Delhi District Court
Dheeraj vs Mohd. Hasroo And Ors on 29 July, 2024
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL-02, SHAHDARA,
KARKARDOOMA COURTS, DELHI
MACT No.323/2022
Dheeraj
s/o Sh.Kedarnath Sharma
r/o J-12, Block-J, Old Seemapuri,
East Delhi-110095. ....Petitioner
Versus
(1)Mohd. Hasroo
s/o Sallem
r/o H.No.811, Pump No.1,
Aman Colony, Disttt. Ghaziabad-201001.
(2)Yoginder Pal
s/o Sh.Gopal Singh
r/o 111-L/19, Nehru Nagar,
Distt. Ghaziabad, U.P.
(3)National Insurance Co. Ltd.
Division XXVIII Eleventh Floor,
Scope Minar, North Tower,
Core-2, Laxmi Nagar,
Delhi-110092. ....Respondents
Date of Institution : 19.07.2022
Date of Arguments : 29.07.2024
Date of pronouncement : 29.07.2024
AND
MACT No.244/2023
Dhruv
s/o Sh.Anil Kumar
r/o H.No.54, JJ Colony,
Old Seemapuri, Delhi. ....Petitioner
Digitally signed
by SHAILENDER
SHAILENDER MALIK
MACT No.323/2022 & 244/2023 MALIK Page 1
Date: 2024.07.29
16:37:27 +0530
Versus
(1)Mohd. Hasroo
s/o Mohd. Saleem
r/o H.No.811, Pump No.1,
Aman Colony, Ghaziabad, UP.
(2)Yoginder Pal
s/o Sh.Gopal Singh
r/o 3rd L/19, Nehru Nagar,
Ghaziabad, U.P.
(3)National Insurance Co. Ltd.
Division XXVIII Eleventh Floor,
Scope Minar, North Tower,
Core-2, Laxmi Nagar,
Delhi-110092. ....Respondents
Date of Institution : 28.04.2023
Date of Arguments : 29.07.2024
Date of pronouncement : 29.07.2024
AWAR D
1. By this common judgment I would dispose off claim petition No.323/20202 titled as Dheeraj vs. Mohd. Hasroo and others as well as DAR No.05/2023 filed in respect of petitioner Dheeraj as well as separate proceedings/MACT No.244/2023 titled as Dhruv vs. Hasroo and others arose by filing of DAR in the same case FIR No.507/2022 of PS Seemapuri, Shahdara.
Common facts
2. As per the facts mentioned in claim petition as well as in DAR on 09.06.2022 petitioners Dheeraj as well as Dhruv and other passengers were sitting in e-rickshaw at Apsara Border, Seemapuri, when a bus bearing registration no.UP-14HT-9611 stated to be being driven in a rash and Digitally signed MACT No.323/2022 & 244/2023 SHAILENDER by SHAILENDER Page 2 MALIK MALIK Date: 2024.07.29 16:37:45 +0530 negligent manner and violating the traffic rules hit the above mentioned e- rickshaw nos.DL-9ER-6664, DL-5ER-3892 and DL-5ER-9524. Petitioners were sitting in one of above mentioned e-rickshaws. Due to the impact of the accident many passengers sitting in those rickshaws including petitioners suffered multiple grievous injuries. After the accident injured in the accident were taken to GTB Hospital. In respect of the accident in question FIR No.507/2022 u/s 279/337/338 IPC was registered at PS Seemapuri. It is mentioned that at the time of accident the offending bus no.UP-14HT-9611 was being driven by respondent no.1 and owned by respondent no.2 and insured by respondent no.3 i.e. National Insurance Company Limited.
MACT No.323/20223. Petitioner Dheeraj stated to have sustained open III-C fracture of both bone of the right leg with open III-B fracture of both bones of left leg beside other multiple injuries. In GTB Hospital MLC A/2305/15/22 was prepared. Petitioner remained hospitalized from 09.06.2022 to 21.06.2022 and thereafter in Jeevan Jyoti Hospital from 21.06.2022 to 05.07.2022. At the time of accident petitioner was aged 23 years and was running a tea and snacks stall in front of B-239, Vivek Vihar, Delhi and earning Rs.40,000/- per month. It is stated that on account of accidental injuries right leg below the knee was amputated and petitioner beside loss of earning, huge medical expenses had also suffered great mental pain and trauma. During the course of proceedings medical board of GTB Hospital assessed permanent disability of the petitioner to the extent of 77% in relation to both of his lower limbs.
MACT No.244/20234. Petitioner Dhruv at the time of accident was only 05 years of Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 3 SHAILENDER MALIK MALIK Date: 2024.07.29 16:37:51 +0530 age when he suffered multiple grievous injuries. It is stated that petitioner suffered crush injuries on his both legs, right leg was amputated. Petitioner took initial treatment at GTB Hospital and thereafter because of serious nature of injuries and tender age of the petitioner, he was referred to AIIMS Hospital. At the time of accident petitioner was studying and during the course of proceedings the permanent disability of the petitioner was assessed by medical board of GTB Hospital to the extent of 85% in relation to both lower limbs.
Common pleadings from respondents in MACT Nos.323/22 and 244/23
5. Reply/WS to DAR/claim petition has not been filed on behalf of respondent no.1 and 2 despite notice and appearance of those respondents. Repeated opportunities were given for filing the WS. Consequently opportunity to file the WS was closed when this Tribunal proceeded to frame issues on 20.10.2023.
6. Reply/WS has been filed on behalf of respondent no.3/ insurance taking an objection that investigating officer of FIR No.507/2022 of PS Seemapuri has not provided requisite documents. It is not disputed that offending bus no. UP-14HT-9611 was insured with respondent no.3 under policy no.36170031210001252 with validity from 29.09.2021 to 28.09.2022. It is stated that insurance company takes all the legal pleas including the defence in terms of Section 170 M.V. Act, on account of respondent no.1 and 2 not contesting the claim petition. Liability of insurance company to pay the compensation has been denied. Other averments of the claim petition/DAR have been denied in totality. Issues
7. On the basis of facts, pleadings following issues were framed on 20.10.2023 :
Digitally signed by SHAILENDERMACT No.323/2022 & 244/2023 SHAILENDER MALIK Page 4 MALIK Date: 2024.07.29 16:37:58 +0530 Issues in MACT No.323/2022 (1)Whether petitioner suffered injuries during the accident occurred on 09.06.2022 at 04:30 PM at Apsara Border Seemapuri within the jurisdiction of PS Seemapuri due to rash and negligent driving of the vehicle bearing No.UP-14HT-9611 being driven by respondent No.1/driver? OPP (2)Whether petitioner is entitled for compensation, if so, to what extent and from whom? OPP (3)Relief.Issues in MACT 244/2023
(1)Whether petitioner suffered injuries during the accident occurred on 09.06.2022 at 04:30 PM at Apsara Border Seemapuri within the jurisdiction of PS Seemapuri due to rash and negligent driving of the vehicle bearing No.UP-14HT-9611 being driven by respondent No.1/driver? OPP (2)Whether petitioner is entitled for compensation, if so, to what extent and from whom? OPP (3)Relief.
Evidence
8. In MACT case No.323/2022, petitioner has examined three witnesses before ld. LC. PW1 is petitioner Dheeraj, PW2 is Naveen Kumar, Prosthetics from Ottobock Health Care India, New Delhi, PW3 is Dr.Vinod Kalita from JPC Hospital.
9. No evidence has been led on behalf of respondent no.1 and 2 or on behalf of respondent no.3 despite giving opportunities.
10. In MACT No.244/2023 PW1 is Vinitia (mother of petitioner Dhruv), PW2 is Dr.Anshul Sethi from GTB Hospital, PW3 is Naveen Kumar, Prosthetics from Ottobock Health Care India, New Delhi.
11. No evidence has been led on behalf of respondent no.1 and 2 Digitally signed by SHAILENDER MACT No.323/2022 & 244/2023 SHAILENDER MALIK Page 5 MALIK Date: 2024.07.29 16:38:13 +0530 or on behalf of respondent no.3 despite giving opportunities. Submissions
12. I have heard Sh.Upender Singh, ld. Counsel for petitioner Dheeraj in MACT No.323/2022 and Sh.Rishi Kumar, ld. Counsel for petitioner Dhruv in MACT No.244/2022. I have also heard the submissions of Sh.Ashok Goel, ld. Counsel for respondent no.1 and 2. I have also heard Sh.Sameer Tiwari, ld. Counsel respondent no.3/insurance. I have gone through written submissions filed on behalf of petitioners. Issue No.1 in both claim petitions
13. It is settled proposition of law that an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. v. Sakshi Bhutani & Others. (MAC APP. No. 550/2011 decided on 02.07.2012), Bimla Devi & Others v. Himachal Road Transport Corporation & Others (2009) 13 SC 530, Parmeshwari v. Amirchand & Others 2011 (1) SCR 1096 & Mangla Ram v. Oriental Insurance Company Ltd. & Others 2018 Law Suit (SC) 303.
14. In both the claim petitions witness PW1 are the eye witnesses. PW1 Dheeraj is petitioner himself, whereas in MACT case No.244/2023 PW1 Vinita, is mother of the petitioner/injured. Both these witnesses have testified that on 09.06.2022 at about 04.30 p.m. when petitioner Dheeraj as well as PW1 Vinita along with her son petitioner Dhruv were waiting in a Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 6 SHAILENDER MALIK MALIK Date: 2024.07.29 16:38:22 +0530 e-rickshaw near Apsara Border, all of sudden offending bus no. UP-14HT- 9611 came in a rash and negligent manner and hit e-rickshaws with the great force, due to which passengers sitting in the e-rickshaws including petitioners suffered grievous injuries. It is stated that petitioners were immediately taken to GTB Hospital for their treatment. PW1 in both the claim petitions have testified that accident occurred due to rash and negligent driving of respondent no.1 while driving bus no. UP-14HT-9611. Nothing came in the cross examination of PW1 in both the claim petitions to disbelieve the version as given by PW1s, rather witnesses have reiterated the facts and the circumstances in which the accident had occurred. Important in this context to note that despite not filing the WS, counsel for respondent no.1 and 2 were appearing at the time of recording of evidence but did not cross examine the witness. Moreover the evidence of PW1 in both the claim petitions get corroboration in the shape of filing of DAR by the IO of FIR No.507/2022 of PS Seemapuri, wherein the report u/s 173 Cr.PC also mentions that it is respondent no.1/driver who has been prosecuted for criminal case of accident in question. Beside this site plan, mechanical inspection report and statement of other witnesses also establish that accident occurred due to rash and negligent driving or respondent no.1 while driving offending bus no. UP-14HT-9611. Issue No.2
15. The scope of compensation in injury cases has been considered by Hon'ble Supreme Court in case titled as Mr. R.D. Hattangadi v. M/s Pest Control (India) Pvt. Ltd. 1995 AIR 755. The relevant extract is as under:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the Digitally signed by SHAILENDER MACT No.323/2022 & 244/2023 SHAILENDER MALIK Page 7 MALIK Date: 2024.07.29 16:38:29 +0530 damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is 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 upto 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 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, discomfort, disappointment, hardship, frustration and mental stress in life."
16. Further, in Raj Kumar v. Ajay Kumar & another (2011) 1 SCC 343, Hon'ble Supreme Court of India laid down general principles for computation of compensation in injury cases. The relevant paras of the judgment are reproduced as under:
4. The provisions 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 Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 8 SHAILENDER MALIK MALIK Date: 2024.07.29 16:38:35 +0530 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.
5. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary Damages (special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment.
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-Pecuniary Damages (general damages)
(iv) Damages to 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.
Digitally signed by SHAILENDER MACT No.323/2022 & 244/2023 SHAILENDER MALIK Page 9 MALIK Date: 2024.07.29 16:38:42 +0530 17. In the light of the aforementioned judgments, the
compensation to which the petitioner is entitled shall be as under :
MACT No.323/2022PECUNIARY DAMAGES Medical Expenses
18. Petitioner Dheeraj in his deposition stated that due to accidental injuries, he has incurred expenses of Rs.5,00,000/- on his medical treatment. Petitioner has proved on record his treatment bills as Ex.PW1/2 (colly.). Perusal of these medical bills totaling to Rs.1,93,520/- show that petitioner incurred expenses on medicines, consultation charges etc. There is nothing in the cross examination of petitioner on this aspect to disbelieve the evidence. As such petitioner has proved the medical expenses incurred by him on treatment. Thus, petitioner is entitled for compensation of Rs.1,93,520/- towards medical expenses. Loss of earning during treatment:
19. As per the evidence of petitioner/injured Dheeraj (PW1) at the time of accident he was running a tea and snacks stall in front of B-239, Vivek Vihar, Delhi and was earning Rs.40,000/- per month approximately.
However during cross examination petitioner stated that he had not taken any licence from MCD for running the tea stall. Witness admitted that he has not placed any documentary proof of his tea stall. PW1 also admitted that he has not placed on record any documentary proof relating to his income and that he is not an income tax payee. There is no documentary evidence on record to establish income of the petitioner. In the absence of any material on record regarding work and income of the petitioner, this Tribunal take notional income of the petitioner on the basis of minimum wages of unskilled worker prevalent in Delhi at the time of accident which MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 10 SHAILENDER MALIK MALIK Date: 2024.07.29 16:38:55 +0530 is Rs.16,506/- per month.
20. It is submitted by the counsel for the petitioner that given the nature of injuries suffered by the petitioner, medical record and disability certificate, clearly show that petitioner suffered grievous injuries and the nature of the injuries was so serious that he kept on taking medical treatment. It is submitted that the working capacity of the petitioner curtailed almost 100% and even presently he is unable to work.
21. It has come in the evidence of PW3 Dr.Binod Kalita that permanent medical disability of petitioner was assessed by medical board of GTB Hospital vide disability certificate Ex.PW1/3 as per which he was found having permanent disability of 77% in relation to both lower limbs. It has also come in the MLC and medical treatment record of the petitioner that he sustained open IIIC fracture of both bones of right leg and open IIIB fracture of both bones of left leg. Petitioner has also deposed that he remained hospitalized in GTB Hospital from 09.06.2022 to 21.06.2022 and thereafter in Jeevan Jyoti Hospital from 21.06.2022 to 05.07.2022.
22. Having considered the evidence of petitioner/injured (PW1), PW3 as well as the treatment record of petitioner in GTB Hospital Ex.PW1/1 and Jeevan Jyoti Hospital vide documents Ex.PW1/2, these documents clearly show that petitioner got treatment in different hospitals. It has also come in the evidence that there was amputation of right leg below knee of the petitioner. Nature of all these injuries clearly indicate that he remained admitted in two different hospital for about one month and thereafter continued taking follow up treatment. Moreover on account of amputation of right leg of the petitioner, his follow up treatment must have continued for considerable period of time. As such taking into account the medical evidence, testimony of PW1 as well as nature of injuries, this Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 11 SHAILENDER MALIK MALIK Date: 2024.07.29 16:39:06 +0530 Tribunal finds that petitioner must have taken his medical treatment and could not work for his livelihood for one year. As such the loss of earning for petitioner is assessed to be Rs.1,98,072/- (Rs.16,506/- X 12 month). Loss of future earning due to disability :
23. In case of Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC 343, Hon'ble Supreme Court of India determined the broad criteria for assessment of permanent disability for ascertaining the purpose of future loss of earning and also laid down step by step procedure for assessment of disability and for ascertainment to the effect of the permanent disability on the actual earning capacity. Relevant paras of the judgment are reproduced as under:-
"9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) Whether the disablement is permanent or
temporary;
(ii) If the disablement is permanent, whether it
is permanent total disablement or permanent partial disablement;
(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect Digitally signed by SHAILENDER MACT No.323/2022 & 244/2023 SHAILENDER MALIK Page 12 MALIK Date: 2024.07.29 16:39:12 +0530 his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The tribunal has to first ascertain what activities of the claimant could carry on in spite of the permanent disability and what he could not do as a result of 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 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 so that he continues to earn or can continue to earn his livelihood."
....If doctor has given evidence about percentage of permanent disability, Tribunal will have to seek doctors opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to whole body and if so to what percentage.
13. We may now summarize 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 percentage of loss of earning capacity is the same as MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 13 SHAILENDER MALIK MALIK Date: 2024.07.29 16:39:19 +0530 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 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 of profession, occupation or job, age, education and other factors."
24. Hon'ble Apex Court in the matter of Raj Kumar vs. Ajay Kumar (supra) has laid down that Tribunal is bound to assess the evidence on the record, for the purpose of ascertaining the functional disability of the petitioner on account of medical permanent disability to assess how much the medical disability adversely affected on the functional capacity of the petitioner/injured so that just and fair amount of compensation can be ascertained under the heading of future loss of earning.
25. Keeping in view the ratio as discussed above, in the evidence of PW1 he has given all the details of treatment taken at different hospitals as well as about the nature of injuries suffered by him. Petitioner has proved his original treatment record as Ex.PW1/1 and medical bills as Ex.PW1/2.
Beside this it has also come on the record that petitioner suffered permanent disability to the extent of 77%, vide permanent disability certificate Ex.PW1/3. PW3 Dr.Binod Kalita proved medical disability certificate of the petitioner. PW3 stated that patient was having below knee amputation (right) with non union fracture both bone left leg. PW3 also says that patient/petitioner would have difficulty in walking, running, Digitally signed MACT No.323/2022 & 244/2023 SHAILENDER MALIK by SHAILENDER Page 14 MALIK Date: 2024.07.29 16:39:26 +0530 squatting etc due to amputation in right lower limb and non union fracture of both bone left leg. PW3 says that the patient would need an assistant for day to day activities and he would need wheel chair/artificial limb for his normal mobility. The nature of the job of the petitioner has already been discussed above as petitioner was running a tea and snacks shop and due to the accidental injuries evidently petitioner lost his work as he suffered the injury in relation to both lower limbs. As such given the nature of the job, nature of injuries and permanent disability suffered by the petitioner, this Tribunal is of considered view that tea shop can be run even while in sitting position. No doubt there is amputation of right leg of the petitioner, but with such physical disability there would be not much difficulty in running a tea shop while sitting in such shop. As such this Tribunal assesses functional disability of petitioner to be 50% of medical disability, which is 38.5%.
26. Further, law is well settled that there should be no departure from the multiplier method in injury cases also [refer: Sandeep Khanuja vs. Atul Dande & Anr., (2017) 3 SCC 351]. As per documents of age of the petitioner i.e. Aadhar card Ex.PW1/4, the date of birth of the petitioner is mentioned to be 01.01.1999. As such at the time of accident i.e. on 09.06.2022, petitioner was around 23 years 06 months of age. As such multiplier to be applied in the present case would be 18 as applicable to age group between 21 to 25 years, would be applicable as per settled principle laid down in case of Sarla Verma v. DTC (2009) 6 SCC 121. Moreover, the law has been well settled by the decisions of Supreme Court in the cases of Sandeep Khanuja (supra) and Erudhaya Priya vs. State Express Transport Corporation Ltd. 2020 SCC OnLine SC 601, that while applying the multiplier method, future prospects on advancement in life and career are Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 15 SHAILENDER MALIK MALIK Date: 2024.07.29 16:39:33 +0530 also to be taken into consideration. Thus, considering the petitioner below age of 40 years at the time of accident and was self employed, in view of the judgment in Pranay Sethi & Others (supra) an addition of income to the extent of 40% towards future prospects has to be counted.
27. As discussed above, the income of petitioner has been assessed as Rs.16,506/- + 40% (Rs.6,602/-), total Rs.23,108/-. Thus applying the functional disability to be 38.5% of Rs.23,108/-, amount comes out to be Rs.8,897/-. As such the loss of future income due to disability comes out to be Rs.8,897/- X 12 X 18 = Rs.19,21,752/-.
Future medical expenses/artificial limb
28. Petitioner has examined PW2 Sh.Naveen Kumar, Prosthetist and Orthotist, Otto Bock Health Care India, New Delhi for proving that on account of amputation petitioner would require an artificial limb for normal walking and coming to main stream. PW2 has produced proposal/ estimation sheet issued in the name of Dheeraj s/o Kedarnath Sharma who was examined by PW2 and other panel members of Ottobock on 17.11.2023 vide proposal DEL/328-11/23 and same is Ex.PW1/6. Witness states that the cost of artificial limb would be Rs.3,39,885/- and average life of artificial limb is approximately 5 years. Witness also says that the patient would require to change artificial limb after every 4 to 5 years and it would be costlier with every passing year as per inflation and company's policy. PW2 says that the patient would also need yearly maintenance of artificial limb which would cost to patient Rs.20,000/- to Rs.25,000/-.
29. Ld. counsel for insurance company on the other hand submitted that evidence of PW2 is from a private vendor of artificial limb and the cost of such artificial limb with annual maintenance is highly exaggerated one and there is no specific basis about the amount as the requirement of MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 16 SHAILENDER MALIK MALIK Date: 2024.07.29 16:39:39 +0530 installing artificial limb and the cost of the same has not been proved by any authenticated source. It is further submitted that necessity of artificial limb, has not been proved from the opinion of any medical board of government hospital. PW2 being himself a vendor, cannot be considered to be an expert witness regarding necessity of artificial limb.
30. Having considered the submissions at bar and evidence of PW2. It be noted that evidence of PW2 gets corroboration by medical treatment record and nature of injuries suffered by petitioner, it is very much evident from the record that petitioner sustained an amputation of his right leg below knee. Permanent medical disability is also of 77% in relation to both lower limbs. In such circumstances judicial notice can be taken of the fact that petitioner would certainly be required the artificial limb for living his day to day life. Even otherwise the concept of grant of just and fair compensation, also require the Tribunal to decide the question of monetary compensation in a manner to place the petitioner as far as possible to a position where he was even prior to the accident. No doubt such situation cannot be achieved completely but given the nature of the injury suffered by the petitioner at such young age, this Tribunal cannot lose sight of necessity of the petitioner for artificial limb for his normal and effective living. At the same time this Tribunal also considers the concerns raised by the counsel for the insurance to be genuine to an extent. Therefore this Tribunal concludes that petitioner is certainly entitled for future cost of medical expense inclusive of installation of artificial limb. In the light of the evidence of PW2, since a sum of Rs.3,40,000/- is required for artificial limb along with Rs.20,000/- towards maintenance. Therefore a sum of Rs.3,60,000/- is awarded to the petitioner for artificial limb. As it has come in the evidence of PW2 that the normal life of such artificial limb is around MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 17 SHAILENDER MALIK MALIK Date: 2024.07.29 16:39:45 +0530 five years, therefore since the present age of the petitioner is 23 years, therefore he would be required to change the artificial limb in his life time atleast for five times or more. Therefore the amount of compensation under this head is being fixed to Rs.18,00,000/- (Rs.3,60,000 X 5 times).
31. It is being made clear that such amount of Rs.18,00,000/- for artificial limb would not be granted to the petitioner immediately. Such amount would be kept for the petitioner separately in PO MACT Account and would be disbursed to the concerned doctor/company which would provide the artificial limb to the petitioner. Thus this amount would be available for the petitioner only upon installation of artificial limb and furnishing of proof of installation and the amount would be straightaway paid, upon moving an application along with necessary documents as directed.
32. It is also being made clear that in case petitioner continues to live after changing the artificial limb for five times as noted above, petitioner can apply before this Tribunal even at subsequent stage for taking the facility of artificial limb even thereafter so that such medical facilities would always remain available for him during his life time. Special Diet & Conveyance Charges:
33. Petitioner in his evidence has testified that he had spent Rs.50,000/- each on conveyance and on special diet. Though petitioner has proved on record his medical treatment documents, but no documentary evidence in the form of prescription of doctor or bills of transportation and special diet has been placed on record to substantiate his claim that he has incurred any expenses towards conveyance and special diet. In the absence of any such documentary proof, this Tribunal while taking into consideration period of hospitalization of petitioner, seriousness of injuries MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 18 SHAILENDER MALIK MALIK Date: 2024.07.29 16:39:54 +0530 and the extent of permanent disability suffered by him, finds it appropriate to grant compensation for a sum of Rs.30,000/- towards conveyance charges and a sum of Rs.30,000/- towards special diet. Attendant Charges:
34. On the question of attendant charges, ld. counsel for the petitioner submitted that given the nature of injuries, petitioner cannot pursue his daily routine without the help of someone to attend him. Petitioner in his deposition stated that he incurred expenditure of Rs.1,50,000/- on attendant charges. Having considered the submissions and the evidence on the record, there is no denial to the fact that petitioner suffered grievous injuries and his right leg below knee has been amputated. Moreover even presently because of the amputation and the permanent disability to the extent of 77% which has been assessed to be functional disability to the extent of 38.5%, petitioner cannot walk on his own without the help of artificial limb. Therefore evidence clearly establish on the record that nature of the injury, permanent disability of petitioner is such that he would always be required someone to assist him even for day to day life pursuits including going for bath, washroom etc. Therefore this Tribunal is of considered view that while petitioner is entitled for compensation for attendant charges to be calculated on the basis of minimum wages of attendant for period of treatment which this Tribunal has concluded for one year. Thus attendant charges comes out to be Rs.1,98,072/- (Rs.16,506/- X 12 months) .
35. Beside this as noted above petitioner would be required attendant even for future. For calculating the compensation for future attendant charges, ld. Counsel has rightly relied upon the judgment of Apex Court in Kajal vs. Jagdish Chand AIR OnLine 2020 SC 136, wherein it is observed Digitally signed by MACT No.323/2022 & 244/2023 SHAILENDER SHAILENDER Page 19 MALIK MALIK Date: 2024.07.29 16:40:03 +0530 that "multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. The multiplier system factors in inflation rate, rate of interest payable on lump sum award, the longevity of the claimant and also other issues such as uncertainties of life.'
36. Hon'ble Delhi High Court in Anju Mahajan vs. Nasir Ali and others (MAC Appeal No.155/2018 decided on 05.12.2019) has also followed the above said judgment of Apex Court and laid down that for future attendant charges multiplier should be applied as per the age of the petitioner. In this case petitioner presently at the age of 23 years and therefore as per the M.V. Act multiplier would be applied of 18. Therefore petitioner is entitled for future attendant charges on the basis of minimum wages of attendant which comes out to be Rs.35,65,296/- (Rs.1,98,072 X
18).
NON PECUNIARY DAMAGES :
Pain & Sufferings:
37. While discussing the criteria to ascertain the compensation for pain and sufferings by victim of vehicular accident, observations of Hon'ble High Court of Delhi in Satya Narain v. Jai Kishan, FAO No:
709/02, date of decision: 02.02.2007 can be considered:
"12. On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives co-relation with the pain and suffering.
13. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected
(c) Duration of the treatment."Digitally signed
MACT No.323/2022 & 244/2023 SHAILENDER MALIK by SHAILENDER Page 20 MALIK Date: 2024.07.29 16:40:10 +0530
38. In this case, as per medical documents of the petitioner, he was found to have suffered open IIIC frature both bone right leg with open IIIB fracture both bone left leg apart from other medical injuries. His treatment record including medical disability certificate shows he sustained medical permanent disability in relation to both lower limbs and remained hospitalized for different periods. It has also come on record that due to accidental injuries there was amputation. Thus, it is clear that petitioner must have suffered pain and suffering during his treatment and therefore, this Tribunal is of the opinion that an amount of Rs.3,00,000/- would be just and fair compensation for pain, sufferings and mental trauma suffered by the petitioner as consequences of injuries sustained in the accident. Accordingly, Rs.3,00,000/- is granted to the petitioner under this head. Loss of Amenities:
39. Having considered the evidence of PW1, once it has already come on the record that petitioner suffered fracture of both bones of right leg and left leg and medical permanent disability to the extent of 77% in relation to both lower limbs which this Tribunal has assessed functional disability to be 38.5%. This Tribunal has already noted that petitioner lost his working capacity due to accidental injuries, therefore he must have lost amenities of life on account of injuries suffered in the accident. Therefore taking into consideration nature of injuries, disability, he is awarded a sum of Rs.1,00,000/- under the head of loss of amenities. Loss of Marriage Prospects
40. It is matter of record that petitioner at very young age suffered accidental injuries due to which one of the leg of the petitioner was amputated. It is again a matter of record that he has suffered permanent Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER SHAILENDER MALIK Page 21 MALIK Date: 2024.07.29 16:40:16 +0530 disability to the extent of 77% in relation to both of his lower limbs. In such circumstances beside medical and physical difficulties, petitioner must have suffered many psychological issues including loss of future prospects/ avenues as well as loss of marriage prospects. No amount of compensation can be just and fair for determining the loss of future prospects including marriage prospects but at the same time the Tribunal has to strike a balance by awarding monetary compensation which would work as a solace and support for petitioner. Given the nature of injuries suffered by the petitioner and considering the family, social set up of the petitioner, this Tribunal considers it appropriate to award sum of Rs.5,00,000/- towards future prospects and loss of marriage prospects as a non-pecuniary compensation.
41. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses Rs.1,93,520/-
2. Loss of earning during Rs.1,98,072/-
treatment
3. Loss of future earning due Rs.19,21,752/-
to disability
4. Conveyance charges Rs.30,000/-
5. Special Diet Rs.30,000/-
6. Attendant charges Rs.35,65,296/-
7. Pain & Suffering Rs.3,00,000/-
8. Loss of Amenities Rs.1,00,000/-
9. Loss of marriage Rs.5,00,000/-
prospects
Total Rs.68,38,640/-
Digitally signed
MACT No.323/2022 & 244/2023 by SHAILENDER
SHAILENDER MALIK Page 22
MALIK Date: 2024.07.29
16:40:22 +0530
42. Thus, the total compensation amount to which the petitioner is entitled comes to Rs.68,38,640/- with addition of Rs.18,00,000/- towards future medical expenses, for implanting artificial limbs which would be paid to the petitioner subject to proof of implantation of such artificial limb, cost of the same etc. and then such amount be apportioned from the maximum amount of Rs.18,00,000/- as awarded above. INTEREST ON AWARD
43. Petitioner shall also be entitled to interest @ 8% per annum on the award amount immediately payable to the petitioner i.e. Rs.68,38,640/- from the date of filing of the petition till realization. LIABILITY
44. Now, the question arises as to which of the respondent is liable to pay the compensation amount. It is matter of record that the vehicle in question was duly insured with respondent no.3/insurance company. Therefore the amount of compensation is payable by respondent no.3/ insurance company to the petitioners.
Relief
45. This Tribunal awards a compensation of Rs.68,38,640/- to the petitioner along with interest @ 8% per annum from the date of filing of petition till realization to be paid by the respondent no.3/insurance company. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, within 30 days from today. The Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 23 SHAILENDER MALIK MALIK Date: 2024.07.29 16:40:29 +0530 respondent no.3 is also directed to give notice regarding deposit of the said amount to the petitioner.
Disbursement of Award Amount
46. Out of awarded amount, a sum of Rs.6,83,640/- is directed to be released into the saving account of the petitioner and remaining amount of Rs.61,55,000/- along with interest on the entire award is directed be kept in the form of FDR for a period of ten years with monthly accruing interest. The amount of FDR on maturity shall directly be released in petitioner's MACT Saving Bank Account.
MACT No.244/2023PECUNIARY DAMAGES Medical Expenses
47. As per the evidence of PW1 Vinita (mother of the petitioner/injured Master Dhruv), after the accident petitioner was taken to GTB Hospital for treatment of his accidental injuries. However on account of serious nature of injuries the injured was referred to Jai Prakash Narayan Apex Trauma Centre, AIIMS. It is matter of record as is reflected from treatment record, medical documents being part of DAR that petitioner who at the time of accident was only 05 years of age suffered crush injuries on both of his legs, immediately after the accident when he was treated as GTB Hospital, MLC reflects that right leg of the petitioner was amputated. There was crush injury on both the legs of the petitioner. It is evident from the evidence of PW1 that the entire treatment of the injured Dhruv was carried in government hospitals i.e. GTB Hospital and AIIMS. No medical bill have also been proved in the entire evidence. Although certain medical bills/pharmacy bills are lying on the record the total of which is Rs.6,991/-. Therefore considering the nature of injuries, this Tribunal finds that MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 24 SHAILENDER MALIK MALIK Date: 2024.07.29 16:40:35 +0530 petitioner is entitled for Rs.10,000/- under the head of medical expenses. Loss of earning
48. At the outset it be noted that injured in this case was 05 years of age at the time of accident. In case of determining the quantum of compensation for accidental injuries suffered by a child, more particularly child below the age of 10 years, first challenge before any MACT, would be to determine the amount of compensation under the head of loss of earning. As the child being at such tender age, there cannot be any specific or proven criteria to decide the just and fair amount of compensation under the above said head. Obviously the Tribunal would be required to take notional income of the child for determining the amount of compensation. In this case given the age, the nature of injuries, social background of the child and future possibilities, this Tribunal finds that in the light of observation of Hon'ble Apex Court in Kajal vs. Jagdish Chand AIR 2020 SC 776 (para 20), it would be in the interest of justice to consider the notional income of child at parity with minimum wages of a skilled worker. This Tribunal is taking minimum wages of skilled worker, keeping in view the future possibilities of the child. Although everything is uncertain in life but a equitable balance is to be made while calculating just and fair amount of compensation, more particularly when the Apex Court has also laid down similar criteria in Kajal's case (supra). Accordingly the amount of compensation to be calculated would also be added with 40% of future prospects. Minimum wages of skilled worker at the time of accident in Delhi was Rs.20,019/-. Added with 40% (Rs.8,008/-) of future prospects amount comes out to be Rs.28,027/- (Rs.20,019 + Rs.8,008/-). As per the ratio laid down by the Apex Court, the multiplier to be applied would be
18. Accordingly the amount of compensation under the above mentioned MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 25 SHAILENDER MALIK MALIK Date: 2024.07.29 16:40:44 +0530 heading comes out to be Rs.60,53,832/- (Rs.28,027 X 12 X 18). Loss of future earning due to disability :
49. Law with regard to assessment of loss of future earning due to disability has already been discussed in earlier portion of the judgment by referring the judgment of Apex Court in Raj Kumar v. Ajay Kumar & Anr.
(supra). In the facts and circumstances of the case as it has come from the evidence of PW1 (mother of injured Dhruv) that injured suffered crush injuries on both his legs and being a child of tender age suffered great amount of mental and physical agony. Injured was pursuing for this studies at initial stages and was good at academics. Such evidence of PW1 remain unrebutted. Beside PW1, PW2 Dr.Anshul Sethi proved the disability certificate of the injured Ex.PW2/1 as per which injured suffered 85% of permanent disability in relation to both lower limbs. PW2 stated that patient would have difficulty in walking, running, squatting etc. due to amputation in right limb above the knee. Thus the nature of the injuries suffered by the injured at initial stage of his life, clearly establish that injured has lost all his future prospects.
50. In the light of the ratio laid down in Raj Kumar's case (supra), this Tribunal is supposed to decide the functional disability of injured. In case of a child such job becomes even more challenging to decide the question of functional disability. In this case injured was only 05 years of age when he suffered 85% of permanent disability. In this context one factor which can be kept in mind while assessing the compensation under the above said heading is that present claim can be awarded only once. Claimant cannot come back to the court for enhancement of the award at later stage, with the prayer that something extra has been spent. Therefore the Tribunal while deciding the compensation is required to take liberal MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 26 SHAILENDER MALIK MALIK Date: 2024.07.29 16:40:51 +0530 view where the child has suffered permanent medical disability upto 85% on account of crush of his both legs. Effectively the child would remain disabled for whole of his life, that aspect must have to be borne in mind while deciding the question of functional disability in case of a child whose all future avenues were bright and open. In such circumstance this Tribunal is of considered view that 100% of the medical disability should be considered to be functional disability of the child and therefore his future prospects can be assessed by taking the functional disability also to be 85%.
51. Further, law is well settled that there should be no departure from the multiplier method in injury cases also [refer: Sandeep Khanuja vs. Atul Dande & Anr., (2017) 3 SCC 351]. As per documents of age of the petitioner i.e. Aadhar card Ex.PW1/2, the date of birth of the petitioner is mentioned to be 12.02.2018. As such at the time of accident i.e. on 09.06.2022, petitioner was 04 years 04 months of age. As such multiplier to be applied in the present case would be 18. Moreover, the law has been well settled by the decisions of Supreme Court in the cases of Sandeep Khanuja (supra) and Erudhaya Priya vs. State Express Transport Corporation Ltd. (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. Thus, an addition of income to the extent of 40% towards future prospects has to be counted.
52. As discussed above, the income of petitioner has been assessed as Rs.20,019/- + 40% (Rs.8,008/-), total Rs.28,027/-. Thus applying the functional disability to be 85% of Rs.28,027/-, amount comes out to be Rs.23,823/-. As such the loss of future income due to disability comes out to be Rs.23,823/- X 12 X 18 = Rs.51,45,768/-.
Digitally signed
MACT No.323/2022 & 244/2023 by SHAILENDER Page 27
SHAILENDER MALIK
MALIK Date: 2024.07.29
16:41:00 +0530
Future medical expenses/artificial limb
53. At the outset it be noted that another petitioner who suffered injuries in the same accident, whose claim petition is also being decided with this common judgment, had also suffered 77% of permanent disability and has also led evidence regarding future medical expenses. This Tribunal taking into consideration the evidence, medical difficulties and the permanent disability has already concluded to award compensation for medical expenses/artificial limbs.
54. In case of petitioner Dhruv, the question of future medical expenses become more important as the injured at the time of accident was only 05 years of age and while this claim petition is being decided he must be around 07 years only. Therefore petitioner Dhruv herein has whole life to look forward and to pursue for his honorable living and livelihood. Therefore necessity for the petitioner to have artificial limbs and other future medical expenses is real and genuine. If we examine the evidence on the judicial record, this Tribunal has already noted that PW2 Dr.Anshul Sethi has proved the permanent disability certificate Ex.PW2/1 which mentions the permanent disability to the extent of 85% in relation to both lower limbs. The DAR Ex.PW1/1 contains medical documents of petitioner including discharge summary of AIIMS Hospital mentions that there is complete amputation of right leg below the knee with crush injury below the knee with exposure of bone and soft tissues.
55. Beside this PW3 is Naveen Kumar is Prosthetics from Otto Bock Health Care India who has stated that injured Master Dhruv was examined by him and other panel members of Otto Bock and it was noticed that the petitioner is required artificial limb the cost of which Rs.3,98,790/-. This certificate dated 09.04.2024 is Ex.PW3/C. PW3 further testifies that life of Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 28 SHAILENDER MALIK MALIK Date: 2024.07.29 16:41:06 +0530 artificial limb is of five years and cost of maintenance of artificial limb is Rs.40,000/- to 50,000/-. Nothing came in the cross examination of PW3 to disbelieve the version or the documents proved in his evidence. Moreover evidence of PW3 gets corroboration by medical treatment record and nature of injuries suffered by petitioner, it is very much evident from the record that petitioner sustained an amputation of his right leg below knee.
56. As such keeping in view the submissions made at bar, evidence on the record and concerns raised on behalf of the insurance company, this Tribunal concludes that petitioner is certainly entitled for future cost of medical expense inclusive of installation of artificial limb. In the light of the evidence of PW3, since a sum of Rs.3,98,790/- is required for artificial limb along with Rs.40,000/- towards maintenance. Therefore a sum of Rs.4,40,000/- is awarded to the petitioner for artificial limb. As it has come in the evidence of PW3 that the normal life of such artificial limb is around five years, therefore since the present age of the petitioner is 07 to 08 years, therefore he would be required to change the artificial limb in his life time atleast for ten times or more. Therefore the amount of compensation under this head is being fixed to Rs.44,00,000/- (Rs.4,40,000 X 10 times).
57. It is being made clear that such amount of Rs.44,00,000/- for artificial limb would not be granted to the petitioner immediately. Such amount would be kept for the petitioner separately in PO MACT Account and would be disbursed to the concerned doctor/company which would provide the artificial limb, medical expenses for petitioner Dhruv. Thus this amount would be available for the petitioner only upon installation, use of artificial limb and furnishing of proof of installation and the amount would be straightaway paid, upon moving an application along with necessary documents as directed.
Digitally signed
MACT No.323/2022 & 244/2023 by SHAILENDER Page 29
SHAILENDER MALIK
MALIK Date: 2024.07.29
16:41:12 +0530
58. It is also being made clear that in case petitioner continues to live after changing the artificial limb for ten times as noted above, petitioner can apply before this Tribunal even at subsequent stage for taking the facility of artificial limb even thereafter so that such medical facilities would always remain available for him during his life time. Special Diet & Conveyance Charges:
59. Keeping in view the discussion made above, evidence of PW1, PW2 and the fact that petitioner/injured suffered grievous accidental injuries which led to amputation of his right leg beside the fact that he suffered permanent disability to the extent of 85% in relation to both lower limbs. Therefore this Tribunal while taking into consideration period of hospitalization of petitioner, seriousness of injuries and the extent of permanent disability suffered by him, finds it appropriate to grant compensation for a sum of Rs.30,000/- towards conveyance charges and a sum of Rs.30,000/- towards special diet.
Attendant Charges:
60. On the question of attendant charges, it is submitted by ld. counsel for the petitioner that in view of tender age of the petitioner/ injured, nature of injuries, petitioner being a child cannot pursue his daily routine without the help of his family support and that he would require help of someone to attend him almost throughout his life. Having considered the submissions and the evidence on the record, there is no denial to the fact that petitioner suffered grievous injuries of crush of both is legs and his right leg below knee has been amputated. Moreover even presently because of the amputation and the permanent disability to the extent of 85%, petitioner cannot walk on his own without the help of artificial limb. Therefore evidence clearly establish on the record that Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER Page 30 SHAILENDER MALIK MALIK Date: 2024.07.29 16:41:19 +0530 nature of the injury, permanent disability of petitioner is such that he would always be required someone to assist him even for day to day life pursuits including going for bath, washroom etc. Therefore this Tribunal is of considered view that while petitioner is entitled for compensation for attendant charges to be calculated on the basis of minimum wages of attendant for period of treatment which this Tribunal has assessed for one year. Thus attendant charges comes out to be Rs.1,98,072/- (Rs.16,506/- X 12 months).
61. Beside this as noted above petitioner would be required attendant even for future. In view of the ratio laid down in the judgment of Hon'ble Apex Court in Kajal vs. Jagdish Chand (supra) and in case of Hon'ble Delhi High Court in Anju Mahajan vs. Nasir Ali and others (supra) for ascertaining future attendant charges, multiplier should be applied as per the age of the petitioner. In this case petitioner was of the age of around 05 years at the time of accident and presently he is about 07 years old, therefore as per the M.V. Act multiplier would be applied of 18. Therefore petitioner is entitled for future attendant charges on the basis of minimum wages of attendant which comes out to be Rs.35,65,296/- (Rs.1,98,072 X
18).
NON PECUNIARY DAMAGES :
Pain & Sufferings:
62. In view of the ratio laid down by Hon'ble High Court of Delhi in Satya Narain v. Jai Kishan (supra), as per medical documents of the petitioner, he was found to have suffered crush injuries of both his legs apart from other medical injuries. His treatment record including medical disability certificate shows he sustained medical permanent disability in relation to both lower limbs and remained hospitalized for different MACT No.323/2022 & 244/2023 Digitally signed by SHAILENDER Page 31 SHAILENDER MALIK MALIK Date: 2024.07.29 16:41:25 +0530 periods. It has also come on record that due to accidental injuries there was amputation of his right leg below knee. Thus, it is clear that petitioner must have suffered pain and suffering during his treatment and therefore, this Tribunal is of the opinion that an amount of Rs.5,00,000/- would be just and fair compensation for pain, sufferings and mental trauma suffered by the petitioner as consequences of injuries sustained in the accident. Accordingly, Rs.5,00,000/- is granted to the petitioner under this head. Loss of Amenities:
63. Having considered the evidence as come on record in the form of evidence of PW1, PW2, medical treatment record of petitioner, once it has already come on the record that petitioner suffered crush injuries in his both legs and medical permanent disability to the extent of 85% in relation to both lower limbs. This Tribunal has already noted that petitioner being a child of tender age has a long life to live without his important limb i.e. right leg which has been amputated and unable to sustain himself without the help of someone in family or an attendant. Therefore he must have lost amenities of life on account of injuries suffered in the accident. Therefore taking into consideration nature of injuries, disability, he is awarded a sum of Rs.2,00,000/- under the head of loss of amenities. Loss of Marriage Prospects
64. It is matter of record that petitioner at such a tender age of about 05 years suffered accidental injuries due to which one of the leg of the petitioner was amputated. It is again a matter of record that he has suffered permanent disability to the extent of 85% in relation to both of his lower limbs. In such circumstances beside medical and physical difficulties, petitioner must have suffered many physical, mental and psychological issues including loss of future prospects/avenues as well as loss of marriage MACT No.323/2022 & 244/2023 Digitally signed by Page 32 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.07.29 16:41:32 +0530 prospects. No amount of compensation can be just and fair for determining the loss of future prospects including marriage prospects but at the same time the Tribunal has to strike a balance by awarding monetary compensation which would work as a solace and support for petitioner. Given the nature of injuries suffered by the petitioner and considering the family, social set up of the petitioner, this Tribunal considers it appropriate to award sum of Rs.5,00,000/- towards future prospects and loss of marriage prospects as a non-pecuniary compensation.
65. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses Rs.10,000/-
2. Loss of earning Rs.60,53,832/-
3. Loss of future earning due Rs.51,45,768/-
to disability
4. Conveyance charges Rs.30,000/-
5. Special Diet Rs.30,000/-
6. Attendant charges Rs.35,65,296/-
7. Pain & Suffering Rs.5,00,000/-
8. Loss of Amenities Rs.2,00,000/-
9. Loss of marriage Rs.5,00,000/-
prospects
Total Rs.1,60,34,896/-
66. Thus, the total compensation amount to which the petitioner is entitled comes to Rs.1,60,34,896/- with addition of Rs.44,00,000/- towards future medical expenses, for implanting artificial limbs which would be paid to the petitioner subject to proof of implantation of such artificial limb, Digitally signed MACT No.323/2022 & 244/2023 SHAILENDER by SHAILENDER Page 33 MALIK MALIK Date: 2024.07.29 16:41:38 +0530 cost of the same etc. and then such amount be apportioned from the maximum amount of Rs.44,00,000/- as awarded above. INTEREST ON AWARD
67. Petitioner shall also be entitled to interest @ 8% per annum on the award amount immediately payable to the petitioner i.e. Rs.1,60,34,896/- from the date of filing of the petition till realization. LIABILITY
68. Now, the question arises as to which of the respondent is liable to pay the compensation amount. It is matter of record that the vehicle in question was duly insured with respondent no.3/insurance company. Therefore the amount of compensation is payable by respondent no.3/ insurance company to the petitioners.
Relief
69. This Tribunal awards a compensation of Rs.1,60,34,896/- to the petitioner along with interest @ 8% per annum from the date of filing of petition till realization to be paid by the respondent no.3/insurance company. Amount of interim award, if any, be deducted from the compensation amount along with the waiver of interest, if any, as directed by the Tribunal during the pendency of this case. The respondent no.3 is directed to deposit the award amount in A/c no.20780110171912 (IFSC Code UCBA0002078), UCO Bank, Karkardooma, Delhi, of PO MACT, Shahdara, through RTGS/ NEFT, within 30 days from today. The respondent no.3 is also directed to give notice regarding deposit of the said amount to the petitioner.
Disbursement of Award Amount
70. Since it has come on record that petitioner/injured Dhruv is a minor child aged about 07 years, thus it would be in the interest of justice MACT No.323/2022 & 244/2023 Digitally signed Page 34 by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.07.29 16:41:47 +0530 to release a sum of Rs.16,00,000/- in the saving account of mother of the petitioner/ injured Dhruv with the direction to use the said amount only on care and betterment of petitioner/injured. Remaining amount of Rs.1,40,34,896/- along with interest on the entire award is directed be kept in the form of FDR in the name of petitioner/injured Dhruv for the period till he attains age of majority. The amount of FDR on maturity shall directly be released in petitioner's MACT Saving Bank Account. Direction to the petitioners
71. Both the petitioners namely Dheeraj and Dhruv as well as mother of petitioner/injured Dhruv are directed to open a saving bank account near the place of their residence. Further, the bank of petitioners is directed to comply with the following conditions :
(a)The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant i.e., the savings bank account of the claimant shall be an individual savings bank account(s) and not a joint account(s).
(b)The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
(c)The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d)The maturity amounts of the FDR be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(e)No loan, advance, withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/or debit card to claimant. However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant so that no debit card be issued in respect of Digitally signed MACT No.323/2022 & 244/2023 by SHAILENDER SHAILENDER MALIK Page 35 MALIK Date: 2024.07.29 16:41:54 +0530 the account of the claimant from any other branch of the bank.
(g)The bank shall make an endorsement on the passbook of the claimant to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
72. Both files be consigned to Record Room.
Digitally signed by SHAILENDER SHAILENDER MALIK MALIK Date: 2024.07.29 16:42:01 +0530 Announced in the open Court ( Shailender Malik ) on 29.07.2024 PO MACT-02/SHD/KKD MACT No.323/2022 & 244/2023 Page 36