Delhi District Court
Sanju (Dar) vs Deepak Ekka (387/19, Kk) on 18 December, 2023
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IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.997/2019
FIR no. 387/2019
PS : Kalindi Kunj
U/s 279/338 IPC
CNR No.: DL SE01-009949-2019
Sanju Vs. Deepak Ekka & Ors.
1. Sanju
S/o Sh. Narayan Chaudhary
R/o H. No. HW Kainal Colony
Okhla, Bairaj Near Toll Tax, New Delhi
.....Claimant
Versus
1. Deepak Ekka
S/o Phool Jems Ekka
R/o H. No. 987, JJ Colony
Ph-III, MPK, New Delhi.
...R-1/ driver
2. Devid Ekka
S/o Phool Jems Ekka
R/o H. No. 987, JJ Colony
Ph-III, MPK, New Delhi.
.....R-2/owner
3. The Oriental Gen. Ins. Co.
.....R-3/Ins. Co.
Date of accident : 27.10.2019
Date of filing of DAR : 03.12.2021
Date of Decision : 18.12.2023
MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 1 of 26
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AWARD
1. In this case, a Detailed Accident Report (hereinafter
referred as DAR) was filed by IO SI Onkar Singh in terms of
provisions of Motor Vehicle Act, which is treated as Claim
Petition under Section 166 (1) read with Section 166 (4) MV Act.
It pertains to alleged accident of injured Sanju (hereinafter
referred as claimant), by vehicle bearing Reg. No. DL6CN 2375
(hereinafter referred as offending vehicle), which was driven by
Sh. Deepak Ekka (hereinafter referred as R-1), owned by Sh.
Devid Ekka (hereinafter referred as R-2) and insured with The
Oriental Ins. Co. Ltd (hereinafter referred as R-3).
2. Preliminary information regarding accident in question
was received at PS vide DD No. 52A dated 27.10.2019 regarding
accident near Gyan Vidya Mandir at Pusta Road, Kalindi Kunj,
Delhi, upon receipt of which ASI Onkar Singh alonwith HC
Deepak reached at the accident spot and found that injured has
already been taken to hospital in an auto. It was also revealed that
the accident took place between a motorcycle and a car, and the
accidental motorcycle bearing Regn. No. DL3SED 0441
Splender+ was found at the spot in damaged condition, however,
no eye-witness was found at the spot. DD No.8A dated
28.10.2019 regarding MLC of injured Sanju was received, upon
which HC Kumher Singh alongwth HC Deepak reached AIIMS
Trauma Center, where MLC was collected however, final opinion
was kept pending. It was found that injured has already been
discharged. So, HC Kumher Singh went to his residence, where
statement of injured was recorded, wherein, claimant has stated
MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 2 of 26
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that he was hit by Ecco car being driven in a rash and negligent
manner at about 10.40 p.m. near Gyan Deep Vidya Mandir but he
could not note down its registration number. He also stated that
the car speedily left towards Ram Chowk after hitting him. FIR
was registered. Accidental motorcycle was seized and taken into
possession.
3. PCR caller Chandan Singh was contacted during
investigation and his statement has been recorded. During
investigation, one Shankar Chaudhary and Poonam Devi, who
used to run egg cart in front of Gyan Deep Vidya Mandir, were
enquired who revealed that they have seen Ecco car hitting
motorcycle at about 10.40 p.m. on account of which the driver of
motorcycle started bleeding and Ecco Car stopped at a distance
as one of its front tyre got burst. He stated that he had noted the
Registration Number of Ecco Car as DL6CN 2375 (White
colour) (hereinafter called 'the offending vehicle') and name of
its driver as Deepak Ekka.
4. Notice under Section 133 of M.V. Act was served upon
owner David Ekka and that who informed that he was father of
Deepak Ekka and he has not returned back home alongwith the
vehicle. Deepak Ekka subsequently came to the police station
alongwith the vehicle who was identified by eye-witnesses
Shankar Chaudhary and Poonam Devi in the police station itself.
Owner David Ekka responded to the notice u/s 133 M.V. Act that
he was the owner of the offending vehicle which was being
driven by his son Deepak Ekka at the time of accident. RC and
Insurance Policy of the offending vehicle were handed over to
MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 3 of 26
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the IO. The injuries were opined to be grievous in nature. The
offending vehicle was taken into possession and its mechanical
inspection was got conducted. The driving license of driver,
ownership details and the insurance policy were found and
verified to be valid and effective on the day of incident. Upon
completion of investigation, charge-sheet was filed under
Sections 279/338 IPC against driver Deepak Ekka. DAR was
filed by Investigating Officer before this Tribunal.
5. Respondent No.1/Driver had appeared on the first date for
himself as well as on behalf of his father/owner on 03.12.2019 and copy of DAR was supplied to him and direction was passed for filing of reply. Subsequently, from the second date onwards, R-1 and R-2 stopped appearing and any reply on their behalf has not been filed.
6. Written Statement on behalf of insurance company was filed, wherein it is stated that the claimant was himself negligent as he was driving the motorcycle without driving license and without wearing any head gear. It is further stated that there is contradiction between statement of the injured and statement of the eye witness inasmuch as injured never mentioned about stoppage of Ecco vehicle on account of bursting of one of the frontal tyre. It is admitted in the reply that the offending vehicle held a valid and effective insurance policy on the date of accident. It is further stated that respondent no.1 gave a statement that he was carrying a driving license of Non-Transport Category License instead of driving license for the commercial/passport category. Further, as per the details mentioned in the RC, the said MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 4 of 26 :5: vehicle got blacklisted in the year 2017 and also impounded under Section 207, 39/192, 56/192, 146/196, 3/181 as the same was running as commercial vehicle and therefore, it is evident that the alleged vehicle was plying as commercial vehicle and the driver was driving the vehicle without driving license of the desired category and accordingly, the insured has violated the traffic regulation and therefore, insurance company denied its liability.
7. From the pleadings of parties, following issues were framed by Ld. Predecessor of this Tribunal vide order dated 20.09.2021 :
i). Whether the injured suffered grievous injury in a road traffic accident on 27.10.2019 due to rash and negligent driving of vehicle no. DL6CN 2375 being driven by R-1, owned by R-2 and insured with R-3? OPP.
ii). Whether the petitioner is entitled to any compensation, if so, to what extent and from whom?OPP
iii). Relief.
8. Thereafter matter was listed for recording of evidence of petitioner.
9. Repeated opportunities were granted to claimant/petitioner to lead evidence, but no evidence was led and therefore, PE was closed vide order dated 13.12.2023. RE was also closed on the same date.
10. Submissions were advanced by Ld. Counsel for insurance MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 5 of 26 :6: company as none appeared on behalf of claimant to advance arguments.
11. On the basis of material on record, evidence adduced and arguments addressed, issue wise findings are as under :
Issue No.1 "Whether the injured suffered grievous injury in a road traffic accident on 27.10.2019 due to rash and negligent driving of vehicle no. DL6CN 2375 being driven by R-1, owned by R-2 and insured with R-3 "
12. What is required to be ascertained is whether rash and negligent driving of offending vehicle resulted in accident which caused injuries to the claimant.
13. It has been held in catena of cases that negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicle Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable (support drawn from the case of Bimla Devi & Ors vs. Himachal Road Transport Corporation & ors [(2009) 13 SC 530,[ in Kaushnumma Begum and others v/s New India Assurance Company Limited, [2001 ACJ 421 SC[, in National Insurance Co. Ltd. vs. Pushpa Rana cited as [2009 ACJ 287 Del].
14. 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 6 of 26 :7: no.1/driver in causing the accident. Including in the case of National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, as decided by Hon'ble Delhi High Court, it has been held that completion of investigation and filing of charge-sheet are sufficient proof of negligence of the driver of the offending vehicle for the purpose of compensation.
15. 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 India in the case of Cholamandlam insurance company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310.
16. In the present case also, driver/R-1 did not enter into the witness box to controvert the claim of petitioner or even to explain circumstances of accident. It is noted that R-1 has not filed any response to the DAR and therefore, there is not even basic denial of any accident or involvement of the offending vehicle or that it was not the result of his negligence.
17. Petitioner/claimant has failed to lead any evidence, therefore issue will be decided on the basis of DAR filed in this matter.
18. FIR was registered on the basis of statement of claimant himself, while information about occurrence of incident was received in the police station vide DD No. 52A, dated 27.10.2019, received by HC Kumher on night emergency duty. PCR caller was subsequently identified as Chandan Singh whose statement was also recorded. Separate DD entry No. 8A was received with respect to MLC of injured from AIIMS Trauma MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 7 of 26 :8: Center. Both these DD Entries have been filed on record. Therefore, as far as accident is concerned, same reflects reasonable trail of events. Accidental motorcycle was found at the spot of accident in the damaged condition. There is thus nothing which is contradictory on record with respect to the accident and that injuries were sustained by the motorcyclist on account of impact of the accident. The identification of offending vehicle was partially revealed by the claimant as Ecco Car. The Reg. No. of offending vehicle was revealed by two eye witnesses who were present at the spot as husband and wife running an egg selling cart right in front of spot of accident. Therefore, their presence at the spot is natural in the sequence of events. It is mentioned in DAR itself that notice u/s 133 M. V. Act was served upon the owner of the vehicle who revealed that his son was driving the vehicle at the time of accident. It is apparent that the injured was brought to hospital on 22.09.2019 at 11.20 PM by Shankar as mentioned in the MLC. The phone number of injured is also mentioned in the MLC. IO had contacted the injured on the telephone number when he was already discharged from the hospital. It is mentioned in the MLC itself that Shankar was relative of injured Sanju, who brought him to the hospital. It is mentioned in the statement of Sanju that he was brought to hospital by Shankar who was intimated about the accident. Therefore, there is no contradiction as far as the accident is concerned.
19. It is categorically stated by claimant that the offending vehicle was being driven very speedily in a rash and negligent manner which hit motorcycle in front with such an impact that it MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 8 of 26 :9: fell down and sustained injuries. Both the eye-witnesses whose statement was recorded under Section 161 Cr.P.C. on the basis of which charge-sheet was filed against R-1 also stated that the offending vehicle was being driven speedily and in a rash and negligent manner which had hit the motorcyclist on account of which he sustained injuries and the Ecco Car had to halt at some distance on account of bursting of one of its frontal tyre which gave them the occasion to note down the registration number of the vehicle and details of the driver. R-1 has chosen neither to contest the petition nor to lead any evidence to show that the accident did not occur on account of rash and negligent part on his part. Mechanical Inspection Report has been filed alongwith the charge-sheet, which show fresh damages on the bumper, head light and fresh dents on the front side. Similar damages have been found on the accidental motorcycle which was found on the spot itself. The Mechanical Inspection Report duly corroborates and supports the version of the claimant which has not been disputed by R-1. There is no material to show that any negligence can be attributed to claimant to cause accident. Insurance company in its reply has contended that the accident was attributable to motorcyclist, however, same has not been substantiated and therefore, cannot be acted upon. DAR has been filed for awarding compensation to the claimant after collection of all the documents and after investigation and therefore, enjoys credibility and can be acted upon even without being formally proved.
20. Considering the documents filed alongwith DAR and that driver never contested the petition to contend that he was not MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 9 of 26 : 10 : driving the offending vehicle at the time of accident or that he was driving in normal speed within his lane and that accident is not attributed to his rash driving. Any reply to DAR was not filed despite opportunity.
21. It is thus evident upon bare perusal of DAR as a document/claim petition that accident happened on account of rash and negligent driving by driver of the offending vehicle. Issue in hand is accordingly decided in favour of the petitioner and against the respondents.
ISSUE NO. 2"Whether the petitioner is entitled to any compensation, if so, to what extent and from whom?OPP"
22. Section 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 10 of 26 : 11 : 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. (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."
23. 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).
24. 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 11 of 26 : 12 : decisions. [Support drawn from Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683] .
25. 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):
"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.. ..."
26. 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:
MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 12 of 26 : 13 : "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 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."
27. 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 13 of 26 : 14 : 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. 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)] .]
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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 14 of 26 : 15 : 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 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."
28. 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 15 of 26 : 16 : 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.
29. As any evidence has not been led, there is nothing to understand the nature of avocation/employment of injured. Since the accident happened in Delhi and injured Sanju is mentioned to be resident of Kainal Colony, Okhla Bairage, Delhi in his statement, in FIR, in MLC, in the discharge summary. Copy of Adhar card has been filed alongwith charge-sheet, which also mentions his address of Kainal Colony. Therefore, minimum wages of unskilled worker applicable in Delhi on the date of accident to the tune of Rs. 14,804/- shall be applicable.
30. Again, since there is no evidence, as to for how long injured was not able to attend to his work, however considering the nature of injuries as grievous, same is presumably taken to be three months.
31. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : no Rs. 5,000/-
medical bills filed, claimant was discharged on the same day. An approximate amount of Rs. 5,000/- is MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 16 of 26 : 17 : awarded considering the nature of injury.
(ii) Expenditure on Conveyance : No Rs. 10,000/- bill for conveyance has been filed, however, considering the nature of injury, it can be considered that claimant would not have been in a position to use public transport.
(iii) Expenditure on special diet : Rs.10,000/- There is no prescription for special diet except that he was advised to stop smoking.
By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant :
The nature of injuries are grievous. Rs.10,000/- Even in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : Rs.44,412/-
Compensation towards loss of income,
as noted above is Rs. 14,804/- x 3
months = Rs. 44,412/-.
(vi) Cost of artificial limbs (if NA
applicable) :
(vii) Any other loss / expenditure : NA
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.20,000/-
physical shock : The nature of injuries are grievous and he would have undergone great mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 20,000/-
for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
(iii) Loss of amenities of life : The Rs.10,000/-
nature of injuries are grievous
MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 17 of 26
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(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed N/A and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability : The nature of injuries are grievous
(iii) Percentage of loss of earning N/A capacity in relation to disability: As already discuss above.
(iv) Loss of future Income: N/A
(v) Future medical expenses Nil
Total Compensation Rs.1,29,412/-
Deduction, if any, Nil
Total Compensation after deduction Rs.1,29,412/-
Interest As directed
below
32. 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 18 of 26 : 19 : 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 liability is compensation for 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 19 of 26 : 20 : as indicated above."
33. 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 from the date of filing of DAR till realization.
Liability :-
34. In this case, insurance company has taken a plea that respondent no.1 was carrying a driving license of Non-Transport Category License, whereas the vehicle was plying as commercial vehicle without driving license of desired category. It is also mentioned that the vehicle was impounded in the year 2017 as per the details mentioned in the RC of the offending vehicle.
Insurance company has not led any evidence to show that the vehicle was being plied as commercial vehicle by R-1 who was carrying a driving license of Non-Transport Category but was driving a commercial vehicle. There is also no evidence to show that the vehicle was impounded in the year 2017 for being plied as a commercial vehicle. Bare contention cannot take the place of proof. Any documents have not been filed alongwith the reply to draw any such inference.
35. Keeping in view the entirety of the facts and circumstances involved in the present case and the above-said guidelines laid MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 20 of 26 : 21 : down by Hon'ble Supreme Court and Hon'ble High Court of Delhi, insurance company cannot absolve itself of any liability towards the claimant. Accordingly, the compensation will be payable by the insurance company/R-3 with simple interest at the rate of 9% p.a. from the date of filing of DAR till its actual realization.(If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
36. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
37. 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 21 of 26 : 22 : accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
38. 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.
39. At this stage, it is relevant to the refer to the judgment of 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 22 of 26 : 23 : 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 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 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 23 of 26 : 24 : 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 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....."
40. In this background of legal position, it may be noted that in MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 24 of 26 : 25 : 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.
41. Keeping in view the entirety of the facts and circumstances involved in the present case and the above-said guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, entire award amount along with interest, be released to the petitioner/injured in his bank account near his place of residence as per rule/ directions.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 27.10.2019 2 Name of injured Sanju 3 Age of the injured 21 years 4 Occupation of the Not proved.
injured 5 Income of the injured Minimum wages of unskilled worker applicable in Delhi on the date of accident to the tune of Rs.14,804/- shall be applicable 6 Nature injury Grievous MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 25 of 26 : 26 : 7 Medical treatment As per record.
taken by the injured:
8 Period of As per record.
Hospitalization 9 Whether any No. permanent disability?
42. 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.
Digitally
43. Put up on 18.01.2024 for compliance. signed by SHELLY SHELLY ARORA Announced in the open court ARORA Date:
2023.12.18 18:08:25 on 18.12.2023 +0530 (Shelly Arora) PO (MACT)-02, SE/Saket/Delhi 18.12.2023 MACT No. Sanju vs. Deepak Ekka & Anr. Page No. 26 of 26