Delhi District Court
Deepak (Dar) vs Sandeep(732/22 Ln) on 14 January, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 501/2023
FIR no. 732/22
PS Lajpat Nagar
U/s 279/338 IPC, 5/180, 1/181 MV Act
CNR No.: DLSE01 -000604-2023
Deepak Prasad Jaiswal Vs. Sandeep & Ors.
Deepak Prasad Jaiswal
S/o Sh. Badri Prasad Jaiswal
R/o H. No. E-60, near Bharat Ghar
Balaji Gali, Ali Vihar, Sarita Vihar,
New Delhi.
.....Petitioner
Versus
1.Sandeep
S/o Sh. Gopal Singh
R/o H. No. 3, CPO Block
Madangir, Ambedkar Nagar, New Delhi.
.....R-1/ Driver
2. Mohd. Adi
S/o Mohd. Umar
R/o RZ 1/136, Gali no.4, TKD Extension
New Delhi.
.....R-2/ Owner
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 1 of 43
3. M/s Bajaj Alliance Gen. Ins. Co. Ltd
7th Floor, Block -4, DLF Towers, 15, Shivaji Marg, New Delhi.
....R-3/ Insurance Co.
Date of accident : 20.12.2022
Date of filing of DAR : 01.04.2023
Date of Decision : 14.01.2025
AWARD
1. In this case, a Detailed Accident Report (hereinafter
referred as DAR) was filed by IO HC Ram Singh in terms of
provisions of Motor Vehicle Act, which is treated as Claim
Petition under Section 166 (1) read with Section 166 (4) MV Act.
It pertains to alleged accident of injured Deepak Prasad Jaiswal
(hereinafter referred as claimant) while riding motorcycle bearing
Reg. No. DL 3SCE 6977 (hereinafter referred as accidental
vehicle), by vehicle bearing Reg. No. DL 3SET 4197 (hereinafter
referred as offending vehicle), which was driven by Sandeep
(hereinafter referred as R-1), owned by Mohd. Adi (hereinafter
referred as R-2) and insured with M/s Bajaj Alliance Gen. Ins.
Co. Ltd.(hereinafter referred as R-3).
2. Preliminary information about the accident was received
on 20.12.2022 recorded vide GD no.130A, at PS Lajpat Nagar in
respect of MLC of patient Deepak S/o Badri Prasad, upon receipt
of which, HC Ram Singh along with Ct. Prakash proceeded to
AIIMS Trauma Center which mentioned " A/H/O RTA
Moolchand around 08.45 PM 20.12.2022 involving a two
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 2 of 43
wheeler rider got hit with another two wheeler as told by self and
opinion nature of injury pending investigation ". Statement of
Deepak Kumar Jaiswal recorded who informed that he worked as
food delivery boy in Zomato and was hit by an unknown
speeding and rashly driven scooty near Moolchand Redlight
while riding his Splendor Motorcycle bearing Reg. No. DL 3SCE
6977 due to which he fell down on the road and got seriously
injured. He also informed that there were two persons
commuting on the said scooty, however, he could not note down
registration number of the offending scooty as they had fled
away from the spot. FIR was got registered on the basis of
statement of injured as well as the MLC. Accidental vehicle was
seized and taken into police possession. Subsequently, statement
of one eye witness Anand Kumar was recorded, who informed
that he was employed as a Guard at Galaxy Toyota Showroom
and was returning back from his duty on 20.12.2022 in the
evening when he had witnessed the scooty riders ramming into
motorcycle from the back. He also informed that the scooty
riders remained at the spot for two minutes after which they left,
however he could not note down the registration number of the
said scooty.
3. During the course of investigation, Statement of eye
witness Pankaj Kumar was also recorded on 21.12.2022 who also
informed about the mode and manner of accident and
corroborated the statement of other eye witnesses including the
injured. He also additionally informed that he had clicked the
photographs of the said scooty which was made available to the
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 3 of 43
Investigating Officer. Subsequently, notice u/s 91 CrPC was
served upon General Manager of Galaxy Toyota Showroom to
provide the CCTV footage. Video footage was thereby provided
in a pen drive which had duly captured the accident. Notice u/s
133 MV Act was served upon the vehicle owner Mohd Adil who
informed that the scooty was being driven by his friend Sandeep
while Kuldeep was sitting as a pillion rider at the time of
accident. He also informed that Sandeep did not have a driving
license. Relevant provisions were added. Offending vehicle was
taken into police possession. Mechanical inspection got
conducted. Relevant documents got collected and verified.
Sandeep refused to participate in TIP proceeding. Sandeep was
charge sheeted under relevant provisions of law. DAR was filed
by Investigating Officer.
Reply:
4. Driver and owner of the offending vehicle did not appear
despite service of notice. Counsel for Insurance company
appeared and filed reply to DAR wherein validity of the
insurance policy was conceded. It was contended that the vehicle
was being driven by R-1 without Driving License and same was
knowingly so allowed by the owner of the vehicle, in clear
contravention of the applicable terms and conditions of the
insurance policy.
5. Disability Assessment Report dated 02.09.2023 was
received with 16% permanent physical impairment in the left
foot of injured.
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Issues:
6. From the pleadings of parties, following issues were
framed order dated 19.12.2023:
i). Whether the injured suffered injuries in a road traffic accident on
20.12.2022 due to rash and negligent driving of vehicle bearing no.
DL 3SET 4197 being driven by R-1, owned by R-2 and insured with
R-3? OPP.
ii). Whether the injured is entitled to any compensation, if so, to what
extent and from whom?OPP
iii). Relief.
Evidence:
7. Matter was then listed for Petitioner Evidence. PW-1 Sh.
Deepak Prasad Jaiswal tendered his Evidentiary Affidavit as
Ex.PW1/A. He relied upon following documents:
Ex.PW1/1 - Copy of his Aadhar Card
Mark A- Copy of Driving License
Mark B- Copy of employment proof along with other summary
Ex.PW1/4- Original Bank Statement
Ex.PW1/5- Medical Treatment Record
Ex.PW1/6- Original Medical Bills
Ex.PW1/7- Disability Certificate
Ex.PW1/8- DAR
PW-1 was cross examined by counsel for Insurance Company.
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 5 of 43
8. No other witness was led. PE was closed vide order dated
28.02.2024. Matter was then listed for RE.
9. R3W1 Sh. Mukul Thakur, Assistant Manager, M/s Bajaj
Alliance Gen. Ins. Co. Ltd tendered his Evidentiary Affidavit as
Ex.R3W1/A. He relied upon original policy bearing 15 pages as
Ex.R3W1/1, Legal Notice dated 12.03.2024 as Ex.R3W1/2 and
Postal receipt and tracking report as Ex.R3W1/3 (colly).
10. No other evidence was lead by respondents and
Respondent Evidence was closed vide order dated 19.03.2024.
Final arguments:
11. Final Arguments were advanced by the contesting
counsels. Counsel for the claimant argued that the injured had
suffered permanent impairment on account of serious injuries
sustained in the accident caused due to rash and negligent driving
of the offending vehicle. He has also argued that CCTV footage
clearly shows the mode and manner of the accident leaving no
doubt about the culpability upon R-1. Counsel for the insurance
company, on the other hand, argued that the offending vehicle
was being driven without driving license. Further, the injured
was putting his motorcycle for the commercial usage which was
not permissible. He also argued that the injured continued to
work as earlier and therefore, has not suffered any loss of income
or loss of future earning capacity.
Discussion:
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12. On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
Issue No.1
i). i). Whether the injured suffered injuries in a road traffic accident
on 20.12.2022 due to rash and negligent driving of vehicle bearing no.
DL 3SET 4197 being driven by R-1, owned by R-2 and insured with
R-3? OPP.
13. What is required to be ascertained is whether rash and
negligent driving of offending vehicle resulted in an accident
which caused injuries to the claimant.
14. 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 cases 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, and also from
National Insurance Co. Ltd. vs. Pushpa Rana cited as 2009 ACJ
287 Del.
15. PW-1 testified that that he was working as a delivery boy
with Zomato and on 20.12.2022, while riding towards Moochand
Chowk via Ring Road on his motorcycle bearing Reg. no. DL
3SCB 6977 at about 08.15 PM barely 50 meters from the
Moolchand Red Light that a scooty bearing Reg. NO. DL 3SET
4197, being driven at a high speed in a rash and negligent manner
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 7 of 43
rammed into his motorcycle from the rear side because of which
he fell down on the road and received multiple injuries. He
further deposed that public persons gathered at the spot and
someone called the police. He also deposed that he had requested
the driver of the offending vehicle to take him to the hospital,
however, he fled away from the spot. Subsequently, his friend
Pankaj Kumar reached the spot of accident and rushed him to
AIIMS Trauma Center. During detailed cross examination by
counsel for insurance company, he stated that the offending
vehicle was photographed after 10 minutes of the accident and
the prints were provided to the Investigating Officer. He also
stated that he had delivered a food order at Vikram Vihar prior to
the accident and was also carrying the Zomato food bag with him
when the accident happened. He also specified that the splendor
bike was being used by him to deliver food. He declined the
suggestion that he was wrongfully putting his vehicle meant for
personal usage to avail commercial benefit. He also stated that he
did not call the police and his relative Pankaj Chaudhary reached
at the spot of accident within 10 minutes. He also stated that he
was conscious at the time of accident. He also clarified that he
did not disclose number of the offending vehicle in his police
complaint, however, had handed over his mobile phone to Pankaj
for taking out the prints of the photographs of the offending
vehicle and handed over to the police.
16. It is evident that there is no dispute in respect of
involvement or identification of offending vehicle and the driver,
with the occurrence also captured in the CCTV footage and also
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 8 of 43
duly deposed by PW-1/ injured himself. The accident was
immediately reported to the police officials. The injured was
conscious at the time of accident and subsequent thereto and his
statement was duly recorded on the date of accident himself. The
mode and manner of the accident has been corroborated by the
statement of other eye witnesses as recorded u/s 161 CrPC
forming part of the charge sheet. The offending vehicle rammed
into motorcycle from the rear side which cannot be explained as
other than rash and speedy driving on the part of offending
vehicle. Driver did not appear before the court despite notice and
has not attempted to contest the allegations against him. PW-1
stated that he could identify the driver who fled away from the
spot after the accident. Driver also refused to participate in the
TIP. He has not adduced any evidence to put up his case that he
was driving mindfully with due care as expected of a reasonable
person in the prevalent circumstances. It is settled that if driver of
offending vehicle does not enter the witness box, an adverse
inference can be drawn against him as observed by Hon'ble
Delhi High Court in the case of Cholamandlam insurance
company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310.
17. The entirety of the evidence discussed points to the
inescapable conclusion that the accident resulted from the rash
and negligent driving of the driver of the offending vehicle. In
light of the aforementioned findings, the issue No.1 is decided
accordingly, in favour of the petitioner.
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 9 of 43
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}
18. 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
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.
.
.
.
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19. "....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 signs 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.
20. The assessment or grant of compensation is a small attempt to render assistance to the injured to navigate through the 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.
21. 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 11 of 43 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 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."
22. It is also settled that the monetary assessment is a 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 12 of 43 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"
23. 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 Vs. Rawyards Coal Company (1880) 5 APP CAS 25 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...."
24. 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 13 of 43 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."
25. 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).
26. It is settled that an injured is required to be compensated for his inability to lead full life, his inability to enjoy those 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).
27. What is required of the Tribunal is to attempt objective assessment of damages as nearly as possible without fanciful or MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 14 of 43 whimsical speculation even though, some conjecture specially in reference of the nature of disability and it consequence would be inevitable. {support drawn from Raj Kumar (supra) as referred and relied in Sidram (supra)}.
28. 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.
29. 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 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."
30. The compensation has been broadly delineated as pecuniary and non pecuniary in the case of R. D. Hattangadi Vs. Pest MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 15 of 43 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."
31. 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 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 16 of 43 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 case.
PECUNIARY DAMAGES Damages under pecuniary heads primarily involves reimbursement of actual amount spent on account of injury MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 17 of 43 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: Immediately after the accident, Injured was rushed to AIIMS Trauma Center with laceration over left foot and abrasion over left ankle. MLC was prepared. Injuries were opined to be grievous in nature. Medical bills which have been tendered in evidence as Ex.PW1/6 (colly) amounting to Rs. 30,560/- including a bill of Rs. 22,420/- which was allegedly issued against purchase of wheelchair as clarified by counsel for claimant. The bill bears date of 21.12.2022 which is the next day of accident. Sundry / miscellaneous expenses cannot be ruled out during the admission in the hospital and subsequently also. Accordingly, injured is awarded 35,580/-
(Rs.30,580/- + Rs. 5,000/-) towards expenditure on medical treatment.
(ii) Expenditure on Conveyance: Claimant has deposed that he has spent more than Rs. 1,50,000/- on his treatment including conveyance expenses. However, apart from medical bills any other bills related to conveyance/ transportation has not been filed. It is evident that the deceased suffered grievous injuries with disability in his lower limb and that is why he was not in a state of free unrestricted mobility that he could undertake hospital visits on his own without appropriate vehicular arrangements. The family members of the injured would also have to necessarily make hospital visits to attend the injured MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 18 of 43 during hospitalization/ OPD visits. As such, an amount of Rs. 20,000/- is awarded towards the head of conveyance.
(iii) Expenditure on Special Diet: Claimant has deposed that he has spent more than Rs. 1,50,000/- on his treatment including conveyance expenses. However, apart from medical bills any other bills related to special diet has not been filed. However, considering the nature of injuries, an amount of Rs. 20,000/- is awarded to injured towards expenditure on special diet.
(iv) Expenditure for attendant: PW-1 deposed that he had hired one attendant for his assistance at a monthly salary of Rs. 10,000/- for six months post accident. However, any document has not been produced in evidence in support of such expense towards attendant charges. However, considering the nature of injuries sustained by injured, it cannot be stated that he was on his own and did not need any assistance. An amount of Rs. 25,000/- is thus awarded awarded towards expenditure for attendant charges.
(v) Loss of earning during the period of treatment: PW-1 further deposed that he was working as food delivery agent with Zomato and earning Rs. 25,000/- to 30,000/- per month. However, any document pertaining to his income or employment has not been filed. He testified that he had delivered a food order at Vikram Vihar prior to the accident and was also carrying the Zomato food bag with him when the accident happened. He also specified that the splendor bike was being used by him to deliver food. He has filed his Aadhar Card as per which he is resident of Jaitpur, MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 19 of 43 Delhi. As such minimum wages for an unskilled worker applicable at the time of accident in NCT of Delhi is accepted to be his monthly earning which was Rs. 16,502/-.
(vi) Further, as per Discharge Summary Ex.PW1/5 (colly) mentions that the injured was discharged after one day hospitalization on 21.12.2022. However, he was constrained to remain under active medical treatment post accident for the injuries sustained by her which is evident from several OPD visits. It is thus evident that injured did not resume his job post accident for about 6 months.
Amount is thus calculated to be Rs. 16,502/- x 6 = Rs. 99,012/-
(vii) Loss of future earning: 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.
(viii) Disability Assessment Report dated 02.09.2023 was received and claimant/ injured was opined to have suffered with 16% permanent physical impairment in the left foot of injured.
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 20 of 43
(ix) Before proceeding further, it is important to understand as to what disability means and also types thereof. This aspect has been delved into by Hon'ble SC in Raj Kumar (supra):
"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation."
(x) 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.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 21 of 43 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 impead his daily life activities, both on a personal and social scale and might also impact his ability to continue earning as much as before and his future employment avenues.
(xi) 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 22 of 43 economic loss or loss of earning capacity.
(xii) Hon'ble SC laid down certain guidelines for the Tribunal to be able to arrive at an objective figure to quantify the loss for the purpose of computing the compensation in the judgment of Raj Kumar (supra). Relevant extracts of this judgment for the purpose of further discussion are reproduced hereunder:
"Assessment of future loss of earnings due to permanent disability
9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 23 of 43 (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 24 of 43 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.
.
.
.
.
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."
(xiii) 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:
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 25 of 43 "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.
(xiv) 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.
(xv) In the present case, the injured claimed to be employed as a MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 26 of 43 food delivery boy with Zomato, earning approximately Rs.
25,000/- to 30,000/- per month. While he admitted during cross- examination that no documentary evidence regarding his income or occupation was provided, the Disability Certificate confirms a 16% permanent physical impairment in relation to his left lower limb. This impairment significantly restricts mobility, a critical requirement for his prior employment, which heavily relied on driving and physical activity. The nature of his injury directly impacts his ability to perform essential job functions, particularly those involving extensive fieldwork and continuous driving, which are indispensable for a delivery executive. Moreover, the psychological and emotional consequences of the injury further diminish his capacity to adapt to alternative employment or social settings, compounding the overall effect on his earning ability. Given the substantial impact on his ability to undertake field-oriented work, his functional disability is assessed as 8% concerning his earning capacity.
(xvi) Future Prospect: It is settled 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. (Support drawn from Pappu Deo Yadav v. Naresh Kumar & Ors., AIR 2020 SC 4424).
(xvii) PW-1 has filed his Aadhar Card as Ex.PW1/1 on record as per which his date of birth is 08.07.1984, therefore, his age as on the date of accident was about 38 years and 5 months. Since the injured was below the age of 40 years (at the time of accident) MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 27 of 43 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''.
(xviii) Multiplier: 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."
(xix) 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. MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 28 of 43 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 generating capacity of victim.
(xx) 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 in the case of Sarla Verma (supra); as per which, the appropriate multiplier, applicable in this case would be 15 (for age group between 45 to 50 years).
(xxi) 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. 16,502/- x 12) = Rs.1,98,024/-
(b) Future prospect (40% of Rs 1,98,024/-) = Rs. 79,210/-
__________________
(c) Total = Rs. 2,77,234/-
(d) Thus, Multiplicand = Rs. 2,77,234/-
(e) Hence, the 'Total Loss of Future Income' shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
08% (Rs. 2,77,234/- X 15) = Rs. 3,32,681/-
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 29 of 43
NON-PECUNIARY LOSS
(xxii) 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.
(xxiii) 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) MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 30 of 43 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 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. 605/2015 passed by Hon'ble Delhi High Court) (xxiv) 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 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 31 of 43 (general damages) is assessed:
(xxv) Damages for pain, suffering and trauma on account of injuries: 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 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."
(xxvi) 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 32 of 43 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)] (xxvii) 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).
(xxviii) Injured suffered grievous injuries which led to 16% permanent physical impairment in relation to his left lower limb.
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 33 of 43 He must have suffered immense physical, mental and emotional trauma for what he was compelled to undergo on account of injuries sustained in the accident. There is no measure with the court to quantify the pain and suffering of the injured, however, an attempt is being made to compensate in terms of money for the agony he must have suffered. Therefore, an amount of Rs. 60,000/- is awarded to the injured against pain, suffering and and trauma sustained in the accident.
(xxix) Loss of amenities of life: It compensates the victim on account of his inability to enjoy the basic 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. Considering the nature of injuries suffered by claimant, an amount of Rs. 20,000/- is awarded towards loss of amenities.
32. 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 : As Rs. 35,580/-
discussed above.
(ii) Expenditure on Conveyance : As Rs. 20,000/-
discussed above.
(iii) Expenditure on special diet : As Rs.20,000/-
discussed above.
(iv) Cost of nursing / attendant : Rs.25,000/-
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 34 of 43
(v) Loss of earning during the period of Rs.99,012/-
treatment:
(vi) Loss of Future Income Rs.3,32,681/-
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 60,000/-
trauma on account of injuries:
(ii) Loss of amenities of life Rs. 20,000/-
3 Total Compensation Rs.6,12,273/-
Deduction, if any, Nil
Total Compensation after deduction Rs.6,12,273/-
Interest As directed
below
33. 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, MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 35 of 43 permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the MV Act 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same as it is consequential in the eye of the law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions mercantile usage and doctrine of equity. Neither Sec. 34 CPC nor Sec. 4-A(3) of Workmen's Compensation Act are applicable in the matter of fixing are of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal of the High Court as indicated above."
34. 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.
35. The total compensation is Rs.6,12,273/- which shall be payable to the claimant along with to simple interest @9% p.a. MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 36 of 43 from the date of filing of DAR till actual realization of Award amount/compensation.
LIABILITY
36. The defence of the insurance company/ R-3 is that the offending vehicle was driven by its driver/ R-1 without having valid and effective driving license. Further, Insurance Company got examined R3W1 Sh. Mukul Thakur on this aspect. R3W1 deposed that a notice u/O XII Rule 8 CPC was served through its counsel copy of which are Ex.R3W1/2 to Ex.R3W1/4 along with proof of sending such legal notice.
37. R-1 was charge sheeted for driving the offending vehicle without driving license. R-1 has not led any evidence to show that he had a valid and effective driving license as on the date of accident. Any reply also not filed. It paves way to an adverse inference against R-1 that he was without DL as on the date of accident which constitute breach of terms and conditions of the insurance policy.
38. Before proceeding further it is worthy to put across certain observations made by the Hon'ble Supreme Court in Amrit Paul Singh And Another Vs. Tata Aig General Insurance Company Limited And Others . [ (2018) 7 Supreme Court Cases 558 as relevant in the context discussed above:
''.......................15. We may fruitfully note that the three-Judge Bench adverted to situations where the driver does not have a licence and the same has been allowed to be driven by the owner of the vehicle by such person, the insurer would MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 37 of 43 be entitled to succeed in defence and avoid liability, but the position would be different where the disputed question of fact arises as to whether the driver had a valid licence and where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence."
16. The Court held that if, on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing the requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. That apart, minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to third parties.
The other category of cases that the Court addressed to included cases where the licence of the driver is found to be fake. In that context, the Court expressed its general agreement with United India Insurance Co. Ltd. v. Lehru and stated thus: (Swaran Singh case , SCC p. 337, para 92):
"92. ... In Lehru case the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 38 of 43 any defence or for the owners to be absolved from any liability whatsoever. ..."
17. The three-Judge Bench summed up its conclusions and we think it appropriate to reproduce the relevant part of the same: (Swaran Singh case , SCC pp. 341-42, para 110):
"110. (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
***
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 39 of 43 of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case."........................''
39. In Amrit Paul Singh(supra) it was further held:
''.....................24. In the case at hand, it is clearly demonstrable from the materials brought on recordthat the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 40 of 43 question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.......................''..
(emphasis added)
40. Accordingly, it is held that in view of such position of case law, the compensation will be payable in the first instance by the insurance company/ R-3 with simple interest @ 9% p.a. from the date of filing of DAR till actual realization but with liberty to recover the same from R-1 & R-2. (If there is any order regarding excluding of interest for specific period same be complied at the time of calculation of award amount).
41. 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 MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 41 of 43 the petitioner.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO THE CLAIMANTS AS PER THE PROVISIONS OF THE 'MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE' (MCTAP).
42. This court is in receipt of the orders dated 07.12.2018 passed by the Hon'ble High Court of Delhi in FAO no. 842/2003 titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors whereby the Hon'ble High Court of Delhi has formulated MACAD(Motor Accident Claims Annuity Deposit Scheme) which has been made effective from 01.01.2019. The said orders dated 07.12.2018 also mentions that 21 banks including State Bank of India is one of such banks which are to adhere to MACAD. The State Bank of India, Saket Courts, Delhi is directed to disburse the amount in accordance with MACAD formulated by the Hon'ble High Court of Delhi.
APPORTIONMENT OF AMOUNT
43. Whole of award amount is released in favour of injured in his bank account near his place of residence.
SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 20.12.2024 2 Name of injured Deepak Prasad Jaiswal MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 42 of 43 3 Age of the injured 38 years 4 Occupation of the Not proved injured 5 Income of the injured Rs. 16,502/-as per minimum wages.
6 Nature injury Grievous injury and disability 7 Medical treatment taken As per record.
by the injured:
8 Period of As per record.
Hospitalization
9 Whether any permanent 16% permanent disability in
disability? relation to left lower limb
44. 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 concerned criminal court.
Digitally signed by SHELLY SHELLY ARORA
Date:
Announced in the open court ARORA 2025.01.14
on 14.01.2025 15:55:14
+0530
Shelly Arora
PO (MACT)-02, SE/Saket/Delhi
14.01.2025
MACT No.: 501/2023 Deepak Prasad Jaiswal Vs. Sandeep & Ors. Page No. 43 of 43