Delhi District Court
Kamar Alam (Dar) vs Sail Safi (346/19Kk) on 15 February, 2024
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 967/2019
FIR no. 346/2019
PS: Kalindi Kunj
U/s 279/338 IPC & 3/181, 5/180 & 146/196 MV Act
CNR No. DLSE01-009580-2019
Kamar Alam Vs. Mohd. Sahil Singh & Ors.
Kamar Alam
S/o Late Salimuddin
R/o H. No. F2/263, Mangol Puri
New Delhi.
...Claimant/Petitioner
Versus
1. Mohd. Sahil Saifi
S/o Sahabuddin
R/o H. No. E-306A, Near
25 Foota Road Khadda Colony
Jaitpur Extension, Part-II, New Delhi.
..... Driver /R-1
2. Sahabuddin
S/o Yusuf Khan
MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 1 of 29
R/o H. No. E-306A, near
25 Foota Road Khadda Colony
Jaitpur Extension, Part-II, New Delhi.
..... Owner /R-2
Date of accident : 15.09.2019
Date of filing of DAR : 25.11.2019
Date of Decision : 15.02.2024
AWARD
1. In this case, a Detailed Accident Report was filed by police on 25.11.2017
which was registered as claim petition u/s 166 (4) MV Act qua injury of Kamar
Alam (hereinafter called the claimant), in an accident allegedly caused by
vehicle bearing registration number DL 3SDT 9013 (hereinafter called the
offending vehicle), driven by Mohd. Sahil (hereinafter called as Respondent
no.1), owned by Sahabuddin (hereinafter called R-2).
2. Preliminary information regarding accident in question was received at
PS Kalindi Kunj vide PCR call recorded as DD no. 24A on 15.09.2019, upon
receipt of which, ASI Gajender Kumar along with Ct. Gajender proceeded to the
spot of accident on Pusta Khadda Colony, near Pradhan Garden where they
found two scooties bearing No. DL 8SBH 0447 (Yamaha) & DL 3DT 9013 in
accidental condition. It was informed to police official that injured has already
been removed to hospital. Thereafter upon receipt of DD no. 36A, Ct. Gajender
reached AIIMS Trauma Center and collected MLC of injured Kamar Alam,
however, he was stated to have shifted to another hospital. He also collected
MLC of Sahil S/o Shahabuddin, who was later disclosed as driver of the
offending vehicle. IO ASI Gajender Kumar reached out to injured at his address
at Ekta Vihar, Jaitpur where he gave written complaint in respect of occurrence
MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 2 of 29
of accident. He narrated that occurrence of accident and stated that a scooty
bearing Reg. No. DL 8SBH 0447 being driven in rash and negligent manner, hit
his scooty bearing no. DL 3SDT 9013 at Khadda Colony, Pusta near Pradhan
Garden, due to which injured as well as his minor daughter fell down. The
injured sustained injuries in his left leg. Thereafter, he was removed to AIIMS
Trauma Center by a private vehicle and thereafter, he was referred to Safdarjung
Hospital. FIR was got recorded on the basis of MLC of injured and statement
given by injured Kamar Alam. Both the accidental vehicles were taken into
police possession and were got mechanically inspected. Site plan was prepared.
The vehicle were got mechanically inspected. Statement of PCR caller was
recorded. During investigation, notice u/s 133 MV Act was served upon owner
Mohd. Sahil Saifi upon receipt of which he stated that Respondent No.1 was
driving the vehicle at the time of accident. During investigation, it was revealed
that driver of offending vehicle did not possess a valid and effective Driving
License on the date of accident further offending vehicle was without valid
Insurance on the date of accident. Injuries of injured were medically opined to
be grievous in nature. Upon completion of investigation, charge-sheet was filed
under Sections 279/338 IPC & 3/181, 5/180, & 146/196 MV Act against
driver / owner before concerned criminal court while DAR was filed by
Investigating Officer before this Tribunal.
3. DAR was filed on 25.11.2019 on which date owner who was also father
of driver of offending vehicle appeared. Copy of DAR supplied to him. On such
date, matter was referred to Mediation Center for exploring any possibility of
settlement, however no settlement was arrived at Mediation Center due to non
availability of claimant. No reply was filed by respondents despite repeated
opportunities. Hence, their right to file reply was closed vide order dated
MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 3 of 29
08.03.2021. On such date, directions were also given to Ld. MM to get the
vehicle auctioned.
Issues:
4. From the pleadings of parties, following issues were framed vide order
dated 08.03.2021:
1) Whether the injured suffered injuries in a road traffic
accident on 15.09.2019 due to rash and negligent driving of
vehicle no. DL 3SDT 9013 being driven by R-1 and owned by
R-2 ? OPP.
2) Whether the claimant is entitled to any compensation, if so,
to what extent and from whom ? OPP.
3) Relief.
Assessment of Disability:
5. Further an application for assessment of disability, moved by counsel for
claimant was allowed and directions were issued to Medical Board of Pt. Madan
Mohan Malviya Hospital for assessment of disability of claimant.
6. A Disability Report dated 07.02.2022 received from the concerned
Medical Board wherein it is opined that claimant has suffered 40% physical
impairment in relation to left lower limb.
Evidence:
7. Further matter was fixed for leading evidence of claimant. Injured
appeared as PW-1 and tendered his evidentiary affidavit as Ex.PW1/1 and relied
upon documents as Ex.PW1/A to Ex.PW1/I description of which are as follows:
i) MLC- Ex.PW1/A
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ii) Discharge Summary - Ex.PW1/B
iii) OPD Cards - Ex.PW1/C
iv) Medical Bills - Ex.PW1/D
v) Disability Certificate - Ex.PW1/E
vi) DAR - Ex.PW1/F
vii) Education Certificate of 7th Class - Ex.PW1/G
ix) Copy of Aadhar Card & PAN Card - Ex.PW1/I
8. Since none appeared on behalf of respondent Nos. 1 and 2, their
opportunity of cross-examination was closed.
9. Any other witness was not produced and Petitioner's Evidence was
closed vide order dated 15.02.2024. Therefore, RE was also closed vide order
dated 15.02.2024.
10. Matter was then listed for final arguments. Brief submissions were
advanced on behalf of counsel for claimant. Written Submissions also filed on
behalf of claimant. None however appeared on behalf of Respondents to
advance final arguments.
Findings:
11. On the basis of material on record, evidence adduced and arguments
addressed, issue wise findings are as under :-
ISSUE NO.1
1) Whether the injured suffered injuries in a road traffic accident on
15.09.2019 due to rash and negligent driving of vehicle no. DL 3SDT 9013
being driven by R-1 and owned by R-2 ? OPP.
12. It is well settled that the proceedings before the Claims Tribunal are in the
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nature of inquiry and the finding of rash and negligent driving by driver of the
offending vehicle is to be returned only at the touch stone of preponderance of
probabilities. The factors noted above are sufficient to conclude that
preponderance of probability is made out showing negligence of respondent
no.1 in causing the accident.
13. Police after investigation had filed charge-sheet against respondent no.1
under Section 279/338 IPC & 3/181, 5/180, & 146/196 MV Act which is also
suggestive of negligence of respondent no.1 in causing the accident. The IO has
filed Detailed Accident Report before this Tribunal. In National Insurance Co.
Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of
investigation and filing of charge-sheet under relevant section are sufficient
proof of negligence of the driver of the offending vehicle.
14. It is also settled that if driver of offending vehicle does not enter the
witness box, an adverse inference can be drawn against him as observed by
Hon'ble High Court of India in the case of Cholamandlam insurance company
Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310.
15. In the present case also, driver did not enter into the witness box to
controvert the claim of petitioner or even to explain circumstances of accident.
More so, he never filed reply and never contested the petition.
16. Injured Kamar Alam appeared in the witness box and deposed that on
15.09.2019 at about 02.00 PM, claimant was going to his wife's home at Ekta
Vihar, Jaitpur from his House at Mangolepuri, Delhi along with his daughter
Sofia Bano and when he reached near Pusta Road, Khadda Colony, suddenly a
scooty bearing No. DL 3SDT 9013, which was driven by its driver in rash and
MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 6 of 29
negligent manner, hit the scooty of injured from front side due to which he
along with his daughter fell down and sustained injuries. Thereafter, he was
removed to AIIMS Trauma Center and further transferred to Safdarjung
Hospital. The accident was immediately reported to the police and was recorded
vide DD no. 24A. IO found both vehicles of injured as well as respondent driver
at the spot itself. Therefore, there is no dispute with respect to the identification
of the offending vehicle or the driver whose MLC was also collected by IO
from the hospital. The FIR was registered on the basis of statement of injured
himself and his MLC. Intimation was also received from the Trauma Center
with respect to treatment given to injured persons vide MLC and subsequent
treatment record as filed along with the DAR and as also relied as part of
evidence led by injured Kamar Alam. Both the respondents chose not to even
file reply to DAR or lead any evidence in contravention of the factual mode and
manner of the accident as testified by PW-1. The investigation report also
charge sheeted driver Mohd. Sahil for the rash and negligent driving of the
offending vehicle which caused the accident. Petitioner/ PW-1 has categorically
deposed that the offending vehicle was speeding and that too without giving any
indicator and honking, from the front side which itself shows that the driver of
the offending vehicle was utterly reckless and unmindful of his duty of
reasonable care towards the other fellow commuters plying on the road. Having
so concluded, issue no.1 is decided in favour of the petitioners and against the
respondents.
ISSUE NO. 2
"Whether the injured is entitled to any compensation, if so, to what
extent and from whom? OPP"
17. Sec. 168 MV Act enjoins the Claim Tribunals to hold an enquiry into the
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claim to make an effort determining the amount of compensation which appears
to it to be just and reasonable. Same is reproduced hereunder for ready
reference:
"(1) Award of the Claims Tribunal.--On receipt of an application for
compensation made under section 166, the Claims Tribunal shall,
after giving notice of the application to the insurer and after giving
the parties (including the insurer) an opportunity of being heard, hold
an inquiry into the claim or, as the case may be, each of the claims
and, subject to the provisions of section 162 may make an award
determining the amount of compensation which appears to it to be
just and specifying the person or persons to whom compensation
shall be paid and in making the award the Claims Tribunal shall
specify the amount which shall be paid by the insurer or owner or
driver of the vehicle involved in the accident or by all or any of them,
as the case may be: Provided that where such application makes a
claim for compensation under section 140 in respect of the death or
permanent disablement of any person, such claim and any other
claim (whether made in such application or otherwise) for
compensation in respect of such death or permanent disablement
shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award
to the parties concerned expeditiously and in any case within a period
of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is
required to pay any amount in terms of such award shall, within thirty
days of the date of announcing the award by the Claims Tribunal,
deposit the entire amount awarded in such manner as the Claims
Tribunal may direct."
18. Before putting in frame the position of law, it is noted that the process of
determining the compensation by the court is essentially a very difficult task
and can never be an exact science. Perfect compensation is hardly possible,
more so in claims of injury and disability. (As observed by Hon'ble Supreme
MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 8 of 29
Court of India in the case of Sidram Vs. The Divisional Manager United
India Insurance Company Ltd, SLP (Civil) No. 19277 of 2019.
19. The basic principle in assessing motor vehicle compensation claims, is to
place the victim in as near a position as she or he was in before the accident,
with other compensatory directions for loss of amenities and other payments.
These general principles have been stated and reiterated in several decisions.
[Support drawn from Govind Yadav v. New India Insurance Co. Ltd., (2011)
10 SCC 683.]
20. This Tribunal has been tasked with determination of just compensation.
The observation of Hon'ble Supreme Court of India in Divisional Controller,
KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197, needs mention
here (para 15):
"Statutory provisions clearly indicate that the compensation must
be "just" and it cannot be a bonanza; not a source of profit but the
same should not be a pittance. The courts and tribunals have a duty
to weigh the various factors and quantify the amount of
compensation, which should be just. What would be "just"
compensation is a vexed question. There can be no golden rule
applicable to all cases for measuring the value of human life or a
limb. Measure of damages cannot be arrived at by precise
mathematical calculations. It would depend upon the particular
facts and circumstances, and attending peculiar or special features,
if any. Every method or mode adopted for assessing compensation
has to be considered in the background of "just" compensation
which is the pivotal consideration. Though by use of the expression
"which appears to it to be just", a wide discretion is vested in the
Tribunal, the determination has to be rational, to be done by a
judicious approach and not the outcome of whims, wild guesses and
arbitrariness.. ..."
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21. Delineating the damages as pecuniary and non pecuniary, Hon'ble
Supreme Court of India, in case of R. D. Hattangadi Vs. Pest Control (India) Pvt
Ltd, 1995 AIR 755, made following observations:
"9....while fixing an amount of compensation payable to a victim of
an accident, the damages have to be assessed separately as
pecuniary damages and special damages. Pecuniary damages are
those which the victim has actually incurred and which are capable
of being calculated in terms of money; whereas non-pecuniary
damages are those which are incapable of being assessed by
arithmetical calculations. In order to appreciate two concepts
pecuniary damages may include expenses incurred by the claimant:
(i) medical attendance; (ii) loss of earning of profit up to the date of
trial; (iii) other material loss. So far non- pecuniary damages are
concerned, they may include (i) damages for mental and physical
shock, pain and suffering, already suffered or likely to be suffered in
future; (ii) damages to compensate for the loss of amenities of life
which may include a variety of matters i.e. on account of injury the
claimant may not be able to walk, run or sit; (iii) damages for the
loss of expectation of life, i.e., on account of injury the normal
longevity of the person concerned is shortened; (iv) inconvenience,
hardship, discomfort, disappointment, frustration and mental stress
in life."
22. Certain principles for delineating just compensation were enumerated in
the case of Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, by Hon'ble
Supreme Court of India. Following observations are relevant in the context:
"40.General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ("the Act", for
short) makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. The object
of awarding damages is to make good the loss suffered as a result of
wrong done as far as money can do so, in a fair, reasonable and
equitable manner. The court or the Tribunal shall have to assess the
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damages objectively and exclude from consideration any
speculation or fancy, though some conjecture with reference to the
nature of disability and its consequences, is inevitable. A person is
not only to be compensated for the physical injury, but also for the
loss which he suffered as a result of such injury. This means that he
is to be compensated for his inability to lead a full life, his inability
to enjoy those normal amenities which he would have enjoyed but
for the injuries, and his inability to earn as much as he used to earn
or could have earned. [See C.K. Subramania Iyer v. T. Kunhikuttan
Nair [(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v.
Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri)
250] and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50 :
(1969) 3 All ER 1528 (HL)] .]
6. The heads under which compensation is awarded in personal
injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a 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
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permanent disability, future medical expenses, loss of amenities
(and/or loss of prospects of marriage) and loss of expectation of
life.
7. Assessment of pecuniary damages under Item (i) and under Item (ii)
(a) do not pose much difficulty as they involve reimbursement of
actuals and are easily ascertainable from the evidence. Award under
the head of future medical expenses--Item (iii)--depends upon specific
medical evidence regarding need for further treatment and cost thereof.
Assessment of non-pecuniary damages--Items (iv), (v) and (vi)--
involves determination of lump sum amounts with reference to
circumstances such as age, nature of injury/deprivation/disability
suffered by the claimant and the effect thereof on the future life of the
claimant. Decisions of this Court and the High Courts contain
necessary guidelines for award under these heads, if necessary. What
usually poses some difficulty is the assessment of the loss of future
earnings on account of permanent disability--Item (ii)(a). We are
concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent disability
8. Disability refers to any restriction or lack of ability to perform an
activity in the manner considered normal for a human being.
Permanent disability refers to the residuary incapacity or loss of use of
some part of the body, found existing at the end of the period of
treatment and recuperation, after achieving the maximum bodily
improvement or recovery which is likely to remain for the remainder
life of the injured. Temporary disability refers to the incapacity or loss
of use of some part of the body on account of the injury, which will
cease to exist at the end of the period of treatment and recuperation.
Permanent disability can be either partial or total. Partial permanent
disability refers to a person's inability to perform all the duties and
bodily functions that he could perform before the accident, though he is
able to perform some of them and is still able to engage in some
gainful activity. Total permanent disability refers to a person's inability
to perform any avocation or employment related activities as a result of
the accident. The permanent disabilities that may arise from motor
accident injuries, are of a much wider range when compared to the
physical disabilities which are enumerated in the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 ("the Disabilities Act", for short). But if any
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of the disabilities enumerated in Section 2(i) of the Disabilities Act are
the result of injuries sustained in a motor accident, they can be
permanent disabilities for the purpose of claiming compensation.
9. The percentage of permanent disability is expressed by the doctors
with reference to the whole body, or more often than not, with
reference to a particular limb. When a disability certificate states that
the injured has suffered permanent disability to an extent of 45% of the
left lower limb, it is not the same as 45% permanent disability with
reference to the whole body. The extent of disability of a limb (or part
of the body) expressed in terms of a percentage of the total functions of
that limb, obviously cannot be assumed to be the extent of disability of
the whole body. If there is 60% permanent disability of the right hand
and 80% permanent disability of left leg, it does not mean that the
extent of permanent disability with reference to the whole body is
140% (that is 80% plus 60%). If different parts of the body have
suffered different percentages of disabilities, the sum total thereof
expressed in terms of the permanent disability with reference to the
whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of
injuries, the assessment of compensation under the head of loss of
future earnings would depend upon the effect and impact of such
permanent disability on his earning capacity. The Tribunal should not
mechanically apply the percentage of permanent disability as the
percentage of economic loss or loss of earning capacity. In most of the
cases, the percentage of economic loss, that is, the percentage of loss
of earning capacity, arising from a permanent disability will be
different from the percentage of permanent disability. Some Tribunals
wrongly assume that in all cases, a particular extent (percentage) of
permanent disability would result in a corresponding loss of earning
capacity, and consequently, if the evidence produced show 45% as the
permanent disability, will hold that there is 45% loss of future earning
capacity. In most of the cases, equating the extent (percentage) of loss
of earning capacity to the extent (percentage) of permanent disability
will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the
permanent disability on the earning capacity of the injured; and after
assessing the loss of earning capacity in terms of a percentage of the
income, it has to be quantified in terms of money, to arrive at the
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future loss of earnings (by applying the standard multiplier method
used to determine loss of dependency). We may however note that in
some cases, on appreciation of evidence and assessment, the Tribunal
may find that the percentage of loss of earning capacity as a result of
the permanent disability, is approximately the same as the percentage
of permanent disability in which case, of course, the Tribunal will
adopt the said percentage for determination of compensation. (See for
example, the decisions of this Court in Arvind Kumar Mishra v. New
India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri)
1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance
Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8
Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any
permanent disability and, if so, the extent of such permanent disability.
This means that the Tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total
disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to
any specific limb, then the effect of such disablement of the limb
on the functioning of the entire body, that is, the permanent
disability suffered by the person.
If the Tribunal concludes that there is no permanent disability
then there is no question of proceeding further and determining
the loss of future earning capacity. But if the Tribunal concludes
that there is permanent disability then it will proceed to ascertain
its extent. After the Tribunal ascertains the actual extent of
permanent disability of the claimant based on the medical
evidence, it has to determine whether such permanent disability
has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual
earning capacity involves three steps. The Tribunal has to first
ascertain what activities the claimant could carry on in spite of the
permanent disability and what he could not do as a result of the
permanent disability (this is also relevant for awarding compensation
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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, but could carry on
some other or lesser scale of activities and functions so that he
continues to earn or can continue to earn his livelihood.
.
.
.
.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
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23. The above-said principles have been placed reliance upon in a recent judgment reported as Sidram Vs. The Divisional Manager United India Insurance Co. Ltd and Anr., arising out of SLP (Civil) no. 19277 of 2018 passed by Hon'ble Supreme Court of India as decided on 16.11.2022.
24. It is settled proposition of law as held in catena of judgments that "just compensation" should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives.
25. In the present case, PW1 deposed that he was doing mobile repair works at the time of accident and was earning Rs. 20,000/- per month. However, he has not filed any supporting documents to prove his income or work profile. However, during his evidence, he has relied upon an educational certificate of 7th standard Ex.PW1/G. Further, as per his Aadhar Card Ex.PW1/H, his residence is mentioned as of Delhi and date of birth as 19.12.1980. As such in the absence of any document related to his work profile his income shall be assessed as per minimum wages considering his educational certificate of 7 th standard under the category of non matriculate on the date of accident in the State of NCT of Delhi which was Rs.16,284/-.
26. It is further deposed by the claimant that he was jobless since the date of accident. He further deposed that he was the only earning member to look after his family and due to injuries in leg, he was incapacitated to walk properly MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 16 of 29 without the support of walking stick and could not perform heavy weight related work either. Perusal of discharge summary Ex.PW1/B reflects that injured took primary treatment in AIIMS Trauma Center and thereafter was referred on the same date on 15.09.2019 to Safdarjung Hospital. He has filed various medical bills upto December 2019. It was further opined by Medical Board of Pt. Madan Mohan Hospital that injuries sustained by injured led to the physical impairment upto 40% in relation to left lower limb. There is no medical advice filed on record to prove that after the accident, injuries completely hampered the injured in resuming his work or he was suggested a long bed rest. However, considering the nature of injuries and disability in his leg, it is presumed that he would not have been able to resume his normal work schedule for about 6 months.
27. Further, regarding compensation towards future prospect having regard to the ratio of judgment of Raj Kumar (Supra) read with facts of present case, having regard to nature of injury and part of body involved, it is assumed to have profound effect on his over all employment opportunity and future prospect. Thus, having regard to nature of permanent disability, nature of job which he claims, he was doing at the time of accident, and nature of work which he can still do, like the sitting job coupled with nature of work, his functional disability with respect to the whole body is taken/ assessed to be 20%.
28. As per evidence on record, date of birth of the claimant is 19.12.1980, as per documents placed on record. As such, he was above 39 years on the date of accident on 15.09.2019, therefore, applicable multiplier is taken as 15. (Reference drawn from the case of Sarla Verma & Ors. Vs. Delhi Transport Corp. & Anr. SLP (C) no. 8648 of 2007, decided by Hon'ble Supreme Court of India).
MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 17 of 29
29. Having regard to the law as also discussed above regarding compensation, in the present case award amount is calculated as under:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : having Rs. 49,691/-
regard to material on record including documents Ex.PW1/D. (colly) and the findings above.
(ii) Expenditure on Conveyance : There Rs. 20,000/- is no prescription for special diet.
The nature of injuries are grievous and petitioner suffered 40% permanent physical impairment in relation to his left lower limb.
By guess work, compensation can be awarded for special diet.
(iii) Expenditure on special diet : Rs.20,000/- There is no prescription for special diet.
The nature of injuries are grievous and petitioner suffered 40% permanent physical impairment in relation to his left lower limb.
By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Rs.20,000/- The nature of injuries are grievous and petitioner suffered 40% permanent physical impairment in relation to his left lower limb.
Even in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : Rs. 97,704/-
Compensation towards loss of income, MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 18 of 29 as noted above is Rs 16,284/-x 6 months = Rs. 97,704/-
(vi) Cost of artificial limbs (if NA applicable) :
(vii) Any other loss / expenditure : NA
2. Non-Pecuniary Loss :
(I) Compensation of mental and Rs.50,000/-
physical shock : The nature of injuries are grievous and petitioner suffered 40% permanent physical impairment in relation to his left lower limb he would have undergone great mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 50,000/- for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
(iii) Loss of amenities of life : The Rs.25,000/- nature of injuries are grievous and petitioner suffered 40% permanent physical impairment in relation to his left lower limb.
(iv) Disfiguration : Rs. 20,000/-
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed The nature of injuries are and nature of disability as permanent grievous and petitioner or temporary suffered 40% permanent physical impairment in relation to his left lower limb.
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability : The nature of injuries are MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 19 of 29 grievous and petitioner suffered 40% permanent physical impairment in relation to his left lower limb.
(iii) Percentage of loss of earning 20%
capacity in relation to disability: As
already discuss above.
(iv) Loss of future Income: The 20 % of (16284/- X 12 X
functional disability is taken as 20%. 15))
=Rs. 5,86,224/-
Injured was above 39 years old at the
time of accident, hence multiplier of 15
is applicable.
(v) Future medical expenses Nil
Total Compensation Rs. 9,38,619/-
Deduction, if any, Nil
Total Compensation after deduction Rs. 9,38,619/-
Interest As directed below
30. It is further ordered that the claimant shall be entitled to simple interest @9% p.a. from the date of filing of DAR till actual realization of Award amount/compensation.
31. It may be noted that in the judgment of Ram Charan & Ors. Vs. The New India Assurance Co. Ltd., MAC Appeal no. 433/2013, decided on 18.10.2022 it was noted regarding rate of interest:
"25 to evaluate the submission made by counsel for the applicants, it is imperative to examine the guiding principles for the grant of interest. In Abati Bezbaruah Vs. Geological Survey of India, (2003) 3 SCC 148, the following was held while interpreting section 171 of the MV Act, 1988:-
Three decisions were cited before us by Mr. A. P. Mohanty, MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 20 of 29 learned counsel appearing on behalf of the Appellant, in support of his contentions. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MV Act 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
32. Having regard to the prevailing rate of interest and the judgments of Hon'ble Supreme Court of India, including in the case of Erudhaya Priya vs MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 21 of 29 State Express Transport decided on 27 July, 2020, Civil Appeal Nos. 2811- 2812 OF 2020 [Arising out of SLP (C) Nos.8495-8496 of 2018], which is three Judges Bench judgment of Hon'ble Supreme Court, such interest @ 9% per annum is deemed fit and accordingly granted in the present case.
Total Award Amount
33. Thus the total award amount comes to Rs. 9,38,619/-. It is further ordered that the claimant shall be entitled to simple interest @ 9% p.a. from the date of filing of DAR till actual realization of Award amount/compensation. (In this case, the offending vehicle was auctioned by Ld. Ilaka MM and a cheque of Rs.2,604/- has been deposited in MACT Parking Fund vide order dated 25.03.2023). (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
LIABILITY
34. In this case, as per material on record, R-1 was the driver of the offending vehicle and R-2 is the registered owner of the vehicle. Driver drove vehicle without insurance & without DL. Hence, keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble Supreme court and Hon'ble High Court of Delhi, entire liability falls on their shoulder and both respondent no.1/ driver & 2/ Reg. owner are held to be liable to pay jointly and severely the compensation and award amount in question to the claimant as held above.
35. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 22 of 29 FUND PARKING, A/c No. 00000042706870765, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any to the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
36. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
37. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
38. At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 23 of 29 and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi- illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit.
The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 24 of 29 insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 25 of 29 Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
39. In this background of legal position, it may be noted that in present case, accused suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same, in the same manner in which he would have otherwise earned.
40. Keeping in view the entirety of the facts and circumstances involved in the present case and the abovesaid guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, apportionment of award amount for injured is given as under:
Out of the total award amount a sum of Rs. 7,00,000/- is kept in form of monthly FDRs of Rs. 10,000/- each. Remaining sum of Rs. 2,38,619/- along with interest, is released to the petitioner/injured in his bank account near his place of residence as per rule/ directions.
41. The following conditions are to be adhered to by SBI, Saket Courts, Delhi with respect to the fixed deposits:-
(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(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 26 of 29
(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(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant (s) 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 be issue any cheque book and/or debit card to claimant(s). 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(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) 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(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause (g) above.
42. In accordance with the orders dated 08.02.2019 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 in Rajesh Tyagi and others Vs. Jaibir Singh and others, Mr. Rajan Singh, Assistant General Manager has been appointed as Nodal Officer of SBI having Phone no. 022- 22741336/9414048606 and e mail ID [email protected]. In case of any assistance or non compliance, the aforesaid Nodal Officer may be contacted to. A copy of this order be sent by e-mail to the aforesaid Nodal Officer of the aforesaid bank by the Ahlmad of the Court immediately in accordance with the directions of the Hon'ble High Court as contained in the orders dated MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 27 of 29 07.12.2018. The Nodal Officer of the bank shall ensure the disbursement of the award amount within three weeks of the receipt of the e-mail as mentioned in the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 15.09.2019 2 Name of injured Kamar Alam 3 Age of the injured Above 39 years 4 Occupation of the Not proved injured 5 Income of the injured Rs. 16,284/- per month as per minimum wages for non matriculate workman in Delhi at the time of accident.
6 Nature injury Grievous injury and 40% disability in relation to left lower limb.
7 Medical treatment As per record.
taken by the injured:
8 Period of As per record.
Hospitalization 9 Whether any permanent disability?
40% disability in relation to MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 28 of 29 left lower limb.
Functional disability is considered as 20% to the whole body.
43. Copy of this award be given to the parties free of cost. The copy of award be also sent to the DLSA and Ld. Metropolitan Magistrate.
44. Put up on 15.03.2024 for compliance. Digitally signed by SHELLY SHELLY ARORA ARORA Date:
2024.02.15 Announced in the open court 16:14:04 on 15.02.2024 +0530 (Shelly Arora) PO (MACT)-02, SE/Saket/Delhi 15.02.2024 MACT No 967/19 Kamar Alam Vs. Mohd. Sahil Singh & Ors. page No. 29 of 29