Delhi District Court
Mohd. Harun vs Vinod Kumar And Ors.; on 7 November, 2022
IN THE COURT OF SHRI ATUL KUMAR GARG : PRESIDING
OFFICER : MACT : SOUTH DISTT. : SAKET COURTS :
NEW DELHI
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
Fir No. 430/18, PS Mehrauli.
1. Mohd. Harun,
S/o Md. Kapur,
R/o H.No. D-250, Gali No. 5,
Sangam Vihar, New Delhi.
2. Ghan Shyam,
S/o Sh. Ganga Ram,
R/o H.no. 601-K-1st,
Gali No. 18, Sangam Vihar,
New Delhi.
3. Sachin Kumar,
S/o Sh. Mahendra,
R/o Flat No. 151/3, Pushp Vihar,
Sector -3, New Delhi.
.................Injured persons.
........... Petitioners
Versus
1. Vinod Kumar,
S/o Sh. Jeet Ram,
H.No. 646, Chirag Delhi.
..... (Driver)
2. Sumit Kumar,
S/o Sh. Sushil Kumar,
H.No. Flat No. 199, DDA Janta Flats,
Tigri, New Delhi.
..... (Owner)
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 1 of 34
3. Oriental Insurance Company Ltd.,
New Delhi.
........ (Insurance Company )
...[Respondents)
Date of Institution : 01.11.2018
Date of reserving of judgment/order : 01.11.2022
Date of pronouncement : 07.11.2022
JUDGMENT:
1. By this judgment, I shall dispose of the Detailed Accident Report (DAR) filed by the SHO of PS Mehrauli for the injuries sustained to the injured persons Md. Harun, Ghan Shyam and Sachin respectively in a road accident occurred on 11.07.2018 at about 08.45 pm near 100 Foota Red Light within the jurisdiction of PS Mehrauli due to rash and negligent driving of vehicle bearing no. DL-1-PC-2193 being driven by Vinod Kmar, the respondent no. 1, owned by Sumit Kumar, the respondent no. 2 and insured with Oriental Insurance Company Ltd./ the respondent no. 3.
2. The facts of this case need not having any big canvas:-
"On 11.07.2018 , injured Sachin was going to his home from LGF Vasant Square Mall Vasant Kunj, New Delhi along with his boss on his motorcycle . When he MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 2 of 34 reached at 100 foota red light, he heard some noise and when he turned around he saw a motorcycle was struck between the bus and bus was skidding the motorcycle. Thereafter, in order to save him he seeded up his bike, in the meantime, the bus had hit the cyclist and thereafter bus had hit the motorcycle on which he was traveling and he was also got injury. Resulting to which, he has fallen down and sustained injury. PCR had come and other two injured persons to the AIIMS Trauma Centre."
3. During the course of proceedings, driver of the offending vehicle was reported to have been expired.
4. Despite opportunity have been granted, written statement has not been filed on behalf of the owner.
5. Insurance company has not filed the written statement.
6. After completion of the pleadings, following issues have been framed vide order dated 06.09.2019:-
1) Whether the injured persons sustained injuries in a road MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 3 of 34 accident on 11.07.2018 at around 08.45 pm at before 100 foota red light towards Gurgaon to Mehrauli, New Delhi due to rash and negligent driving of vehicle bearing no. DL-1P-C-2193 by Vinod Kumar, owned by Sumit Kumar and insured with Oriental Insurance Company Ltd.? ... (OPP).
2) To what amount of compensation the petitioners are entitled and from whom?
3) Relief.
7. It is pertinent to mention here that the injured Sachin has not come in the witness box in relation to the injury sustained to him in the present accident. Therefore, claim qua his stand dismissed for want of prosecution.
8. In order to substantiate their contentions, injured persons namely Ghanshyam, Mohd. Harun have examined themselves as PW 1 and PW 2 respectively.
9. Injured Ghanshyam has tendered his affidavit in evidence as Ex. PW 1/A. He has relied upon the following documents:-
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 4 of 34
1. Ex. PW 1/1 is the aadhar card of the deponent. (OSR).
2. Ex. PW ½ is the MLC (Part of DAR).
3. Ex. PW 1/3 is the discharge summary and OPD cards collectively running into nine pages.
4. Ex. PW ¼ are the original medical bills running into thirty six pages.
5. Ex. PW 1/5 is the DAR complete.
6. Ex. PW 1/6 is the disability certificate.
10. this witness was put to the test of cross examination wherein he deposed that he was riding bicycle not motorcycle at the time of accident. He was driving his bicycle on the extreme left side of the road. He fell after being hit by the bus and noted the number of the offending vehicle as the bus had stopped. He denied that he has suffered tissue injury and not any bone injury in the accident. He admitted that he has received the treatment at AIIMS Trauma Centre and HAH Centinary Hospital. He deposed that he has placed all the medical bills. At present he is not taking any medicine other than the pain killer. He denied that the present disability certificate is not related to the injuries occurred on 11.07.2018.
11. PW 2 Mohd. Harun has also tendered his affidavit in evidence MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 5 of 34 which is Ex. PW 2/A. He has relied upon the following documents:-
1. Photocopy of the aadhar card, DL and PAN Card of the deponent Ex. PW 2/1 (Colly).
2. Copy of MLC and treatment records of the injured Ex.PW 2/2 and Ex. PW 2/3 (Colly).
3. Original medical bills are Ex. PW 2/4.
4. Photocopy of visiting card of the factory Ex. PW 2/5.
5. DAR is Ex. PW 2/6.
6. Disability certificate Ex. PW 2/7.
12. This witness was put to the test of cross examination whereby he deposed that he was driving the motorcycle. He was having valid driving license. He was initially taken to AIIMS Trauma Centre after the accident and thereafter, he received treatment in Rudrapur. He admitted that except visiting card, he had not placed on record any material documents to prove that he was running a wooden factory. He has not filed any bank statement or ITR in order to prove income and employment. He denied that he was not earning Rs. 45000/- or was working as a carpenter. He admitted that he has not placed any documentary proof with respect to his income, employment and attendant charges. He admitted that the treatment received by him in Delhi was from the Government hospital, but in Rudrapur he consulted with the private doctors.
13. In rebuttal, respondent no. 3/ insurance company has examined one MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 6 of 34 witness R3W1 Ms. Lalita Anand. She has tendered her affidavit in evidence and exhibited as Ex. R3W1/A. She has relied upon the following documents:-
1. Ex. R3W1/1 is the copy of the insurance policy.
2. Ex. R3W1/2 is the Legal Notice under Section 12 Rule 8 of CPC issued to the driver and owner.
3. Ex. R3W1/3 and Ex. R4W1/4 are the postal dispatch receipts.
During cross examination she has admitted that the insurance policy was valid at the time of accident. She denied that the insurance company is liable to pay the compensation to the petitioner.
14.I have heard the arguments at bar, perused the records and examined the witnesses brought and examined by the parties respectively and my issue-wise findings are as follows:-
ISSUE NO. 115.It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 7 of 34 it is an admitted legal position that the negligence on the part of driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III(2015) ACC 435 Delhi.
16.In the present case, factum of accident has not been disputed. The respondent no. 1 and 2, the driver and owner have not contested the DAR. During the course of proceedings, driver was expired. The testimonies of PW 1 and PW 2 have remained almost unchallenged. Nothing substantial has come out from the mouth of the witnesses. Insurance company has conceded the fact that the offending vehicle was insured with it at the time of accident. The only defence it has taken that the recovery rights be given to the insurance company as the fitness and permit of the offending vehicle was not valid at the time of the accident. IO has challaned the owner of the offending vehicle under Section 56/192 of Motor Vehicle Act in the DAR. Therefore, it has been proved that the accident has been occurred due to rash and negligent driving of the driver of the offending vehicle bearing no. DL-1PC-2193, as a result, the injured persons suffered grievous injury and permanent disability thereof.
Hence, this issue goes in favour of the petitioner and against the respondents.
ISSUE NO. 2MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 8 of 34
17.Now, the court has to assess as to how much compensation be awarded to the claimant and by whom? First of all the court has to decide as to how much compensation is given to the claimants.
18.Legislature being conscious of the magnitude of the plight of the victims of road accident have introduced the present beneficial provisions to protect the interest of third parties i.e. victims of road accident so as to enable them to claim compensation from the driver/owner of the vehicle. Legislature in its wisdom has made it a statutory obligation of every owner to have his vehicle insured against third party risks. This has been made mandatory so that victims of road accident even after being granted compensation from the court, should not run from pillar to post to have the orders of the court executed and to facilitate them to get the same from the Insurance Company. It was held in the case of National Insurance Co.Ltd Vs. Vasdev Kukreja & Ors II (2010) ACC 148 that primary liability to pay the award amount is of insurance company. In that case there was a breach of terms and conditions of the policy as there was violation as to the category of the vehicle which the driver was authorised to drive. The Hon'ble High Court directed the insurance company to pay the award and granted the recovery rights in its favour to recover the award amount from the owner of the offending vehicle.
19. Balancing the "twin interest" of the Insurance Company at one MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 9 of 34 hand and that of the third party i.e. petitioners for whose benefit the present legislation was brought on the statute book, it is directed that the Insurance Company shall pay the compensation awarded to the petitioner within the time given in this award and shall have the right to recover the same from respondent No.1 and 2.
20.Here the factum of accident is not denied in the present case. Though it is submitted that driver of the offending vehicle was not having valid permit at the time of accident. For this, insurance company has examined its witness i.e., R3W1 wherein it has been submitted that the driver of the offending vehicle was not having valid fitness of the offending vehicle at the time of accident. IO has mentioned this fact also in the challan field by him. Accident was occurred on 11.07.2018 and the fitness of the offending vehicle was expired way back in 05.12.2017 and the offending bus was still plied on the public road in flagrant violation of the provisions of Motor Vehicle Act. In this regard, IO has filed a separate Kalandra under Section 56/192 of the Motor Vehicle Act. Insurance company has also served the notice under Order 12 Rule 8 of CPC to the driver for producing the original policy, driving license of the driver, fitness and permit valid on the date of accident and exhibited the same as Ex. R3W1/3 and postal receipts therof as Ex. R3W1/4 and 5. Hence, the driver of the offending vehicle has violated the terms and conditions of the insurance policy as the insured has allowed the vehicle bearing no. DL-1PS-2103 to ply on road depsite having knowledge of the fact MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 10 of 34 that the fitness of the said bus has already been expired and no fitness certificate from the prescribed authority with respect to the offending vehicle has been obtained. Therefore, it is the respondent no. 1 and 2 who are liable to pay the compensation to the petitioner jointly and severally. However, first the insurance company who is being financially sound, shall pay the compensation to the petitioners and thereafter shall have the right to recover the same from respondent no.1 and 2 jointly or severally.
21.An injured in a road accident is entitled to the compensation for the pecuniary and non pecuniary heads:-
COMPENSATION IN RESPECT OF THE INJURED/ PETITIONER GHANSHYAM.
MEDICAL EXPENSES :
22.In the present case, the petitioner/ injured Ghanshyam has placed on record medical bills of the Rs. 54,510/-. As per MLC Ex. PW 1/2, he has sustained grievous injury. I therefore, award an amount of Rs. 54,510/- to the petitioner/ injured Ghanshyam towards the medical expenses.
PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 11 of 34
23.As per discharge summary, the injured Ghanshyam was diagnosed with "SOFT TISSUE INJURY". The injuries on the person of the petitioner/ injured Ghanshyam has been opined to be grievous in nature. Due to the accidental injuries suffered by the petitioner/ injured, he has suffered 31% permanent physical impairment in relation to his Right Lower Limb.
Looking into the injuries and treatment of the petitioner, I award Rs. 70,000/- to the petitioner towards his pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
24.In the present case the petitioner has not placed on record any document with regard to his special diet, conveyance and attendant charges. However, the injuries on the person of the injured Ghanshyam were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant. Therefore, looking into all the facts, I award Rs. 50,000/- to the petitioner/ injured Ghanshyam towards his special diet, conveyance and attendant charges.
LOSS OF INCOME:-
25.The petitioner/ injured stated that at the time of accident, the injured Ghanshyam was doing the work of Painting / Whitewash at NCR Delhi and was earning Rs. 18,000/- per month. However, he has not MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 12 of 34 placed on record any document on record to show that where he used to the job of Whitewash and has been earning Rs. 18,000/- per month. Therefore, this court is left with no option but to take the minimum wages prevailed at the time of accident. The accident was occurred on 11.07.2018 in Delhi. Police has filed the DAR. Moreover, the injured is also the resident of Delhi. Therefore, the minimum wages in Delhi for unskilled person at the relevant time is applicable. The minimum wages in Delhi of unskilled person were Rs. 13,896/-. Therefore, the income of the deceased is taken as Rs. 13,896/- per month. The injuries on the person of the injured were such that he must have remained out of work at least for three months. Thus, the loss of income comes to Rs. 41,688/- (13896/- x
3). I therefore award the petitioner the loss of income comes to Rs. 41,688/-.
26.So far so, the future loss of the income of the victim/ petitioner is concerned, this court is guided by the various judgments pronounced by the Hon'ble Apex Courts. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" :-
"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- MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 13 of 34 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.
The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 14 of 34 the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289, in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.
In a more recent decision in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations:
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 MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 15 of 34 too high a compensation.
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.
27.In a very recent judgment announced by the Supreme Court of India in case title Sri Anthony alias Anthony Swamy v. The Manging Director, K.S.R.T.C. on 10.06.2020. Hon'ble Supreme Court of India has reiterated the principles set out for grant of compensation in cases of permanent physical functional disability in case title Rajkumar v. Ajay Kumar & Anrs., 2011(1) SCC 343 :-
"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 MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 16 of 34 permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity and consequently, if the evidence produced show 45% as the permanent disability will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
What requires to be assessed by the Tribunal is the effect of the 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. However, in the recent judgment passed by Hon'ble Supreme Court of India in case title Pappu Deo Yadav vs. Naresh Kumar and Ors., Civil Appeal No. 2567 of 2020 wherein it was held that future prospects must be considered even in the case of permanent disability.
28.Here, in the present case, the petitioner has suffered 31% permanent physical impairment in relation to his RIGHT LOWER LIMB. He has stated that he was doing the job of Painting/ Whitewash at NCR Delhi and was earning Rs. 18,000/- per month. However, he has not MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 17 of 34 placed any document on record in regard to his income and employment. Injured has suffered 31% permanent physical impairment, this disability would definitely affect his day today life. As a matter of rule the half of the functional disability of anyone of the limb has to be taken off for the purpose of calculation or future prospects. But looking into the age of the petitioner and the permanent disability suffered to his RIGHT LOWER LIMB, I take her functional disability as 16% of the whole body. As per the copy of the aadhar card, the date of birth of the injured Ghanshyam is 13.08.1972 and the accident happened on 11.07.2018, therefore, the age of the injured Ghanshyam is 45 years 10 months at the time of accident. Taking a multiplier of '13', the future loss of income comes to Rs. 17,370/- (Rs. 13,896/- + 13,896/- x 25/100) x 12 x 13 x 16% = Rs. 4,33,555/-. I therefore, award Rs.4,33,555/- to the petitioner towards Future Loss of Income on account of permanent disability.
29.The total compensation in favour of the petitioner Ghanshyam is assessed as under :
MEDICAL EXPENSES :Rs. 54,510.00
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE :Rs. 70,000.00
SPEICAL DIET, CONVEYANCE
& ATTENDANT CHARGES :Rs. 50,000.00
LOSS OF INCOME :Rs. 41,688.00
FUTURE LOSS OF INCOME :Rs. 4,33,555.00
===============
TOTAL :Rs. 6,49,753.00
===============
MACT No. 404-2018;
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FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 18 of 34
R E LI EF
30.In view of my findings, I award Rs. 6,49,753/- (Rupees Six Lakh Forty Nine Thousand Seven Hundered Fifty Three Only) to the petitioner Ghanshyam as compensation along-with interest @ 7% per annum from the date of filing the petition till its realisation.
Out of the awarded amount of Rs. 6,49,753/-, an amount of Rs. 5,00,000/- is ordered to be kept in the form of fixed deposit in the following phased manner :
• Rs.1,00,000/- for a period of 01 year. • Rs.1,00,000/- for a period of 02 years. • Rs.1,00,000/- for a period of 03 years. • Rs.1,00,000/- for a period of 04 years. • Rs.1,00,000/- for a period of 05 years.
COMPENSATION IN RESPECT OF THE INJURED/ PETITIONER MOHD. HARUN MEDICAL EXPENSES :
31.In the present case, the petitioner/ injured Mohd. Harun has placed on record medical bills of the Rs. 48,244/-. As per MLC, the injured was diagnosed with "RTA on 11.07.2018 WITH SWELLING OVER LT THIGH, ABRASION OVER RT KNEE AND THIGH". The injury on the person of the injured was opined to be grievous in nature. I therefore, award an amount of Rs. 48,244/- to the petitioner/ injured Mohd. Harun towards the medical expenses.
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 19 of 34 PAIN AND SUFFERINGS AND ENJOYMENT OF LIFE :
32.The injured has not placed on record the discharge summary.
However, on the MLC, the injury on the person of injured has been opined to be as grievous in nature. Due to the accidental injuries suffered by the petitioner/ injured, he has suffered 06% permanent physical impairment in relation to his Left Lower Limb.
Looking into the injuries and treatment of the petitioner, I award Rs. 70,000/- to the petitioner towards his pain and sufferings and enjoyment of life.
SPECIAL DIET, CONVEYANCE AND ATTENDANT CHARGES :
33.In the present case the petitioner has not placed on record any document with regard to his special diet, conveyance and attendant charges. However, the injuries on the person of the injured Mohd. Harun were such that he must have taken special diet for his early recovery. He must have spent some amount on conveyance and attendant. Therefore, looking into all the facts, I award Rs. 50,000/- to the petitioner/ injured Mohd. Harun towards his special diet, conveyance and attendant charges.
LOSS OF INCOME:-
34.The petitioner/ injured stated that at the time of accident, the injured Mohd. Harun was running the wooden factory. However, he has not filed any bank statement or ITR in order to prove income and MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 20 of 34 employment. He submitted that he was not earning Rs. 45,000/- per month or working as a carpenter. Therefore, this court is left with no option but to take the minimum wages prevailed at the time of accident. The accident was occurred on 11.07.2018 in Delhi. Police has filed the DAR. Moreover, the injured is also the resident of Delhi. Therefore, the minimum wages in Delhi for unskilled person at the relevant time is applicable. The minimum wages in Delhi of unskilled person were Rs. 13,896/-. Therefore, the income of the deceased is taken as Rs. 13,896/- per month. The injuries on the person of the injured were such that he must have remained out of work at least for three months. Thus, the loss of income comes to Rs. 41,688/- (13896/- x 3). I therefore award the petitioner the loss of income comes to Rs. 41,688/-.
35.So far so, the future loss of the income of the victim/ petitioner is concerned, this court is guided by the various judgments pronounced by the Hon'ble Apex Courts. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC)" :-
"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 MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 21 of 34 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.
The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518. In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 22 of 34 and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v.
Srinivas Sabata (1976) 1 SCC 289, in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.
In a more recent decision in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations:
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 MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 23 of 34 produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
What requires to be assessed by the Tribunal is the effect of the 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.
36.In a very recent judgment announced by the Supreme Court of India in case title Sri Anthony alias Anthony Swamy v. The Manging Director, K.S.R.T.C. on 10.06.2020. Hon'ble Supreme Court of India has reiterated the principles set out for grant of compensation in cases of permanent physical functional disability in case title Rajkumar v. Ajay Kumar & Anrs., 2011(1) SCC 343 :-
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 24 of 34 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.
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 MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 25 of 34 compensation. However, in the recent judgment passed by Hon'ble Supreme Court of India in case title Pappu Deo Yadav vs. Naresh Kumar and Ors., Civil Appeal No. 2567 of 2020 wherein it was held that future prospects must be considered even in the case of permanent disability.
37.Here, in the present case, the petitioner has suffered 06% permanent physical impairment in relation to his LEFT LOWER LIMB. As per the copy of the aadhar card, the date of birth of the injured Mohd. Harun is 01.01.1975 and the accident happened on 11.07.2018, therefore, the age of the injured Mohd Harun is 43 Years 6 Months at the time of accident. As a matter of rule the half of the functional disability of anyone of the limb has to be taken off for the purpose of calculation or future prospects. But looking into the age of the petitioner and the permanent disability suffered to his LEFT LOWER LIMB, I take her functional disability as 3% of the whole body. Taking a multiplier of '13', the future loss of income comes to Rs. 17,370/- (Rs. 13,896/- + 13,896/- x 250/100) x 12 x 14 x 3% = Rs. 87,545/-. I therefore, award Rs. 87,545/- to the petitioner towards Future Loss of Income on account of permanent disability.
38.The total compensation in favour of the petitioner Mohd. Harun is assessed as under :
MEDICAL EXPENSES :Rs. 48,244.00
PAIN & SUFFERINGS &
ENJOYMENT OF LIFE :Rs. 70,000.00
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 26 of 34
SPEICAL DIET, CONVEYANCE
& ATTENDANT CHARGES :Rs. 50,000.00
LOSS OF INCOME :Rs. 41,688.00
FUTURE LOSS OF INCOME :Rs. 87,545.00
===============
TOTAL :Rs. 2,34,477.00
===============
R E LI EF
39.In view of my findings, I award Rs. 2,34,477/- (Rupees Two Lakh Thirty Four Thousand Four Hundred Seventy Seven Only) to the petitioner Mohd. Harun as compensation along-with interest @ 7% per annum from the date of filing the petition till its realisation.
Out of the awarded amount of Rs. 2,34,477/-, an amount of Rs. 2,00,000/- is ordered to be kept in the form of fixed deposit in the following phased manner :
• Rs.1,00,000/- for a period of 01 year. • Rs.1,00,000/- for a period of 02 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
40.It is ordered that no amount shall be released to the petitioner unless he produces his passbook in the Tribunal having the endorsement that "no cheque book and no ATM Card has been issued and will not be issued to the petitioner till the entire award amount is exhausted".
41.In consonance to the idea by which part of the awarded amount is MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 27 of 34 ordered to be kept in fixed deposit / savings account by Hon'ble high Court, respondent no. 3 is directed to deposit the awarded amount in favour of the petitioner with State Bank of India, Saket Courts Complex Branch, against account of petitioner within a period of 30 days from today, failing which respondent no. 3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
42.The respondent no. 3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the Ld. counsel for the insurance company.
43. 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 35195787436 IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir alongwith calculation of interest and to the Counsel for the petitioners.
44.MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE'(MCTAP).
45.Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 28 of 34 amount in the "fixed deposit / saving account'' in the following manner :-
46.The interest on the fixed deposit be paid to the petitioner/claimant by Automatic Credit of interest of their saving bank account with State Bank of India, Saket Court Branch, New Delhi.
47.Withdrawal from the aforesaid account shall be permitted to petitioner/claimant after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
48.No cheque book be issued to petitioner/claimant without the permission of this Court.
49.The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the petitioner/claimant along-with the photocopy of the FDR's .
50.The original fixed deposit receipts shall be handed over to petitioner/claimant at the end of the fixed deposit period.
51.No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
52.Half yearly statement of account be filed by the Bank in this Court.
53.On the request of petitioner/claimant, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
54.Petitioner/claimant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
55.The bank is also directed to get the nomination form filled by the MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 29 of 34 claimant at the time of preparation of FDRs.
56.The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
57.The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 41125-41127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/NEFT directly in the personal bank account of the petitioner of the bank nearest to his place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENTS
58.The Respondent no. 3 are directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
59.The respondent no. 3 directed to furnish a copy of this award along-
with the cheque of the awarded amount to the Manager of State Bank of India, Saket Court Branch, so as to facilitate the Manager of State MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 30 of 34 Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
60.The Respondent no. 3 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
61.Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondents.
62.The next date for compliance is on 08.12.2022.
FORM IV-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASE OF GHANSHYAM Date of accident : 11.07.2018 Name of the injured : GHANSHYAM Age of the injured: 45 Years 10 months Nature of injury : Grievous Disability suffered: Yes (31% in his RIGHT LOWER LIMB) Computation of Compensation S. Heads Awarded by the No. Claims Tribunal 1 Pecuniary Loss :
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.; FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 31 of 34 i Expenditure on treatment Rs. 54,510/- ii Expenditure on special diet, conveyance and Rs. 50,000/-
attendant
iii Loss of Income Rs. 41,688/-
iv Loss of Study -------
v Any other loss which may require any special -----
treatment or aid to the injured for the rest of his life.
2 Non-Pecuniary Loss :
i Compensation for mental and physical shock ------- ii Pain and suffering & enjoyment of life Rs.70,000/-
iii Loss of amenities -----
iv Dis-figuration and marriage prospects -----
v Loss of marriage prospects -----
vi Compensation on account of permanent -----
disability
3 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature 16%
of disability as permanent or temporary
(iii) Future Loss of Income Rs. 4,33,555/-
4 TOTAL COMPENSATION Rs. 6,49,753/-
5 INTEREST AWARDED 7% 6 Total amount of interest Rs. 1,84,716/-
7 Total amount including interest Rs. 8,34,469/- 8 Award amount released Rs. 3,34,469/-
9 Award amount kept in FDRs Rs. 5,00,000/-
10 Mode of disbursement of the award amount Some amount is
to the claimant(s) directed to be
released and some
amount is directed to
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 32 of 34
be kept in the shape
of FDR.
11 Next date for compliance of the award. 08.12.2022
FORM IV-B
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASE OF MOHD. HARUN Date of accident : 11.07.2018 Name of the injured : Mohd. Harun Age of the injured: 43 Years 6 Months Nature of injury : Grievous Disability suffered: Yes (6% in his LEFT LOWER LIMB) Computation of Compensation S. Heads Awarded by the No. Claims Tribunal 1 Pecuniary Loss :
i Expenditure on treatment Rs. 48,244/- ii Expenditure on special diet, conveyance and Rs. 50,000/-
attendant
iii Loss of Income Rs. 41,688/-
iv Loss of Study -------
v Any other loss which may require any special -----
treatment or aid to the injured for the rest of his life.
2 Non-Pecuniary Loss :
i Compensation for mental and physical shock ------- ii Pain and suffering & enjoyment of life Rs.70,000/-
iii Loss of amenities -----
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 33 of 34
iv Dis-figuration and marriage prospects -----
v Loss of marriage prospects -----
vi Compensation on account of permanent -----
disability
3 Disability resulting in loss of earning capacity :
(i) Percentage of disability assessed and nature 3%
of disability as permanent or temporary
(iii) Future Loss of Income Rs. 87,545/-
4 TOTAL COMPENSATION Rs. 2,34,477/-
5 INTEREST AWARDED 7% 6 Total amount of interest Rs. 67,436/-
7 Total amount including interest Rs. 3,01,913/- 8 Award amount released Rs. 1,01,913/-
9 Award amount kept in FDRs Rs. 2,00,000/-
10 Mode of disbursement of the award amount Some amount is
to the claimant(s) directed to be
released and some
amount is directed to
be kept in the shape
of FDR.
11 Next date for compliance of the award. 08.12.2022
Pronounced in the open court,
on 07th November, 2022
(ATUL KUMAR GARG)
Presiding Officer : MACT (S)
Saket Courts : New Delhi
MACT No. 404-2018;
Mohd. Harun Vs Vinod Kumar and ors.;
FIR No. 430/18, PS Mehrauli. 07.11.2022 Page No. 34 of 34