable risk. The
standard here is one expected of a reasonable man guided by
considerations which ordinarily regulate the conduct of human
affairs.
27. Sec. 279 IPC penalises careless and thoughtless driving on
a public way with possible consequence of putting human life in
risk or injuring another person. Although the interpretation of
rash and negligent driving can be imported to understand the
meaning of rash and negligent driving within the domain of
Motor Vehicle Act but the standard expected to apply to
constitute an offence u/s 279 IPC in contrast with the expectation
within the provision of this legislation are contrasting to each
other. To constitute an offence, the scale of evidence is of proof
beyond reasonable doubt whereas the Tribunal adjudicates
rashness or negligence on the touchstone of preponderance of
probabilities. The observations of Hon'ble Supreme Court of
India in the case of Bimla Devi Vs. Himachal Road Transport
Corporation, (2009) 13 SCC 530 as also referred in the case of
Dulcina Fernandes Vs. Joaquim Xavier Cruz, (2013) 10 SCC
646 further relied and referred again in the case of Mathew
Alexander Vs. Mohammad Shafi & Anr, SLP (Crl) 8211 of
2022 are pertinent to be mentioned in the context which reads as
under:
"In a claim petition filed under Section 166 of the Motor
Vehicles Act, 1988, the Tribunal has to determine the
amount of fair compensation to be granted in the event an
accident has taken place by reason of negligence of a driver
of a motor vehicle. A holistic view of the evidence has to be
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taken into consideration by the Tribunal and strict proof of
an accident caused by a particular vehicle in a particular
manner need not be established by the claimants. The
claimants have to establish their case on the touchstone of
preponderance of probabilities. The standard of proof
beyond reasonable doubt cannot be applied while
considering the petition seeking compensation on account
of death or injury in a road traffic accident."
28. It is settled that Motor Vehicle Act contemplates a tortious
liability in place of criminal culpability in a criminal case and
therefore, even if a criminal case ends in acquittal, it is not
necessary for the compensation case to follow suit. (support
drawn from N.K.V. Bros. (P) Ltd. vs. M. Karumai Anmal, AIR
1980 SC 1354).
29. Further, in the present case, police after investigation had
filed charge-sheet against respondent no.1 under Section 279 &
338 of IPC which is also suggestive of negligence of respondent
in causing the accident. (support drawn from the case of
National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi,
wherein Hon'ble Delhi High Court observed that completion of
investigation and filing of charge-sheet against driver coupled
with FIR lodged, alleging involvement of offending vehicle and
the mechanical inspection reports are sufficient to conclude
negligence on the part of driver of offending vehicle, noting that
the strict rules of evidence are not required to be followed in
proceedings under the Motor Vehicle's Act.
30. It is also settled that if driver of offending vehicle does not
enter the witness box, an adverse inference can be drawn against
him as observed by Hon'ble High Court of Delhi in the case of
Cholamandlam Insurance Company Ltd. Vs. Kamlesh, 2009 (3)
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AD Delhi 310. In the present case also, driver did not enter into
the witness box to controvert the claim of petitioner or even to
explain circumstances of accident.
31. Against this backdrop of presumptive negligence
attributable to R-1/ driver of offending vehicle on account of
various judicial pronouncements as discussed above, the
examination of testimony of PW-1 Sh. Lalji, who suffered
injuries on account of accident is of primordial importance. He
tendered his evidentiary affidavit wherein he affirmed that he
was hit by speeding motorbike driven in a zig zag manner while
he was standing at the road side about to cross the road, causing
serious injuries on his body. Counsel for R-1 & 2 did not appear
to cross examine the witness on the aspect of negligence.
32. Reply was filed by the driver who stated that accident
occurred on account of negligence on the part of injured himself.
A bald submission has been made by driver of the vehicle
without tending any explanation in support thereof, further, he
did not choose to get himself examined by leading evidence on
the aspect and therefore, a bare denial or blaming the claimant
for negligence on his part without clarifying on factual aspect of
the accident to which either claimant or respondent no.1 were
privy, cannot be accepted.
33. PW-1 was duly cross examined by counsel for the
insurance company wherein, he declined the suggestion that he
was negligent in crossing the road. He admitted that there was no
foot over bridge or red light at the spot of accident or even few
meters on either side. A contradictory suggestion was given by
counsel for insurance company that the injured sustained injuries
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due to a fall at his house post accident on 07.08.2015 whereas he
suffered only simple injuries in the accident on 06.08.2015.
There seems to be no basis for the counsel for the insurance
company to have suggested to injured about the cause of fracture
as a possible fall in the house, a day after the accident. Further, It
is not the case propounded by the claimant that he was in the
process of crossing the road or in the middle of the road when the
accident happened. PW-1 testified that he was standing at the
edge of the road, about to begin to cross the road to reach out the
bus stand on the opposite side while admittedly there was no
zebra crossing or foot over bridge near the spot of accident. The
site plan filed on record clearly shows the spot of accident as
abutting the pavement right at the edge of the road and therefore,
the case propounded on behalf of insurance company that the
injured was negligent in crossing the road which is why he got
hit has no basis to it.
34. There is no further cross examination on the aspect of
negligence of respondent no.1 in driving the vehicle. PW-1 has
categorically testified that the offending vehicle was being driven
in a high speed and that too in a zig zag manner, in breach of the
traffic rules, violating the basic lane discipline and the speed
regulations because of which driver was unable to exercise
complete control over the movement of offending vehicle and
ended up hitting the pedestrian standing at the edge of the road
forcefully, causing serious bodily injuries.
35. The accident was immediately reported to the police and
recorded vide DD entry no. 43A whereas offending motorbike
along with driver Abdul Salam were found at the spot of accident
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itself. The offending motorbike was taken into police possession
at the spot of accident within few minutes of accident itself while
the injured was rushed to hospital in a PCR van. Therefore, there
is no doubt with respect to identification of offending vehicle or
that of the driver.
36. The FIR was registered upon recording of statement of
claimant which also mentioned the registration number of the
offending vehicle as well as the details of the driver. The accident
allegedly happened at 09.20 PM on 06.08.2015 whereas the
injured was examined at 10.27 PM as per MLC. The mechanical
inspection report also notes fresh damages on account of
accidental impact. In view of discussion made above, it is held
that there is no counter contention to the affirmation that
offending vehicle was driven speedily and in a zig zag manner
without exercising reasonable duty of care towards the fellow
commuters on the public road. Injured was standing on one side
of the road in order to cross the road and therefore, he cannot be
faulted from being in that position. There is no evidence to show
that he was standing on the middle of the road or jumped over
the pavement to come in front of the offending vehicle without
any fault attributable to the driver of the offending vehicle.
37. Counsel for respondents could not elicit any contradiction
in the testimony of injured and therefore, there is no reason on
record as to why his testimony should be discarded or not
considered credit worthy. As such, it is settled that this issue has
to be decided on the scales of preponderance of probabilities and
any fishing or roving enquiry is not required to be undertaken
into the negligence of the offending vehicle.
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38. As such, in view of the above analysis of material on
record, evidence proved on record, charge-sheet against R-1, it is
held that the accident was caused by rash and negligent driving
of the offending vehicle and the issue No.1 is decided
accordingly, in favour of the petitioner.
ISSUE NO. 2
"Whether the injured is entitled to any
compensation, if so, to what extent and from whom?
OPP"
39. Sec. 168 MV Act enjoins the Claim Tribunals to hold an
enquiry into the claim to make an effort determining the amount
of compensation which appears to it to be just and reasonable.
Same is reproduced hereunder for ready reference:
"(1) Award of the Claims Tribunal.--On receipt of an
application for compensation made under section 166,
the Claims Tribunal shall, after giving notice of the
application to the insurer and after giving the parties
(including the insurer) an opportunity of being heard,
hold an inquiry into the claim or, as the case may be,
each of the claims and, subject to the provisions of
section 162 may make an award determining the
amount of compensation which appears to it to be just
and specifying the person or persons to whom
compensation shall be paid and in making the award
the Claims Tribunal shall specify the amount which
shall be paid by the insurer or owner or driver of the
vehicle involved in the accident or by all or any of
them, as the case may be: Provided that where such
application makes a claim for compensation under
section 140 in respect of the death or permanent
disablement of any person, such claim and any other
claim (whether made in such application or otherwise)
for compensation in respect of such death or
permanent disablement shall be disposed of in
accordance with the provisions of Chapter X.
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(2) The Claims Tribunal shall arrange to deliver
copies of the award to the parties concerned
expeditiously and in any case within a period of fifteen
days from the date of the award.
(3) When an award is made under this section, the
person who is required to pay any amount in terms of
such award shall, within thirty days of the date of
announcing the award by the Claims Tribunal, deposit
the entire amount awarded in such manner as the
Claims Tribunal may direct."
40. Before putting in frame the position of law, it is noted that
the process of determining the compensation by the court is
essentially a very difficult task and can never be an exact science.
Perfect compensation is hardly possible, more so in claims of
injury and disability. (As observed by Hon'ble Supreme Court
of India in the case of Sidram Vs. The Divisional Manager
United India Insurance Company Ltd, SLP (Civil) No. 19277
of 2019.
41. The basic principle in assessing motor vehicle
compensation claims, is to place the victim in as near a position
as she or he was in before the accident, with other compensatory
directions for loss of amenities and other payments. These
general principles have been stated and reiterated in several
decisions. [Support drawn from Govind Yadav v. New India
Insurance Co. Ltd., (2011) 10 SCC 683.]
42. This Tribunal has been tasked with determination of just
compensation. The observation of Hon'ble Supreme Court of
India in Divisional Controller, KSRTC v. Mahadeva Shetty and
Another, (2003) 7 SCC 197, needs mention here (para 15):
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"Statutory provisions clearly indicate that the
compensation must be "just" and it cannot be a
bonanza; not a source of profit but the same should
not be a pittance. The courts and tribunals have a
duty to weigh the various factors and quantify the
amount of compensation, which should be just. What
would be "just" compensation is a vexed question.
There can be no golden rule applicable to all cases
for measuring the value of human life or a limb.
Measure of damages cannot be arrived at by precise
mathematical calculations. It would depend upon the
particular facts and circumstances, and attending
peculiar or special features, if any. Every method or
mode adopted for assessing compensation has to be
considered in the background of "just" compensation
which is the pivotal consideration. Though by use of
the expression "which appears to it to be just", a
wide discretion is vested in the Tribunal, the
determination has to be rational, to be done by a
judicious approach and not the outcome of whims,
wild guesses and arbitrariness.. ..."
43. Delineating the damages as pecuniary and non pecuniary,
Hon'ble Supreme Court of India, in case of R. D. Hattangadi
Vs. Pest Control (India) Pvt Ltd, 1995 AIR 755, made
following observations:
"9....while fixing an amount of compensation
payable to a victim of an accident, the damages have
to be assessed separately as pecuniary damages and
special damages. Pecuniary damages are those
which the victim has actually incurred and which are
capable of being calculated in terms of money;
whereas non-pecuniary damages are those which are
incapable of being assessed by arithmetical
calculations. In order to appreciate two concepts
pecuniary damages may include expenses incurred
by the claimant: (i) medical attendance; (ii) loss of
earning of profit up to the date of trial; (iii) other
material loss. So far non- pecuniary damages are
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concerned, they may include (i) damages for mental
and physical shock, pain and suffering, already
suffered or likely to be suffered in future; (ii)
damages to compensate for the loss of amenities of
life which may include a variety of matters i.e. on
account of injury the claimant may not be able to
walk, run or sit; (iii) damages for the loss of
expectation of life, i.e., on account of injury the
normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship, discomfort,
disappointment, frustration and mental stress in life."
44. Certain principles for delineating just compensation were
enumerated in the case of Raj Kumar Vs. Ajay Kumar & Anr.,
(2011) 1 SCC 343, by Hon'ble Supreme Court of India.
Following observations are relevant in the context:
"40.General principles relating to compensation in
injury cases
5. The provision of the Motor Vehicles Act, 1988
("the Act", for short) makes it clear that the award
must be just, which means that compensation should,
to the extent possible, fully and adequately restore
the claimant to the position prior to the accident. The
object of awarding damages is to make good the loss
suffered as a result of wrong done as far as money
can do so, in a fair, reasonable and equitable manner.
The court or the Tribunal shall have to assess the
damages objectively and exclude from consideration
any speculation or fancy, though some conjecture
with reference to the nature of disability and its
consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also for
the loss which he suffered 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.
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Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3
SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest
Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995
SCC (Cri) 250] and Baker v. Willoughby [1970 AC
467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528
(HL)] .]
45. The above-said principles have been placed reliance upon
in a recent judgment reported as Sidram Vs. The Divisional
Manager United India Insurance Co. Ltd and Anr., arising out
of SLP (Civil) no. 19277 of 2018 passed by Hon'ble Supreme
Court of India as decided on 16.11.2022.
46. It is settled proposition of law as held in catena of
judgments that "just compensation" should include all elements
that would go to place the victim in as near a position as she or
he was in, before the occurrence of the accident. Whilst no
amount of money or other material compensation can erase the
trauma, pain and suffering that a victim undergoes after a serious
accident, (or replace the loss of a loved one), monetary
compensation is the manner known to law, whereby society
assures some measure of restitution to those who survive, and the
victims who have to face their lives.
Bar of Sec. 53 of ESI Act
47. Before computing the benefits availed by injured from
ESIC, it is imperative to answer one of the arguments raised in
this matter as to whether the injury sustained by injured can be
classified as 'Employment Injury' within the meaning of The
Employee's State Insurance Act 1948 (hereinafter referred as
ESIC Act), for if it was so, would disentitle the insured person
from claiming any compensation or damages under the Motor
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Vehicle's Act on account of a statutory bar created by virtue of
Sec. 53 of the Employee's State Insurance Act 1948 which is
reproduced hereunder for clarity in further discussion:
"53. Bar against receiving or recovery of
compensation or damages under any other law: An
insured person or his dependents shall not be entitled
to receive or recover, whether from the employer of the
insured person or from any other person, any
compensation or damages under the Workmens
Compensation Act, 1923 (8 of 1923), or any other law
for the time being in force or otherwise, in respect of
an employment injury sustained by the insured person
as an employee under this Act."
48. The Employees State Insurance Act was enacted to provide
benefits to employees in case of sickness, maternity and
employment injury. Imperative at this stage is to understand the
meaning of 'Employment Injury' as provided in Section 2 (8) of
ESIC Act which is provided hereunder:
Section 2(8) in The Employees' State Insurance Act, 1948:
(8)"employment injury" means a personal injury to an
employee caused by accident or an occupational disease
arising out of and in the course of his employment, being an
insurable employment, whether the accident occurs or the
occupational disease is contracted within or outside the
territorial limits of India ;
49. There is no dispute that injured is an 'Employee' within
the meaning of Section 2(9) of ESIC Act 1948 having been
directly employed by the principal employer for the work of
stitching directly connected with the work of establishment,
making regular contributions in accordance with the provisions
of the Act.
50. The case at hand involves personal injury to an employee
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caused by an accident so the key point is to assess whether that
accident arose out of and in the course of employment being an
insurable employment or not. Again it is clear that the employee
was insured during the course of his employment and was duly
assigned an insurance number as mentioned in the e-pehchan
card issued by ESIC placed on record as Ex.PW3/1 and
Ex.PW4/2.
51. Petitioner has examined four witnesses on this count. PW-
1 testified that his employer had issued ESI card to him. He has
placed on record copy of ESI Card as Ex.PW1/2. The ESI
number is also mentioned on the payslip Ex.PW1/1 as well as on
Ex.PW1/22. Further, both the payslips contain the description of
contribution made by the employee towards availing the services
of ESI. PW3 and PW-4 have placed on record e-pehchan card
containing the registration details of injured with Employee State
Insurance Corporation with date of registration as 22.02.2012
and insurance number as 2014284262. It also contains the
employer details as testified by PW-1 injured in his affidavit.
PW-3 Sh. Radhey Shyam produced the summoned record of e-
pehchan card issued to injured by ESIC and the contribution
details, as per Form 5 (in terms of Regulation 26) for the period
between October 2017 to March 2018 respectively by employer
and employee towards ESIC as Ex.PW3/1 (colly), as per which
the average daily wage of employee for the above noted period
has been mentioned to be Rs. 390/-. PW-4 appeared as an official
from ESIC and produced ESIC covered policy of injured along
with the yearly contribution details from 01.10.2010 to
31.03.2019 and monthly contribution details from February 2018
to March 2019. There is thus no dispute in this matter that Lalji
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Yadav was covered as an employee for stipulated benefits under
the ESI Act and was making regular contributions in addition to
those successively made by the employer, to avail the entitlement
to benefits as well as insurance under the ESI Act.
52. Section 2 (8) of ESI Act envisages a personal injury to an
employee caused by an accident arising out of in the course of
his employment. The term 'employment injury' was construed in
the case of South Maitland Railways Proprietary Limited v.
James (67 CLR 496) as one having its origin in the
employment. Similarly, the phrase "in the course of
employment" is construed as 'causation during employment'.
The term 'employment injury' has been elaborately discussed in
the judgment titled as The Regional Director, E.S.I.
Corporation & Anr. v Francis De Costa & Anr [1993 Supp
(4) SCC 100] and introduced the test of "any activity being
reasonably incidental to the employment of an employee" to
qualify as one "in the course of his employment".
53. The meaning of the phrase "in the course of his
employment" was also examined in the case of Saurashtra Salt
Manufacturing Co. v Bai Valu Raja AIR 1958 SC 881 as also
relied in the case of The Regional Director (supra) wherein
Hon'ble Supreme Court of India made following observations :
"As a rule the employment of a workman does not
commence until he has reached the place of
employment and does not continue when he had left
the place of incident, the journey to and from the place
of employment being excluded".
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54. Hon'ble SC, however, also observed in the aforementioned
matter that there might be some special cases where reasonable
extensions of time and place could be considered for any injury
sustained beyond the actual working hour outside the premises of
the employer and that facts and circumstances of each case
would have have to be independently examined to determine
whether or not the accident can qualify to be one arising out of
and in the course of employment, granting the notional
extension.
55. It is thus settled that the basic proposition of employment
injury would limit itself to the injury caused to an employee
while being at the place of employment and during working
hours, subject however to the theory of notional extension of the
employer premises or the duration of duty/ employment. It is also
settled that there must be a causal connection between the
accident and the employment.
56. In the case at hand, injured left the work premises at M/s
Wearwell India Private Limited, based at Okhla Industrial Area
and was on his way back to his residence when the accident
happened as he was to cross the road to board a bus that he got
hit by offending vehicle. This was precisely the issue before the
Hon'ble Supreme Court of India in the case of Fransis De Costa
(supra) where a person was going from his home to his place of
work when he suffered injury in an accident and it was held that
it does not arise out of and in the course of his employment. The
accident in the instant case happened on a public road which was
accessible to general public and the injured was present there as
member of general public. The observations made in the case of
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Saurashtra Salt (supra) are relevant in the context which read
as under:
"It is well settled that when a workman is on a public
place or on a public road or on a public transport, is
there and any other member of the public and is not
there in the course of employment unless the very
nature of his employment makes it necessary for him
to be there."
57. It was also specifically observed therein that "walking to
the bus stop from the employees residence and boarding the
bus for going to the place of work cannot be acts in the course
of employment".
58. Summing the position, having discussing various
pronouncement of Hon'ble Supreme Court of India, in the case
of Tata AIG Gen. Insurance Company Limted Vs. Ram Avtar
& Ors, FAO No. 3878 of 2015 (O & M) observed that it is quite
clear that the injury in question should have been caused during
the performance of the job requirements in the premises of the
employment or if the same are caused any where outside the
premises of the employment, the same should have been caused
in an accident which has a reasonable and incidental connection
to the employment, only then the injury sustained by the
injured/deceased could be treated as an employment injury.
59. It is imperative at this juncture to discuss Sec. 51(E) of ESI
Act inserted vide Amendment w.e.f. 01.06.2010 which
introduced a legal fiction as any accidental injury caused to an
employee while commuting to or fro from his residence to place
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of employment is deemed to have arisen and in course of
employment. Same is being reproduced here under for further
discussion:
"Sec.51(E) Accidents happening while commuting to
the place of work and vice versa.
An accident occurring to an employee while
commuting from his residence to the place of
employment for duty or from the place of employment
to his residence after performing duty, shall be
deemed to have arisen out of and in the course of
employment if nexus between the circumstances, time
and place in which the accident occurred and the
employment is established."
60. The position subsequent to insertion of Sec. 51 (E) ESI Act
was discussed in the judgment Tata AIG (Supra), the relevant
extract of which is being reproduced herein under for the purpose
of further discussion:
"Although Section 51 E, which has been added w.e.f.
01.06.2000 in the Act, creates the deeming fiction that an
accident occurring to an employee while commuting from
his residence to the place of employment for duty or from
the place of employment to his residence after performing
the duty shall be deemed to have arisen 'out of' and 'in
course' of employment, however, this deeming fiction is
also not absolute in its terms. Section itself makes it clear
that injury sustained by the employee shall be deemed to
be the 'employment injury', when coming to or going
from the place of work, only if the employment has a
nexus with the circumstances, time and place in which
the accident occurred. Hence this again takes the point
back to the judgment of the Hon'ble Supreme Court
rendered in the Regional Director, E.S.I Corporation's case
(supra) which has laid down that if the injury is sustained
by the employee out side the premises and hours of the
employment then such injury must have reasonable and
incidental connection to the employment as such. Hence
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mere incorporation of the Section 51 E can not, per se,
exclude the claim under the Motor Vehicle Act for an
accident which happened during the time when person
was, allegedly, going to his home after the duty hours.
Ingredients of Section 51 E of the Act has to be pleaded and
proved by the Insurance Company to invoke Section 53 of
the Act"
61. It is thus evident that insertion of Sec. 51 (E) of ESI Act
does create a legal fiction by expressly including the commuting
to and fro from the place of employment as one included within
the course of employment. Section 51 (E) ESI Act stipulates a
statutory presumption in favour of employee, if he suffers an
injury while going to his work place for his duty or by coming
back to his residence from his place of work, as included within
the duration and place of employment. Thus, a notional extension
has been conceived by way of this provision for inclusion of
necessary and compulsive commuting to attend to the assigned
duties. Bare perusal of the provision, however, indicates that this
notional extension is qualified with the requirement of proving
the 'nexus of employment with the circumstance, time and
place of the accident'. Therefore, it is imperative to establish the
causal connection between employment and the injuries
sustained, thus the accident cannot be exclusive and independent
to the job requirements and efficient performance. To conclude,
the injuries sustained must have reasonable and incidental
connection to the employment of the employee.
62. In the present case, injured has affirmed that he met with
an accident while commuting back from his work place to his
residence but there is nothing pleaded to show that his presence
at the spot of accident or having met with an accident had
anything to do with the factum of his employment. Injured was
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incidentally present on a public road as a public person, open and
accessible to the general public, where he was hit a third person,
allegedly driving his vehicle rashly, who and which has nothing
to do with injured as an employee or his employer under the ages
of ESI Act or the nature of employment details to avail the
benefits, admissible under ESI Act. It thus, cannot be said that
the injuries sustained by way of road traffic accident had any
causal or incidental connection with the employment of injured
whatsoever and therefore, the injuries do not qualify to be
'employment injuries' within the meaning of Section 2(8) of ESI
Act.
63. It is also noted that the insurance company or driver and
owner have neither pleaded nor proved the injuries sustained in
the accident to be employment injuries. Thus the applicability of
Sec. 53 of ESI Act has not been invoked by the insurance
company.
64. Evidentally, as also mentioned above, certain sickness and
extended sickness benefits have been availed by injured during
the course of his absence from duty on account of injuries
sustained in an accident but that would not debar or incapacitate
or disqualify him to claim compensation under the Motor
Vehicle's Act, as per rules. Clarifying the aspect, Hon'ble Punjab
and Haryana High Court has held in the case of Tata AIG (supra)
that Sec. 53 of ESI Act operates only with respect to certain
benefits received by an employee from an employer, barring
receipt of 'similar benefits' admissible under any other enactment
from the employer against the same injury. Certain relevant
extracts of the said judgment are being reproduced hereunder to
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facilitate further discussion:
"Otherwise also, the word 'as an employee' under this Act;
as mentioned in the last line of Section 53 of the Act is also
not without any significance. These words would make it
clear that the bar against claiming compensation from
anywhere else is contemplated only if the injured/deceased
sustained the injuries as an employee under this Act. This
would show that the bar created by Section 53 of the Act
would be only regarding any other any other subsequent
compensation, if claimed, by the injured or the dependents;
in the capacity of injured/deceased being an employee
under the ESI Act. This would mean that it is not the claim
of compensation under Motor Vehicles Act which would be
excluded by Section 53 of the Act, rather, it would be any
other compensation, if claimed, under any other Act having
provisions for similar compensation for the employees as
defined under the ESI Act. This means that Section 53 of the
Act only bars receipt of compensation from the employer or
any other person under any other labour law which might
be providing compensations for the employees/workmen.
This is also clarified by the provision of Section 61 of the
Act; which specifically says that once a person is provided
benefit under the ESI Act, he shall not be entitled to receipt
any 'similar benefits' admissible under the provisions of any
other enactment. Giving any other unrestricted
interpretation to the provisions of Section 53 of the Act
would render the Section 61 of the Act as superfluous. And
it is well settled that the legislature can not be deemed to
have wasted words in any Section of a statute, much less to
speak of wasting of a full Section of statute, like Section 61
of the ESI Act. Hence read with Section 61 of the Act, the
Section 53 can be interpreted to prohibit only a second
claim of similar compensation in his capacity as employee
from the employer or from any person required to
compensate such an injured person /dependent in his
capacity as an employee under the ESI Act. Since there is
no commonality between the benefits available under Motor
Vehicles Act and under the provisions of ESI Act, therefor,
the provisions of two Acts can not be mixed up to deny
compensation to a person under Motor Vehicle Act. In a
given case, even the monthly interest earned on the amount
awarded under Motor Vehicles Act can be many fold higher
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than the total amount of benefits available under the
provisions of ESI Act. Hence the benefits available under
these two enactments are altogether different and
separate."
65. It is thus concluded that the bar contemplated by Sec.
53 of ESI Act has no applicability in the present case in so
much so that it has a limited and qualified expanse and is not
exclusive to the benefits conceived by the legislation of Motor
Vehicle Act, further, that the availing of certain benefits
under the ESI Act is no impediment for the injured to claim
compensation under the Motor Vehicle Act.
Determination of Quantum of Compensation
66. It is observed by Hon'ble Supreme Court of India in K.
Suresh v. New India Assurance Co. Ltd (2012) 12 SCC 274 as
under:
"10. It is noteworthy to state that an adjudicating authority,
while determining the quantum of compensation, has to
keep in view the sufferings of the injured person which
would include his inability to lead a full life, his incapacity
to enjoy the normal amenities which he would have enjoyed
but for the injuries and his ability to earn as much as he
used to earn or could have earned. Hence, while computing
compensation the approach of the Tribunal or a court has
to be broad- based. Needless to say, it would involve some
guesswork as there cannot be any mathematical exactitude
or a precise formula to determine the quantum of
compensation. In determination of compensation the
fundamental criterion of "just compensation" should be
inhered."
67. Compensation is payable under several heads as laid in the
case of Raj Kumar (Supra), broadly classified in pecuniary and
non-pecuniary heads. Relevant extracts of the aforesaid judgment
wherein the heads under which the compensation is to be
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awarded have been delineated in personal injury matter are
reproduced hereunder for further discussion:
6. The heads under which compensation is awarded
in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
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.
7. 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
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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.
Decisions of this Court and the 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.
68. The determination of quantum of compensation towards
pecuniary head is taken up first.
PECUNIARY LOSS
69. Damages under pecuniary heads primarily involves
reimbursement of actual amount spent on account of injury
suffered in an accident to undo the monetary loss, suffered by the
claimant, as ascertainable from the evidence on record. Given
hereunder are various heads under which compensation for
pecuniary loss is assessed:
69 (a) Expenditure on Medical Treatment:
(i) PW-1 remained admitted in Jai Prakash Narain Apex
Trauma Center, AIIMS Hospital for 2 days post accident.
Subsequently he was referred to Saket City Hospital by ESIC
Hospital, Okhla wherein he remained admitted for about 7 days.
(ii) PW-1 deposed that he had undergone ORIF Right Leg
with artificial bone grafting for fractured injury and incurred
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expenses of Rs. 53,515/- in total wherein he testified original
invoices of miscellaneous medical expenditure as Ex.PW1/11 to
Ex.PW1/17 for sum of Rs. 2,205/- and a bill of Saket City
Hospital for Rs. 51,310/- (Ex.PW1/18). As such, it is held that
claimant has spent Rs. 53,515/- in total towards loss of
expenditure on treatment and he is awarded Rs. 53,515/- under
this head.
69 (b) Expenditure on Conveyance:
(i) Claimant has not filed any bills towards expenditure on
conveyance. The nature of injuries are grievous with 08%
permanent physical impairment in relation to his right lower
limb. Claimant could not report to his work and remained under
constant medical treatment and supervision. It is logical that he
must have incurred expenses for his frequent visits to the
hospital. The expenditure towards conveyance is compositely
awarded as Rs. 15,000/-.
69 (c) Expenditure on Special Diet:
(i) Claimant has not filed any prescription containing
recommendation for special diet, however, given his medical
condition, it must have been imperative to eat nutritious and
healthy diet for faster and efficient improvement. Claimant
remained under active medical treatment for more than six
months. Accordingly, an amount of Rs. 15,000/- is awarded to
claimant towards expenditure on special diet.
69 (d) Expenditure for attendant:
(i) Claimant has not filed any bills to show that he had made
payment towards attendant charges, however, it is settled that
these charges have to be conventionally paid even if the attendant
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duties have been performed by the family members. It is seen
from the medical prescriptions that claimant remained
hospitalized for about 7 days and subsequently was advised bed
rest in almost all the prescriptions for 6 months. Therefore, it is
understandable that he must not been in a fit medical state to
attend to his generic requirements for early healing needs and
therefore, must have been dependent for his basic day to day
needs upon his family members. Considering the duration for
which he was required to tended, composite attendant charges of
Rs. 20,000/- are hereby awarded.
(ii) It is noted that PW-1 himself testified having spent
Rs.50,000/- upon travelling / conveyance and attendant charges
without any bifurcation. As such, Rs.50,000/- as bifurcated under
various heads in aforesaid discussion has been awarded to the
claimant.
69 (e) Loss of earning during the period of treatment:
(i) PW-1 testified that he was employed as a tailor in a private
company namely M/s Wearwell India Private Limited, based at
Okhla Industrial Area on a monthly salary of Rs. 10998/-per
month. He has relied upon salary slip issued by such employer as
Ex.PW1/1. On this limited aspect, he clarified in the cross
examination that he worked on a motorised machine operated by
foot and he did not receive any salary from his employer for
those six months that he could not work due to injuries sustained
in the accident. Further, he deposed that his salary has increased
to Rs. 11,830/- as per salary slip Ex.PW1/22, however, he
declined suggestion that he did not suffer any financial loss due
to the accident as his salary actually increased from the date of
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accident. There is thus no denial per se on record that the injured
was employed as a tailor on the date of accident while he used to
operate a motorized machine involving use of his feet. Two
salary slips, pertaining the month of May, 2015 and April, 2017
clearly reflect the name of company with employee code and
designation of injured as 'Tailor' with assigned department of
'Stitching' with date of joining as 01.11.2011. As per salary slip
of May 2015, his basic salary has been mentioned to be Rs.
10,998/- whereas accident happened on 06.08.2015. Therefore,
his basic salary which is Rs. 10,998/- is taken to be his monthly
earning as on the date of accident.
(ii) It is testified by PW-1 Lalji yadav that the doctor
prescribed rest to him for six months after the accident, for which
period he did not receive any salary from his employee. It is
evident from the record that the PCR van rushed the injured to
the Trauma Center after the accident on the night of 06.08.2015
where he was admitted and treated and subsequently discharged
on 07.08.2015 vide MLC Ex.PW1/3 and discharge summary
Ex.PW1/4 colly. Subsequently, he went for treatment for ESI
Hospital Okhla on the same day. Copy of the OPD register
reflecting his name is placed on record is Ex.PW2/1. OPD detail
visits of injured have been placed on record by PW-5 Ms.
Elizabeth as Ex.PW5/2 which reflects the OPD visits during the
period and also that the patient was referred to Saket City
Hospital for further treatment. Thereafter, injured was admitted
in Saket City Hospital since 08.08.2015 and got discharged on
13.8.2015. The treatment record along with discharge summary
has been filed on record Ex.PW1/8 to Ex.PW1/10 coly. Further,
OPD Cards placed on record by claimant for dated 07.08.2015,
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13.08.2018, 15.08.2015, 17.08.2015, 04.09.2015, 11.09.2015,
05.10.2015, 02.11.2015, 09.11.2015, 27.11.2015 and 04.12.2015,
29.01.2016 and 17.03.2016 as Ex.PW1/5 to Ex.PW1/7 (colly).
He has been advised bed rest in almost all the OPD tickets
starting from 07.08.2015 till 28.12.2015. He was prescribed to be
fit to join duty during his examination on 29.01.2016 by Ortho
Specialist, ESIC Hospital, Okhla. This OPD Ticket is placed on
record as Ex.PW1/5.
(iii) Further ledger sheet placed on record as Ex.PW4/1 (colly)
reflects that he has availed the sickness benefit from 22.08.2015
to 29.01.2016 which also corroborate with the contention that
claimant has suffered loss of income for atleast 6 months from
the date of accident.
(iv) PW-1 has testified that he did not receive any salary for the
period of his absence from duty during treatment post accident.
There is no counter contention that PW-1 continued to draw
salary even during period of medical rest. As mentioned above,
he received the sickness benefit for the period of absence from
duty. Sec. 63 of ESI Act bars the entitlement of any person to
receive sickness benefit for any period in respect of which he
receives wages. Section 63 of ESI Act reads as under:
"Sec. 63. Persons not entitled to receive benefit in
certain cases.
Save as may be provided in the regulations, no person
shall be entitled to sickness benefit or disablement
benefit for temporary disablement on any day on
which he works or remains on leave or on a holiday in
respect of which he receives wages or on any day on
which he remains on strike"
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(v) It is thus not in dispute that Lal Ji Yadav suffered loss of
income for 6 months post accident when he was prescribed
medical rest and was under active medical treatment under the
supervision of competent doctors. The actual loss of income
would thus be Rs.65,988/- (10998 X 6).
(vi) It is not in dispute that the petitioner has received sickness
benefit from ESI for the period of absence from duty and
therefore, those benefits ought to be deducted from the actual
loss of income suffered during the relevant period. PW-1 stated
in cross examination that he received Rs. 28,000/- from ESIC
and then altered the figure to Rs. 33,000/- as such, PW-3 and
PW-4 filed on record the ledger sheet and the details of the
amount received by the claimant towards sickness benefit, as per
which, he received Rs. 45,072/- towards the sickness as well as
extended sickness benefit. Therefore, the actual loss of income
would be Rs. 20,916/- (Rs. 65,988- 45,072).
69 (f) Loss of future earning on account of permanent
disability:
(i) It is settled that a person is required to be compensated not
just for the physical injury but also for the loss he has suffered as
well as the loss which he might entail for the rest of his life on
account of those injuries which he sustained in the accident. This
necessarily means that he is required to be compensated for his
inability to lead a full life, his inability to enjoy normal
amenities, which he would have enjoyed but for the injury, his
inability to earn as much as he used to earn or could have earned.
(Support drawn from the judgment titled as C. K.
Subramania Iyer v. T. Kunhikuttan Nair (1969) 3 SCC 64.
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(ii) Claimant was directed to be assessed for his disability vide
order dated 29.04.2017. Disability Assessment Certificate was
received in compliance of order dated 29.04.2017 as per which,
claimant had suffered 8% permanent disability in relation to his
right lower limb. This assessment of disability of injured has not
been disputed by any of the respondents.
(iii) Before proceeding further, it is important to understand as
to what disability means and also types thereof. This aspect has
been delved into by Hon'ble SC in Raj Kumar (supra):
"8. 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 accident 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
("the 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
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purpose of claiming compensation."
(iv) The term 'disability' means the decrements to the
functional efficacy of body of injured whereas 'functioning'
encompass all the body functions and activities for an
independent life. Functional disability is to determine the
extent of loss or extent of restrictive functionality considering
the nature of activities required to be necessarily performed
in efficient discharge of duties and the limb effected. This
computes the extent of adverse effect of physical disability
upon the functional efficacy of an injured person, in turn
adversely impacting his earning capacity. The process entails
understanding and enumerating the skill set required for
performing specific activities. To sum up, functional
disability basically measures the extent of ability having been
compromised to carry out basic everyday tasks or even more
complex tasks required for and independent living. The
limitations may occur on account of disability in the personal
sphere, in the social sphere and in the occupational sphere. In
the personal sphere it may encompass the daily activities of a
person, his body function and his involvement in basis life
situations. At the societal level, it could mean difficulty in
involvement and participation in social and community
activities interfering the interpersonal interaction and
relationship adversely impacting the civic life. When
disability restricts the vocation or employment avenues to
make earning for his living, it falls in the category of
disability in the occupational sphere. The disability might
occur on account of age or any illness and in the case at hand
MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 40 of 70
by way of an accident. A person living a normal life in
particular set of circumstance and making his living by
engaging in any work has suffered disability which might
impead his daily life activities, both on a personal and social
scale and might also impact his ability to continue earning as
much as before and his future employment avenues.
(v) What is thus required to be assessed is the effect and
impact of disability upon the working efficiency of injured and
whether it would adversely impact his earning capabilities in
future. It is settled that the Tribunal should not mechanically
apply the percentage of permanent disability as the percentage of
economic loss or loss of earning capacity.
(vi) Hon'ble SC laid down certain guidelines for the Tribunal
to be able to arrive at an objective figure to quantify the loss for
the purpose of computing the compensation in the judgment of
Raj Kumar (supra). Relevant extracts of this judgment for the
purpose of further discussion are reproduced hereunder:
"Assessment of future loss of earnings due to permanent
disability
9. 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
MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 41 of 70
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%.
10. 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, the 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.
11. What requires to be assessed by the Tribunal is the
effect of the permanent 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 terms of money, to
arrive at the future loss of earnings (by applying the
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 the 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
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Court in Arvind Kumar Mishra v. New India Assurance
Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri)
1258 : (2010) 10 Scale 298] and Yadava Kumar v.
National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. 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.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent disability (this is also relevant for awarding
compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation,
profession and nature of work before the accident, as
also his age. The third step is to find out whether (i) the
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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.
.
.
.
.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 44 of 70 of profession, occupation or job, age, education and other factors."
(vii) Further in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC), the question at hand was deliberated and following observations as relevant in the context were made:
"In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle- rickshaw-puller.
(viii) The question of assessment of impact of disability on the earning capacity has been dealt in several cases but it is understood that each case has to be evaluated on its contextual dynamics established by way of evidence at hand. It brings us to a question whether extent of permanent disability as medically MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 45 of 70 determined can simply be taken to be the extent of functional disability and hence, the loss of earning capacity. It has been held in various pronouncements of Hon'ble Supreme Court of India and Hon'ble High Court that equating the two as a criteria would result in an inobjective and absurd compensation. There however, might be certain cases where the two would correspond to each other but it cannot be mechanically applied rather requires evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
(ix) In the present case, the disability of injured has been assessed by a medical board constituted upon the direction of the court as 8% in relation to the right lower limb. Therefore, by way of inference, it can be stated that the disability has not been expressed by the doctor in reference to the whole body. What is the role of that partially disabled limb in respect of the employment of injured is a separate question altogether. It is settled that any mechanical arithmetic formula cannot be applied to determined the impact of injury upon the income generating capacity of the victim and same is required to be judged in relation to the profession, vocation or business of the victim.
(support drawn from the case of Pappu Deo Yadav v. Naresh Kumar & Ors., AIR 2020 SC 4424).
(x) Coming to the case at hand, injured was employed as a tailor in a private company where he worked on a motorised machine involving use of his foot. It is not in dispute that the injured joined back in the same company post treatment upon the same designation in the same department as evident from the salary slip (Ex.PW1/1) placed in evidence. PW -1 was suggested MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 46 of 70 in cross examination by insurance company that he did not suffer any loss of earning capacity as his salary eventually increased marginally upon joining post treatment which was denied by him. It was also argued by counsel for the insurance company that the person could engage in tailoring work on a machine completely usable only by hands without involvement of foot. This aspect of change of vocation or manner of work was dealt in the case of Mohan Soni vs Ram Avtar Tomar & Ors, SLP (CIVIL) NO.9850 of 2010 wherein it was held as under:
"Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income."
(xi) Injured cannot be asked to compulsorily shift his manner of work or availability of any alternative medium to deliver work, to state that all was well with him and as such his disability cannot be stated to have any impact on his functional efficiency. The partially disabled limb is required to be extensively used in the operation and application of the motorised stitching machine. The injured would not be able to deliver the same amount of work with the ease as pre accident period and a marginal MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 47 of 70 decrease in efficiency is reasonable to be expected. Further, it is not that the injured would not be required to move around for due performance of his duties. Also daily commuting is part and parcel to and fro the work place is part and parcel of his work expectations. In the above backdrop, the functional impairment of injured in relation to his work is assessed at 5% and shall be used in computing the loss of future income.
69 (g) Determination of future loss of income
(i) PW-1 has filed his Aadhar Card as Ec.PW1/19 on record as per which his date of birth is 01.01.1984, therefore, his age as on the date of accident was 31 years. The multiplier method was coined by Hon'ble Supreme Court of India in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr. Civil Appeal No. 3483 of 2008, decided on 15.04.2009 to ascertain the future loss of income in relation to the age of the deceased, in order to bring about the uniformity and consistency in determination of compensation payable in fatal and serious injuries matters. Relevant observations with respect to the multiplier method in the abovementioned case read as under:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
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(ii) The standard multiplier method was directed to be applied not only to ascertain the loss of dependancy in fatal accident case but also to determine future loss of earning in serious disability matters as well {as laid in the case of Raj Kumar (supra)}. In a recent Judgment of Pappu Dev Yadav (supra), Hon'ble Supreme Court of India relied upon and reiterated the principles laid in various judgments passed by it in the case of Sr. Antony @ Antony Swamy Vs. Managing Director KSRTC, Civil Appeal No. 2551 of 2018 and held that stereotypical or myopic approach must be avoided and pragmatic reality of life must be taken into account to determine the impact of extent of disability upon the income generated capacity of victim. It is also held therein that future prospect (as laid down in the well considered judgment of National Insurance Company Vs. Pranay Sethi (2017) 16 SCC 680) shall be payable, not only in fatal cases but also in the case of permanent disability. The observations made in the said case as relevant to the context are reproduced hereunder:
"6. The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions.
7. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683. This court referred to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551; Nizam's Institute of Medical Sciences v. Prasanth S. MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 49 of 70 Dhananka (2009) 6 SCC 1; Reshma Kumari v. Madan Mohan (2009) 13 SCC 422; Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. Govind Yadav spelt out these principles by stating that the courts should, "in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." These decisions were also followed in ICICI Lombard General Insurance Co. Ltd. v. Ajay Kumar Mohanty, (2018) 3 SCC 686. prospects too; and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three-judge bench decision in Jagdish was not binding, but rather that the subsequent decision in Anant10 to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi11 is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases -
and admits such possibility of future prospects, in case of the victim's death.
.
.
(iii) Hon'ble Supreme Court further discussed several cases involving permanent disability and observed as under:
20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads.
MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 50 of 70 .
.
....What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected".
(iv) As per Aadhar Card Ex.PW1/19, age of injured was 32 yeas. As injured was below the age of 40 years (at the time of accident) and was employed on a fixed salary, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 40 % upon application of category of ''self-employed or on a fixed salary''.
(v) The income of the injured per annum as determined upon appreciation of evidence, thus, forms the multiplicand. A table of multiplier with reference to the age was laid down by Hon'ble Supreme Court of India. The appropriate multiplier, applicable in this case would be 16 (for age between 31 to 35 years).
(vi) In view of the above discussion of law, the calculation under future loss of income in the present case is as under:
(a) Annual income (Rs. 10,998 x 12) = Rs. 1,31,976/-
(b) Future prospect (40% of 1,31,976) = Rs. 52,790/-
__________________
(c) Total = Rs. 1,84,766/-
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(d) Thus, Multiplicand = Rs. 1,84,766/-.
(e) Hence, the 'Total Loss of Future Income' shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
5% (1,84,766 X 16) = Rs. 1,47,812/- 69 (h) Future medical expenses: (i) The evidence on record does not show that claimant will
be required to take treatment from time to time to maintain his health condition. No evidence has been adduced by claimant in respect of any future treatment on account of injuries suffered. Therefore, any compensation under this head is not being awarded.
NON-PECUNIARY LOSS
70. Compensation under non-pecuniary heads involves objective assessment of the damages in a bid to undo the loss, the injured would incur on account of his inability to a normal life and earn as much as he would, but for the injuries sustained. The whole idea behind assessment for damages for compensation is to put the claimant in the same position in so far as money can. The very nature of these damages, compulsorily involves some guesswork and hypothetical considerations, however, efforts should be made to adjudicate these on the basis of objective parameters rather than guided by subjective sympathy. The nature and severity of injury, the age, nature of disability are some of those parameters. Given hereunder are various heads under which compensation for non-pecuniary loss (general MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 52 of 70 damages) is assessed:
70 (a) Damages for pain, suffering and trauma on account of injuries:
(i) The mental and physical loss cannot always be arithmetically computed in terms of money. These form the intangible losses suffered by injured for no fault of his. Although any form of human suffering cannot be equated in money, however, the object remains to compensate in so far as the money can compensate (support drawn from R. D. Hattangadi (supra)).
Certain factors were also laid down for consideration in the case of The Divisional Controller, KSRTC vs Mahadeva Shetty And Anr Appeal (Civil) 5453 of 2003 further relied in the case of Sidram (supra) for awarding compensation for pain and suffering. The observations made in the aforesaid case as relevant to the context are reproduced hereunder:
"113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 53 of 70 and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)]
(ii) Hon'ble Supreme Court of India in the case of K. Suresh (supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
(iii) The nature of injuries are grievous with 08% permanent physical impairment in relation to right lower limb. He also remained bed ridden for about 6 months. It is self evident that the physical disability is bound to cause mental and psychological impact on the injured, also adversely effecting his confidence level and his ability to render support to himself as well as to his family with a feeling of lack, always lurking in the back of his mind. As such, an amount of Rs.50,000/- is awarded to the claimant against pain, suffering and and trauma sustained in the accident.
70 (b) Loss of amenities of life:
(i) It compensates the victim on account of his inability to enjoy the basis amenities of life as any other normal person can, taking into account the age and the deprivation he would have to MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 54 of 70 undergo and suffer due to injuries. Certain observations were made by Hon'ble High Court of Gujrat in the case of Vijaykumar Babulal Modi vs State Of Gujarat SPECIAL CIVIL APPLICATION NO. 20488 of 2017 referred by HSC in the case of Sidram (supra) which is reproduced hereunder:
"It appears that the claim under this head is to the tune of Rs.3 lac. However, the Tribunal has not awarded any sum under the head 'loss of amenities'. We are of the opinion that this head must take into account all aspects of a normal life that have been lost due to the injury caused. As per R.D. Hattangadi's case (supra), this includes a variety of matters such as the inability to walk, run or sit, etc. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of ability to freely move or travel without assistance. Then, there is the virtual impossibility of marriage as well as a complete loss of the ability to have sex and to have and nurture children."
(ii) In the case at hand, injured is family man and in his free movement is impeded on account of partial permanent disability in his right limb which might deprive him of pleasurable living. It is noted that future loss of earning has already been granted however, nominal lumsum amount of Rs. 20,000/- is granted under this head.
71. There is no loss of marriage prospect or disfigurement or reduction in longevity of life. Therefore, no compensation is being awarded under these heads.
72. The compensation awarded against pecuniary and non- pecuniary damages under various heads is being sequentially put in a tabulated form hereunder for ease of reference to all concerned:
MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 55 of 70 Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : As Rs. 53,515/-
discussed above.
(ii) Expenditure on Conveyance : As Rs. 15,000/- discussed above.
(iii) Expenditure on special diet : As Rs.15,000/- discussed above.
(iv) Cost of nursing / attendant : Rs.20,000/-
(v) Loss of income : Rs. 20,916/-
(vi) Cost of artificial limbs (if NA
applicable) :
(iii) Percentage of loss of earning 5%
capacity in relation to disability: As
already discuss above.
(vii) Any other loss / expenditure : NA
(viii) Loss of future income: 5% of (Rs.
10,998/- + 40%
of 10998/-) x 12
x 16 = Rs.
1,47,812/-
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 50,000/-
trauma on account of injuries:
(ii) Loss of amenities of life Rs. 20,000/-
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
(v) Future medical expenses Nil
Total Compensation Rs.
Deduction, if any, Nil
MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 56 of 70
Total Compensation after deduction Rs. 3,42,243/-
Interest As directed
below
73. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty, learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MV Act 1988.
Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 57 of 70 forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
74. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811-2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
75. The total compensation is Rs. 3,42,243/- which shall be payable to the claimant along with to simple interest @9% p.a. from the date of filing of DAR till actual realization of Award amount/compensation.
MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 58 of 70 LIABILITY
76. Having adjudicated upon the quantum of compensation, it is essential to determine as to who would be liable to pay the said compensation to the claimant. In reply to DAR, driver/ R-1 only stated that he was driving on the right side and as such he attributed accident to the negligence of claimant himself. No reply filed on behalf of R-2. Subsequently R-1 also stopped appearing before the court while R-2 never contested the claim by claimant. Both R-1 & 2 chose not to lead any evidence. None of them conducted cross examination of any witness of the claimant. The negligence on the part of Respondent no.1 in causing the accident has already been established in issue no. 1 which need not be deliberated again.
77. It is mentioned in the reply filed by R-1 that the offending vehicle was being driven by him at the time of accident and he had valid and effective driving license on the date of accident. He also stated that the said vehicle was insured with M/s Reliance Gen. Ins. Co. Ltd. Copy of this policy was filed along with the DAR. Counsel for the insurance company filed reply disputing the genuineness of this policy contending that the alleged policy relied by R-1 & 2 has never been issued by the respondent company to Mr. Nitin Dhingra, owner of offending motorcycle. It is also submitted that DL furnished by Respondent No.1 only authorised him to drive LMV (NT) and that there is no endorsement to drive two -wheeler or a motorcycle thus driving license of R-1 cannot be stated to be valid on the date of accident. An application under Order 1 Rule 10 CPC was also filed by R-3/ Insurance Company seeking its deletion on account of fake policy as noted in the order dated 17.05.2016. However, MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 59 of 70 said application was not disposed off and the matter stood listed for recording of evidence.
78. To prove its contention, R-3/ Insurance Company examined R-3W1 Sh. Sayok Bandhopadhyay, Legal Claims Manager at Reliance Gen. Ins. Co. Ltd and who tendered his evidentiary affidavit Ex.R3W1/A and relied upon documents. He was put to detailed cross examination by counsel for the petitioner. He testified that R-3 bears no liability to indemnify the owner of offending vehicle against any liability arising out of accident in question as the alleged policy bearing no. 13932347485348513447662 relied by owner filed as part of DAR Ex.PW1/20 is a forged and fabricated document as insurance company has never issued the said Insurance Policy to Mr. Nithin Dhingra. He has placed on record a certification dated 03.05.2016 issued by the Operation Manager of Insurance Company, copy of which was filed as part of DAR, whereby it was certified that the alleged policy for the offending vehicle was never issued by R-3 as per the company records. This certification has been proved by R-3 as Ex.R3W1/1. It is affirmed by R3W1 that the said policy does not exist as per the company records. It is further stated that the fake policy bears a certificate number in access of 16 digits whereas premium certificate number assigned to all the contemporary policies do not exceed 16 digits. Further, that in all such policies, the name of intermediary is mentioned along with the corresponding code which is not the case with the alleged policy. R-3W1 relied upon certain attested copies of sample insurance policies of two wheeler for ready reference for the court placed on record as Ex.R3W1/2 (colly) and the written complaint filed in the office MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 60 of 70 of SSP Ghaziabad, UP intimating about the fake document praying for legal action against R-2. It is affirmed that R-2 indulged in a deliberate breach of the terms and conditions of the insurance policy having relied upon a fake policy and also having allowed R-1 to drive the vehicle despite having knowledge that he did not have a driving license authorising him to drive a two wheeler and therefore, R-1 bears no liability to indemnify R-2 against any liability arising out of the accident in question. R- 3W1 also relied upon verification report of DL of R-1 as Ex.R3W1/4. R-3 was extensively cross examined by counsel for the claimant however was not put to cross examination by R-1 &
2. R3W1 reiterated the affirmation during cross examination that the policy relied upon by R-1 & 2 never existed as per the company record and that no payment was made against the said alleged policy by R-2.
79. R-3 Insurance Company has always maintained and even represented to the Investigating Officer before filing of DAR that the alleged insurance policy of offending vehicle sought to be relied by R-1 & 2 was never issued by it. This contention on behalf of R-3 was in active knowledge of R-1 & R-2 but R-2 being owner never opted to contest this position. No reply to DAR was ever filed. No representation to the insurance company was made by R-2 to show that the policy was valid to the best of his understanding and knowledge and there was no ill intention or deliberation on his part to rely upon a fake policy. There is nothing on record to suggest that R-2 ever tried to clarify his position to the investigating officer either and subsequently to the court. R-2 has not led any evidence to show that he ever made payment against the issuance of the insurance policy or the mode MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 61 of 70 and manner of the any offer or acceptance made by him or any transaction he had undertaken with any agent or any intermediary in that respect. An adverse inference in this respect is liable to be taken against R-2. R-3 / Insurance Company has been able to prove that the alleged insurance policy relied by R-2 was never issued by R-3 and therefore, it can be inferred that the offending vehicle was not holding any valid insurance cover on the date of accident.
80. In Bharti Axa General Insurance Co. Ltd. Vs Gayabai Devrao Weldode & Ors., First Appeal No. 4447 of 2016 (Decided on 25.03.2019), (also referred in Shriram General Insurance Company Limited Vs. Kamlesh Jha & Ors, 2023 DHC 3467) the Hon'ble Bombay High Court has observed and held as follows:
" Thus, obviously on the date of accident the offending jeep was not insured with the appellant / Insurance Company. On 01.05.2013 there was no contract of insurance in between the Insurance Company and the owner of offending vehicle. It follows that the Insurance Company is not liable to indemnify the owner of offending vehicle for the accident which occurred on 01.05.2013. In the circumstances, considering the date of payment of premium on 09.05.2013 (Exh.43), I have no hesitation to hold that copy of insurance policy filed by the claimants at Exh.29 is certainly a fake and tampered policy of insurance. Therefore, the appellant / Insurance Company is not at all liable to pay the compensation to the claimants. As this is not the case of breach of condition of policy, but the case of absence of contract of insurance of the offending vehicle on the date of accident, even the 'pay and recover' order cannot be passed against the Insurance Company. Both the cases MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 62 of 70 relied on by the original claimants are distinguishable on facts.
In the result, I hold that the appellant / Insurance Company deserves to be exonerated in toto and no direction can be issued against the Insurance Company to pay compensation amount to the claimants and later on recover it from the owner of offending vehicle. Accordingly, I answer point Nos. 1 and 2 in negative."
81. In Darilian Passah Vs. Batriti Lyngdoh & Ors., M.A. No. 1 of 2004 (Decided on 26.04.2010), the Hon'ble Guwahati High Court has observed that where the insurance policy is found to be fake, the insurance company cannot be directed to pay the compensation to the claimants and then recover the same from the owner of the vehicle.
82. In Jyoti Jha & Ors. Vs. Kamal & Ors., MAC APP. No. 1016 of 2013 (Decided on 27.07.2017), the Hon'ble High Court of Delhi, observed that no liability can be fastened on insurance company on the basis of a fake Cover Note and thus, exonerated the insurance company from any liability.
83. It is further held by Hon'ble High Court of Delhi in the case of Shriram General Insurance Company Limited Vs. Kamlesh Jha & Ors, 2023 DHC 3467 as follows:
"..Given the finding of the Ld. Tribunal that the cover note was fake and thus, the offending vehicle was not insured with the appellant-Insurance company at the time of the accident, coupled with the settled legal position as stated above, the Insurance Company cannot be directed MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 63 of 70 to pay the compensation amount to the claimant and then recover the same from the owner and driver of the offending vehicle, therefore, the appellant- Insurance company deserves to be exonerated in toto and no liability can be fastened upon the insurance company."
84. Further, it is testified by R3W1 that the driving license relied by R-1 does not authorise him to drive two -wheeler which is a material breach of the term and condition of the insurance policy as the insured/ R-2/ Owner permitted the driver to drive the motor vehicle without valid driving license as such, it can be inferred from the manner of driving of the offending vehicle which caused the accident that the driver was not in complete control of the offending vehicle. However, R-3 Insurance Company has neither issued any notice under Order 12 Rule 8 CPC to R-2 nor has summoned the relevant records from the RTA, therefore, positive efforts were not made on behalf of insurance company to prove any statutory infraction on the part of R-2 in respect of unauthorisation to drive a particular class of vehicle upon a driving license issued in favour of driver concerned.
85. It view of above discussion and findings, it is held that no liability can be fastened on R-3 on the basis of a fake Cover Note, the insurance company is exonerated from any liability. Now the entire liability falls upon the shoulder of R-1 & R-2. Hence the compensation will be payable by the R-1 & 2 jointly and severally with simple interest @ 9% p.a. from the date of filing of DAR till actual realisation. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
86. The award amount shall be deposited with State Bank of MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 64 of 70 India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 00000042706870765 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any to the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
87. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
88. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
89. At this stage, it is relevant to the refer to the judgment of MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 65 of 70 A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 66 of 70 to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 67 of 70 a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
90. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same, in the same manner in which he would have otherwise earned.
91. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 68 of 70 guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, apportionment of award amount for injured is given as under:
The entire amount is directed to be released in the bank account of claimant near his place of residence without any pre condition of FDR along with interest.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 06.08.2015 2 Name of injured Lalji Yadav 3 Age of the injured 32 years as per Aadhar Card Ex.PW1/19 (DOB:
01.01.1984) 4 Occupation of the Private job as Tailor injured 5 Income of the injured Rs. 10,998/- per month.
6 Nature injury Grievous injury and 8% disability in relation to right lower limb.
7 Medical treatment As per record.
taken by the injured:
8 Period of As per record.
Hospitalization MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 69 of 70 9 Whether any permanent disability?
Grievous injury and 8% disability in relation to right lower limb.
Functional disability is
considered as 5%
92. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate.
93. Put up on 28.04.2024 for compliance.
Announced in the open court on 28.03.2024 Shelly Arora PO (MACT)-02, SE/Saket/Delhi 28.03.2024 MACT No.: 4213/2016 Lalji Yadav Vs. Abdul & Ors. Page No. 70 of 70