Delhi District Court
Nitish Kumar (Dar) vs Ishwar Singh (414/18 Okhla Industrial ... on 1 March, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No. 132/2019
FIR no. 414/2018
PS : OIA
U/s : 279/338 IPC
CNR No.DLSE01-001178-2019
Nitish Kumar Vs. Ishwar Singh & Ors.
Nitish
S/o Sh. Ram Naresh Prasad
R/o H. No. C-89, Dayal Bagh
Lakkarpur, Faridabad, Haryana.
.....Petitioner
Versus
1. Ishwar Singh
S/o Sh. Har Narayan Singh
R/o H. No. 142, Jagdish Nambardar
Gali VPO Kanganaheri, New Delhi.
.....R-1/ driver
2. Delhi Jal Board
Jhandewalan Karol Bag
New Delhi.
.....R-2/ owner
MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 1 of 42
Date of accident : 06.10.2018
Date of filing of DAR : 16.02.2019
Date of Decision : 01.03.2025
AWARD
BRIEF FACTS:
1. Detailed Accident Report was filed by police in terms of
provisions of Motor Vehicle Act in respect of injuries sustained
by Sh. Nitish (hereinafter called the claimant) on account of
alleged rash and negligent driving of vehicle bearing Registration
No. DL 1GC 6929 (hereinafter called the offending vehicle)
driven by Sh. Ishwar Singh (hereinafter called the Respondent
No.1) and owned by Delhi Jal Board (hereinafter called the
Respondent No.2/owner), which is being treated as Claim
Petition in view of the provisions contained in such Act.
2. Information regarding accident in question was received at
PS Okhla Industrial Area on 06.10.2018 vide DD No. 41A, upon
receipt of which ASI Yogesh Kumar along-with Ct. Ram Avtar
proceeded to the spot of accident in front of Gate No.1, Govind
Puri Metro Station, where a scooty bearing registration No.
DL3SEX 1534 and a Water Tanker bearing Registration No.
DL1GC 6949 were found and it was told that the scooty rider has
been taken to hospital by traffic police officials. Subsequently,
DD no. 46A in respect of MLC of injured was received from ESI
hospital from where MLC was collected. Following observations
were mentioned in MLC No. 357/18 pertaining to Nitish Kumar
S/o Sh. Ram Naresh, aged 25 years "h/o injury to left foot due to
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ran over by heavy vehicle (truck) over the foot near Govind Puri
Metro Station today approximately at about 2.30 p.m. and the
injuries were opined to be grievous with urgent reference to
Safdarjung Hospital for further management". Then, ASI Yogesh
rushed to Safdarjung Hospital, where claimant was found under
treatment and was opined as fit for statement. His statement was
recorded. He alleged that on 06.10.2018 at about 2.30 p.m., a
water tanker bearing registration no. DL1GC 6929 had run over
his left foot while taking a turn at Red Light of Govindpuri Metro
Station, while he was also waiting at Red Light riding a scooty.
FIR was got registered. The water tanker (truck) as well as
scooty were taken into police possession. Notice under Section
133 M.V. Act was served upon the Executive Engineer of Delhi
Jal Board, who informed that Ishwar Singh was at wheels as on
the time of the accident. Documents pertaining to the offending
vehicle were produced and were found to be in order. Driving
License of the driver was also found genuine. He was charge-
sheeted for causing injuries to injured/claimant in an accident
caused due to rash and negligent driving of offending vehicle.
DAR was also filed before this Tribunal.
REPLY:
3. Notice of DAR was issued to the contesting parties. Reply
was filed by Respondent no.1/driver, who stated that he was
driving with valid DL and therefore is not liable to pay any
compensation.
4. No reply was filed by respondent no.2.
ISSUES :
5. From the pleadings of parties, following issues were
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framed vide order dated 17.12.2020 :
i). Whether the injured suffered injuries in a
road traffic accident on 06.10.2019 due to rash and
negligent driving of vehicle bearing no. DL 1GC
6929 being driven by R-1 & owned by R-2? OPP.
ii). Whether the injured is entitled to any
compensation and if so, to what extent and from
whom? OPP
iii). Relief.
6. An application for assessment of disability was allowed
vide order dated 24.01.2020 against which claimant was assessed
with 57% permanent physical impairment in relation to his left
lower limb vide communication dated 24.02.2020 addressed by
Chairperson, Disability Board, Pt. Madan Mohan Malaviya
Hospital.
EVIDENCE
7. Matter was then listed for petitioner evidence. PW-1 Sh.
Nitish Kumar tendered his evidentiary affidavit as Ex.PW1/A. He
also relied upon following documents:
Medical Treatment Record- Ex.PW1/1
Medical bills- Ex.PW1/2
disability Certificate- Ex.PW1/3
Salary certificate- Ex.PW1/4
Educational Certificate- Ex.PW1/5
Aadhar Card - Ex.PW1/6
PAN Card - Ex.PW1/7
Copy of criminal case record- Ex.PW1/8
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PW-1 was cross examined by counsel for R-2/ Delhi Jal
Board.
Petitioner Evidence was thereafter closed. Matter was then
listed for Respondent Evidence.
Sh. Jeet Singh was examined as R2W1 who tendered his
evidentiary affidavit as Ex.R2W1/A. He was cross examined by
counsel for claimant.
Respondent Evidence was accordingly closed. Matter was
then listed for Final Arguments.
FINAL ARGUMENTS
8. Final Arguments were advanced. Ld. Counsel for claimant
argued that the accident happened only due to rash and negligent
driving of the Respondent no.1 at the time of accident. She has
also argued that the injured has suffered substantial disability,
which has adversely affected his functional efficacy and earning
capacity.
9. Ld. Counsel for respondent no.2 has argued that no
accident took place with the water tanker. She argued that helper
employed along-with driver had only made a PCR call when the
accident took place as the driver and helper had sensed a
commotion and realized that accident has taken place. She also
argued that the driver had a valid driving license and has a
impeccable service record.
DISCUSSION
10. On the basis of material on record and arguments
addressed, issue wise findings are as under :
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Issue No.1
i). Whether the injured suffered injuries in a
road traffic accident on 06.10.2019 due to rash and
negligent driving of vehicle bearing no. DL 1GC
6929 being driven by R-1 & owned by R-2? OPP.
OPP."
11. What is required to be ascertained is whether rash and
negligent driving of offending vehicle resulted in accident which
caused injuries to the claimant.
12. 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].
13. PW1 Nitish Kumar/injured deposed that he was waiting
along-with his scooty bearing registration No. DL3S DX 1534 on
the Red Light of Govind Puri to take turn towards Govind Puri
while coming from the side of Kalkaji Mandir on 06.10.2018 at
about 2.30 p.m., when suddenly a Water Tanker bearing
Registration No. DL1GC 6929 from his left side came rushing at
a high speed and negligently took a right turn towards Govind
Puri crushing his left foot under its front wheels and driver fled
away from the spot leaving injured groaning in pain. A Traffic
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Police Man standing nearby took him to ESI Hospital in a TSR,
where his MLC bearing no. 357/18 was prepared. Subsequently,
he remained admitted in Apollo Hospital from 07.10.2018 till
17.11.2018 and again from 04.04.2019 till 06.04.2019. He was
extensively cross-examined by Ld. Counsel for R-1 as well as
counsel for respondent no.2, wherein he stated that there were
about 7 to 8 vehicles with 3 to 4 Autos and some cars, with no
cyclist or e-rickshaws as far as he remembers. He stated that he
was having his DL but his DL, purse and mobile phone got lost at
the time of accident but he had not lodged any complaint of the
same. The site plan prepared by IO was put to him to which he
clarified that he was instead standing at point B at Red Light and
had already given indicator for turning towards right side. He
also clarified that he was standing just before the Zebra Crossing
but no pedestrian was crossing through the Zebra Crossing at that
time. He also clarified that the road was about 3 to 4 lane wide
and he was standing at the extreme right lane with some vehicles
stationed on the left side. He declined the suggestion that
accident did not take place on account of negligent driving of the
water tanker. He asserted that the driver was totally at fault to
have caused the injury. He also clarified that he had read the
registration number of the truck which is why he was able to
reveal that to the police in his statement. He also clarified that his
foot was crushed by the right side/driver side tyre of the
offending vehicle.
14. Sh. Jeet Singh, appeared on behalf of respondent no.2 and
was examined as R2W1, who deposed that he is Field Assistant
with Delhi Jal Board and was on duty with alleged offending
vehicle on 06.10.2018 being driven by Ishwar Singh who is since
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retired. He deposed that the water tanker was to get fuel from
Walia Petrol Pump and when it reached the traffic signal below
Govind Puri Metro Station at around 2.00 p.m. that they heard
commotion and got down to see what had happened. He further
stated that few people had gathered and one person was sitting on
footpath with his foot finger wounded and groaning in pain after
which he called the PCR and later informed the police that he had
made a call but he was asked come to police station. He stated
that no accident took place with the offending vehicle as he was
sitting on the left side in the water tanker and his duty was to
keep watch if any other vehicle gets close to the water tanker.
During his cross-examination, he stated that he was not aware as
to who called the police after the accident. He admitted that he
has not filed any complaint or any other representation to contend
innocence of Ishwar Singh. He stated that he got down out of
concern and sympathy and not because the accident happened
with the truck.
15. FIR was registered on the statement of injured himself on
the date of the accident, wherein, he narrated the specifics of the
accident including the registration number of the offending
vehicle. There is no denial on the part of respondent no.1 or 2
that the offending vehicle was not present at the spot or that the
vehicle was not being driven by respondent no.1 at the time of
accident. There is no assertion on the part of respondent no.1 in
the written statement filed on his behalf that the accident did not
take place with the offending vehicle and he has chosen not to
examine himself in the witness box for the reasons best known to
him. Respondent no.2 has not filed any written statement,
however, has examined the Field Assistant/employee of Delhi Jal
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Board present in the tanker at the time of the accident sitting on
the left front side besides the driver. He has deposed that no
accident took place with the truck. As he was sitting on the left
side of the tanker, there was no occasion for him to have realized
that something was amiss on the right side. As can be understood
from the complaint as well as statement of the injured and other
documents forming part of the investigation, there seems to be no
collision or one vehicle dashing into another vehicle. The
scenario is that the vehicles are stationed awaiting Green Light
Signal, some of which have to take a right turn. The injured, as
he deposed, was standing in the extreme right lane as he wanted
to take the right turn. The offending vehicle came from behind
and purportedly positioned itself to take a right turn too, which is
when the right front wheel had run over the left foot of the
injured, while he was also waiting at the Red Light Signal to take
a right turn. So, apparently, while injured was standing behind
Zebra Crossing with no pedestrians crossing the same with few
other vehicles positioned in the other lanes to go straight, the
offending vehicle which came from behind in a bid to position
itself right at the crossing came a bit too close to the injured and
ended upon running over his left foot. PW1 has faced extensive
cross-examination by Ld. Counsel for respondent no.2 and has
asserted that he got injured due to negligent and reckless driving
of respondent no.1 as driver of the water tanker. It is noted that
respondent no.2 has not stated anything clearly about respondent
no.1 at the spot of accident as to whether he was there when
police officials came or not. PW1 has clearly stated that
respondent no.1 fled away from the spot after the accident, while
R2W1 claimed ignorance whether driver remained present at the
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spot or not. R2W1 also denied during cross-examination that he
made the PCR call. The aspect that vehicle was not involved in
the accident rather had only called the police was not even put to
PW1 during cross-examination. The only other person who could
have divulged specifics about the contextual details of the
accident as he was at the wheels at the time of accident and
would have been in a better position to tell about the exact
position of the truck in comparison to that of the injured so as to
explain as to whether and how the accident occurred has never
appeared for his examination before the court. There is nothing to
discredit the testimony of PW1 who was well in his senses to
have understood as to how the accident happened and who
caused the same. It is also settled that if driver of offending
vehicle does not enter the witness box, an adverse inference can
be drawn against him as observed in the case of Cholamandlam
insurance company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310.
16. In view of the discussion made above, it is evident that the
injured sustained serious injuries on account of unmindful and
reckless driving of the offending vehicle by Respondent
no.1/driver. Issue in hand is accordingly decided in favour of the
petitioner and against the respondents.
ISSUE NO. 2
"Whether the injured is entitled to any compensation
and if so, to what extent and from whom? OPP"
17. Section 168 MV Act enjoins the Claim Tribunals to hold
an enquiry into the claim to make an effort determining the
amount of compensation which appears to it to be just and
reasonable. Same is reproduced hereunder for ready reference:
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"(1) Award of the Claims Tribunal.--On receipt of an
application for compensation made under section 166, the
Claims Tribunal shall, after giving notice of the application
to the insurer and after giving the parties (including the
insurer) an opportunity of being heard, hold an inquiry into
the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may make an award
determining the amount of compensation which appears to
it to be just and specifying the person or persons to whom
compensation shall be paid and in making the award the
Claims Tribunal shall specify the amount which shall be
paid by the insurer or owner or driver of the vehicle
involved in the accident or by all or any of them, as the
case may be: Provided that where such application makes a
claim for compensation under section 140 in respect of the
death or permanent disablement of any person, such claim
and any other claim (whether made in such application or
otherwise) for compensation in respect of such death or
permanent disablement shall be disposed of in accordance
with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of
the award to the parties concerned expeditiously and in any
case within a period of fifteen days from the date of the
award.
(3) When an award is made under this section, the person
who is required to pay any amount in terms of such award
shall, within thirty days of the date of announcing the
award by the Claims Tribunal, deposit the entire amount
awarded in such manner as the Claims Tribunal may
direct."
18. Before putting in frame the position of law, it is noted that
the process of determining the compensation by the court is
essentially a very difficult task and can never be an exact science.
Perfect compensation is hardly possible, more so in claims of
injury and disability. (As observed by Hon'ble Supreme Court of
India in the case of Sidram Vs. The Divisional Manager United
India Insurance Company Ltd, SLP (Civil) No. 19277 of 2019).
19. The basic principle in assessing motor vehicle
compensation claims, is to place the victim in as near a position
as she or he was in before the accident, with other compensatory
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directions for loss of amenities and other payments. These
general principles have been stated and reiterated in several
decisions. [Support drawn from Govind Ram Yadav vs. New
India Insurance Company Ltd., (2011) 10 SCC 683] .
20. This Tribunal has been tasked with determination of just
compensation. The observation of Hon'ble Supreme Court of
India in Divisional controller, KSRTC vs. Mahadeva Shetty &
Anr., (2003) 7 SCC 197, needs mention here (para 15):
"Statutory provisions clearly indicate that the compensation
must be "just" and it cannot be a bonanza; not a source of
profit but the same should not be a pittance. The courts and
tribunals have a duty to weigh the various factors and
quantify the amount of compensation, which should be just.
What would be "just" compensation is a vexed question.
There can be no golden rule applicable to all cases for
measuring the value of human life or a limb. Measure of
damages cannot be arrived at by precise mathematical
calculations. It would depend upon the particular facts and
circumstances, and attending peculiar or special features, if
any. Every method or mode adopted for assessing
compensation has to be considered in the background of
"just" compensation which is the pivotal consideration.
Though by use of the expression "which appears to it to be
just", a wide discretion is vested in the Tribunal, the
determination has to be rational, to be done by a judicious
approach and not the outcome of whims, wild guesses and
arbitrariness.. ..."
21. Delineating the damages as pecuniary and non pecuniary,
Hon'ble Supreme Court of India, in case of R. D. Hattangadi Vs.
Pest Control (India) Pvt Ltd, 1995 AIR 755 , made following
observations:
"9....while fixing an amount of compensation payable to a
victim of an accident, the damages have to be assessed
separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually
incurred and which are capable of being calculated in
terms of money; whereas non-pecuniary damages are those
which are incapable of being assessed by arithmetical
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calculations. In order to appreciate two concepts pecuniary
damages may include expenses incurred by the claimant:
(i) medical attendance; (ii) loss of earning of profit up to
the date of trial; (iii) other material loss. So far non-
pecuniary damages are concerned, they may include (i)
damages for mental and physical shock, pain and suffering,
already suffered or likely to be suffered in future; (ii)
damages to compensate for the loss of amenities of life
which may include a variety of matters i.e. on account of
injury the claimant may not be able to walk, run or sit; (iii)
damages for the loss of expectation of life, i.e., on account
of injury the normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship, discomfort,
disappointment, frustration and mental stress in life."
22. Certain principles for delineating just compensation were
enumerated in the case of Raj Kumar Vs. Ajay Kumar & Anr.,
(2011) 1 SCC 343, by Hon'ble Supreme Court of India.
Following observations are relevant in the context:
"40.General principles relating to compensation in injury
cases
5. The provision of the Motor Vehicles Act, 1988 ("the
Act", for short) makes it clear that the award must be just,
which means that compensation should, to the extent
possible, fully and adequately restore the claimant to the
position prior to the accident. The object of awarding
damages is to make good the loss suffered as a result of
wrong done as far as money can do so, in a fair, reasonable
and equitable manner. The court or the Tribunal shall have
to assess the damages objectively and exclude from
consideration any speculation or fancy, though some
conjecture with reference to the nature of disability and its
consequences, is inevitable. A person is not only to be
compensated for the physical injury, but also for the loss
which he suffered as a result of such injury. This means
that he is to be compensated for his inability to lead a full
life, his inability to enjoy those normal amenities which he
would have enjoyed but for the injuries, and his inability to
earn as much as he used to earn or could have earned. [See
C.K. Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3
SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest
Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC
(Cri) 250] and Baker v. Willoughby [1970 AC 467 : (1970)
2 WLR 50 : (1969) 3 All ER 1528 (HL)] .]
6. The heads under which compensation is awarded in
personal injury cases are the following:
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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 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
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case.
Assessment of future loss of earnings due to
permanent disability
8. Disability refers to any restriction or lack of ability
to perform an activity in the manner considered
normal for a human being. Permanent disability refers
to the residuary incapacity or loss of use of some part
of the body, found existing at the end of the period of
treatment and recuperation, after achieving the
maximum bodily improvement or recovery which is
likely to remain for the remainder life of the injured.
Temporary disability refers to the incapacity or loss of
use of some part of the body on account of the injury,
which will cease to exist at the end of the period of
treatment and recuperation. Permanent disability can
be either partial or total. Partial permanent disability
refers to a person's inability to perform all the duties
and bodily functions that he could perform before the
accident, though he is able to perform some of them
and is still able to engage in some gainful activity.
Total permanent disability refers to a person's inability
to perform any avocation or employment related
activities as a result of the accident. The permanent
disabilities that may arise from motor accident
injuries, are of a much wider range when compared to
the physical disabilities which are enumerated in the
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995
("the Disabilities Act", for short). But if any of the
disabilities enumerated in Section 2(i) of the
Disabilities Act are the result of injuries sustained in a
motor accident, they can be permanent disabilities for
the purpose of claiming compensation.
9. The percentage of permanent disability is expressed
by the doctors with reference to the whole body, or
more often than not, with reference to a particular
limb. When a disability certificate states that the
injured has suffered permanent disability to an extent
of 45% of the left lower limb, it is not the same as
45% permanent disability with reference to the whole
body. The extent of disability of a limb (or part of the
body) expressed in terms of a percentage of the total
functions of that limb, obviously cannot be assumed
to be the extent of disability of the whole body. If
there is 60% permanent disability of the right hand
and 80% permanent disability of left leg, it does not
mean that the extent of permanent disability with
reference to the whole body is 140% (that is 80% plus
60%). If different parts of the body have suffered
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different percentages of disabilities, the sum total
thereof expressed in terms of the permanent disability
with reference to the whole body cannot obviously
exceed 100%.
10. Where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation
under the head of loss of future earnings would
depend upon the effect and impact of such permanent
disability on his earning capacity. The Tribunal should
not mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of
earning capacity. In most of the cases, the percentage
of economic loss, that is, the percentage of loss of
earning capacity, arising from a permanent disability
will be different from the percentage of permanent
disability. Some Tribunals wrongly assume that in all
cases, a particular extent (percentage) of permanent
disability would result in a corresponding loss of
earning capacity, and consequently, if the evidence
produced show 45% as the permanent disability, will
hold that there is 45% loss of future earning capacity.
In most of the cases, equating the extent (percentage)
of loss of earning capacity to the extent (percentage)
of permanent disability will result in award of either
too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the
effect of the permanent disability on the earning
capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the
income, it has to be quantified in terms of money, to
arrive at the future loss of earnings (by applying the
standard multiplier method used to determine loss of
dependency). We may however note that in some
cases, on appreciation of evidence and assessment, the
Tribunal may find that the percentage of loss of
earning capacity as a result of the permanent
disability, is approximately the same as the percentage
of permanent disability in which case, of course, the
Tribunal will adopt the said percentage for
determination of compensation. (See for example, the
decisions of this Court in Arvind Kumar Mishra v.
New India Assurance Co. Ltd. [(2010) 10 SCC 254 :
(2010) 3 SCC (Cri) 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
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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 scale of activities and functions so that he
continues to earn or can continue to earn his
livelihood.
.
.
.
.
MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 17 of 42
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.""
23. The above-said principles have been placed reliance upon in a recent judgment reported as Sidram Vs. The Divisional Manager United India Insurance Co. Ltd and Anr., arising out of SLP (Civil) no. 19277 of 2018 passed by Hon'ble Supreme Court of India as decided on 16.11.2022.
24. It is settled proposition of law as held in catena of judgments that "just compensation" should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 18 of 42 assures some measure of restitution to those who survive, and the victims who have to face their lives.
PECUNIARY DAMAGES
25. 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:
(i) Expenditure on Medical Treatment:
PW1 has filed summary of medical bills, as per which, injured has spent about Rs.7,08,060/- on his medical treatment. He has placed on record medical treatment papers as Ex.PW1/1 (colly) and the medical bills as Ex.PW1/2 (colly). The total of medical bills relied upon by injured comes to be Rs.7,08,060/-.
Sundry medical expenses cannot be ruled out considering the nature of injuries and the prolonged hospitalization as well as period of treatment and accordingly Rs.20,000/- in addition to the total medical bills is being awarded.
(ii) Expenditure on Conveyance :
No bill for conveyance has been filed. It is evident that the injured remained hospitalized and also had to undergo prolonged treatment for which he would have required appropriate conveyance arrangements coupled with family support as well as their transportation. Considering that the nature of injury sustained and the period of treatment, an amount of Rs. 25,000/-
MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 19 of 42 is awarded towards conveyance.
(iii) Expenditure on special diet :
As per Discharge Summary dated 17.11.2018, injured was advised high protein diet for his prompt recovery. During cross- examination by Ld. Counsel for R-2, he stated that he had special diet in the form Milk, Curd, Eggs, Dried Fruits etc. The nature of injuries are grievous and good diet for early and prompt recovery would have been necessary. Claimant suffered substantial disability. An amount of Rs.25,000/- is awarded towards special diet.
(iv) Cost of nursing/attendant :
PW1 has not deposed anything about attendant charges he had to entail, however has mentioned that he had sustained multiple grievous injuries and had to undergo several surgical procedures as part of his treatment. Further, he was compelled to take prolonged treatment on account of his injuries. Considering the nature of injuries, it is evident that he would have required services of the attendant all through the period of his hospitalization and treatment. It is settled that even though any formal nursing attendant is not engaged still the services provided by family members also have to be fairly compensated. Claimant suffered 57% permanent physical impairment in his left lower limb. An amount of Rs.50,000/- is awarded towards cost of nursing/attendant.
(v) Loss of Income/earning :
PW1 has deposed that he was working with M/s Lovely MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 20 of 42 Interior Services located at Shiv Durga Vihar, Lakkarpur, Faridabad, Haryana as a Supervisor and Field Executive on a monthly salary of Rs.18,500/- per month but has not been able to join back his duties on account of accident. During cross- examination, he stated that he was a Supervisor and Fitter with experience in the field since about the year 2010. He also deposed that for about one year post accident, he kept on taking treatment for the injures sustained in the accident. He has filed medical consultation documents and bills till April, 2019. He was admitted for implant removal in the month of April, 2019 and was advised with active ankle and toes movement. It is thus reasonable to infer that he would not have been in a position to join back or resume his work for atleast about eight months post accident.
26. PW1 has filed copy of salary certificate as Mark-A for the financial year 01.04.2018 to 06.10.2018 and was paid salary of Rs.1,14,700/- and HRA Rs.31,000/-, conveyance allowance Rs.4,960/-. Salary certificate pertaining to the financial year 2017 has also been placed on record with year salary of Rs.2,20,000/-, HRA 16,000/- and conveyance Rs.9,600/-. Salary slips for the month of August, 2018 and September, 2018 have also been placed on record, as per which his monthly salary is Rs.18,500/-
including basic of Rs.12,700/- and HRA of Rs.5,000/- with conveyance allowance of Rs.800/-. Proportionate salary of Rs.3,700/- was given for working of six days in the month of October, when he met with the accident. He has also placed on record Marksheet of Matriculate Examination as Ex.PW1/5. Ld. Counsel for respondent no.2 has cross-examined PW1 on the aspect of his employment. He has stated that he has experience MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 21 of 42 in the field since the year 2010 and joined the company in the year 2017. His joining is also reflected in the salary certificate and salary slip as that of year 2017. There is no variation in the deposition and the salary slips placed on record. There is no contrary evidence brought to put his deposition doubt. In fact, he testified that he was coming back from a field visit as assigned by the company when he met with an accident. The salary is structured as evident from the salary certificate and the salary slip and there is no reason why same should not be considered. His conveyance is also being added as part of salary as same is a consistent figure/ component given to the employee irrespective of the consumption. Accordingly, his monthly income is taken to be Rs.18,500/- per month. Thus, loss of income during treatment is computed to be Rs.18,500/- x 8, which comes to Rs.1,48,000/-
(vi) Loss of future income/earning : (a) 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.
(b) Disability Assessment Certificate was received, as per which he was opined to have suffered 57% permanent physical impairment in relation to his left lower limb.
MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 22 of 42
(c) 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 Supreme Court in Raj Kumar (supra):
"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
(d) 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 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 23 of 42 earning capacity. The process entails understanding and enumerating the skill set required for performing specific activities. To sum up, functional disability basically measures the extent of ability having been compromised to carry out basic everyday tasks or even more complex tasks required for and independent living. The limitations may occur on account of disability in the personal sphere, in the social sphere and in the occupational sphere. In the personal sphere it may encompass the daily activities of a person, his body function and his involvement in basis life situations. At the societal level, it could mean difficulty in involvement and participation in social and community activities interfering the interpersonal interaction and relationship adversely impacting the civic life. When disability restricts the vocation or employment avenues to make earning for his living, it falls in the category of disability in the occupational sphere. The disability might occur on account of age or any illness and in the case at hand by way of an accident. A person living a normal life in particular set of circumstance and making his living by 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.
(e) 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.
(f) Hon'ble Supreme Court laid down certain guidelines for MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 24 of 42 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 has already been reproduced above.
(g) Further in the case of "Mohan Soni v Ram Avtar Tomar & Ors. I (2012) ACC 1 (SC), the question at hand was deliberated and following observations as relevant in the context were made:
"In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw- puller."
(h) 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 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 25 of 42 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.
(i) Petitioner/injured was employed as Supervisor and Fitter with an Interiors Company. In respect of his nature of work, he admitted that the nature of work related to working with hands only but he asserted that active use of legs is required for efficient discharge of duties as cutting of curtains involves active use of legs also. Further, such work involves climbing of stairs and ladders for fitting of curtain in the wall ceiling. He also clarified that as per his experience and background, it would be difficult for him to do any other job including desk job or computer job. PW1/injured himself has vividly illustrated the use of lower limbs in efficient discharge of his duties. It is noted that he was returning back from field visit/inspection when he met with an accident. The nature of job is certainly not a desk job and needs mobility for efficient discharge of the duties. It is settled that injured cannot be compulsorily asked to switch over his job or the nature of duties in order to assess the functional disability. PW1 himself has asserted that he had gained the experience in the field for the past several years and therefore, it would be difficult for him to perform any another job. Having regard to nature of injury and the nature of work that he used to engage in, at the time of accident, his functional disability is assessed to be 75% in relation to his earning capacity.
MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 26 of 42
(vii) Future Prospect
(a) In case of Pappu Deo Yadav (supra), it is also held that future prospect (as laid down in the well considered judgment of National Insurance Company v 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 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 27 of 42 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 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.
.
.
(xviii). 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".
(b) PW1 in his deposition has relied upon his Aadhar Card Ex.PW1/6, as per which his date of birth is 05.09.1993. The date of accident is 06.10.2018. As such, on the date of accident he was about 25 years of age on the date of accident, since the injured was under 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''.
MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 28 of 42 Multiplier:
(c) The multiplier method was coined by Hon'ble Supreme Court of India in the case of Sarla Verma v 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."
(d) 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 Dev Yadav (supra), 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 v 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 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 29 of 42 account to determine the impact of extent of disability upon the income generated capacity of victim.
(e) 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 group upto 25 years).
(f) 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. 18,500/- x 12) = Rs.2,22,000/-
(b) Future prospect
(40% of Rs.2,22,000/-) = Rs. 88,800/-
-----------------
(c) Total = Rs.3,10,800/-
-----------------
(d) Thus, Multiplicand = Rs.3,10,800/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
75% (Rs.3,10,800/- x 18) = Rs. 41,95,800/-
NON-PECUNIARY LOSS
28. 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, MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 30 of 42 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. Regarding non- pecuniary loss, following was stated in Halsbury's Laws of England, 4 th Edition, Vol. 12 (page 446):
"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.
(As also referred in the case of Sidram.....................)
7. In Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667, the Supreme Court 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.
8. In Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 31 of 42 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.
(referred and relied in the case of A. Rupin Manohar Through Sh. S. Anandha vs Mohd. Ansari & Ors. on 17 August, 2017 JUDGMENT DELHI HIGH COURT
29. 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 a normal life and earn as much as he could, 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:
Damages for pain, suffering as well as mental and physical shock on account of injuries:
30. 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. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 32 of 42 Court of India in R. D. Hattangadi (supra) 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.
31. 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 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 33 of 42 Yadav (supra)]
32. 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 v Mohan AIR 2018 SUPREME COURT 1347, by Hon'ble Supreme Court of India).
33. The injured has suffered 57% permanent physical impairment in relation to his left lower limb. It is settled that each case has to be evaluated upon his special circumstances in the backdrop of deprivation which disability would cause on his future life. It is a case of substantial permanent disability which is likely to have adverse impact on mental, emotional and psychological health of a person having to live with the feeling that he is no longer a normal person, relegated and pushed into the difficult world of a disabled person. There is no methodology to weigh the sufferings in terms of money, however, the Tribunal is required to engage in some guess work objectively to consider the peculiar circumstances of the case at hand to be able to award MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 34 of 42 suitable compensation with the object to place the victim in as near a position as the victim was in before the accident. An amount of Rs.2,00,000/- is awarded to the injured against pain, suffering and and trauma sustained in the accident.
Loss of amenities of life:
34. 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 Gujrat in the case of Vijay Kumar 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...."
35. Injured would not be able to perform several tasks on his own and has become dependent even for basic activities upon his family members or the services of the attendants, his personal identity as well as his social identity considering the prejudice such people are likely to face specially against the backdrop of their educational, family and social settings, he is going to evidently lose much more than what we can possibly contemplate. Least would be to mention that he would be far MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 35 of 42 from the sense of normalcy of an average human being. Accordingly an amount of Rs. 30,000/- is awarded towards loss of amenities considering the nature of injury and the extent of disability.
36. The compensation awarded against pecuniary and non- pecuniary damages under various heads is being sequentially put in a tabulated form hereunder for ease of reference to all concerned:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment Rs. 20,000/-
(ii) Expenditure on Conveyance Rs. 25,000/-
(iii) Expenditure on special diet Rs.25,000/-
(iv) Cost of nursing/attendant Rs.50,000/-
(v) Loss of income : Rs.1,48,000/-
(vi) Loss of future Income: Rs. 41,95,800/-
2. Non-Pecuniary Loss :
(i) Compensation of Pain and Rs.2,00,000/-
suffering as well as mental and
physical shock
(ii) Loss of amenities of life : Rs.30,000/-
(iii) Disfiguration : Nil
Total Compensation Rs.46,93,800/-
Interest As directed below
37. 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:
MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 36 of 42 "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 liability is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
38. 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 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 37 of 42 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 from the date of filing of DAR till realization.
Liability :-
39. It has already been held that R-1 driver drove the vehicle rashly and negligently which caused the accident. R-2 owned the offending vehicle. Accordingly, the entire liability to pay compensation would be upon R-1 driver as well as R-2 which had authorised and deputed R-1 to drive the vehicle on the date of accident. Therefore, such principal award amount/compensation will be payable by the R-1/ driver & R-2/ Delhi Jal Board with simple interest @ 9% p.a. from the date of filing of DAR 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).
40. 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 SOUTH EAST - 02, A/c No. 42706870765, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
41. This court is in receipt of the orders dated 07.12.2018 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 38 of 42 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
Apportionment:-
42. Another issue which is to be decided is out of such Award amount, how much is to be released at present and how much is to kept in the form of FDR for future financial used of the petitioner.
43 At this stage, it is relevant to the refer to the judgment of A. V. Padma & Ors. Vs., R. Venugopal & Ors. (2012) 3 Supreme Court Cases 378:
"......In the case of Susamma Thomas (supra), this Court issued certain guidelines in order to "safeguard the feed from being frittered away by the beneficiaries due to ignorance, illiteracy and susceptibility to exploitation".
Even as per the guidelines issued by this Court Court, long term fixed deposit of amount of compensation is mandatory only in the case of minors, illiterate claimants and widows. In the case of illiterate claimants, the Tribunal is allowed to consider the request for lumpsum payment for effecting purchase of any movable property such as agricultural implements, rickshaws etc. to earn a living. However, in such cases, the Tribunal shall make sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. In the case of semi-illiterate claimants, the Tribunal should ordinarily invest the amount of compensation in long term fixed deposit. But if the MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 39 of 42 Tribunal is satisfied for reasons to be stated in writing that the whole or part of the amount is required for expanding an existing business or for purchasing some property for earning a livelihood, the Tribunal can release the whole or part of the amount of compensation to the claimant provided the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid. In the case of literate persons, it is not mandatory to invest the amount of compensation in long term fixed deposit. The expression used in guideline No. (iv) issued by this Court is that in the case of literate persons also the Tribunal may resort to the procedure indicated in guideline No. (i), whereas in the guideline Nos. (i), (ii), (iii) and (v), the expression used is that the Tribunal should. Moreover, in the case of literate persons, the Tribunal may resort to the procedure indicated in guideline No. (i) only if, having regard to the age, fiscal background and strata of the society to which the claimant belongs and such other considerations, the Tribunal thinks that in the larger interest of the claimant and with a view to ensure the safety of the compensation awarded, it is necessary to invest the amount of compensation in long term fixed deposit.
Thus, sufficient discretion has been given to the Tribunal not to insist on investment of the compensation amount in long term fixed deposit and to release even the whole amount in the case of literate persons. However, the Tribunals are often taking a very rigid stand and are mechanically ordering in almost all cases that the amount of compensation shall be invested in long term fixed deposit. They are taking such a rigid and mechanical approach without understanding and appreciating the distinction drawn by this Court in the case of minors, illiterate claimants and widows and in the case of semi literate and literate persons. It needs to be clarified that the above guidelines were issued by this Court only to safeguard the interests of the claimants, particularly the minors, illiterates and others whose amounts are sought to be withdrawn on some fictitious grounds. The guidelines were not to be understood to mean that the Tribunals were to take a rigid stand while considering an application seeking release of the money.
The guidelines cast a responsibility on the Tribunals to pass appropriate orders after examining each case on its own merits. However, it is seen that even in cases when there is no possibility or chance of the feed being frittered away by the beneficiary owing to ignorance, illiteracy or susceptibility to exploitation, investment of the amount of compensation in long term fixed deposit is directed by the Tribunals as a matter of course and in a routine manner, MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 40 of 42 ignoring the object and the spirit of the guidelines issued by this Court and the genuine requirements of the claimants. Even in the case of literate persons, the Tribunals are automatically ordering investment of the amount of compensation in long term fixed deposit without recording that having regard to the age or fiscal background or the strata of the society to which the claimant belongs or such other considerations, the Tribunal thinks it necessary to direct such investment in the larger interests of the claimant and with a view to ensure the safety of the compensation awarded to him.
The Tribunals very often dispose of the claimant's application for withdrawal of the amount of compensation in a mechanical manner and without proper application of mind. This has resulted in serious injustice and hardship to the claimants. The Tribunals appear to think that in view of the guidelines issued by this Court, in every case the amount of compensation should be invested in long term fixed deposit and under no circumstances the Tribunal can release the entire amount of compensation to the claimant even if it is required by him. Hence a change of attitude and approach on the part of the Tribunals is necessary in the interest of justice....."
44. In this background of legal position, it may be noted that in present case, claimant suffered injury and incurred expenses including on medical expenses, special diet, conveyance. Further, in the considered view of this Tribunal, the purpose of such Award is to compensate the petitioner for the financial loss already sustained that is to reimburse the same, in the same manner in which he would have otherwise earned.
45. Keeping in view the entirety of the facts and circumstances involved in the present case and the above-said guidelines laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court, out of award amount, Rs. 40,00,000/- 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 MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 41 of 42 released in his bank account near his place of residence.
FORM -VI-B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 06.10.2019 2 Name of injured Nitish Kumar 3 Age of the injured 25 years 4 Occupation of the Private Job injured 5 Income of the injured Rs.18,500/-
6 Nature of injury Grievous + Disability 7 Medical treatment As per record.
taken by the injured:
8 Period of As per record.
Hospitalization 9 Whether any Grievous + Disability permanent disability?
46. 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. Digitally signed by SHELLY Concerned criminal court. SHELLY ARORA Announced in the open court ARORA Date:
2025.03.01 16:37:03 +0530 on 01.03.2025 (Shelly Arora) PO (MACT)-02, SE/Saket New Delhi MACT No. 132/2019 Nitish Kumar Vs. Ishwar Singh & Ors. Page No. 42 of 42