Delhi District Court
Vijay @ Vijju vs Paras Biroria on 3 May, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 112/2021
FIR no. 1391/19
PS Sihani Gate, Ghaziabad
U/s 279/337/338/427 IPC
CNR No.: DLSE01 000877-2020
Vijay @ Vijju Vs. Paras Biroria & Ors.
Vijay @ Vijju
S/o Late Sh. Surendra Singh
(Through its natural guardian/ mother)
R/o A-Block, Jhuggi, Hapur Fatak,
Ghaziabad, Uttar Pradesh- 201002
.....Petitioner
Versus
1. Paras Biroria
S/o Arvind Biroria
R/o 79/8, Peelay Quarter Lohia Nagar,
Near Police Chowki, Ghaziabad,
Uttar Pradesh-201001.
....R-1/driver
2. Anita Biroria
W/o Arvind Biroria
R/o 79/8, Peelay Quarter Lohia Nagar,
Near Police Chowki, Ghaziabad,
Uttar Pradesh-201001.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 1 of 52
....R-2/owner
3. Tata AIG Gen. Ins. Co. Ltd.
DTJ-415, 4th Floor, DLF-Tower-B,
Jasola District Centre,
New Delhi-110025.
....R-3/ Insurance Co.
Date of accident : 05.09.2019
Date of filing of Claim petition : 01.02.2020
Date of Decision : 03.05.2025
AWARD
1. Claim Petition under Section 166 and 140 M.V. Act was
filed on 01.02.2020 by Vijay @ Vijju (hereinafter called the
claimant/injured) on account of injury sustained by him in a road
traffic accident which took place on 05.09.2019 due to rash and
negligent driving of vehicle no. UP14DU 8820 (hereinafter
referred as Offending Vehicle), driven by Sh. Paras Biroria
(hereinafter referred as Respondent No.1), owned by Ms. Anita
Biroria (hereinafter referred as Respondent No.2) and insured
with M/s. Tata AIG General Insurance Company Ltd. (hereinafter
referred as Respondent No.3/Insurance Company).
BRIEF FACTS AS ALLEGED IN THE PETITION:
2. On 05.09.2019 at about 3:00 PM near Lal Quarter Police
Chowky, injured riding on his motorcycle was hit by a car
bearing No. UP 14 DUAA20 causing serious injuries on the body
of victim. FIR was registered. Necessary investigation was
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 2 of 52
undertaken. Respondent no.1 was charge-sheeted for causing
bodily injuries to motorcyclist due to rash and negligent driving
of the offending vehicle.
3. It is alleged that the accident took place on account of rash
and negligent driving of the aforementioned car which was being
driven by respondent no.1 and owned by respondent no.2 at the
time of accident. It is also stated that the said car was also validly
insured as on the date of accident and therefore, all the three
respondents are jointly and severally liable to pay the
compensation. It is stated that the petitioner was about 21 years
of age at the time of accident and was working as a barber in
Delhi earning about Rs.15,000/- to Rs.20,000/- per month. A sum
of Rs.35,00,000/- has been sought as compensation.
Proceedings:
4. Reply was filed by counsel for respondent No.1 and 2 as
well as counsel for respondent no.3. In WS filed on behalf of
respondents no.1 and 2, it is stated that the vehicle was validly
insured at the time of accident. It is also stated that the FIR was
lodged due to collusion between police authorities and the
claimant. It is also stated that the driver of the offending vehicle
was having a valid driving license.
5. In WS filed on behalf of respondent No.3, validity of
insurance policy is conceded. Other general defences were taken.
Issues:
6. From the pleadings of parties, following issues were
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 3 of 52
framed order dated 21.02.2023:
i). Whether the injured suffered grievous injury in a road traffic
accident on 05.09.2019 due to rash and negligent driving of vehicle
bearing no. UP-14-DU-8820 being driven by R-1, owned by R-2 &
insured with R-3? OPP.
ii). Whether the petitioner is entitled to any compensation, if so, to
what extent and from whom?OPP
iii). Relief.
Disability Assessment:
7. Upon an application for assessment of disability, report of
Medical Board Committee dated 21.09.2022 was received as per
which patient was certified to be 100% permanently disabled.
Medical Board has opined that injured has a large craniotomy
defect on the left side of the head and, he has global aphasia.
Evidence:
8. Matter was then listed for Petitioner's Evidence. PW-1
Champa, mother of injured stepped in the witness box and
tendered her evidence by way of affidavit as Ex.PW1/A. She
relied upon following documents:
Ex.PW1/1 (colly.)- Photocopy of Aadhar Card of the deponent and injured
(petitioner)
Ex.PW1/2(colly.)- Certified copies of criminal case including
charge-sheet/final report under Section 173 CrPC, FIR, and Site Plan
Ex.PW1/3(colly.)- MLC/MLR, discharge summary, and medical treatment
document of the injured (petitioner)
Ex.PW1/4 (colly.)- Original medical bills of the injured for the amount
Rs.3,000/-
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 4 of 52
Ex.PW1/5- Copy of Disability certificate of the injured petitioner
9. She was then cross examined by counsel for Insurance
Company as well as counsel for R-1 & 2.
10. No witness has been examined on behalf of any of the
respondent. Respondent Evidence was accordingly closed.
Matter was then listed for Final Arguments.
Final Arguments:
11. Counsel for the claimant argued that the injured is in a
deplorable medical condition suffering from 100% disability and
is totally dependent upon other for basic daily activities. He also
stated that insurance company has not raised any statutory
defence and that the injured is liable to be compensated for the
injuries sustained in an accident caused due to rash and negligent
driving of offending vehicle.
12. Counsel for R-1 and R-2 argued that all the documents
pertaining to the offending vehicle were valid and effective on
the date of accident and therefore, they are not liable to grant any
compensation to the injured. He also argued that the injured was
himself negligent in driving the vehicle which is why accident
happened and that there was no negligence on the part of driver
of the offending vehicle.
13. Counsel for the Insurance Company argued that petitioner
has not filed any proof of income of the injured. She also pointed
out that any eyewitness has not been examined. She also termed
the compensation sought to be excessive.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 5 of 52
Discussion:
14. On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
Issue No.1
i). Whether the injured suffered grievous injury in a road traffic
accident on 05.09.2019 due to rash and negligent driving of vehicle
bearing no. UP-14-DU-8820 being driven by R-1, owned by R-2 &
insured with R-3? OPP.
15. What is required to be ascertained is whether rash and
negligent driving of offending vehicle resulted in accident which
caused injuries to the claimant.
16. It has been held in catena of cases that negligence has to be
decided on the touchstone of preponderance of probabilities and
a holistic view is to be taken. It has been further held that the
proceedings under the Motor Vehicle Act are not akin to the
proceedings in a Civil Suit and hence, strict rules of evidence are
not applicable (support drawn from the case of Bimla Devi &
Ors vs. Himachal Road Transport Corporation & ors [(2009) 13
SC 530, [Kaushnumma Begum and others v/s New India
Assurance Company Limited, [2001 ACJ 421 SC], [National
Insurance Company Ltd. Vs. Pushpa Rana cited as [2009 ACJ
287 Del].
17. PW-1 Champa, mother of injured was examined, who
deposed that injured was on his way to his place of job around
3:00 PM on 05.09.2019, when crossing from the road near Lal
Quarter Police Chowky, a speedily and rashly driven car bearing
Registration No. UP 14 DUAA20 dashed into his motorcycle
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 6 of 52
from behind forcefully because of which he fell down and
sustained serious injuries. During cross-examination by counsel
for insurance company, she declined the suggestion that her son
did not sustain any accidental injuries due to rash and negligent
driving by respondent no.1 while driving the offending vehicle.
She admitted that she has not placed on record any Seizure
Memo or Mechanical Inspection Report of both the accidental
vehicles. She admitted that she was not present with her son at
the time of accident and therefore, has not witnessed the same.
She also stated that her son had left from home at about 3:00 PM
to report to his work place.
18. It is evident that accident took place around 3:00 PM while
FIR was registered on the same date at about 9:00 PM upon the
statement/Tehrir/complaint of Champa Devi, mother of injured
who has been examined as a witness in this matter and has relied
upon the criminal record including FIR and charge-sheet. The
vehicle number was duly mentioned in the statement. It was also
alleged therein that the vehicle was being driven at a very high
speed and dashed into the motorcycle leaving him seriously
injured. It is evident that the respondent No.1 has been charge-
sheeted for causing the accident due to rash and negligent
driving. It is also evident that injured himself was not in a
position to depose about the specifics of the accident and the only
other person who could have divulged about the contextual
circumstances of the accident was respondent no.1 who chose not
to depose in the court. There is, thus, no contest to the
affirmations of rash and negligent driving on the part of the
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 7 of 52
respondent no.1 to cause the accident. The mother of injured
cannot be faulted for not being able to bring on record any
eyewitness when none has been mentioned in the charge-sheet.
Counsel for the insurance company has not put any question to
the mother of injured about her knowledge of the registration
number of the offending vehicle which she mentioned in her
complaint. There is no contrary evidence led either to controvert
or contradict the deposition made by the mother of injured.
Further, nothing stopped the counsel for insurance company to
call upon respondent no.1 to question about the specifics of the
accident or to fortify the assertions that the offending vehicle is
not involved in the accident or that respondent No.1 was driving
mindfully and was not negligent who has caused the accident.
Support drawn from the observations made by Hon'ble Supreme
Court of India in the case of Sunita & Ors. Vs. Rajasthan State
Road Corporation & Anr SLP (Civil) No. 33757 of 2018 that
hyper technical approach should not be adopted in MACT cases
and non examination of 'best witness' in Motor Accident Claim
cases is not fatal. It was held that :
"The approach in examining the evidence in accident claim cases is
not to find fault with non examination of some "best" eye witness in
the case but to analyse the evidence already on record to ascertain
whether that is sufficient to answer the matters in issue on the
touchstone of preponderance of probability."
19. While we consider that it was the primodial duty of
claimant to prove the negligence of R-1 as the reason for
accident, still it cannot be negated that the best person to devolve
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 8 of 52
about the actions or inactions creating circumstances leading to
an accident would be the driver of the offending vehicle who
chose not to testify about his narrative of the accident and to face
the cross examination by the contesting counsel. Under the
peculiar circumstances when injured is unable to testify, the
entire burden rather vested upon the shoulders of R-1/ driver to
unveil the factual matrix of the accident to explain and support
his contention that he was not negligent while driving the
offending vehicle. Apart from a bare assertion that victim was
negligently driving the vehicle, there is absolutely nothing on
record to lend support. The assertion also defies any logical
explanation possible. It would be worthwhile at this stage to
place reliance upon observations made by Their Lordships of
Hon'ble Supreme Court of India in the case of Mayur Arora Vs
Amit @ Pange MAC Appeal no. 609/2009 to the effect that:
"13.10. If an allegation is denied, the respondent must state his
reasons for the denial and if necessary, put forward his own version
of events. Subject to certain exceptions, the general rule is that if a
defendant fails to deal with an allegation, it is to be taken as an
admission."
20. Reference may also be made from observations made by
Hon'ble Delhi High Court in the case of Cholamandlam
Insurance Company Ltd. Vs. Kamlesh, 2009 (3) AD Delhi 310
which permitted an adverse inference against the driver, if he
chooses not to appear in witness box to controvert or to explain
the circumstances leading to accident.
21. R-1 chose not to contest the allegations made against him
that the accident occurred on account of his rash and negligent
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 9 of 52
driving of the offending vehicle. He did not step into the witness
box to put across first hand version of events leading to the
accident for no evident reason.
22. The accident itself is not disputed. The police authorities
were promptly involved and criminal law was set into motion.
R-1 /driver as owner was charge sheeted for rash and negligent
driving on a public way thereby causing serious injuries to
victim. R-1 has not disputed in reply filed to DAR that he was at
wheels during the accident. On account of critical medical
condition, injured has never been able to reveal about the
specifics of the accident. R-1 was admittedly driving the
offending vehicle and therefore was in total control of the said
vehicle and was under an obligation to exercise due care under
the prevailing circumstances as expected of any reasonable
person. Claimant has done its bid to prove the accident and the
investigation undertaken in pursuant thereto. With no direct
evidence coming forth and with no explanation on the part of
driver of the vehicle who had exclusive knowledge of the facts
bearing in the matter, no alternative explanation is possible other
than to conclude about the omission on his part to have exercised
due care while driving the vehicle because of which he lost
control and accident happened.
23. Counsel for the insurance company has argued that the
injured suffered head injury as he was not wearing any protective
headgear and therefore, contributory negligence ought to be
deducted. She has relied upon cross examination of PW-1
wherein she was asked as to what he has picked at the time of
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 10 of 52
leaving home. At the outset, what the cross examination reflects
is that her son had picked up keys of the motorcycle and there is
no direct suggestion or direct question in respect of helmet at the
time of accident. It is not always the case that the person
concerned has his helmet placed at home and that it can
sometimes be tied along with the bike itself or be placed out of
attention of other family members. There is no other evidence
which suggests that he was not wearing helmet at the relevant
time. R-1 did not appear in the witness box to state about the
above aspect. Further, insurance company did not call upon R-1
to get a clarification in this respect. Therefore, it cannot be stated
with certainty that injured was indeed not wearing a helmet/
protective headgear at the time of accident. It is noted that the in
the synopsis filed on behalf of R-1 & 2,it was mentioned, relying
upon the testimony of PW-1 and the arguments raised by counsel
for insurance company that the injured was not wearing helmet at
the time of accident, however, R-1 chose not to affirm the same
in the testimony box. Simply because the person did not pick
helmet from the house in front of his mother, that it cannot be
taken to be proved that the person was not wearing helmet at the
time of accident. Further, not wearing a helmet cannot be stated
to have contributed to the accident itself. It is not the case that the
injured could have averted the accident in case he was wearing a
headgear. Further, the assertions made by respondents that the
injured did not have a valid driving license or the insurance in
respect of the vehicle he was driving are without any
substantiation and cannot be taken to be proved. Therefore, the
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 11 of 52
contentions raised by respondent in respect of contributory
negligence or injured at the time of accident are rejected.
24. It is settled all the material available on record including
the FIR, charge sheet, testimonies and other documents have to
be analysed in order to reach at a conclusion. In view of the
discussion made above, it is evident that the accident happened
on account of speedy and reckless driving on the part of
offending vehicle. Issue No.1 is thus decided accordingly, in
favour of the petitioner.
ISSUE NO. 2
"Whether the injured is entitled to any
compensation, if so, to what extent and from whom?
OPP"
"The determination of quantum must be liberal, not niggardly since
the law values life and limb in a free country in generous scales"
{as observed by Hon'ble Supreme Court of India in the case of
Concord of India Insurance Company Limited Vs. Nirmala Devi
(1979 )4SCC 365}
25. Sec. 168 MV Act enjoins the Claim Tribunals to hold an
inquiry into the claim to determine the compensation payable and
pass an award. Relevant portion of Section 168 MV Act 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
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 12 of 52
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.
.
.
.
26. "....Money cannot renew a physical frame that has been battered." {as observed in the case of H. West and Son Limited Vs. Shephard 1958 -65 ACJ 504 (HL, England)}. It recognizes that the physical damage caused once cannot be fully undone. Something which remains as an indelible permanent sign of an unfortunate incident cannot be balanced merely by paying some monetary compensation. The process of damage and the ugly scars left on physical body and mental self, navigating through the entire process post accident and the unintended but compulsory turns that it brings in the course of life is indeed painful and traumatic. It is also required to be underlined that the damage is not restricted to the tangible injuries visible on the body of the injured rather catapults the lives of his family members also.
27. The assessment or grant of compensation is a small attempt to render assistance to the injured to navigate through the MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 13 of 52 hairpin unanticipated sudden and traumatic turn in order to bring some elbow space for him to move towards stability and normalcy to the extent possible. The underlying principle remains thus to make good the damage so far as possible as equivalent in money.
28. Section 168 MV Act puts an obligation over Tribunal to assess 'just' compensation with the object of putting the sufferer in the same position as nearly as possible as he would have been if he had not sustained the wrong. It is worthwhile to reproduce certain observations made by Karnataka High Court in the case of K. Narasimha Murthy v. Oriental Insurance Co. Ltd ILR 2004 KAR 2471 as referred and relied in the case of Rekha Jain Vs. National Insurance Company Limited Civil Appeal No. 5370- 5372 of 2013 which enumerates the milestones to be kept in mind by the Tribunal in an endevour to assess just compensation, at the same time acknowledging that any amount of money cannot compensate fully an injured man or completely renew a shattered human physical frame with the observations as under:
"16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries."
29. It is also settled that the monetary assessment is a MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 14 of 52 methodology known to law as social and legal security to a victim even though the nature of injuries and the individual ramifications might vary in different cases, therefore, it is understandable that one remedy cannot heal all. Further, the loss is in the nature of deprivation and it is unlike a personal asset with a price tag which can be simply awarded and therefore, complete accuracy in making such assessment is not humanly possible. The endevour is thus to make an assessment as best and as fair as possible under the given circumstance. The uncertainty of bringing justness to an assessment has been recognized, still holding that substantial damages must be awarded. The observations made by Lord Halsbury in the case of Mediana In re 1900 AC 113 (HL) give valuable insights into the aspect and reproduced as under:
"......Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in money counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident....... But nevertheless the law recognises that as a topic upon which damages may be given"
30. The uncertainty involved has also been recognized by Hon'ble Supreme Court of India in the case of Rekha Jain (supra) where observations of Lord Blacburn in the case of Livingstone MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 15 of 52 Vs. Rawyards Coal Company were referred as under:
".......where any injury is to be compensated by damages, in settling the sum of money to be given... you should as nearly as possible get at that sum of money which will put the party who has been injured.. in the same position as he would have been if he had not sustained the wrong...."
31. It is further observed by their Lordship in the case of Rekha Jain (supra) as follows:
"41.....Besides, the Court is well advised to remember that the measures of damages in all these cases 'should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing' is quite opposite to be kept in mind by the Court in assessing compensation in personal injury cases."
32. It is also settled that the compensation is not granted only for the physical injury but for the entire loss which results from the injury in an endevour to place the victim in a position as close as possible as prior to the accident (support drawn from National Insurance Company Limited v. Pranay Sethi & Ors (2017) 16 SCC 680 also in Raj Kumar v. Ajay Kumar (2011) 1 SCC 343). It is also settled as held in catena of judgments that the Motor Vehicles Act is a beneficial piece of legislation and the object of the Tribunal ought to be to assist the injured persons, (support drawn from Helen C Rebello (Mrs) & Ors. v. Maharashtra State Road Transport Corporation and Anr (1999) 1 SCC 90).
33. It is settled that an injured is required to be compensated for his inability to lead full life, his inability to enjoy those MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 16 of 52 natural 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 (support drawn from C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376 as further referred and relied in the case of Raj Kumar (supra) and then in a recent pronouncement of Sidram Vs Divisonal Manager United India Insurance Company & Anr SLP (Civil) No.19277 of 2018).
34. What is required of the Tribunal is to attempt an objective assessment of damages as nearly as possible without fanciful or whimsical speculation even though, some conjecture specially in reference of the nature of disability and it consequence would be inevitable. {support drawn from the case of Raj Kumar (supra) as referred and relied in case of Sidram (supra)}.
35. Observing that a measure of damages cannot be arrived with precise mathematical calculations and that much depends upon peculiar facts and circumstances of any matter, Hon'ble Supreme Court of India elaborated upon the expression "which appears to it to be just" in the case of Divisional Controller, KSRTC v. Mahadeva Shetty and Another, (2003) 7 SCC 197.
36. The observations made by Hon'ble Supreme Court of India in the case of K. Suresh Vs. New India Assurance Company Limited (2012) 12 SCC 274 provide valuable insights into the factors to be weighed by the Tribunal for determination of quantum of compensation, the relevant extract of which is reproduced as under:
"10. It is noteworthy to state that an adjudicating authority, while MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 17 of 52 determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad- based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation"
should be inhered."
37. The compensation has been broadly delineated as pecuniary and non pecuniary in the case of R. D. Hattangadi Vs. Pest Control India Pvt Ltd. 1995 AIR 755. It is worthwhile to reproduce certain observations made therein:
"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."
38. The issue of determination of compensation in a personal injury matter was extensively deliberated by Hon'ble Supreme Court of India in the case of Raj Kumar (supra) Relevant extract of the aforesaid judgment are reproduced hereunder for further MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 18 of 52 discussion:
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 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 19 of 52 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.
PECUNIARY DAMAGES
39. Damages under pecuniary heads primarily involves reimbursement of actual amount spent on account of injury suffered in an accident to undo the monetary loss, suffered by the claimant, as ascertainable from the evidence on record. Given hereunder are various heads under which compensation for pecuniary damages is assessed:
(A) Expenditure on Medical Treatment:
(i) Immediately after the accident, Injured was rushed to Yashoda Hospital at Ghaziabad vide MLC No. 128/19 after which he was rushed to Nagar Hospital at Ghaziabad and subsequently, to Dr. Ram Manohar Lohia Hospital. He underwent three major operations as per the medical documents and the deposition during his hospitalization for about 15 days with aforementioned hospitals. Certain pharmacy bills Ex.PW1/4 has been placed on record totaling of Rs. 3,000/-. Sundry / miscellaneous expenses cannot be ruled out during the admission in the hospital and subsequently also. Accordingly, injured is awarded Rs. 23,000/-
(Rs. 3,000/- + Rs. 20,000/-) as actual amount spent on the treatment of injuries sustained by him.
(B) Expenditure on Conveyance:
(i) Claimant has not filed any bill towards expenditure on MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 20 of 52 conveyance. The nature of injuries are grievous with 100% disability. It is evident that injured would have required several visits to the hospitals for his treatment along-with the family members or dependents considering the nature of injuries as well as the substantial disability. An amount of Rs. 50,000/- is awarded towards the head of conveyance.
(C) Expenditure on Special Diet:
(i) Injured remained admitted in hospital for about 15 days and underwent craniotomy. As such, there is no prescription filed whereby any special diet was prescribed, however, considering the medical condition of injured and the sensitivity of the procedure he underwent, it can be reasonably inferred that the injured would have required to consume protein rich and easily digestible diets for prompt recovery. PW-1 has testified that she has spent Rs.50,000/- on special diet. Accordingly, an amount of Rs. 50,000/- is awarded to injured towards expenditure on special diet.
(D) Expenditure towards services of Attendant:
(i) PW-1 / mother of injured deposed that she had engaged attendant to assist her son with his daily routine activities who was being paid a sum of Rs.7,000/- per month. She also clarified that the name of such attendant was Rahul and he used to come from Yashoda Hospital. As such, any document/receipt has not been filed to support the assertion made. She has deposed that she has spent about Rs.2 lakhs on attendant charges. Injured has been assessed with 100% permanent disability on account of grievous injuries sustained in the accident. Injured has suffered MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 21 of 52 Global Aphasia on account of large craniotomy defect on left side of the head which gives an inference that he would not be able to understand or recognize any language and therefore, his communication facilities are severely effected. It is evident that injured would be dependent for his basic routine activities upon attendant or family members and therefore, would require services of assistant / helper at all times of the day and for the rest of his life to attend to his basic body and medical needs.
(ii) It is settled that the multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges. {as recognized in Gobald Motor Services Ltd. Vs. R. M. K. Veluswami 9 AIR 1962 SC 1 as refereed and relied in Kajal Vs. Jagdish Chand CIVIL APPEAL NO. 735 OF 2020 and Sidram (supra)}
(iii) A similar case of Kajal (supra) where injured suffered 100% disability and was rendered incapacitated to do any activity for entire life, Hon'ble Supreme Court of India recognized the applicability of multiplier system for realistic determination of attendant charges. Following observations pertaining to the aspect under consideration are reproduced hereunder:
"This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati 10 1971 AC 115 14and Ors.11, U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors.12, Sandeep Khanduja v. Atul Dande and Ors.13. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant's age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 22 of 52
25. Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010 wherein the wages for skilled labourer is Rs.4846/ per month. We, therefore, assess the cost of one attendant at Rs.5,000/ and she will require two attendants which works out to Rs.10,000/ per month, which comes to Rs.1,20,000/ per annum, and using the multiplier of 18 it works out to Rs.21,60,000/ for attendant charges for her entire life. This takes care of all the pecuniary damages."
(iv) Similarly in the case of Abhimanyu Pratap Singh Vs. Namita Sekhon & Anr, (2022) 8 SCC 489, the claimant suffered 100% disability and was awarded attendant charges applying the appropriate multiplier on the rates as accepted in the case of Kajal (supra). Following observations pertaining to the aspect under consideration are reproduced hereunder:
"16. In view of the said legal position, the compensation can be assessed in pecuniary heads i.e. the loss of future earning, medical expenses including future medical expenses, attendant charges and also in the head of transportation including future transportation. In the nonpecuniary heads, the compensation can be computed for the mental and physical pain and sufferings present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life etc. "17. On perusal of the record out of the pecuniary heads MACT has not awarded any amount in future loss of earning even having 100% permanent disability while the High Court granted Rs.6,00,000/ only for 10 years because the appellant is now practicing as an advocate in the Court accepting his earning Rs.60,000/ per annum. From the pleadings and evidence brought, it is clear that the father of the appellant was a Professor and the mother was an IAS officer. The MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 23 of 52 claimant has been nurtured and brought up in a status enjoyed by his parents. He was planning to become an Executive or IAS officer. On account of the injuries in temporal region and the permanent disability suffered, he was unable to do his studies as expected or planned. After sincere efforts he could have passed the LL. B and started the advocate profession. A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e., lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view, the future loss of earning calculated by the High Court only for 10 years is not justified. If we accept the future loss of earning Rs.5,000/ per month as decided by the High Court which annually comes to Rs.60,000/ and apply the multiplier of 18 as applicable looking to the age, then the sum comes to Rs.10,80,000/, in the said head.
23. Considering the facts and circumstances of the case and nature of injuries in our considered opinion, the appellant is entitled for a sum of Rs.4,00,000/ in the head of loss of amenities of life and marital bliss, pain and sufferings, loss of enjoyment and loss of expectancy, Rs.1,00,000/ as awarded by the High Court is maintained in the head of special diet. Thus, in the nonpecuniary heads, the compensation as determined comes to Rs.5,00,000/."
(v). Attendant charges were fixed at Rs. 2,000/- per month in the case of Sidram (supra) where permanent physical disability of 45% of whole body was certified by the doctors for an accident in the year 2012.
(vi). PW-1 affirmed that she used to pay Rs. 7,000/- per month as attendant charges which appears reasonable considering even the basic minimum charges. Therefore, acknowledging the need MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 24 of 52 of at least 1 attendant, the amount towards monthly attendant charges is taken Rs. 7,000/-. Further, applicable multiplier for the age of 21 years would be of 18. Applying the standard multiplier method, the attendant charges are calculated as under:
Rs. 7,000/- x 12 x 18 = Rs. 15,12,000/-
(vii) Accordingly Rs. 15,12,000/- is awarded under the head of Attendant Charges.
(E) Loss of earning during the period of treatment:
(i) PW-1 deposed that her son was doing a private job earning about Rs. 15,000/- to Rs. 20,000/- per month. She admitted that she has not filed any appointment letter, pay slips, leave record, attendance record or termination letter of her son. She declined the suggestion that her son was not earning Rs. 15,000/- to Rs.
20,000/- per month. PW-1 has not placed on record any to show educational qualification of the injured. As per Ex.PW1/1, injured was resident of Ghaziabad, Uttar Pradesh. There is no assertion that he was not working in Uttar Pradesh. His monthly earnings are therefore assessed to be minimum wages for an unskilled worker applicable in the State of Uttar Pradesh at the time of accident which was Rs. 8,012/-.
(ii) As per Discharge Summary, injured was firstly taken to Yashoda Hospital and later remained hospitalized in Ram Manohar Lohia Hospital for more than 20 days. Any other subsequent consultation slip has not been filed. It is however, evident that the injured suffered profound disability and has not MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 25 of 52 been in medical position to re-join his duties. Considering the nature of injury and presuming the basic treatment period of six months, the loss of income during treatment is awarded for 6 months which comes to be Rs. 8,012 x 6 = Rs.48,072/-.
(F) Loss of future earning
(i) It is settled that a person is required to be compensated not just for the physical injury but also for the loss he has suffered as well as the loss which he might entail for the rest of his life on account of those injuries which he sustained in the accident. This necessarily means that he is required to be compensated for his inability to lead a full life, his inability to enjoy normal amenities, which he would have enjoyed but for the injury, his inability to earn as much as he used to earn or could have earned. (Support drawn from the judgment titled as C. K. Subramania Iyer v. T. Kunhikuttan Nair (1969) 3 SCC 64.
(ii) Disability Assessment Certificate was received in compliance of order as per which injured was certified to be 100% permanently disabled. Medical Board has opined that injured has a large craniotomy defect on the left side of the head which resulted in Global Aphasia.
(iii) 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 26 of 52 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."
(iv) 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 27 of 52 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 engaging in any work has suffered disability which might impede 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.
(v) 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.
(vi) 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 28 of 52 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 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 29 of 52 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 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 30 of 52 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."
(vii) 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 31 of 52 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.
(viii) 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 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.
(ix) In the case of Raj Kumar (supra), the physical functional disability of left leg was assessed to be 75% and total body disability at 37.5 %. In this case, functional disability was also assessed at 75% and it was observed that the extent of physical functional disability has to be considered so as to grant just and proper compensation towards loss of future earning as the MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 32 of 52 earning capacity of injured was totally negated having been rendered incapable of doing any manual work. It was also held that if permanent disability in relation to particular limb renders the injured permanently disabled from pursuing his normal vocation or any other similar work, there is no reason as to why compensation should be granted on the basis of physical disability in relation to whole body. In another matter of Syed Sadiq Etc vs Divisional Manager,United India AIR 2014 SUPREME COURT 1052, where functional disability was considered to be 65% by Hon'ble High Court in case of a vegetable vendor whose right leg had to be amputated was set aside and it was observed that loss of limb is often equivalet to loss of livelihood specially in manual labour cases and determined the functional disability at 85%. In yet another matter titled as of Arvind Kumar Mishra v. New India Assurance Co. Ltd.
[(2010) 10 SCC 254 , injured suffered grievous injuries and remained in coma for about 2 months and was held to be permanently disabled to the extent of 70% with his right hand amputated whereas his loss of earning capacity was held to be 90%. Similarly in case of K Janardhan Vs. United India Insurance Company AIR 2008 Supreme Court 2384, Hon'ble Supreme Court of India, held that a tanker driver suffered 100% functional disability and incapacitated to earn as a tanker driver as his right leg was amputated from the knee. In this case, the Court referred and relied upon another decision given by it in the case of Pratap Narain Singh Deo vs Srinivas Sabata And Anr, 1976 AIR 222, in which a carpenter having suffered amputation MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 33 of 52 of left arm from elbow was held to have suffered complete loss of earning capacity. In the case of Pappu Deo Yadav (supra), injured suffered loss of an arm and therefore, was unable to carry out his functions as a typist / data entry operator and thus acknowleding the impact of injury upon the income generating capacity of victim, the extent of functional disablement and loss of income generating earning capacity was equated with the extent of permanent disablement as medically assessed at 89%.
(x) In the case of Sidram (supra), injured suffered paraplegia due to accident and was medically assessed with permanent disability to the tune of 45%, however, he was held to have suffered 100% loss of earning capacity.
(xi) The injured has sustained serious head injuries which led to caused Global Aphasia and thus has been assessed 100% permanently disabled. Global Aphasia is a severe neurological condition that affects all aspects of communication like speech, language comprehension, reading, and writing. A person with this condition typically loses the ability to understand or express language, making meaningful verbal or written interaction nearly impossible. In the present case, the injured is unable to recognize or respond to any form of language, which renders him completely dependent on others for even the most basic day to day needs. Given the extent of cognitive and communicative impairment, along with the fact that such a condition prevents the injured from engaging in any form of employment or self-care, his functional disability is assessed at 100% in relation to his earning capacity towards whole body.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 34 of 52 (F1) Future Prospect:
(i) It is also held therein that future prospect (as laid down in the well considered judgment of National Insurance Company Vs. Pranay Sethi (2017) 16 SCC 680) shall be payable, not only in fatal cases but also in the case of permanent disability. The observations made in the said case as relevant to the context are reproduced hereunder:
"6. The principle consistently followed by this court 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.
7. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683. This court referred to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551; Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1; Reshma Kumari v. Madan Mohan (2009) 13 SCC 422; Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. Govind Yadav spelt out these principles by stating that the courts should, "in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." These decisions were also followed in ICICI Lombard General Insurance Co. Ltd. v. Ajay Kumar Mohanty, (2018) 3 SCC 686. prospects too; and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three-judge bench decision in Jagdish was not binding, but rather that the subsequent decision in Anant10 to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court, to MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 35 of 52 exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi11 is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death. .
.
(ii) Hon'ble Supreme Court further discussed several cases involving permanent disability and observed as under:
20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads.
.
.
....What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected".
(iii) As per his Aadhar Card Ex.PW1/1 (colly) filed on record, his date of birth is 01.01.1998, therefore, his age as on the date of accident was about 21 years & 8 months. Since the injured was below the age of 40 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 @ 40 % upon application of category of ''self- employed or on a fixed salary''.
(F2) Multiplier:
(i) The Multiplier Method was coined by Hon'ble Supreme MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 36 of 52 Court of India in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr. Civil Appeal No. 3483 of 2008, decided on 15.04.2009 to ascertain the future loss of income in relation to the age of the deceased, in order to bring about the uniformity and consistency in determination of compensation payable in fatal and serious injuries matters. Relevant observations with respect to the multiplier method in the abovementioned case read as under:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
(ii) The standard multiplier method was directed to be applied not only to ascertain the loss of dependancy in fatal accident case but also to determine future loss of earning in serious disability matters as well {as laid in the case of Raj Kumar (supra)}. In a recent Judgment of Pappu Deo Yadav vs Naresh Kumar, AIR 2020 SUPREME COURT 4424, Hon'ble Supreme Court of India relied upon and reiterated the principles laid in various judgments passed by it in the case of Sr. Antony @ Antony Swamy Vs. Managing Director KSRTC, Civil Appeal No. 2551 of 2018 and held that stereotypical or myopic approach must be avoided and pragmatic reality of life must be taken into account to determine the impact of extent of disability upon the income generated capacity of victim.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 37 of 52
(iii) The income of the injured per annum as determined upon appreciation of evidence, thus, forms the multiplicand. A table of multiplier with reference to the age was laid down by Hon'ble Supreme Court of India. The appropriate multiplier, applicable in this case would be 18 (for age upto 25 years).
(iv) In view of the above discussion of law, the calculation under future loss of income in the present case is as under:
(a) Annual income (Rs. 8,012/- x 12) = Rs.96,144/-
(b) Future prospect (40% of Rs.96,144/-) = Rs. 38,458/-
__________________
(c) Total = Rs. 1,34,602/-
(d) Thus, Multiplicand = Rs. 1,34,602/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
100% (Rs. 1,34,602/- X 18) = Rs. 24,22,836/-
(E) Future medical expenses:
(i) Given the medical condition of injured and the nature of impairment, the need for constant medical reviews, attention, hospitalization and treatment looks imperative. The condition of injured is such that he would continue to require long term treatment and frequent hospitalization even to maintain his present level of medical health.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 38 of 52
(ii) In support, observations made by Hon'ble High Court of Gujarat, in case of Vijay Kumar Babu Lal Modi v. State of Gujarat (Deleted) & Gujarat State Road Transport Corporation, 2011 SCC OnLine Guj 7349 would be of guidance which are given as under:
"So far as future medical expenses are concerned, the amount claimed in the petition was to the tune of Rs. 2 lac, whereas the Tribunal has thought fit to award Rs. 25,000=00. We have noticed that the injured as on today is 100% disabled due to paraplegia. He has no control over his bowels or bladder. In such type of cases, treatment like physiotherapy, etc. needs to be given for a very very long period of time. The importance of physiotherapy for persons injured in road accidents has been elaborately stressed upon by the Supreme Court in the case of R.D. Hattangadi (supra). It is hence important to account for all expenses incurred and likely to be incurred and award reasonable sum for each head. It is also important to remember the decreasing money value. The life expectancy of the injured is also to be kept in mind. We feel that life expectancy of the victim in such a case can reasonably be assumed to be atleast 55 years, given the advancement in medical science, etc. The claimant's age on the date of the accident was 17 years, which means that the remaining period of life expectancy from that date of accident would be 38 years i.e. 1991 to 2029. We, therefore, propose to assess future medical expenses at about Rs. 1,000=00 per month. In that case, the adequate amount which can be awarded for future medical expenses would be Rs. 1 lac. We, therefore, enhance the amount of Rs. 25,000=00 awarded towards future medical expenses to Rs. 1 lac."
(iii). In another case of Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210, Hon'ble Supreme Court made observations in a similar context which are given hereunder:
"20. Insofar as "future treatment" is concerned we have no doubt that the claimant will be required to take treatment from time to time even to maintain the present condition of his health. In fact, the claimant in his deposition has stated that he is undergoing treatment at Apollo Hospital at Delhi.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 39 of 52 Though it is not beyond our powers to award compensation beyond what has been claimed (Nagappa v. Gurudayal Singh [(2003) 2 SCC 274 : 2003 SCC (Cri) 523]), in the facts of the present case we are of the view that the grant of full compensation, as claimed in the claim petition i.e. Rs 3,00,000 under the head "future treatment", would meet the ends of justice. We, therefore, order accordingly."
(iv) In view of the discussion made above, considering the age of injured, present medical condition, nature of impairment, nature of complication which might arise, a lumpsum amount for meeting future potential medical expenses is granted to the tune of Rs.2,00,000/-.
NON-PECUNIARY LOSS
40. Injured is entitled to both, pecuniary as well as non- pecuniary damages. As the name suggests pecuniary damages are designed to make good the pecuniary loss which can be ascertained in terms of money whereas non pecuniary damages are general damages to compensate the injured for mental and physical shock, pain, suffering, loss of expectation of life, inconvenience, hardship, frustration, stress, dejectment and unhappiness suffered by him on account of injuries sustained in the accident. It takes into account all the aspects of a normal life which deluded injured on account of accident. Given the nature of heads covered, it is bound to involve guess work on the part of Tribunal involving some hypothetical consideration as well, primarily considering the special circumstances of the injured and the effect of those upon his future life.
(i) Regarding non-pecuniary loss, following was stated in Halsbury's Laws of England, 4th Edition, Vol. 12 (page 446):
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 40 of 52 "Non-pecuniary loss: the pattern: Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
(ii) In Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667, the Hon'ble Supreme Court of India held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non- pecuniary loss is not so calculable. Non-
pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.
(iii). In the case of Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Hon'ble Supreme Court of India held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 41 of 52 (The above two cases were also referred and relied in the case of A. Rupin Manohar Through Sh. S. Anandha ... vs Mohd. Ansari & Ors. MAC App. 602/2015 decided on 17 August, 2017 by Hon'ble Delhi High Court.)
(iv) To sum up, Compensation under non-pecuniary heads involves objective assessment of the damages in a bid to undo the loss, the injured would incur on account of his inability to lead a normal life and earn as much as he would, but for the injuries sustained. The whole idea behind assessment for damages for compensation is to put the claimant in the same position in so far as money can. The very nature of these damages, compulsorily involves some guesswork and hypothetical considerations, however, efforts should be made to adjudicate these on the basis of objective parameters rather than guided by subjective sympathy. The nature and severity of injury, the age, nature of disability are some of those parameters. Given hereunder are various heads under which compensation for non-pecuniary loss (general damages) is assessed:
A. Damages for pain, suffering and trauma on account of injuries:
(i) The mental and physical loss cannot always be arithmetically computed in terms of money. These form the intangible losses suffered by injured for no fault of his. Although any form of human suffering cannot be equated in money, however, the object remains to compensate in so far as the money can compensate. Certain observations made by the Supreme MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 42 of 52 Court of India in R. D. Hattangadi are relevant in the context:
"10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.
(ii) Certain factors were also laid down for consideration in the case of The Divisional Controller, KSRTC vs Mahadeva Shetty And Anr Appeal (Civil) 5453 of 2003 further relied in the case of Sidram (supra) for awarding compensation for pain and suffering. The observations made in the aforesaid case as relevant to the context are reproduced hereunder:
"113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)] MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 43 of 52
(iii) Hon'ble Supreme Court of India in the case of K. Suresh (supra) observed as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity. (as relied in the case of Jagdish Vs. Mohan AIR 2018 SUPREME COURT 1347, by Hon'ble Supreme Court of India).
(iv) Injured was a young boy barely 21 years of age when he met with an accident and completely bottled up for life unable to verbally express or understand any expression. It is evident that the accident has caused deep emotional and psychological scars on his mind and soul. As such, no amount can be stated to be sufficient to undo the suffering of injured, however, an attempt is being made to compensate the pain which has become rhythm of life, the unabated mental and physical suffering, the unabashed agony and trauma. An amount of Rs. 10,00,000/- is awarded to the claimant against pain, suffering and and trauma sustained in the accident.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 44 of 52 (B) Loss of amenities of life:
(i) It compensates the victim on account of his inability to enjoy the basis amenities of life as any other normal person can, taking into account the age and the deprivation he would have to undergo and suffer due to injuries. Certain observations were made by Hon'ble High Court of Gujarat in the case of Vijaykumar Babulal Modi vs State Of Gujarat SPECIAL CIVIL APPLICATION NO. 20488 of 2017 referred by HSC in the case of Sidram (supra) which is reproduced hereunder:
"It appears that the claim under this head is to the tune of Rs.3 lac. However, the Tribunal has not awarded any sum under the head 'loss of amenities'. We are of the opinion that this head must take into account all aspects of a normal life that have been lost due to the injury caused. As per R.D. Hattangadi's case (supra), this includes a variety of matters such as the inability to walk, run or sit, etc. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of ability to freely move or travel without assistance. Then, there is the virtual impossibility of marriage as well as a complete loss of the ability to have sex and to have and nurture children."
(ii) It is evident that injured would not be able to live a wholesome life and enjoy the amenities which he would have enjoyed but for the injuries suffered by him. His marriage prospects are almost negated considering the medical circumstances he has been facing and likely to face in future. An amount of Rs. 1,00,000/- is awarded towards loss of amenities and Rs. 5,00,000/- is thus being awarded for loss of marriage prospect.
41. The compensation awarded against pecuniary and non- pecuniary damages under various heads is being sequentially put MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 45 of 52 in a tabulated form hereunder for ease of reference to all concerned:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : As Rs. 23,000/-
discussed above.
(ii) Expenditure on Conveyance : As Rs. 50,000/-
discussed above.
(iii) Expenditure on special diet : As Rs.50,000/-
discussed above.
(iv) Cost of nursing / attendant : Rs.15,12,000/-
(v) Loss of income : Rs. 48,072/-
(vi) Cost of artificial limbs (if NA
applicable) :
(iii) Percentage of loss of earning 100%
capacity in relation to disability: As
already discuss above.
(vii) Any other loss / expenditure : NA
(viii) Loss of future income: Rs. 24,22,836/-
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 10,00,000/-
trauma on account of injuries:
(ii) Loss of amenities of life Rs. 1,00,000/-
(iv) Disfiguration : NA
(v) Loss of marriage prospects : Rs. 5,00,000/-
(vi) Future medical expenses Rs. 2,00,000/-
(vii) Loss of expectation of life NA
Total Compensation Rs.59,05,908/-
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 46 of 52
Deduction, if any, Nil
Total Compensation after deduction Rs.59,05,908/-
Interest As directed
below
42. 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, 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 47 of 52 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."
43. 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.
44. The total compensation is Rs.59,05,908/- which shall be payable to the claimant along with to simple interest @9% p.a. from the date of filing of DAR till actual realization of Award amount/compensation.
LIABILITY
45. Insurance Company has conceded valid and effective Insurance Policy on the date of accident and has not raised any statutory defence. It has already been held that accident occurred on account of rash and negligent driving of offending vehicle. It is settled that Insurance Company is responsible to indemnify owner / insured for vicarious liability incurred by tort feaser.
MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 48 of 52 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 claim 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).
46. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c 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).
47. 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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 49 of 52 of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Release of Amount
48. Out of total settlement amount Rs. 45,00,000/- along with proportionate (to the principle amount) up to date interest is kept in form of monthly FDR of Rs. 20,000/- each. Remaining amount along with proportionate up to date interest shall be released in his bank account near his place of residence.
49. The following directions are also given to the bank for compliance:
(a) The Bank shall not permit any joint name (s) to be added in the savings bank account or fixed deposit accounts of victim i.e. the savings bank account of the claimant shall be individual savings bank account and not a joint account.
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant.
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(d) The maturity amounts of the FDR (s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant near the place of their residence.
(e) No loan, advance or withdrawal or pre-mature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not issue any cheque book and/ or debit card to claimant (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 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 50 of 52 award amount. The bank shall debit freeze the account of the claimant so that no debit card be issued in respect of the account of the claimant from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant to the effect, that no cheque book and / or debit card have been issued and shall not be issued without the permission of the Court and claimant shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 05.09.2019 2 Name of injured Vijay @ Vijju 3 Age of the injured 21 years 4 Occupation of the Not proved injured 5 Income of the injured As per minimum wages applicable in Uttar Pradesh at the time of accident.
6 Nature injury Grievous injury 7 Medical treatment taken As per record.
by the injured:
8 Period of As per record.
Hospitalization MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 51 of 52 9 Whether any permanent Grievous injury disability?
50. Copy of this award be given to the parties free of cost. The copy of award be also sent to the Ld. Secretary DLSA and Ld. concerned Criminal Court. Digitally signed by SHELLY SHELLY ARORA Announced in the open court ARORA Date:
2025.05.03 16:33:34 +0530 on 03.05.2025 Shelly Arora PO (MACT)-02, SE/Saket/Delhi 03.05.2025 MACT No.: 112/21 Vijay @ Vijju Vs. Paras Biroria & Ors. Page No. 52 of 52