Delhi District Court
Sarika vs Dinesh Kumar on 26 July, 2024
IN THE COURT OF SH.SHAILENDER MALIK, PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL-02, SHAHDARA,
KARKARDOOMA COURTS, DELHI
MACT No.119/2021
CNR - DLSH01-002795-2021
Sarika
w/o Sunny Singh
r/o N-940, Mangol Puri,
Delhi. ....Petitioner
Versus
(1)Dinesh Kumar
s/o Shankar Lal
r/o H.No.B-2/96, Nand Nagri,
Delhi.
(2)Bajaj Allianz General Insurance Co. Ltd.
Block No.4, 7th Floor,
DLF Tower-15, Shivaji Marg,
New Delhi. ....Respondents
Date of Institution : 20.03.2021
Date of Arguments : 26.07.2024
Date of pronouncement : 26.07.2024
AWAR D
1. Proceedings in the present case arises from filing of DAR in FIR No.604/2020 u/s 279/337/338 IPC registered in PS Harsh Vihar for causing injuries to petitioner Sarika in an accident taken place on 06.07.2020. As per the facts of the DAR, on 06.07.2020 at about 03.00 p.m. petitioner along with her husband was riding on scooty no.DL-8SCS- 2756 as per traffic rules as they were coming from Mangolpuri and going towards Nand Nagri via Nand Nagri Flyover. It is stated that when they Digitally signed by SHAILENDER MACT No.119/2021 SHAILENDER MALIK Page 1 MALIK Date: 2024.07.26 16:50:58 +0530 crossed Nang Nagri Flyover, suddenly a green colour van bearing registration no.DL-1LZ-1683 being driven by its driver at very high speed and in a rash and negligent manner and hit the scooty of the petitioner due to which petitioner and her husband fell down and dragged on the road, resultantly petitioner suffered grievous injuries. It is stated that petitioner was immediately taken to Sri Balaji Medical Institute Hospital where her MLC no.9031/20 was prepared.
2. It is stated that offending vehicle was being driven by respondent no.1 at the time of accident and it was insured with respondent no.2/insurance company. It is stated that due to accident in question, petitioner suffered injuries on her right leg and hand apart from other injuries. It is stated that petitioner remained admitted in hospital on different occasions and took OPD treatment on different dates. It is stated that at the time of accident petitioner was working as Cosmetologist (beautician) as she is trained in styling hairs and applying makeup and stated to have been running a salon by the name "d painted lady" and has been earning Rs.25,000/- per month.
3. At the time of filing of DAR respondent no.1 (driver cum owner) had appeared and was duly made aware about the proceedings. However subsequent to filing of DAR, respondent no.1 failed to file the WS and consequently opportunity was closed vide order dated 04.03.2022 of ld. Predecessor of this Tribunal.
4. Even the opportunity for filing the reply by DAR by insurance company was also closed and evidence was also recorded. However thereafter an application was moved on behalf of respondent no.2 for filing on record the WS.
5. Respondent no.2/insurance filed the reply to the DAR taking Digitally signed by MACT No.119/2021 SHAILENDER Page 2 SHAILENDER MALIK MALIK Date: 2024.07.26 16:51:05 +0530 an objection that accident admittedly occurred on 06.07.2020, whereas the FIR has been registered on 16.07.2020. As such there is a delay of 10 days in registration of FIR. It is stated that DAR was not filed along with the copy of DL of the driver of the offending vehicle. It is further pleaded that complainant has made a false complaint against the offending vehicle only to make out a claim for compensation. It is further pleaded that rather complainant has been negligent in causing of an accident. Issues
6. In view of the reasons that earlier opportunity for filing the reply to t he DAR was closed, ld. Predecessor of this Tribunal proceeded to take the evidence, on all necessary aspects of the matter for deciding the question of compensation.
Evidence
7. On behalf of the petitioner three witnesses have been examined. PW1 is petitioner Smt.Sarika, PW2 is Ravi Dayal from Sri Balaji Action Medical Institute and PW3 is Dr.Vikramajeet Singh (wrongly mentioned as PW2), from GTB Hospital.
8. No evidence has been led on behalf of insurance company.
9. I have heard Sh.Madhur Goel, ld. Counsel for the petitioner, Sh.Sandeep Singh, ld. Counsel for respondent no.2/insurance company. I have gone through the written submissions filed on behalf of petitioner. My findings are as under :
Issue regarding rash and negligent driving
10. Although no issue has been framed but for deciding the question of compensation u/s 166 M.V. Act, one of the aspect needs to be proved is rash and negligent driving of offending vehicle being driven by respondent no.1. In this regard if we examine the evidence of PW1 Digitally signed MACT No.119/2021 by SHAILENDER Page 3 SHAILENDER MALIK MALIK Date: 2024.07.26 16:51:16 +0530 Ms.Sarika, she has testified that on 06.07.2020 at around 03.00 p.m. she along with her husband were going on a scooty no.DL-8SCS-2756 towards Nand Nagri and when they crossed over Nand Nagri Flyover, suddenly a green colour van bearing registration no. DL-1LZ-1683, being driven by respondent no.1 in a rash and negligent manner hit the scooty from behind, due to which petitioner as well as her husband fell down and suffered injuries. PW1 stated that accident occurred due to rash and negligent driving of respondent no.1 while driving offending vehicle no.DL-1LZ- 1683.
11. In cross examination of PW1 nothing came to disbelieve the version of PW1. Rather police after due investigation filed the DAR mentioning therein that accident occurred due to negligence of respondent no.1, who was prosecuted in criminal case for the said accident. Thus, there is sufficient material available on the record proving rash and negligent driving of respondent no.1.
Quantum of compensation
12. 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 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 Digitally signed MACT No.119/2021 by SHAILENDER Page 4 SHAILENDER MALIK MALIK Date: 2024.07.26 16:51:22 +0530 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."
13. 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 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.Digitally signed by SHAILENDER
MACT No.119/2021 SHAILENDER MALIK Page 5
MALIK Date: 2024.07.26
16:51:28 +0530
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.
14. In the light of the aforementioned judgments, the compensation to which the petitioner is entitled shall be as under:-
PECUNIARY DAMAGES :
Medical Expenses:
15. PW1 in her deposition stated that after the accident she was taken Digitally signed by SHAILENDER MACT No.119/2021 SHAILENDER MALIK Page 6 MALIK Date: 2024.07.26 16:51:33 +0530 to Sri Balaji Action Medical Institute Hospital where she was given medical treatment. PW1 says that she remain admitted in that hospital from 06.07.2020 to 16.07.2020 and surgery was performed on 08.07.2020 in the said hospital. It is stated that after the discharge from the hospital she continued taking the treatment by OPD follow up on different dates as mentioned in para 11 of the affidavit. PW1 says that she incurred Rs.5,00,000/- on her medical treatment. Original treatment record, discharge summary is Ex.PW1/2, medical bills of total amount of Rs.3,92,067/- is Ex.PW1/3.
16. On the question of medical expense, it is admitted fact that some of the amount paid for medical expense in the hospital was reimbursed under a medical insurance. Therefore counsel for the insurance company/ respondent no.2 submits that amount of medical expense which has been reimbursed cannot be awarded again as it would be unjust enrichment to the petitioner. On the other hand Sh.Madhur Goel, ld. Counsel for petitioner argued that amount of reimbursement under mediclaim policy cannot be deducted from compensation payable by offending vehicle insurer. In this regard counsel for petitioner relied upon judgment of Bombay High Court in Reliance General Insurance Co. Ltd. vs. Aman Sanjay Tak and others (First Appeal No.1051/2022 decided on 12.04.2023), Calcutta High Court in New India Assurance Company Limited vs. Bimal Kumar Shah and others (FMAT 1077/2013 decided on 20.07.2018), Ratna Dey vs. Bajaj Allianz General Insurance Co. Ltd. & Anr. (FMAT 121/2018 decided on 16.08.2021), Madras High Court judgment in Future General India Insurance vs. Manivannan and others (CMA 3334/2021 decided on 15.06.2022) and Delhi High Court judgment in United India Insurance Co. Ltd. vs. Jagat and others (MAC Appeal No.55/2012 decided on MACT No.119/2021 Digitally signed by Page 7 SHAILENDER SHAILENDER MALIK MALIK Date: 2024.07.26 16:51:39 +0530 15.04.2024).
17. Having considered the evidence of PW1, more particularly documents Ex.PW1/2 and medical bills Ex.PW1/3 running into 79 sheets for total medical bills of Rs.3,30,925/-, it is evident from bill at page no.1 and 2 that under a mediclaim insurance of Medi Assistant Insurance TPA Pvt. Ltd., an amount of Rs.2,41,957/- was reimbursed out of total amount of Rs.2,56,604/- under a bill dated 16.07.2020.
18. On the question whether this Tribunal can award compensation for medical expenses even for that amount which has already been reimbursed under a mediclaim, essentially the question of compensation for accidental injuries is to be decided on the touch stone of well established principle that petitioner is entitled for just and fair compensation. Amount of compensation cannot be an undue enrichment for petitioner. The compensation must correspond to the injuries suffered, expenses incurred with basic intention of the legislature to bring the petitioner/injured as far as possible to the same stage where he was at the time of accident and in case of death, to compensate the LRs of the deceased as per the established norms. No doubt it has been laid down by Bombay High Court that "insurance company cannot claim deduction of the amount for which separate premium was paid by different person under different contractual liability. Insurance company is liable to indemnify the contractual liability between them and the owner of the offending vehicle, so the amount received under the contractual liability is different amount of medical reimbursement, it cannot be deducted from the amount which the insurance company is liable to pay as compensation."
19. The judgment of Bombay High Court, with utmost regards cannot be applied in the present case, firstly because petitioner has not led Digitally signed MACT No.119/2021 by SHAILENDER Page 8 SHAILENDER MALIK MALIK Date: 2024.07.26 16:51:46 +0530 any evidence to establish that she or her husband had paid the premium for the mediclaim. In the entire evidence of PW1 she has nowhere referred regarding making the payment for medical insurance. Fact regarding making of payment under the medical claim only surfaced from one bill being part of Ex.PW1/3. The basic principle of awarding compensation under M.V. Act as noted above that claimant under statutory or contractual liability cannot claim monetary benefits under the same head. If the claimant has already been reimbursed, the amount of medical expenses even under the medical insurance, awarding of same amount to the claimant would be nothing but a undue enrichment of the petitioner. Even if under a separate contractual relation mediclaim amount has been reimbursed for which separate premium amount was paid and there was separate contractual relation. However fact remains first this aspect must be proved by leading evidence. Second the basic principle of compensation is to provide the monetary benefit of what expenses actually incurred by the petitioner if certain amount has certainly been reimbursed, petitioner had not to pay from her pocket, awarding of said amount again would be against the principle of undue enrichment. Therefore the judgment of Hon'ble Bombay High Court cannot be applied in the facts of the present case. The judgment of Ratna Dey vs. Bajaj Allianz (supra) as relied upon is also on different aspects as in that case question for consideration before the Calcutta High Court was with regard to deceased having obtained other pecuniary advantages such as PPF, mediclaim expenses etc. In this regard the judgment of Hon'ble Supreme Court in Helen C. Rebello vs. Maharashtra State Road Transport Corporation 1999 ACJ 10 (SC) was relied upon. That judgment of Hon'ble Supreme Court makes very clear that the compensation awardable in respect of accidental Digitally signed MACT No.119/2021 by SHAILENDER Page 9 SHAILENDER MALIK MALIK Date: 2024.07.26 16:51:54 +0530 death would be different than other pecuniary advantages which deceased would have certainly get had he been alive in his lifetime. The observation given by the Apex Court in para 35 of that judgment as such :
"35. Thus, it would not include that which claimant receives on account other form of deaths, which he would have received even apart from accidental death. Thus, such. pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken not of such contingency, through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.
36. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family, which such person knows, under the law, Digitally signed MACT No.119/2021 by SHAILENDER Page 10 SHAILENDER MALIK MALIK Date: 2024.07.26 16:52:00 +0530 has to go to his heirs after his death either by succession or under a will could be said to be the 'pecuniary gain' only on account of one's accidental death. This, of course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicle Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law."
20. Thus it is clear from the above observation that where deceased contributes his own money for which he receives an amount or in case of his death his legal heirs receive the amount is a pecuniary advantage which is other than the amount of compensation awardable to the LRs of the deceased. Such pecuniary advantage would have otherwise accrued to deceased had he been alive, such pecuniary benefits would not be counted in the amount of compensation. Following the ratio laid down by Hon'ble Apex Court, it is evident that even the Apex Court has again reiterated that an injured in an accident cannot get undue advantage for medical expenses. Once the medical expenses have been reimbursed even if under a separate contract, in case of injury, this Tribunal is of considered view that granting of compensation for the same amount which has already been reimbursed would be against the principles of just and fair compensation. Therefore the judgments as relied upon by ld. Counsel for the petitioner would not be applicable and petitioner is held to be entitled for sum of Rs.14,647/- (Rs.2,56,604 - Rs.2,41,957) is awarded under this head.
Digitally signed by SHAILENDERMACT No.119/2021 SHAILENDER MALIK Page 11
MALIK Date: 2024.07.26
16:52:06 +0530
Loss of earning during treatment:
21. As per the evidence of PW1 at the time of accident petitioner was working as a cosmetologist (beautician) as she was trained in styling hair and applying makeup and was running her salon in the name of "d painted lady" and her monthly earning was Rs.25,000/-. PW1 stated that due to accident her salon has wounded and she is lying at home as an unemployed. Since it has come in the cross examination of PW1 that she has not placed any documentary evidence that she was earning Rs.25,000/- per month being a beautician. Neither any saving bank account details nor any document or running of any beautician salon has been placed on record. Therefore it is very difficulty for the Tribunal to conclude that the petitioner was earning Rs.25,000/- per month as claimed by her in the absence of any evidence. However as per document Ex.PW1/7 which is school leaving certificate of petitioner, she left the school while in class 9 th. In such situation notional income of the petitioner is taken at parity with minimum wages of non-matriculate worker as prevalent in Delhi which is Rs.16,341/-.
22. 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 she kept on taking medical treatment and remain confined to bed. It is submitted that petitioner remained under continuous medical treatment for 12 months.
23. Having considered the evidence of PW1, PW3 as well as the treatment record/discharge summary of petitioner of Action Medical Institute Ex.PW1/3 (colly.), these documents clearly show that petitioner despite getting treatment in said hospital had wounds over right leg, left leg Digitally signed by MACT No.119/2021 SHAILENDER Page 12 SHAILENDER MALIK MALIK Date: 2024.07.26 16:52:14 +0530 and right hand index finger. As per medical treatment record surgery of accidental injuries of petitioner was done 08.07.2020 for right femur with femur interlocking nail. Moreover petitioner suffered fracture shaft of right femur, degloving injury over shin of right leg, degloving injury over medial aspect of right knee, lacerated wound over doral aspect of proximal phalanx of right index finger, fracture of second metacarpal of right hand and degloving injury over shin of right leg. It is also matter of record that petitioner was assessed by medical board of GTB Hospital and the said board found medical disability of 31% in relation to right lower limb. Disability certificate of the petitioner has been proved by PW3 Dr.Vikramajeet Singh which is Ex.PW3/1. Nature of all these injuries clearly indicate that she remained admitted twice at Sri Balaji Action Institute Hospital and thereafter taken treatment from different Hospitals/ doctors. Considering the evidence of petitioner, nature of injuries, medical record, this Tribunal finds that petitioner must have taken medical treatment for period of seven months. As such the loss of earning for petitioner is assessed to be Rs.1,14,387/- (Rs.16,341/- X 07 months). Loss of future earning due to disability :
24. 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, Digitally signed MACT No.119/2021 by SHAILENDER Page 13 SHAILENDER MALIK MALIK Date: 2024.07.26 16:52:20 +0530 the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) Whether the disablement is permanent or temporary;
(ii) If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The tribunal has to first ascertain what activities 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."
Digitally signedMACT No.119/2021 SHAILENDER MALIK
by SHAILENDER Page 14
MALIK Date: 2024.07.26
16:52:30 +0530
....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 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."
25. 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 Digitally signed MACT No.119/2021 by SHAILENDER Page 15 SHAILENDER MALIK MALIK Date: 2024.07.26 16:52:37 +0530 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.
26. Keeping in view the ratio as discussed above, in the evidence of PW1 she has given all the details of treatment taken at different hospitals as well as about the nature of injuries suffered by her. Beside this PW3 Dr.Vikramajeet Singh, Sr. Resident from Department of Orthopedics, GTB Hospital has proved disability certificate dated 16.11.2022 of petitioner Ms.Sarika as Ex.PW3/1. PW2 says that on examination of petitioner, she was found to have suffered permanent physical disability to the extent of 31% in relation to right lower limb. PW2 also states that due to said disability, petitioner would have difficulties in floor level activities such as squatting, sitting cross-legged and climbing stairs as well as difficulty in standing on right lower limb for long duration. It is also matter of record that surgery was conducted upon petitioner. The nature of the job of the petitioner has already been discussed above as it is claimed that petitioner was doing work of beautician. As such given the nature of the work, nature of injuries and permanent disability suffered by the petitioner, this Tribunal assesses functional disability of petitioner to be 50% of medical disability i.e. 15.5%.
27. 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 26.06.1984. Similar date of birth of petitioner is mentioned in her PAN card Ex.PW1/5. As such on the date of accident Digitally signed by MACT No.119/2021 SHAILENDER Page 16 SHAILENDER MALIK MALIK Date: 2024.07.26 16:52:42 +0530 (06.07.2020) petitioner was around 36 years of age. As such multiplier to be applied in the present case would be 15 as applicable to age group between 36 to 40 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 also to be taken into consideration. Thus, considering the petitioner between aged below 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.
28. As discussed above, the income of petitioner has been assessed as Rs.16,341/- + 40% (Rs.6,536/-), total Rs.22,877/-. Thus applying the functional disability to be 15.5% of Rs.22,877/-, amount comes out to be Rs.3,546/-. As such the loss of future income due to disability comes out to be Rs.3,546/- X 12 X 15 = Rs.6,38,280/-.
Special Diet & Conveyance Charges
29. Petitioner in her evidence has testified that she had incurred expenses on conveyance etc. amounting to Rs.35,000/- due to multiple rounds to the hospital as she remained hospitalized on several occasions for accidental injuries. Petitioner also stated that she had to take extra nutritious diet as advised by the consulting doctor and she incurred expenditure on the same amounting to Rs.1,00,000/-. However it is matter of record that no document has been filed by the petitioner in support of her contention that she incurred so much of amount towards conveyance Digitally signed by MACT No.119/2021 SHAILENDER SHAILENDER Page 17 MALIK MALIK Date: 2024.07.26 16:52:48 +0530 charges 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 and the extent of permanent disability suffered by her, finds it appropriate to grant compensation for a sum of Rs.25,000/- towards conveyance charges and a sum of Rs.25,000/- towards special diet.
Attendant Charges
30. Petitioner (PW1) in her evidence deposed that she also engaged an attendant to help her in her daily chores and she had been giving salary to attendant @ Rs.10,000/- per month for personal assistant and household work. Petitioner also deposed that she appointed separate home maid and paid her Rs.7,000/- per month. Though no documentary evidence in this regard has been produced by the petitioner nor any witness has been examined to substantiate this fact. However fact remains that she suffered grievous injuries due to accident in question and as per disability certificate her medical disability has been found to be 31% and same has been assessed by this Tribunal in relation to his functional disability to be 15.5% . Keeping in view the medical documents placed on record, this Tribunal is of the view that petitioner must have engaged the services of some attendant and she is required to be awarded compensation under this head for a period of seven months. Therefore petitioner in the opinion of this Tribunal is also entitled for minimum wages of unskilled worker in Delhi i.e. Rs.14,842/- X 07 months, which comes out to be Rs.1,03,894/- under the head of attendant charges.
NON PECUNIARY DAMAGES :
Pain & Suffering
31. While discussing the criteria to ascertain the compensation for Digitally signed by MACT No.119/2021 SHAILENDER Page 18 SHAILENDER MALIK MALIK Date: 2024.07.26 16:52:55 +0530 pain and suffering 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."
32. In this case, as per medical documents of the petitioner, he was found to have suffered fracture shaft of right femur, degloving injury over shin of right leg, degloving injury over medial aspect of right knee, lacerated wound over doral aspect of proximal phalanx of right index finger, fracture of second metacarpal of right hand and degloving injury over shin of right leg. Her treatment record including medical disability certificate shows she sustained medical permanent disability in relation to her right lower limb and remained hospitalized twice. Thus, it is clear that petitioner must have suffered pain and suffering during her treatment and therefore, this Tribunal is of the opinion that an amount of Rs.50,000/- 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.50,000/- is granted to the petitioner under this head.
Loss of Amenities
33. Having considered the evidence of PW1 and PW3, once it has already come on the record that petitioner suffered fracture in her right leg Digitally signed MACT No.119/2021 by SHAILENDER Page 19 SHAILENDER MALIK MALIK Date: 2024.07.26 16:53:02 +0530 and right hand as well as permanent disability to the extent of 31% in relation to right lower limb which this Tribunal has assessed functional disability to be 15.5%, this Tribunal has already awarded loss of income due to accidental injuries for a period of seven months. Therefore petitioner must have lost amenities of life on account of accidental injuries as well as permanent disability. Therefore taking into consideration nature of injuries, disability, petitioner is awarded a sum of Rs.25,000/- under the head of loss of amenities.
Litigation Expenses
34. It is argued by ld. Counsel for the petitioner that this matter continued remained pending since 2021 and petitioner has incurred litigation expenses, therefore litigation expenses should also be made part of the compensation.
35. Having considered the submissions, the question of awarding litigation expenses or litigation charges etc. is also subject to proof of the same. There can be no specific awarding of compensation in the absence of any documentary evidence showing incurring of litigation expenses or any other expenses. In the absence of any documentary evidence in support of the same, no amount can be awarded to the petitioner when this Tribunal is already going to award pendente lite interest for the period during which the claim petition remained pending.
36. Thus, the compensation awarded to the petitioner is summarized as under:-
Sl. No. Head of compensation Amount
1. Medical Expenses Rs.14,647/-
2. Loss of earning during Rs.1,14,387/-
treatment
Digitally signed
MACT No.119/2021 by SHAILENDER Page 20
SHAILENDER MALIK
MALIK Date: 2024.07.26
16:53:08 +0530
3. Loss of future earning due Rs.6,38,280/-
to disability
4. Conveyance charges Rs.25,000/-
5. Special Diet Rs.25,000/-
6. Attendant charges Rs.1,03,894/-
7. Pain & Suffering Rs.50,000/-
8. Loss of Amenities Rs.25,000/-
Total Rs.9,96,208/-
37. Thus, the total compensation amount to which the petitioner is entitled comes to Rs.9,96,208/-.
INTEREST ON AWARD
38. Petitioner shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of the petition till realization. LIABILITY
39. Now, the question arises as to which of the respondent is liable to pay the compensation amount. It is an admitted fact that the offending vehicle was duly insured with respondent no.2/insurance company. In view of my above findings, it is held that respondent no.2/insurance company shall be liable to pay compensation to the petitioner. Relief
40. This Tribunal awards a compensation of Rs.9,96,208/- 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.2/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.2 is Digitally signed by SHAILENDER MACT No.119/2021 SHAILENDER MALIK Page 21 MALIK Date: 2024.07.26 16:53:14 +0530 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.2 is also directed to give notice regarding deposit of the said amount to the petitioner.
Disbursement of Award Amount
41. Out of awarded amount, a sum of Rs.96,208/- is directed to be released into the saving account of the petitioner and remaining amount of Rs.9,00,000/- along with interest on the entire award be kept in fixed deposits of Rs.1,00,000/- each for a period of six months, one year, one and a half years, two years and so on till 4.5 years. The amount of FDRs on maturity shall directly be released in petitioner's MACT Saving Bank Account.
Direction to the petitioner
42. The petitioner shall open a saving bank account near the place of her residence. Further, the bank of petitioner 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.Digitally signed
MACT No.119/2021 SHAILENDER MALIK
by SHAILENDER Page 22
MALIK Date: 2024.07.26
16:53:22 +0530
(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 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.
43. File be consigned to Record Room.
Digitally signed by SHAILENDER SHAILENDER MALIK
MALIK Date: 2024.07.26
16:53:28 +0530
Announced in the open Court ( Shailender Malik )
on 26.07.2024 PO MACT-02/SHD/KKD
MACT No.119/2021 Page 23