Delhi District Court
Gaurav Arora vs Ananya Khurana (108/19 Ln) on 4 August, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 603/2019
FIR no. 108/2019
PS Lajpat Nagar
U/s 279/338 IPC
CNR No.: DLSE01 -005571-2019
Gaurav Arora Vs. Ananya Khurana & Ors
Gaurav Arora
S/o Late Sh. Raj Kumar Arora
R/o L-47, Sriniwaspuri, Back Side, Near
Pvt Colony, New Delhi.
.....Petitioner
Versus
1. Ananya Khurana
D/o Sh. Manoj Kumar
R/o A-159, 3rd Floor, Lajpat Nagar-1,
New Delhi.
.....R-1/ Driver
2. Maximum Out Lines Pvt ltd.
R/o K-50, Lajpat Nagar-II, New Delhi.
.....R-2/ Owner
3. National Insurance Company Ltd.
803 A, Tower-3, Konnectus Building,
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Bhavbhuti Marg, Delhi.
....R-3/ Insurance Co.
Date of accident : 03.03.2019
Date of filing of DAR : 24.07.2019
Date of Decision : 04.08.2025
AWARD
1. DAR
1(a). Detailed Accident Report (hereinafter referred as DAR)
was filed by IO SI Anand Prakash 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 Sh. Gaurav Arora (hereinafter referred
as claimant) by vehicle bearing Reg. No. DL 9CT 6694
(hereinafter referred as offending vehicle), which was driven by
Ms. Ananya Khurana (hereinafter referred as R-1), owned by
M/s Maximum Out Pvt Ltd (hereinafter referred as R-2) and
insured with M/s National Insurance Co. Ltd. (hereinafter
referred as R-3).
2. Brief Facts:
2(a). Preliminary information about the accident was received
vide PCR call recorded as DD no. 8A on 03.03.2019 at 01.43 AM
with incident address as "Jagdish Store Moolchand Flyover ke
pas Lajpat Nagar with incident description Accident + Injury
Mobile number 8800902030" which was assigned to ASI Anand
Prakash who along with HC Neeraj Kumar and Lady Ct.
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Manisha reached the spot where they found two accidental cars
bearing Reg. No. DL 3CAY 4841 (Aveo) and DL 9CT 6694
(Cruze LTZ) with Cruze LTZ car parked 50-60 yards ahead of
Aveo Car. There were many public persons present there,
however, no eye witness was found. It was informed that injured
persons have already been rushed to AIIMS Trauma Center. The
spot was photographed. Later, a person called Rudra Ashish
Panda informed that he was eye witness to the incident but was
very anxious and sitting by the side of the road. His statement
was recorded by police officials who informed that he was
returning back after attending a wedding at Moti Bagh, New
Delhi along with his friend, Nitish and Gaurav in a car bearing
Reg.No. DL 3CAY 4841 (Aveo), being driven by Nitish when its
right side front tyre, got burst near the underpass of Defence
Colony Flyover on the Ring Road due to which it was parked on
the left edge of the road. Upon call, a motor mechanic came and
was in the process to change the punctured tyre when suddenly at
about 01.40 AM, a car from the side of AIIMS came very
speedily and crashed into their car. He stated that the other car
stopped about 50 to 60 yards ahead of their vehicle and its
number was noted as DL 9CT 6694 (Cruze LTZ). Nitish and
Gaurav received injuries in the accident while motor mechanic
died of accidental injuries (recorded vide DD no.18A). He stated
that he had informed the police at 100 number. He also informed
that the offending vehicle was being driven by a woman who fled
from the spot later. He alleged that the accident occurred due to
speedy, rash and reckless driving on the part of driver of the
offending vehicle. Site plan was prepared at the instance of eye
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witness. IO reached AIIMS Trauma Center and obtained MLCs
of injured/ victims. Both accidental and offending vehicles were
taken into police possession.
2(b) Several PCR calls pertaining to accident were received.
Pursuant to that, IO contacted the caller of GD No.9A who
informed that he was employed as guard at Jagdish Store and was
at the gate of the store when he spotted three boys standing near a
car, calling on phone in the meantime a boy came with a tyre,
suddenly a car came in very high speed from the side of AIIMS
and hit the standing car with great force and stopped 50-60 yards
ahead of it. He however, informed that he did not notice
Registration number of any of the vehicle. IO further contacted
caller of GD no.15A identified himself as Kunal and informed
that he witnessed that a speeding car driven from the side of
AIIMS impacted another car, parked on the side of road with
great force injuring some boys, standing near accidental car and
stopped 50-60 yards ahead of it. He noted the registration number
of both the vehicles and made call at 100 number. HC Pankaj
Kumar, caller of GD no.10A also reiterated the mode and manner
of the accident being an eye witness. Another man namely Ashish
Gosai, informed that he was driving his car behind the offending
vehicle at the time of accident. He also reiterated the contextual
circumstances of accident, having witnessed the same.
2(c) During investigation, a person namely Afzal Ahmad came
to PS who informed that he is the brother in law of motor
mechanic, who died in the accident. His statement was recorded
wherein he informed that he was present with his brother in law /
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deceased Afaq on his shop at about 1.25 AM when they got a call
for changing tyre of a car parked near Jagdish Store, Lajpat
Nagar and that he accompanied his brother in law to the spot and
witnessed the accident. He reiterated that the offending car
bearing Reg. No. DL 9CT 6694 Cruze LTZ was driven by a
woman. Statement of injured Gaurav Arora and injured Nitesh
Bidhuri on the same lines as other was also recorded
2(d) Details of ownership of DL 9CT 6694 was obtained which
was found to be registered in the name of M/s Maximum Outfits
Pvt Ltd under the directorship of Sh. Manoj Khurana and Sh.
Rajiv Sachdeva. Notice u/s 133 MV Act to both directors Manoj
Khurana and Sh. Rajiv Sachdeva was served who informed that
they are two partners in the said company and three cars were
registered in the name of their company out of which one is
Cruze RTZ bearing Reg. No. DL 9CT 6694, which was being
used by partner Manoj Khurana. Sh. Manoj Khurana informed
that on the date of accident, offending car was driven by his
daughter Ananya Khurana. Documents pertaining to offending
vehicle were produced along with copy of NCR for lost RC of
the offending vehicle.
2(e) R-1/ Ms. Ananya Khurana/ driver was produced by his
father who was medically examined for alcohol count at AIIMS
Hospital. As per AIIMS Forensic Report result, it was found to
be negative. Mechanical Inspections of the vehicles were got
done. Ms. Ananya Khurana / driver of offending / R-1 vehicle
refused to participate in the TIP proceedings. MLC results were
collected. CDR and CAF pertaining to mobile number
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9582222323 of injured Nitesh and mob no. 9718975266 of
deceased Mohd. Afaq were also got collected from the concerned
subscriber as per which the two communicated amongst each
other in the night of 03.03.2019 and both the mobiles phones
belonged to them. Upon conclusion of investigation, charge sheet
was filed against driver of offending vehicle for causing death
and injury to the public persons on account of speedy and rash
driving of offending vehicle on a public way. DAR was also filed
by Investigating Officer.
3. Reply:
3(a) Reply to DAR was filed on behalf of R-1/ driver. It is
stated that R-1 is a driver of excellent credentials and has a long
experience. It is asserted that she was operating the vehicle with
reasonable care and caution within mandated speed limits and
was very well adhering to her lane at the right hand side of the
road, thus keeping a safe distance from the other vehicles on the
road. It is stated that the driver was neither under influence of
alcohol nor acting under any mental or physical incapacity
rendering her incapable to operate the vehicle. It is also stated
that the driver was not engaged in any activity having tendency
to distract her attention from proper and lawful operation of
vehicle. It is asserted that the vehicle was taken by R-1 in the
evening of 02.03.2019, however, it came to knowledge of R-2
that she was not driving the vehicle at the time of accident.
3(b) Legal offer was filed by the insurance company indicating
that it did not raise any statutory defence against the obligation to
indemnify the insured for the compensation payable to the
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injured persons in the accident.
4. Issues:
4(a) From the pleadings of parties, following issues were
framed vide order dated 09.01.2020:
i). Whether the injured suffered injuries in a road traffic accident on
03.03.2019 due to rash and negligent driving of vehicle bearing no.
DL 9CT 6694 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.
5. Disability Assessment:
5(a) Disability Assessment Certificate was received as per
which injured was diagnosed with 25% permanent physical
impairment in relation to right upper limb and left lower limb.
6. Evidence:
6(a) Matter was then listed for Petitioner Evidence. PW-1 Sh.
Gaurav Arora tendered his evidentiary affidavit as Ex.PW1/A.
He relied upon following documents:
Ex.PW1/1 - Copy of Aadhar Card
Ex.PW1/2- Copy of MLC
Ex.PW1/3 - Photocopy of discharge summary
Ex.PW1/4- Copy of treatment papers
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Ex.PW1/5- Copy of FIR
Ex.PW1/6 - Copy of statement of claimant u/s 161 Cr.PC
Ex.PW1/7- Ex.PW1/8- Copy of educational certificate
Ex.PW1/9- Photographs of chemist shop
Ex.PW1/10- Copy of Driving License
Ex.PW1/11- RC and MoU of Offending Vehicle
Ex.PW1/12- Copy of Insurance Company
He was cross examined by counsel for Insurance
Company.
6(b) Petitioner Evidence was closed. Matter was then listed for
Respondent Evidence.
6(c) Any evidence was not led on behalf of respondents and as
such Respondent Evidence was accordingly closed. Matter was
then listed for Final Arguments.
7. Final Arguments:
7(a) Final Arguments were advanced by the counsel for
claimant as well as counsel for insurance company.
7(b). Counsel for the claimant filed computation along with
summary of medical bills asserting that the accident occurred on
account of reckless driving of R-1 killing one and injuring two
persons. It is stated that injured was running a medical store prior
to the accident which has rendered him incapacitated to run the
store, thereby caused huge financial loss to him. He states that
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ITRs of relevant years along with all documents in support of
running of shop have been fled on record.
7(c) R-1/ driver, R-2/ Registered Owner or their counsels did
not appear to lead arguments.
7(d) Counsel for insurance company stated that the ITR relied
by claimant reflects him to be proprietor of the medical store
which has not been admitted by him during cross examination.
Further, the medical store could have been run without positive
physical involvement at all time of the injured and therefore,
there is no loss of earning during treatment or otherwise for the
future prospects. She also stated that the injured has not fulfilled
any medical or technical qualification to run the medical store. It
is conceded that the insurance policy as well as other documents
pertaining to offending vehicle were in order at the time of
accident.
8. Discussion:
On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
Issue No.1
Whether the injured suffered injuries in a road traffic
accident on 03.03.2019 due to rash and negligent driving of
vehicle bearing no. DL 9CT 6694 being driven by R-1,
owned by R-2 and insured with R-3? OPP.
8(a). PW-1 / injured Sh. Gaurav Arora appeared in the witness
box and affirmed by way of affidavit Ex.PW1/A that he was
commuting back home in the accidental vehicle along with his
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friends in the night of 03.03.2019 at about 01.05 AM, when front
tyre of the vehicle got burst upon which a motor mechanic was
called who was in the process of changing the tyre when the
offending vehicle, at a very high speed crashed into the parked
accidental vehicle causing injuries to two persons and death of
another person. He deposed that the vehicle was stopped about
50-60 yards away from the accidental vehicle. It is asserted that
R-1 was driving the vehicle who later fled away from the spot
leaving the offending vehicle on the spot itself. Counsel for R-3/
Insurance Company chose not to cross examine PW-1 Gaurav
Arora on the aspect of rashness or negligence of R-1 in causing
the accident and confined her cross examination only to the
aspects relevant to determine the quantum of compensation.
Counsel for R-1/ driver & R-2/ Registered Owner, however,
cross examined PW-1 Gaurav Arora on the specifics of the
accident including the mode and manner thereof. During cross
examination, he stated that he left the marriage function for
travelling back home and that the accident took place at about
01.00 AM. He also clarified that Nitesh was driving the
accidental vehicle and that the car had got punctured in the
middle of the Moolchand underpass which they pushed towards
left side of the divider out side the Moolchand underpass. He
declined the suggestion that his car was parked inside the
Moolchand underpass. He admitted that his stepney was already
punctured lying in the vehicle and therefore, they called upon the
motor mechanic to change the tyre with the details taken from
Just Dial. He clarified that they were sitting in the car for about
20-25 minutes waiting for the mechanic to reach and that they
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got down from the car and stood alongside the right front tyre of
the car while the motor mechanic sat replacing the tyre and after
10 seconds offending vehicle crashed into them. He declined the
suggestion that he was continuously consuming alcohol in the
car. He clarified that he did not see the offending vehicle
reaching out to them and spotted it only after it crashed into
them. He stated that he noted the registration number of the car
with two girs sitting inside the car. He declined the suggestion
that R-1 was not driving the offending vehicle which was instead
being driven by a male driver. He declined the suggestion that the
airbags of the car got opened in the offending vehicle and
therefore, none could see the driver or the accompanying person
in the vehicle. He further declined the suggestion that stepney
brought by the mechanic had rolled down the underpass causing
the accident. He further declined the suggestion that accident did
not occur due to negligence of R-1 rather due to negligence of
petitioner himself.
8(b) As detailed above, PW-1 Gaurav Arora, one of the injured
and prime witnesses to the accident has been extensively cross
examined by counsel for R-1 in respect of the contextual
circumstances as well as the manner of the accident. First
statement was recorded by police at the spot itself of a person
called Rudra Ashish Panda who was also one of the occupant of
the offending vehicle. Subsequently, statement of Gaurav Arora,
upon attaining the certified medical fitness, was recorded by the
investigation officer. Various other DD Entries were received
after accident wherein several independent public persons
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reiterated having witnessed the accident on account of speeding
and recklessly driven offending vehicle by a woman. The
manner of the accident has been detailed in the affidavit tendered
in evidence also. There are no contradictions in the version of
statements of persons who suffered the accident, recorded at
various stages during investigation or during proceedings before
the Tribunal. The suggestions which were given to PW-1 Gaurav
Arora were not projected as defence by R-1 and R-2 in the
written Statement. The offending vehicle was seized from the
spot itself. R-1 Ms. Ananya was produced by her father, being
owner in capacity of one of partner of partnership firm in
response to notice u/s 133 MV Act. Mechanical Inspection
Report shows fresh accidental damages to both the vehicles due
to severe accidental impact which corroborate the version of
PW-1 Gaurav Arora in respect of the accident. It also shows that
the right front tyre of the accidental vehicle was punctured which
also supports the version of PW-1 Gaurav Arora. The offending
vehicle reflects majorly frontal accidental impact which also
corroborates the manner of accident as projected by PW-1
Gaurav Arora. As mentioned in the chargesheet, CDR and CAF
of the mobile number used by motor mechanic and Nitish, one of
the injured were also procured from the subscriber which also
shows that they communicated with each other few minutes prior
to the accident. There is nothing on record to discredit the
affirmation of PW-1 Gaurav that the accident happened on
account of speedy and reckless driving of R-1.
8(c) Legal offer was also filed by insurance company wherein
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no dispute in respect of rash and negligent driving of offending
vehicle being the cause of accident has been raised.
8(d). R-1 has been charge sheeted for causing injury to victim
due to speedy and rash driving of the offending vehicle. R-1,
being the driver was the best person to divulge crucial details
leading to the accident, however, she has chosen not to testify
about the contextual circumstances of the accident. R-3/
Insurance Company could also have called upon R-1 as driver of
the offending vehicle to testify about the facts and circumstances
of the accident, however, same was not resorted to. It is settled
that filing of charge sheet itself is a significant step towards the
inference of negligence on the part of driver of the offending
vehicle. (Support drawn from the Judgment in the case of
National Insurance Company Vs. Pushpa Rana 2009 ACJ 287
Delhi as referred and relied by Hon'ble Supreme Court of India
in case of Ranjeet & Anr. Vs. Abdul Kayam Neb & Anr SLP (C)
No. 10351/2019). It is also settled that adverse inference can be
drawn against the driver of the offending vehicle in case he does
not appear as a witness to depose and clarify about his stance in
respect of the accident. (support drawn from the judgment in the
case of Cholamandlam insurance company Ltd. Vs. Kamlesh
2009 (3) AD Delhi 310.)
8(e). It is a well-established legal principle that negligence in
motor accident cases should be determined based on the
preponderance of probabilities, not on proof beyond reasonable
doubt. The facts and circumstances must be considered in a broad
and practical manner. It is also settled that proceedings under the
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Motor Vehicles Act are different from regular civil suits and are
not strictly governed by the technical rules of the Indian
Evidence Act. (as observed by Their Lordships of the Hon'ble
Supreme Court of India in the case of Bimla Devi & Ors. v.
Himachal Road Transport Corporation & Ors., (2009) 13 SCC
530 further referred and relied by Hon'ble Supreme Court of
India in recent pronouncement in the case of Mathew Alexander
vs Mohammed Shafi SLP (Crl) No.8211 of 2022).
8(f). All material on record, including GD entries, FIR, charge-
sheet, mechanical inspection reports, findings, also as no attempt
has been made by the contesting respondents to set up any
defence support the necessary inference that the accident
occurred on account of speedy and rash driving of offending
vehicle. Issue No.1 is decided in favour of claimant and against
the respondents.
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}
9. Sec. 168 MV Act enjoins the Claim Tribunals to hold an
inquiry into the claim to determine the compensation payable and
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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.
.
.
.
10. “….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
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damage is not restricted to the tangible injuries visible on the
body of the injured rather catapults the lives of his family
members also.
11. 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.
12. Section 168 MV Act puts an obligation over Tribunal to
assess ‘just’ compensation with the object of putting the sufferer
in the same position as nearly as possible as he would have been
if he had not sustained the wrong. It is worthwhile to reproduce
certain observations made by Karnataka High Court in the case
of K. Narasimha Murthy v. Oriental Insurance Co. Ltd ILR 2004
KAR 2471 as referred and relied in the case of Rekha Jain Vs.
National Insurance Company Limited Civil Appeal No. 5370-
5372 of 2013 which enumerates the milestones to be kept in
mind by the Tribunal in an endevour to assess just compensation,
at the same time acknowledging that any amount of money
cannot compensate fully an injured man or completely renew a
shattered human physical frame 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. ThereMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 16 of 48
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.”
13. 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
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”
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14. 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….”
15. It is further observed by their Lordship in the case of
Rekha Jain (supra) as follows:
“41…..Besides, the Court is well advised to remember that
the measures of damages in all these cases ‘should be such
as to enable even a tortfeasor to say that he had amply
atoned for his misadventure’. The observation of Lord
Devlin that the proper approach to the problem or to adopt
a test as to what contemporary society would deem to be a
fair sum, such as would allow the wrongdoer to ‘hold up
his head among his neighbours and say with their approval
that he has done the fair thing’ is quite opposite to be kept
in mind by the Court in assessing compensation in personal
injury cases.”
16. 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
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drawn from Helen C Rebello (Mrs) & Ors. v. Maharashtra State
Road Transport Corporation and Anr (1999) 1 SCC 90).
17. 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).
18. What is required of the Tribunal is to attempt objective
assessment of damages as nearly as possible without fanciful or
whimsical speculation even though, some conjecture specially in
reference of the nature of disability and it consequence would be
inevitable. {support drawn from Raj Kumar (supra) as referred
and relied in Sidram (supra)}.
19. 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.
20. 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
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 19 of 48
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.”
21. The compensation has been broadly delineated as pecuniary
and non pecuniary in the case of R. D. Hattangadi Vs. Pest
Control India Pvt Ltd. 1995 AIR 755, it is worthwhile to
reproduce certain observations made therein:
“9….while fixing an amount of compensation payable to a
victim of an accident, the damages have to be assessed
separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually
incurred and which are capable of being calculated in terms of
money; whereas non-pecuniary damages are those which are
incapable of being assessed by arithmetical calculations. In
order to appreciate two concepts pecuniary damages may
include expenses incurred by the claimant: (i) medical
attendance; (ii) loss of earning of profit up to the date of trial;
(iii) other material loss. So far non- pecuniary damages are
concerned, they may include (i) damages for mental and
physical shock, pain and suffering, already suffered or likely
to be suffered in future; (ii) damages to compensate for the
loss of amenities of life which may include a variety of
matters i.e. on account of injury the claimant may not be able
to walk, run or sit; (iii) damages for the loss of expectation of
life, i.e., on account of injury the normal longevity of the
person concerned is shortened; (iv) inconvenience, hardship,
discomfort, disappointment, frustration and mental stress in
life.”
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 20 of 48
22. 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
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–
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 21 of 48
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.
23. PECUNIARY DAMAGES
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:
23(a) Expenditure on Medical Treatment: Claimant has deposed
that he has spent more than Rs. 50,000/- on his treatment. He has
filed medical treatment bills as Ex.PW1/15 for a total sum of Rs.
44,296/-. Sundry / miscellaneous expenses cannot be ruled out
during the admission in the hospital and subsequently also.
Accordingly, injured is awarded Rs.54,296/- (Rs.44,296/- + Rs.
10,000/-) towards expenditure on medical treatment.
23(b) Expenditure on Conveyance: Claimant /PW1 Sh. Gaurav
Arora has deposed that he has spent more than Rs. 1,00,000/-,
however, any bill pertaining to conveyance charges has not been
filed on record. It is evident from the medical records that
injured suffered grievous injuries which is why he was not in aMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 22 of 48
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
necessarily have made hospital visits to attend the injured during
hospitalization/ OPD visits. As such, an amount of Rs. 30,000/-
is awarded towards the head of conveyance.
23(c) Expenditure on Special Diet: Claimant /PW1 Sh. Gaurav
Arora affirmed that doctor had advised him to take protein rich
supplements and other nutritious products for speedy recovery
and as such he spent Rs. 5 lakhs upon special diet. Injured
suffered distal femur fracture with right clavicle fracture for
which he remained under active treatment for several months
post accident. As per record, he underwent surgical procedures
and metal plate fixation was done for locking of fractures. He
was prescribed high protein diet in Discharge Note and
subsequent OPD reviews. Given the nature of injuries and the
prolonged treatment including certain operative procedures, as
also prescribed in prescriptions, injured would have required to
consume healthy protein diet for prompt and effective recovery.
Compensation to the tune of Rs. 60,000/- is awarded to injured
towards expenditure on special diet.
23(d) Expenditure for Attendant: PW-1 / claimant also deposed
that he remained confined to bed for about 15 months for which
he had to hire an attendant to look after him on a monthly salary
of Rs. 10,000/-. No supporting document placed on record to
confirm this expenditure upon attendant, 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. DuringMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 23 of 48
treatment, he suffered recurrent hospitalization for several
months post accident as well as operative procedures. It can be
inferred that he would have required the presence as well as
service of his family members during prolonged treatment. It is
settled that the services provided by family members are also
required to be compensated. An amount of Rs. 70,000/- is thus
awarded awarded towards expenditure for attendant charges.
23(e) Loss of earning during the period of treatment: Claimant
has deposed that at the time of accident, he was running his
Chemist shop in the name and style of M/s JKM Medicos at RZ
-545/A, Gali no.22, Tughalakabad Extension, New Delhi earning
about Rs. 40,000/- per month. He further deposed that he was an
income tax payee and used to file Income Tax Return. To support
his averments, he has filed certain photographs of his Medical
Shop as Ex.PW1/9 (colly), ITR for Assessment Year 2018-2019
and and 2019-20 as Ex.PW1/14. He has also filed copy of
certificate of Secondary School Examination and Senior
Secondary Examination as Ex.PW1/7 and Ex.PW1/8.
Subsequently, in continuation of the previous affidavit, additional
evidence by way of affidavit was tendered which is Ex.PW1/A1
vide which certain documents in support of the affirmation of
running of shop were placed on record. He was extensively cross
examined by counsel for the insurance company in respect of the
running of medical shop. He stated that he completed eight years
training as Pharmacy Assistant. He has placed certificate in
respect of completion of Training Programme as Pharmacy
Assistant as (Ex.PW1/17). He also stated that the Drug LicenseMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 24 of 48
for running the chemist shop was in the name of his elder brother
namely Sh. Krishan Arora, who died in the year 2019. He also
placed on record copy of death certificate of Late Sh. Krishan
Arora as Ex.PW1/21 and copy of Drug License in the name of
Late Sh. Krishan Arora as Ex.PW1/20. He has also placed on
record copy of the registered Sale Deed of property where the
medical shop was being run in his name as Ex.PW1/16. He also
relied upon his bank account statement for the period from July
2018 to Sep. 2018 as Ex.PW1/18 reflecting the sale and purchase
transaction in respect of medicines to show that he was indeed
running the medical shop at the time of accident. He also filed
Profit and Loss Account Statement as well as Balance Sheet in
respect shop by the name of M/s JKM Medicos duly issued and
certified by the Chartered Accountants which reflect the name of
Gaurav Arora as proprietor of M/s JKM Medicos. PW-1 stated
that business of the shop got closed after one week of his
accident, however, he admitted that he did not file any document
to show that the shop got closed due to his accident. He declined
the suggestion that the shop was closed due to death of his
brother in whose name the license was issued. He also admitted
that he has not filed any document to show that the medicines
lying in his shop worth more than Rs. 1 lakh expired, on account
of which he had to close his shop. He stated that he has three
chemist shops running in partnership of his brother and other
partners and that he is the owner of one of those shops. He also
admitted that he has not placed on record any partnership deed in
respect of the chemist shop which he explained that the
partnership was with his real brother and therefore, partnershipMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 25 of 48
deed was not required to be executed.
23(e)(i) Perusal of the evidence Ex.PW1/6 shows that
injured was owner of the property where pharmacy shop by the
name of M/s JKM Medicos was being run. It is also clear that the
drug license mentions the name of Late Sh. Krishan Arora as the
proprietor of the shop, however, the balance sheet as well as the
bank account details shows transactions being made in the name
of injured as one running the shop. Injured has also produced his
certification as Pharmacy Assistant. What transpires is that the
shop was being run by injured, although, the Drug License was in
the name of his late brother. At the same time, there is nothing to
show that the shop was closed post accident. Further, it cannot be
ruled out that injured was not in a legal capacity, in the wake of
death of his brother who was the Drug License Holder to
continue to run the shop. The ITRs have been filed for two years
on the basis of profit and loss statement in respect of the business
transactions of M/s JKM Medicos. The accident took place in
March 2019 and any ITR for the subsequent assessment year has
not been filed. Considering the entire evidence, the only basis to
presume the income is the ITR of two consequent years filed by
injured in the capacity of an individual reflecting the income
from business on the basis of profit and loss balance sheet
certified by the Chartered Accountant. The ITR pertaining to
Assessment Year 2020-2021 would have been material to assess
whether the shop was closed or whether there was decline in
income on account of accident. Given as it may be, ITR is a
statutory document and has been held to be a material documentMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 26 of 48
to assess the income of injured to award compensation in
accident claims.
23(e)(ii) The injured has placed on record two ITRs
pertaining to AY 2018-19 and 2019-20 reflecting a difference of
about 2 lakhs. Further, any ITR of subsequent assessment years
have not been placed on record. It has also not been stated that
any ITR was not filed for the subsequent years. No evidence has
been placed on record to show that the shop was closed on
account of the accident and not on account of other factors
bearing upon the capacity of injured to keep running a medical
shop.
23(e)(iii) It is settled that the income tax return is a statutory
document containing declaration of income by income tax
assessee and therefore is a credible documents for the purpose of
determination of the annual income of the said assessee. It is also
settled that the determination of annual income of deceased must
proceed on the basis of income tax return wherever available.
{support drawn from Malarvizhi & Ors. Vs. United India
Insurance Co. Ltd. & Ors. AIR 2020 SUPREME COURT 90 as
also relied upon Anjali Vs. Lokender Rathod SLP (Civil)
No.18808/2019 the relevant extracts of which is produced
hereunder for ready reference:
9. The Tribunal and the High Court both committed grave
error while estimating the deceased’s income by
disregarding the Income Tax Return of the Deceased. The
appellants had filed the Income Tax Return (2009- 2010) of
the deceased, which reflects the deceased’s annual income
to be Rs.1,18,261/-, approx. Rs.9,855/- per month. ThisMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 27 of 48
Court in Malarvizhi & Ors. (Supra) has reaffirmed that the
Income Tax Return is a statutory document on which
reliance be placed, where available, for computation of
annual income. In Malarvizhi (Supra), this Court has laid as
under:
“10. …We are in agreement with the High Court that
the determination must proceed on the basis of the
income tax return, where available. The income tax
return is a statutory document on which reliance may
be placed to determine the annual income of the
deceased.”
23(e)(iv). Considering that the entire income reflected in the
computation as per the balance sheet/ profit and loss statement of
the chemist shop and there is significant difference of more than
2 lakhs in two consecutive years with no ITR filed of any
preceding year or one subsequent to the accident, also as the
accident happened in the month of March whereas the ITR was
subsequently filed after the accident with an increase of more
than 2 lakhs in declared income, also in the backdrop of the
nature of financial activity prone to variations on account of
many reasons, it is prudent and balancing to take an average of
the income of two years as reflected in the two ITRs of AY 2018-
2019 & 2019-20 to reasonably chart out the average income of
the injured as on the date of accident. (support drawn from ICICI
Lombard Vs Ajay Kumar Mohanty CIVIL APPEAL No. 7181
OF 2015).
23(e)(v) The Gross Total Income in assessment year 2018-19
is declared to be Rs. 2,96,712/- and for assessment year 2019-
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 28 of 48
2020 to Rs. 4,90,090/-. Further total tax under Standard
Deduction and Admissible Deduction under Chapter VI A is
calculated for the Assessment Year 2018-2019 was Rs. 1,000/-
and Rs. 13,020/- for Assessment Year 2019-20. Therefore, the
average annual income after deducting such tax is calculated
hereunder :
AY GTI Tax Total amount after
deduction of tax
1. 2018-2019 Rs.2,96,712/- Rs. 1,000/- Rs.2,95,712/-
2. 2019-2020 Rs.4,90,090/- Rs.13,020/- Rs.4,77,070/-
Average annual income of both GTI is Rs.3,86,391/-
23(e)(vi) PW-1 Gaurav Arora deposed that he was admitted in
JPS Apex Trauma Center AIIMS New Delhi and was referred to
Safdarjung Hospital on the same day where he was diagnosed
with closed traumatic fracture distal femur with right clavicle
fracture without distal muscular deficit whereupon he underwent
surgical procedure and was later discharged on 10.03.2019 vide
Discharge Summary Ex.PW1/3. He further deposed that he was
again operated in August 2019 vide Discharge Summary
Ex.PW1/4 on account of implant failure and non union. It is
evident upon perusal of Discharge Summary Ex.PW1/3 &
Ex.PW1/4 that he was advised limb elevation and active digit and
toe movement. He was strictly advised to follow non weight
bearing movement. He continued under treatment from Central
Institute of Orthopaedic Safdarjung Hospital till about December
2019 to February 2020. During cross examination, he stated that
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 29 of 48
he was advised bed rest for about 1 & 1/2 year and he
movements with help of walker. He admitted that he has not
placed on record any document in support of the assertion. He
also stated that he was advised by the doctor that he might have
to undergo another surgery for removal of plate in his thigh,
although he stated that has not placed on record any such
document. Considering the evidence on record and in backdrop
of discussion made above, it is held that the injured would have
not have been able to resume his normal working at least about 9
months from the date of accident.
23(e)(vii) Amount towards loss of income during period of
treatment is thus calculated to be Rs. 32,199/- x 9 =
Rs.2,89,791/-.
23(f) 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.
23(f)(i) Claimant was assessed with 25% permanent physical
impairment in relation to right upper limb and left lower limb.
23(f)(ii) Before proceeding further, it is important to
understand as to what disability means and also types thereof.
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 30 of 48
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.”
23(f)(iii) The term ‘disability’ means the decrements to the
functional efficacy of body of injured whereas ‘functioning’
encompass all the body functions and activities for an
independent life. Functional disability is to determine the extent
of loss or extent of restrictive functionality considering the nature
of activities required to be necessarily performed in efficient
discharge of duties and the limb effected. This computes the
extent of adverse effect of physical disability upon the functional
efficacy of an injured person, in turn adversely impacting his
earning capacity. The process entails understanding and
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 31 of 48
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.
23(f)(iv) 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.
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 32 of 48
23(f)(v) 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
(percentage) of permanent disability will result in award of eitherMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 33 of 48
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
compensation under the head of loss of amenities of life). The
second step is to ascertain his avocation, profession and nature of
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 34 of 48
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.”
23(f)(vi) 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
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 35 of 48
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.
23(f)(vii) 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.
23(f)(viii) Claimant has testified himself to have qualified for a
Pharmacy Assistant upon completion of training and was runningMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 36 of 48
a medicine shop which he was constrained to close on account of
his accident. As discussed in the preceding paragraph, there
seems to be no clarity in respect of accident being the reason for
closure of shop considering that the Drug License was not issued
in his name. PW1/injured himself deposed that he has medical
shops being run in partnership with his brother and other
partners. Any particulars about those shops have not been placed
on record. It is thus evident that injured has been running a
business and his earnings are primarily business proceeds out of
running of medicine / pharmacy shops. It is also evident that the
shops would continue to run and does not require personal
service on the part of injured, however, considering the nature of
disability, it is evident that his mobility would certainly be
compromised which is material in running any type of business
or even providing services as a pharmacy assistant. Impaired
mobility affecting both the limbs to a certain extent as mentioned
in the disability certificate, is bound to have adverse impact on
the working capacity and functionality to perform any work
including running a business for the purpose fo making living. In
view of the above discussion, his functional disability as
impacting earning capacity is assessed to be 10%.
23(f)(xi) 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).
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 37 of 48
23(f)(x) PW-1 has filed his Aadhar Card as Ex.PW1/1 on
record as per which his date of birth is 09.06.1993, therefore, his
age as on the date of accident was about 25 years and 8 months.
Since the injured was under the age of 40 years (at the time of
accident) and purportedly earing fixed income (minimum
wages), thus as mandated in case of Pranay Sethi (Supra) and
other case laws, the percentage towards future prospect is taken
to be @ 40 %. Further, as tabulated in the case of Sarla Verma
(supra), multiplier of 18 is applicable.
23(f)(xi) 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.3,86,391/-) = Rs.3,86,391/-
(b) Future prospect (40% of Rs.3,86,388/-) = Rs.1,54,556/-
__________________
(c) Total = Rs. 5,40,947/-
(d) Thus, Multiplicand = Rs. 5,40,947/-
(e) Hence, the ‘Total Loss of Future Income’ shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
10% (Rs. 5,40,943/- X 18) = Rs.9,73,705/- 24. NON-PECUNIARY LOSS (a) Injured is entitled to both, pecuniary as well as non- MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 38 of 48
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.
(b) 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 isMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 39 of 48
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)
(c) 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
(general damages) is assessed:
24(d) Damages for pain, suffering and trauma on account of
injuries: The mental and physical loss cannot always beMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 40 of 48
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.”
24(d)(i) 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. SevereMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 41 of 48
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)]24(d)(ii) 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).
24(d)(iii) Injured suffered grievous injuries which led to 25%
permanent physical impairment in relation to right upper limb
and left lower limb. 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. He was
compelled to endure prolonged medical treatment and several
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 42 of 48
surgical procedures. 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. 1,00,000/- is awarded to the injured against pain, suffering
and and trauma sustained in the accident.
24(e) 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.
25. 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. 54,296/-
discussed above.
(ii) Expenditure on Conveyance : As Rs. 30,000/-
discussed above.
(iii) Expenditure on special diet : As Rs.60,000/-
discussed above.
(iv) Cost of nursing / attendant : Rs.70,000/-
(v) Loss of earning during the period of Rs.2,89,791/-
treatment:
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 43 of 48
(vi) Loss of Future Income Rs.9,73,705/-
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 1,00,000/-
trauma on account of injuries:
(ii) Loss of amenities of life Rs.20,000/-
3 Total Compensation Rs.15,97,792/-
Deduction, if any, Nil
Total Compensation after deduction Rs.15,97,792/-
Interest As directed
below
26. Interest:
26(a). It is settled that any fixed rate of interest cannot be
prescribed for all cases at all times and would largely depend
upon the prevailing rate of interest as per the applicable
guidelines. As such, interest at the rate of 7.5% per annum is
deemed fit and accordingly granted in the present case. (Reliance
placed upon National Insurance Company Ltd Vs. Yad Ram
MAC APP 526/2018 also referred and relied in case of The
Oriental Insurance Company Ltd Vs. Sohan Lal & Ors. MAC
APP 70/2024 of the Hon’ble Delhi High Court).
27. Liability:-
27(a) Insurance Company has conceded valid and effective
Insurance Policy on the date of accident and has not raised any
statutory defence. It has already been held that accident occurred
on account of speedy and rash driving of offending vehicle. It is
settled that Insurance Company is responsible to indemnifyMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 44 of 48
owner / insured for vicarious liability incurred by tort feaser.
Therefore, such principal award amount/compensation will be
payable by the insurance company of offending vehicle with
simple interest @ 7.5% 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. Further, in case the matter
adjourned sine die, interest for the period i.e. the date of
concerned order till revival of the case, shall not be awarded).
28. The award amount shall be deposited by the Insurance
Company. Counsel for the Insurance Company is also directed to
furnish the complete case details, including the MACT case
number, CNR number, FIR number, name of Police Station,
name of the deceased/claimant(s), date of accident, and any other
relevant particulars, to the State Bank of India, Saket Court
Branch, New Delhi at the time of getting the amount deposited.
The amount shall be deposited through RTGS/NEFT/IMPS in the
account titled “MACT FUND PARKING”, Account No.
00000042706870765, IFSC Code SBIN0014244, MICR Code
110002342, under intimation to the Nazir of this Tribunal.
29. Release of Award Amount/ Disbursement
(a) Out of total award amount, Rs.12,00,000/- along with
proportionate interest shall be kept in form of monthly FDR of
Rs. 10,000/- each. Remaining amount shall be released to him in
his bank account.
30. In terms of the Practice Directions issued by Hon’ble
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 45 of 48
High Court, vide reference no. 134/Rules/DHC, dated
14.05.2025, the claimant (s) are directed to produce their bank
account details along with either a certificate of the banker giving
all details of the bank account of the person or persons entitled to
receive the compensation including IFS Code, or a copy of
cancelled cheque of the bank account to this Tribunal with seven
days of the date of Award, if not already placed on record. They
are also directed to file their Aadhar Card and PAN Card if not
already filed.
31. Directions to the Branch Manager, SBI, Saket Court
Complex
31(a). The Manager, SBI, Saket Court Complex, is further
directed to verify the documents and details submitted by the
claimant pertaining to their bank account, and upon proper
verification, under certification of the Branch Manager (of the
bank whose details have been provided by the claimant for
release of the compensation amount) disburse the amount,
directed to be released to the claimant, directly into the verified
bank account of the claimant under notice to the Tribunal.
32. Directions with respect to Fixed Deposit:
32(a) As per Practice Directions, Hon’ble High Court, vide
reference no. 134/Rules/DHC, dated 14.05.2025, the bank shall
invest the amount to be deposited in fixed deposit with any
nationalised bank and fixed deposit shall be with the standing
instructions to the bank to renew the same after periodical
intervals till further orders are passed by the Tribunal.
32(b) The Bank shall not permit any joint name (s) to be added
in the savings bank account or fixed deposit accounts of victim
i.e. the savings bank account of the claimant shall be individualMACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 46 of 48
savings bank account and not a joint account.
32(c) The original fixed deposit shall be retained by the bank in
safe custody. However, the statement containing FDR number,
FDR amount, date of maturity and maturity amount shall be
furnished by bank to the claimant.
32(d) The monthly interest be credited by Electronic Clearing
System (ECS) in the savings bank account of the claimant near
the place of their residence.
32(e) The maturity amounts of the FDR (s) be credited by
Electronic Clearing System (ECS) in the savings bank account of
the claimant near the place of their residence.
32(f) No loan, advance or withdrawal or pre-mature discharge be
allowed on the fixed deposits without permission of the Court.
32(g) The concerned bank shall not issue any cheque book and/
or debit card to claimant (s). However, in case the debit card and/
or cheque book have already been issued, bank shall cancel the
same before the disbursement of the award amount. The bank
shall debit freeze the account of the claimant so that no debit
card be issued in respect of the account of the claimant from any
other branch of the bank.
32(h) The bank shall make an endorsement on the passbook of
the claimant to the effect, that no cheque book and / or debit card
have been issued and shall not be issued without the permission
of the Court and claimant shall produce the passbook with the
necessary endorsement before the Court on the next date fixed
for compliance.
33. SUMMARY OF COMPUTATION OF AWARD
AMOUNT IN INJURY CASES TO BE INCORPORATED IN
THE AWARD.
1 Date of accident 03.03.2019
MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 47 of 48
2 Name of injured Gaurav Arora
3 Age of the injured 25 years & 8 months
4 Occupation of the Not proved
injured
5 Income of the injured 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 Yes.
disability?
34. 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
Digitally signed
concerned criminal court. by SHELLY
SHELLY ARORA
Announced in the open court
ARORA Date:
2025.08.04
17:14:00 +0530
on 04.08.2025
Shelly Arora
PO (MACT)-02, SE/Saket/Delhi
04.08.2025MACT No.: 603/2019 Gaurav Arora VS Ananya Khurana & Ors. Page No. 48 of 48
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