Delhi District Court
Raju (Dar) vs Ranjit Singh (158/18, S.L.C.) on 13 May, 2024
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 846/2018
FIR no. 158/2018
PS: SLC
U/s 279/338 IPC
CNR No. DLSE01-007267-2018
Raju Vs. Ranjeet & Ors.
Raju
S/o Roha
R.o H. NO. 5/343, Trilokpuri
New Delhi.
...Claimants/LRs of deceased
Versus
1. Ranjeet Singh
S/o Charanjit Singh
R/o D-39, Dayanand Colony
Lajpat Nagar, New Delhi.
..... Driver /R-1
2. Bhawna
D/o Sh. Vinod Singh
R/o H. NO. C-148, Lajpat Nagar
New Delhi.
..... Owner /R-2
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 1 of 41
3. Bajaj Alliance Gen. Ins. Co.
93. Ashoka Bhavan, 6th Floor,
605 to 608, Nehru Place, New Delhi.
......Insurance Company/ R-3
.....Respondents
Date of accident : 05.06.2018
Date of filing of DAR : 04.09.2018
Date of Decision : 13.05.2024
AWARD
1. Detailed Accident Report (hereinafter referred as DAR)
pertaining to Road Traffic Accident (RTA) of injured Raju
(hereinafter referred as claimant) allegedly caused by vehicle
bearing Reg. No. DL 14CD 2620 (hereinafter referred as
offending vehicle), which was driven by its driver Ranjeet
(hereinafter referred as Respondent No.1) and owned by Bhavna
(hereinafter referred as R-2) and insured with Bajaj Alliance Gen.
Ins. Co. (hereinafter referred as R-3) was filed by IO ASI
Rajender Kumar in terms of provisions of Motor Vehicle Act,
which is being treated as Claim Petition under Section 166 (1)
read with Section 166 (4) MV Act.
2. Preliminary information regarding accident in question
was received at PS Sun Light Colony vide DD no. 8PP, dated
05.06.2018, upon receipt of which IO ASI Rajender Kumar along
with Ct. Ramesh proceeded to spot of accident as intimated, in
front of S. K. Khan Authority, near Barapula where a car bearing
Registration No. DL 14CD 2620 and a red colour cycle were
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 2 of 41
found in accidental condition. It was informed that injured/
victim has already been removed to AIIMS Hospital by an
ambulance. Thereafter, IO reached AIIMS Trrauma Center and
received the MLC of injured with alleged history of "RTA
Pending investigation and fit for statement". Statement of victim
Raju was recorded wherein he stated that on 05.06.2018, he was
going to Siddharth Extension from Trilokpuri on his bicycle and
at about 08.00 am when he was crossing the road near S. K.
Khan Authority, suddenly alleged offending car driven in rash
and negligent manner, coming from side of Maharani Bagh
rammed in his cycle due to which he fell down and sustained
multiple injuries. The driver of such offending vehicle, ran away
leaving his car on the spot. PCR was called by some passersby.
Injured was removed to AIIMS by am ambulance. FIR was
registered upon the statement of injured. Site plan was prepared.
Notice u/s 133 MV Act was served upon driver and owner.
Driver Ranjeet was arrested who also produced the requisite
documents of vehicle. The offending motorcycle was taken into
police possession. Injury was opined to be grievous in nature.
Upon completion of investigation, charge-sheet was filed under
Sections 279/338 IPC against driver and owner before concerned
MM. DAR was filed by Investigating Officer before this
Tribunal.
Reply/ Response:
3. In response to DAR, R-1 & 2 did not file any reply despite
opportunity.
4. R-3/Insurance Company filed reply / legal offer, however,
the same was not acceptable to the claimant side and thereafter,
matter was proceeded further on merit.
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 3 of 41
Issues:
5. From the pleadings of parties, following issues were
framed vide order dated 13.02.2019:
1) Whether the injured suffered injury in a road
traffic accident on 05.06.2018 due to rash and
negligent driving of vehicle no. DL 14CD 2620
being driven by R-1, owned by R-2 and insured
with R-3? OPP.
2) Whether the petitioners are entitled to any
compensation, if so, to what extent and from
whom ? OPP.
3) Relief.
6. In between, upon request, matter was referred to Lok
Adalat twice on 13.07.2019 as well as on 14.09.2019, but no
settlement took place.
7. During course of proceedings, R-1/ driver unfortunately
expired. So, claimant preferred an application seeking
substitution of LR of deceased R-1/ driver as reflected in order
dated 08.02.2021. Notice of the said application was issued to
LR/ wife of deceased R-1, however, despite service of such
notice none appeared before the Tribunal and thereafter, wife of
R-1 Smt. Preet Kaur was substituted in place of original R-1/
driver Ranjeet Singh.
8. In the meantime, an application was also moved on behalf
of claimant for assessment of disability on 07.04.2022 and
accordingly, directions were issued to concerned Medical Board
to examine the injured qua his disability. Disability Certificate
opining 53% permanent disability in relation to his both lower
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 4 of 41
limb was issued to claimant.
9. Thereafter, matter was listed for PE. Claimant appeared in
the witness box as PW-1 and tendered his examination in chief
by way of affidavit Ex.PW1/A on 05.12.2022. He relied upon
following documents:
Copy of Aadhar Card - Ex.PW1/1
Copy of DAR - Ex.PW1/2
Copy of Medical Bills - Ex.PW1/3
Disability Certificate -Ex.PW1/4
10. PW-1 was subsequently cross examined. No further PE
was led and same was accordingly closed vide order dated
01.05.2023. Further, no evidence was sought to be led by any of
the respondents in their defence and hence RE was also closed. It
is pertinent to mention that an interim award u/s 140 MV Act to
the tune of Rs 25,000/- along with interest accrued upon it was
passed in favour of claimant which was released by insurance
company in favour of claimant.
12. Final arguments were addressed by counsel for claimant as
well as counsel for insurance company. Written Arguments were
also filed on behalf of claimant. It was argued by counsel for
claimant that claimant was employed as security guard in
Siddarth Extension at the time of accident and was earning Rs.
12,000/- per month. It is further argued that claimant suffered
prolonged treatment in hospital and even a 'rod' had to be
inserted in his left leg and a support screw in his right knee which
have still not been removed. It was further submitted that the
claimant incurred amount of Rs. 1,50,000/- upon his treatment,
however, bills of the same got misplaced. It was further stated
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 5 of 41
that claimant was advised rest for 10 to 12 months by the doctor
and had to avail services of attendant at monthly salary of Rs.
9,000/-. it was further argued that claimant also took special diet
as prescribed for two months which cost him Rs. 6,000/- per
month and also incurred expenses towards conveyance of Rs.
50,000/-. It is further argued that on account of accident, the
claimant was compelled to take friendly loan as he had no other
source of income.
13. 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 injury in a road traffic
accident on 05.06.2018 due to rash and negligent driving
of vehicle no. DL 14CD 2620 being driven by R-1, owned
by R-2 and insured with R-3? OPP.
14. It is well settled that the proceedings before the Claims
Tribunal are in the 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.
15. Police after investigation had filed charge-sheet against
respondent no.1 U/s 279/338 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
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 6 of 41
chargesheet under relevant section are sufficient proof of
negligence of the driver of the offending vehicle.
16. 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. In this case also, R-1 / driver has not adduced any
evidence to controvert the affirmation on the part of claimant that
the accident did not occur on account of any negligence on the
part of Respondent no.1.
17. PW-1 has affirmed that the offending vehicle was being
driven in rash and negligent manner at the time of accident.
During cross examination by counsel for insurance company, he
specified that he was very much in his lane when offending
vehicle rammed his cycle from front transgressing in to wrong
lane. Nothing has come up during cross examination by counsel
for insurance company which questions the credibility of on
veracity of injured or his deposition. He was not even cross
examined by counsel for R-1 & 2. No evidence was led on behalf
of R-1 & 2. Even any reply was also not filed on record on behalf
of R-1 & 2 to answer the allegation made as part of DAR. Notice
under section 133 MV Act was also served upon owner which
also established the identification of the driver, with no denial on
the part of owner about involvement of the offending vehicle in
the accident. The accident happened as per the statement of
injured at about 08.00 am on 05.06.2018 whereas time of
admission in the Trauma Center is mentioned to be 08.27 am on
05.06.2018. DD no. 8PP mentions information received at 08.05
am on 05.06.2018 by one Kuldeep and DD entry no. 21PP qua
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 7 of 41
admission in the Trauma Center by PCR received at 12.00 noon.
Accordingly, there is nothing which does not fit in to the
narrative and therefore, puts the factum of accident in doubt.
There is no dispute with respect to identification for involvement
of the offending vehicle and that of its driver who is respondent
no.1 in this matter. There is nothing contradictory elicited from
the testimony of PW1 which can challenge the assertion of rash
and negligent driving on the part of respondent no.1. It is
concluded that the offending vehicle was driven speedily and
rashly with indifference towards possible adverse consequences
and was thus responsible for causing accident.
18. As such, in view of the evidence proved on record and
charge-sheet against R-1 and in backdrop of the discussion made
above, rash and negligent driving of R-1 is proved on the scales
of preponderance of probabilities. Issue No.1 is decided
accordingly, in favour of the petitioner and against respondent.
ISSUE NO. 2
"Whether the injured is entitled to any
compensation, if so, to what extent and from whom?
OPP"
19. Sec. 168 MV Act enjoins the Claim Tribunals to hold an
enquiry into the claim to make an effort determining the amount
of compensation which appears to it to be just and reasonable.
Same is reproduced hereunder for ready reference:
"(1) Award of the Claims Tribunal.--On receipt of an
application for compensation made under section 166,
the Claims Tribunal shall, after giving notice of the
application to the insurer and after giving the parties
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 8 of 41
(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."
20. Before putting in frame the position of law, it is noted that
the process of determining the compensation by the court is
essentially a very difficult task and can never be an exact science.
Perfect compensation is hardly possible, more so in claims of
injury and disability. (As observed by Hon'ble Supreme Court of
India in the case of Sidram Vs. The Divisional Manager United
India Insurance Company Ltd, SLP (Civil) No. 19277 of 2019.
21. The basic principle in assessing motor vehicle
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 9 of 41
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.]
22. 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.. ..."
23. Delineating the damages as pecuniary and non pecuniary,
Hon'ble Supreme Court of India, in case of R. D. Hattangadi Vs.
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 10 of 41
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."
24. 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
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object of awarding damages is to make good the loss
suffered as a result of wrong done as far as money
can do so, in a fair, reasonable and equitable manner.
The court or the Tribunal shall have to assess the
damages objectively and exclude from consideration
any speculation or fancy, though some conjecture
with reference to the nature of disability and its
consequences, is inevitable. A person is not only to be
compensated for the physical injury, but also for the
loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability
to lead a full life, his inability to enjoy those normal
amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used
to earn or could have earned. [See C.K. Subramania
Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR
1970 SC 376] , R.D. Hattangadi v. Pest Control
(India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri)
250] and Baker v. Willoughby [1970 AC 467 : (1970)
2 WLR 50 : (1969) 3 All ER 1528 (HL)] .]
6. The heads under which compensation is awarded
in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been injured,
comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 12 of 41
normal longevity).
In routine personal injury cases, compensation will
be awarded only under heads (i), (ii)(a) and (iv). It
is only in serious cases of injury, where there is
specific medical evidence corroborating the
evidence of the claimant, that compensation will be
granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings
on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of
prospects of marriage) and loss of expectation of
life.
7. Assessment of pecuniary damages under Item (i) and
under Item (ii)(a) do not pose much difficulty as they
involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the head
of future medical expenses--Item (iii)--depends upon
specific medical evidence regarding need for further
treatment and cost thereof. Assessment of non-pecuniary
damages--Items (iv), (v) and (vi)--involves
determination of lump sum amounts with reference to
circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant
and the effect thereof on the future life of the claimant.
Decisions of this Court and the High Courts contain
necessary guidelines for award under these heads, if
necessary. What usually poses some difficulty is the
assessment of the loss of future earnings on account of
permanent disability--Item (ii)(a). We are concerned
with that assessment in this case.
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
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 13 of 41
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 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
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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 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
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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 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
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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."
25. 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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 17 of 41 Court of India as decided on 16.11.2022.
26. 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.
Loss of Earning
27. PW1 deposed in his evidentiary affidavit that he was employed as a security guard in a company in Siddharth Extension and drawing a salary of Rs. 12,000/- per month. As such any documentary evidence qua his employment in the company has not been placed on record. The employer has not been called as a witness. Nothing has been placed on record about any educational or technical qualification. However, he specified that he has been residing and employed in the Delhi for about 20 years prior to the accident. His address in FIR, MLC, Charge Sheet, DAR has been mentioned to be that of Delhi. Insurance Company also filed its legal offer, not disputing his residence and work place at Delhi and offered to pay minimum wages applicable in NCT of Delhi. Nothing contradictory has been placed on record to put the abovementioned assertion in doubt. It is thus held that the injured was residing and employed MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 18 of 41 in Delhi and is therefore entitled to earning capacity as one. It is thus held that his income is assessed as minimum wages applicable in State of NCT of Delhi for an unskilled workman at the time of accident, which was Rs. 13,896/- per month.
28. Claimant has testified that he was unable to report to work after the accident was crippled and would even suffer pain even while walking for 100 to 200 meters. He further stated that he remained admitted in the hospital for about 6-7 months and plaster of his legs were deplastered after about 6 months. He further stated that he was not in a position to move at all even post discharge as the doctor advised him bed rest. A copy of Discharge Summary of Lok Nayak Hospital (part of DAR Ex.PW1/2) shows 9 days admission of claimant/ injured. Any other record has not been filed in support of the claim of claimant. No such prescription has been filed on record wherein doctor allegedly prescribed him bed rest. There is no document to support his assertion that he was hospitalized for 6-7 months. It is however, noted that he suffered 53% physical disability in relation to both lower limb. Considering the nature and extent of injuries against the backdrop of nature of employment, it is likely that he would not have been able to return back to his job or look for other employment opportunities possibly at least for the next 9 months post accident.
Loss of future earning on account of permanent disability:
29. It is part of record that petitioner suffered 53% permanent physical impairment in relation to both lower limbs. It is argued by counsel for claimant that functional disability of 53% be MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 19 of 41 considered in relation to whole body as he was employed as security guard which requires movements of both lower limbs for efficient performance of duty. Same has been disputed by Ld. Counsel for Insurance Company.
29.1. Before proceeding further, it is important to understand as to what disability means and also types thereof. This aspect has been delved into by Hon'ble SC in Raj Kumar (supra):
"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 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."
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 20 of 41 29.2. The term 'disability' means the decrements to the functional efficacy of body of injured whereas 'functioning' encompass all the body functions and activities for an independent life. Functional disability is to determine the extent of loss or extent of restrictive functionality considering the nature of activities required to be necessarily performed in efficient discharge of duties and the limb effected. This computes the extent of adverse effect of physical disability upon the functional efficacy of an injured person, in turn adversely impacting his earning capacity. The process entails understanding and enumerating the skill set required for performing specific activities. To sum up, functional disability basically measures the extent of ability having been compromised to carry out basic everyday tasks or even more complex tasks required for and independent living. The limitations may occur on account of disability in the personal sphere, in the social sphere and in the occupational sphere. In the personal sphere it may encompass the daily activities of a person, his body function and his involvement in basis life situations. At the societal level, it could mean difficulty in involvement and participation in social and community activities interfering the interpersonal interaction and relationship adversely impacting the civic life. When disability restricts the vocation or employment avenues to make earning for his living, it falls in the category of disability in the occupational sphere. The disability might occur on account of age or any illness and in the case at hand by way of an accident. A person living a normal life in particular set of circumstance and making his living by MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 21 of 41 engaging in any work has suffered disability which might impead his daily life activities, both on a personal and social scale and might also impact his ability to continue earning as much as before and his future employment avenues.
29.3. What is thus required to be assessed is the effect and impact of disability upon the working efficiency of injured and whether it would adversely impact his earning capabilities in future. It is settled that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity.
29.4 Hon'ble SC laid down certain guidelines for the Tribunal to be able to arrive at an objective figure to quantify the loss for the purpose of computing the compensation in the judgment of Raj Kumar (supra). Relevant extracts of this judgment for the purpose of further discussion are reproduced hereunder:
"Assessment of future loss of earnings due to permanent disability
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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 22 of 41 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 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) MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 23 of 41 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 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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 24 of 41 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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 25 of 41 and other factors."
29.5. Further in the case of "Mohan Soni Vs. Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC), the question at hand was deliberated and following observations as relevant in the context were made:
"In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle- rickshaw-puller.
29.6. The question of assessment of impact of disability on the earning capacity has been dealt in several cases but it is understood that each case has to be evaluated on its contextual dynamics established by way of evidence at hand. It brings us to a question whether extent of permanent disability as medically determined can simply be taken to be the extent of functional MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 26 of 41 disability and hence, the loss of earning capacity. It has been held in various pronouncements of Hon'ble Supreme Court of India and Hon'ble High Court that equating the two as a criteria would result in an inobjective and absurd compensation. There however, might be certain cases where the two would correspond to each other but it cannot be mechanically applied rather requires evaluation of applicable factors independently in each case to reach at a fair quantification of loss of earning capacity.
29.7. In the present case, the disability of injured has been assessed by a medical board constituted upon the direction of the court as 53% in relation to the both lower limbs. Therefore, by way of inference, it can be stated that the disability has not been expressed by the doctor in reference to the whole body. What is the role of that partially disabled limb in respect of the employment of injured is a separate question altogether. It is settled that any mechanical arithmetic formula cannot be applied to determined the impact of injury upon the income generating capacity of the victim and same is required to be judged in relation to the profession, vocation or business of the victim. (support drawn from the case of Pappu Deo Yadav v. Naresh Kumar & Ors., AIR 2020 SC 4424).
29.8. Coming to the case at hand, injured has deposed himself to be employed as a security guard. Nothing contradictory has come up on record as far as this assertion is concerned. Legal offer was filed on behalf of insurance company where also this factual position was not disputed. It is common knowledge that the duty of security guard involves extensive leg work and free leg movement which has been grossly impeded in the present MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 27 of 41 circumstance. Physical aptitude and suitability for the job profile of a security guard are bound to suffer on account of the disability. It is likely that the injured would not be able to either perform duty as a security guard or at least would not continue to remain a sought after candidate for the duties thereof. Victim would have to endure the permanent mobility restrictions which is also bound to have an adverse psychological impact as well. It is settled that change of nature of employment cannot be forced upon the victim and the assessment of compensation has to be quantified on the basis of nature of employment that he was into, at the time of accident and in contract with the the nature of jobs that he could still carry on or would have to compulsorily shift to, on account of disabilities suffered in the accident. In the backdrop of discussion above as victim suffered significant disability and that too in both lower limbs which is bound to have an adverse impact on his mobility (running, standing, walking, ease of movement of limbs) which is an important and basic requirement of the services as security guard, his functional disability as would adversely impact his earning efficiency is assessed to be 40%.
29.9. Multiplier: As per evidence on record, date of birth of the claimant is 01.01.1974, as per documents placed on record. As such, he was above 44 years at the time of accident, therefore, applicable multiplier is taken as 14. (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).
29.10. Future Prospect: Further in view of the judgment of MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 28 of 41 Hon'ble Supreme Court in Pappu Deo Yadav v. Naresh Kumar & Ors., AIR 2020 SC 4424 as also laid down in Sr. Antony @ Antony Swamy Vs. Managing Director KSRTC, Civil Appeal No. 2551 of 2018, future prospect has also been considered in the cases of permanent disability.
29.11. As such, as injured was between the age of 40 to 50 years (at the time of accident) and was employed on a fixed salary, thus as laid down in the case of Pranay Sethi (Supra), the percentage towards future prospect is taken to be @ 25 % upon application of category of ''self-employed or on a fixed salary''.
29.12. In view of the above discussion of law, the calculation under future loss of income in the present case is as under:
(i) Annual income (Rs. 13896/- x12) : Rs.1,66,752/-
(ii) Future prospect (25% of Rs.1,66,752/-) : Rs.41,688/-
______________________
(iii) Total Rs. 2,08,440/-
(iv) Multiplicand : Rs. 2,08,440/-
(v) Hence the 'Total Loss of Future Income' shall be :-
Percentage of functional disability (multiplicand x multiplier) = 40% of (Rs. 2,08,440/- x 14) : Rs. 11,67,264/-
TOTAL : Rs. 11,67,264/-
30. 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 : Rs. 25,000/-
Claimant has filed carbon copy of
medical bills as Mark A totaling of Rs.
24,850/-. In Written Arguments filed by the claimant, they have claimed Rs.
18,900/- towards loss of expenditure. It is deposed by the claimant in his MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 29 of 41 evidentiary affidavit Ex.PW1/A that he has incurred Rs. 1.50 lakhs upon his treatment but such bills are misplaced. Since the bills placed on record neither original nor certified, they are not considered. However, it is noted that insurance company has added an amount of Rs. 24,850/- in its legal offer which seems that even insurance company has no objection if the same is paid to the claimant. It is also considered that injured has suffered grievous injuries which led to 53% permanent physical impairment in relation to his both lower limbs, therefore, he must spent money against various medical bills and other treatment cost. Hence, Rs. 25,000/- is awarded to claimant under loss of expenditure on treatment.
(ii) Expenditure on Conveyance : It is Rs. 25,000/- deposed by the claimant in his evidentiary affidavit that he has incurred Rs. 50,000/- approx towards conveyance expenditure as he visited several times to the hospital for next 2-3 years after the accident. However, any supporting bill has not been filed on record.
The nature of injuries are grievous and petitioner suffered 53% permanent physical impairment in relation to his both lower limbs.
By guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : Rs.12,000/- Claimant also deposed that he has taken special diet for two months which cost Rs. 12,000/-. There is no bill / prescription for special diet on record. Even in the absence of any prescription or bill, the claimed amount of Rs.
12,000/- is awarded to the claimant considering the nature of injury and MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 30 of 41 disability he suffered.
(iv) Cost of nursing / attendant : Rs.40,000/- Claimant had deposed in his evidentiary affidavit Ex.PW1/A that he had arranged a person to support him to do daily activities for 1 years at Rs. 9,000/- per month. He again deposed during his cross examination by counsel for insurance company that he had spent Rs. 7,000/- to 8,000/- per month on a private attendant for a period approx 18 months. However, any supporting bills have not been filed on record. Even claimant himself has given two different amount and period which is itself questionable. However, considering the nature of injuries and disability suffered by claimant in relation to both lower limbs, it can be presumed that he must have availed services of other person for his daily activities. Even it settled that in the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members. By guess work an amount of Rs. 40,000/- is awarded towards attendant charges.
(v) Loss of income : As discussed Rs. 1,25,064/-
above (Rs 13896/- x 9)
(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 053% permanent physical impairment in relation to his both lower limbs, he MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 31 of 41 would have undergone great mental and physical shock.
(ii) Pain and suffering : Compensation Rs. 75,000/- for pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner. It is settled that serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim.{support drawn from Sidram (supra)}
(iii) Loss of amenities of life : The Rs.10,000/- nature of injuries are grievous and petitioner suffered 53% permanent physical impairment in relation to his both lower limbs.
(iv) Disfiguration : Rs. 30,000/-
(v) Loss of marriage prospects : Nil
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed The nature of and nature of disability as permanent injuries are or temporary grievous and petitioner suffered 053% permanent physical impairment in relation to his both lower limbs
(ii) Loss of amenities or loss of Already granted expectation of life span on account of disability : The nature of injuries are grievous and petitioner suffered 053% permanent physical impairment in relation to his both lower limbs
(iii) Percentage of loss of earning 40% capacity in relation to disability: As MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 32 of 41 already discuss above.
(iv) Loss of future Income: As Rs. 11,67,264/- discussed above:
(v) Future medical expenses Nil
Total Compensation Rs. 15,59,328/-
Deduction, if any, An Interim
Award of Rs.
25,000/- was
awarded vide
order dated
05.12.2022. In
compliance of
the same, Rs.
27,860/-
including
interest upon
principal amount
was deposited by
insurance
company as
noted vide order
dated
21.04.2023.
Same is liable to
be deducted.
Hence the final
amount shall be
Rs. 15,31,468/-
(Rs. 15,59,328/-
(-) Rs. 27,860/-)
Total Compensation after deduction Rs. 15,31,468/-
Interest As directed
below
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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 33 of 41 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, 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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 34 of 41 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 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.
LIABILITY
33. Since there is no statutory defence, therefore, such principal award amount/compensation will be payable by the insurance company of offending vehicle with simple interest @ 9% p.a. from the date of filing of petition till actual realization. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
34. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 35 of 41 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).
35. 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:-
36. 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.
37. 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:
MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 36 of 41 "......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the 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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 37 of 41 background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to 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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 38 of 41 issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
38. 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.
39. 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 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 39 of 41 Hon'ble Supreme Court, apportionment of award amount for injured is given as under:
Out of total award amount, Rs. 10,00,000/- is kept in form of monthly FDR of Rs. 15,000/-. Remaining amount of Rs. 5,31,468/- be released in the bank account of claimant near his place of residence.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 05.06.2018 2 Name of injured Raju 3 Age of the injured 44 years 4 Occupation of the Not proved injured 5 Income of the injured Rs. 13,896/-
6 Nature injury Grievous injury and 53% disability in relation to both lower limb.
7 Medical treatment As per record.
taken by the injured:
8 Period of As per record.
Hospitalization 9 Whether any permanent disability?
Grievous injury and 53% disability in relation to both MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 40 of 41 lower limb.
Functional disability is
considered as 40%.
40. 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 Digitally Magistrate. signed by SHELLY
41. Put up on 15.07.2024 for compliance. SHELLY ARORA ARORA Date:
2024.05.13 17:43:00 Announced in the open court +0530 on 13.05.2024 Shelly Arora PO (MACT)-02, SE/Saket/Delhi 13.05.2024 MACT No. 846/2018 Raju Vs. Ranjeet & Ors.. Page No. 41 of 41