Delhi District Court
Saleem Khan Mewati vs Harun Khan on 19 May, 2025
IN THE COURT OF MS. SHELLY ARORA
DISTRICT JUDGE AND ADDITIONAL SESSIONS JUDGE
PO MACT (SE), SAKET COURTS : NEW DELHI
MACT No.: 775/2018
FIR no. 460/2016
PS Dadri, Gautam Budh Nagar
U/s 279/338 IPC
CNR No.: DLSE01 006221 2018
Saleem Khan Mewati Vs. Harun Khan & Anr.
CNR No. DLSE010062212018
Saleem Khan Mewati
S/o Sh. Dost Mohammad
R/o S-4/12 (14), Jogabai Extension
Jamia Nagar, New Delhi-25.
.....Petitioner
Versus
1. Harun Khan
S/o Haji Salam
R/o Tilbegumpur, Sikandarabad
Distt. Bulandshahar, Uttar Pradesh.
.....R-1/ Driver
2. Shakir Mohammad
S/o Sh. Islamdeen
R/o H. No. 107, Vill. Khori Kalan
Tehsil Taudu, Distt. Mewat, Haryana,
Pin-122007.
.....R-2/ Owner
3. The New India Assurance Co. Ltd.
Reg. Office at 12/1,
Jeevanraksha Building, Asaf Ali Road,
New Delhi.
....R-3/ Insurance Co.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 1 of 54
Date of accident : 13.08.2016
Date of filing of Petition : 31.07.2018
Date of Decision : 19.05.2025
AWARD
1. Claim Petition under Section 166 and 140 M.V. Act was
filed on 31.07.2018 by Sh. Saleem Khan Mewati (hereinafter
called the claimant/injured) on account of injury sustained by
him in a road traffic accident which took place on 13.08.2016
due to rash and negligent driving of vehicle bearing Registration
no. HR 27C 5161 (hereinafter referred as Offending Vehicle),
driven by Sh. Harun Khan (hereinafter referred as Respondent
No.1), owned by Sh. Shakir Mohammad (hereinafter referred as
Respondent No.2) and insured with M/s. The New India
Assurance Co. Ltd.(hereinafter referred as Respondent
No.3/Insurance Company).
Brief facts as averred in Claim Petition:
2. On 13.08.2016, at about 11.00 PM, while petitioner was
standing along with his cousin brother namely Beeru @ Abdul
Salam, opposite Madarsa and Mihir Bhoj Balika Degree College,
Dadri, a car bearing Reg.No. HR 27C 5161 being driven by R-1/
driver in a speedy and rash manner, forcefully impacted him
because of which he fell down on the road and sustained serious
head injuries. PCR took the injured to Colambia hospital,
Ghaziabad where he remained under treatment for a long time. It
is stated that the petitioner was running a Kirana Shop, earning
about Rs. 35,000/- per month, however, has been bed ridden
since the date of accident and has not been in a position to do any
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 2 of 54
work. It is stated that R-1, being the driver of the offending
vehicle, is solely responsible for the accident. A compensation of
Rs. 50 lakhs along-with interest @ 18% per annum has been
sought in this matter.
Proceedings:
3. Upon filing of notice, all the contesting parties appeared
before the court. Reply was filed by R-1 & R-2 wherein it is
stated that R-1 had valid driving license at the time of accident
and the offending vehicle was duly insured. Averments in the
petition were generally denied, however no specific defence was
asserted.
4. Written Statement on behalf of insurance company also
filed wherein it is pointed that there was a substantial
unexplained delay of about 12 days in filing of FIR. It is stated
that the alleged offending vehicle did not cause the accident
rather the actual offending vehicle was never identified. While
conceding a valid and effective insurance policy as on the date of
accident, other general defences were taken.
5. From the pleadings of parties, following issues were
framed order dated 15.12.2018:
i). Whether the injured suffered injuries in a road traffic accident on
13.08.2016 due to rash and negligent driving of vehicle bearing no.
HR 27C 5161 being driven by R-1, owned by R-2 & 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.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 3 of 54
6. Issues were framed vide order dated 15.12.2018 and matter
was listed for PE. While no evidence was led, the matter was
dismissed in default vide order dated 23.12.2021 and
subsequently restored vide order dated 18.07.2022.
7. Disability Certificate dated 24.01.2023 was received from
G. B. Pant Hospital, Delhi vide which, petitioner qualified for
moderate disability (75%) on the basis of IQ Examination and for
profound disability (90%) on the basis of chronic neurological
condition (MRS Score-5).
Evidence:
8. Matter was then listed for Petitioner's Evidence. PW-1
Smt. Shama, wife of injured Saleem Khan stepped in the witness
box and tendered evidence by way of affidavit as Ex.PW1/A. She
relied upon following documents:
(i) Ex.PW1/1- Copy of her Aadhar Card
(ii) Ex.PW1/2- Copy of Aadhar Card of injured Saleem
(iii) Ex.PW1/3- Certified copy of MLC issued from Columbia Asia
Hospital, Ghaziabad
(iv) Ex.PW1/4- Discharge Summaries of injured issued by Columbia Asia
Hospital
(v) Ex.PW1/5- Medical records issued by various hospitals collectively
running into 79 pages
(vi) Ex.PW1/6- Copy of disability certificate of injured issued from G. B.
Pant Hospital, New Delhi
(vii) Ex.PW1/7- Copy of Income Tax Returns of FY 2015-2019 of the
petitioner/ injured collectively running into 4 pages.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 4 of 54
(viii) Ex.PW1/8- Original Medical Bills collectively
(ix) Ex.PW1/9 to Ex.PW1/14 Certified copies of FIR, Site Plan, Mechanical
Inspection of offending car, driving license of driver, insurance copy and
RC of car
PW1 was then cross examined by counsel for Insurance
Company.
9. PW-2 Sh. Abdul Salam as eye-witness to accident tendered
his evidentiary affidavit as Ex.PW2/A. He was also cross
examined by counsel for insurance company.
10. Petitioner Evidence was then closed. No witness has been
examined on behalf of any of the respondent. Respondent
Evidence was also closed. Matter was then listed for Final
Arguments.
Final Arguments:
11. Counsel for the claimant argued that injured is in a
deplorable medical condition having sustained 90% profound
neurological disability, totally bed ridden and thus dependent
upon others for basic daily activities. It is stated that eye witness
has duly been examined who has deposed about speedy and
uncontrolled driving of the offending vehicle to be the sole cause
of accident. It is prayed that compensation as sought in the
petition be allowed. Written Submissions has been filed by
counsel for the claimant.
12. Counsel for the insurance company has argued that the
petition is collusive in nature with planted offending vehicle as
well as its driver. He pointed out that the offending vehicle could
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 5 of 54
not be identified at the time of accident. He also stated that the
eye witness examined by the petitioner cannot read English
alphabets as evident from his cross examination which creates
doubt upon the identification of the offending vehicle and also
questions the credibility of the witness. It is stated that the
rashness attributed upon offending vehicle has not been proved
by petitioner. He has prayed that the petition ought to be
dismissed. Written Submissions has also been filed by counsel
for the Insurance Company. He has relied upon case of The
Oriental Insurance Company Limited Vs. Meena Variyal AIR
2007 Supreme Court 1609 and Safiq Ahmad Vs. ICICI Lombard
Gen. Ins. Co. Ltd. SLP (Civil) 1110/2017.
Discussion:
13. On the basis of material on record, evidence adduced and
arguments addressed, issue wise findings are as under :
Issue No.1
i). Whether the injured suffered injuries in a road traffic accident on
13.08.2016 due to rash and negligent driving of vehicle bearing no.
HR 27C 5161 being driven by R-1, owned by R-2 & insured with
R-3? OPP.
14. PW-2 Abdul Salam has been examined as an eye witness
in this matter. His name has been mentioned as an eye witness in
the charge sheet as well. The FIR was lodged by father of
petitioner on 25.08.2016 while the accident took place on
13.08.2016 at about 11:00 PM. The FIR has the specifications
about the make and registration number of the offending vehicle
apart from details about the date, hour, mode and manner of the
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 6 of 54
accident. The MLC Ex.PW1/3, issued by Colambia Asia
Hospital, Ghaziabad noted the date and hour of arrival as
14.08.2016 at 12.05 AM. The MLC also notes the number as well
as date of police docket. R-1 as driver of the offending vehicle
has been charge sheeted for having caused the accident on
account of speedy and rash driving which severely injured the
petitioner.
15. PW-2 Abdul Salam affirmed that he along with the
petitioner and one Gayasuddin were standing besides the road,
opposite Madarsa and Mihir Bhoj Balika College, Dadri when a
white Swift car bearing Reg. no. HR 27C 5161, being speedily
and rashly driven, had forcefully impacted the petitioner because
of which he fell down and sustained injuries on his head and
other body parts. He further affirmed that he as well as
Gyasuddin tried to stop the car but driver fled away along with
the car while he as well as Gyasuddin noted down the registration
number of the offending vehicle. He further affirmed that PCR
arrived at the spot few moments after the accident and took him
to Naveen Hospital at Dadri and subsequently because of his
critical condition, he was shifted to Colambia Asia Hospita,
Ghaziabad. He affirmed that the accident happened solely on
account of rash driving on the part of R-1. He also affirmed that
there were mercury lights installed on the Madarsa building. He
was extensively cross examined by counsel for the insurance
company wherein he stated that he along with Saleem and
Gyasuddin were returning back on foot from a Daawat (party) at
11.00 PM when the accident happened. He also stated that father
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 7 of 54
of petitioner resided near the spot of accident. He explained that
the road where accident took place was broad enough for the
vehicles to pass through on both the sides with a divider in the
middle. He also stated that Dadri police officials visited
Colambia Asia Hospital where his statement was recorded even
though FIR was not lodged upon his complaint. Narrating about
the circumstances of the accident, he explained that they were
standing next to the college when he was impacted by the
offending vehicle and fell on its bonnet after the knock and then
fell down on the road on left side of the offending vehicle. He
also deposed that the driver had slowed down for a while after
hitting the victim, however fled away later. He also pointed out
that the spot of accident was sufficiently lit which is why he and
Gyasuddin could note down the number of the offending vehicle
even though, none of them lodged the FIR. It was put to the
witness that his name does not appear anywhere in the criminal
or hospital record. He declined the suggestion that the offending
vehicle did not cause the accident. He admitted that he is
acquainted with injured as they resided in the same locality but
were not in relations with each other. During cross examination.
he was asked to recognize the English Alphabets and the
numerical digits wherein he could recognize the numerical digits
but could not read the English alphabets. He also stated that he
was not aware as to what was mentioned in his affidavit even
though, he acknowledged his signatures on the affidavit. He
declined the suggestion that he did not witness the accident or
that the offending vehicle was not involved.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 8 of 54
16. The only objection raised by counsel for insurance
company is that the witness was unable to read the alphabets and
therefore, by no measure could it be presumed that the witness
could have identified the Registration number of the offending
vehicle at the time of accident. No objection as such has been
raised about the colour, make or the numerical digits of the
registration number of the offending vehicle. Apart from reading
the digits, it is evident that the witness has provided a vivid
explanation of the mode and manner of the accident. He could
detail as to how the petitioner first fell on the bonnet of the
vehicle after the forceful knock and then eventually on road on
left side of the vehicle and how the driver of the offending
vehicle had slowed down after the accident and eventually rushed
away. PW-2 has asserted that the spot of accident was sufficiently
lit and was not pitch dark that there was no chance with him to be
able to read/recognize the registration number of the offending
vehicle. It is noted that he was also accompanied by another
person Sh. Gyasuddin at the time of accident and there is nothing
on record to suggest that he was an illiterate person and could not
have read the alphabets comprising the registration number. It is
also noted that Sh. Gyasuddin has also been cited as one of the
eye witness as part of the charge sheet. It cannot be ignored that
the specifications about offending vehicle were duly mentioned
in the complaint of father of injured leading to the registration of
FIR, even though, he was not present at the spot of accident and
therefore, the offending vehicle was purportedly identified only
on the basis of particulars provided by eye witness Abdul Salam
and eye witness Gyasuddin. It is also pertinent to mention that
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 9 of 54
the narrative about mode, manner and the contextual
circumstance has no major contradictions in the FIR, petition or
in the testimony of eye witness. PW-2 Abdul Salam also testified
that his statement was duly recorded by the police officials at
Colambia Asia Hospital and there is no reason to conclude that
he would not have revealed the registration number of the
offending vehicle as part of his statement. It is corroborated by
the fact, as he clarified that he was called in the police station for
identification of the offending vehicle even though, by that time,
formal FIR was not registered. There are only three alphabets
which were to be identified and even if the witness was able to
broadly remember the letter form, that would have served the
purpose.
17. Corresponding to the above discussion is the response of
R-1 as driver of the offending vehicle and R-2 as owner of the
offending vehicle to the allegations against them made to the
police officials in the complaint leading to the registration of FIR
or during investigation. It is noted that they have not submitted
as part of their reply that the accident did not take place with the
offending vehicle in question. Further, R-1 & 2 have chosen not
to lead any evidence to deny or the set up a defence to contradict
the affirmations made by the eye witness about the identification
of the offending vehicle in question. It is also settled that if driver
of offending vehicle does not enter the witness box, an adverse
inference can be drawn against him as observed by Hon'ble
Delhi High Court in the case of Cholamandlam insurance
company Ltd. Vs. Kamlesh 2009 (3) AD Delhi 310.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 10 of 54
18. 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 from the
case of National Insurance Co. Ltd Vs. Pushpa Rana cited as
2009 ACJ 287}
19. It is evident from the record that the happening of the
accident was very much in formal cognizance of the police
officials of the relevant jurisdiction as noted in the MCL
Ex.PW1/3 and also as the victim was rushed to Naveen Hospital
right after the accident by the PCR vehicle. Nothing stopped the
SHO, PS concerned from registration of the FIR upon his
knowledge that a cognizable offence has occurred. However, this
would not be held against the injured or any of his family
member, considering the critical condition that he had to face
after the accident. It is also fortified by the facts that the
mechanical inspection of the offending vehicle revealed damage
to bonnet and other frontal body parts which corroborate the facts
that the vehicle was seized even before registration of FIR on the
basis of information provided by eye witness Abdul Salam and
Gyasuddin even though, mechanically inspected after about 2
months of the accident. Therefore, it cannot be held against the
claimant that formal complaint was not lodged praying for the
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 11 of 54
registration of FIR when there is no explanation as to why
statutory obligation by the concerned police officials was not
complied with despite knowledge that an accident had taken
place on a public road with a motor vehicle leading to serious
injuries. The judgment of Meena Variyal (supra ) highlights that
negligence is required to be proved on the part of driver of
offending vehicle. The eye-witness examined by claimant has
duly proved the mode and manner of accident with necessary
inference of speedy, casual and unmindful driving on the part of
driver of offending vehicle.
20. In view of the above analysis of material on record
including evidence proved on record, charge-sheet against R-1, it
is held that the accident was caused by speedy and reckless
driving on the part of driving of the offending vehicle. Issue No.1
is thus decided in favour of the petitioner 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}
21. 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
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 12 of 54
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.
.
.
22. “….Money cannot renew a physical frame that has been
battered.” {as observed in the case of H. West and Son Limited
Vs. Shephard 1958 -65 ACJ 504 (HL, England)}. It recognizes
that the physical damage caused once cannot be fully undone.
Something which remains as an indelible permanent sign of an
unfortunate incident cannot be balanced merely by paying some
monetary compensation. The process of damage and the ugly
scars left on physical body and mental self, navigating through
the entire process post accident and the unintended but
compulsory turns that it brings in the course of life is indeed
painful and traumatic. It is also required to be underlined that the
damage is not restricted to the tangible injuries visible on the
body of the injured rather catapults the lives of his family
members also.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 13 of 54
23. 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.
24. Section 168 MV Act puts an obligation over Tribunal to
assess ‘just’ compensation with the object of putting the sufferer
in the same position as nearly as possible as he would have been
if he had not sustained the wrong. It is worthwhile to reproduce
certain observations made by Karnataka High Court in the case
of K. Narasimha Murthy v. Oriental Insurance Co. Ltd ILR 2004
KAR 2471 as referred and relied in the case of Rekha Jain Vs.
National Insurance Company Limited Civil Appeal No. 5370-
5372 of 2013 which enumerates the milestones to be kept in
mind by the Tribunal in an endevour to assess just compensation,
at the same time acknowledging that any amount of money
cannot compensate fully an injured man or completely renew a
shattered human physical frame with the observations as under:
“16. The Courts and Tribunals, in bodily injury cases, while
assessing compensation, should take into account all relevant
circumstances, evidence, legal principles governing
quantification of compensation. Further, they have to
approach the issue of awarding compensation on the larger
perspectives of justice, equity and good conscience and
eschew technicalities in the decision-making. There should be
realisation on the part of the Tribunals and Courts that the
possession of one’s own body is the first and most valuable of
all human rights, and that all possessions and ownership are
extensions of this primary right, while awarding
compensation for bodily injuries. Bodily injury is to beMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 14 of 54
treated as a deprivation which entitles a claimant to damages.
The amount of damages varies according to gravity of
injuries.”
25. 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”
26. The uncertainty involved has also been recognized by
Hon’ble Supreme Court of India in the case of Rekha Jain (supra)
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 15 of 54
where observations of Lord Blacburn in the case of Livingstone
Vs. Rawyards Coal Company were referred as under:
“…….where any injury is to be compensated by damages,
in settling the sum of money to be given… you should as
nearly as possible get at that sum of money which will put
the party who has been injured.. in the same position as he
would have been if he had not sustained the wrong….”
27. 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.”
28. 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).
29. It is settled that an injured is required to be compensated
for his inability to lead full life, his inability to enjoy those
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 16 of 54
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).
30. What is required of the Tribunal is to attempt an objective
assessment of damages as nearly as possible without fanciful or
whimsical speculation even though, some conjecture specially in
reference of the nature of disability and it consequence would be
inevitable. {support drawn from the case of Raj Kumar (supra) as
referred and relied in case of Sidram (supra)}.
31. 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.
32. 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 viewMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 17 of 54
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.”
33. 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.”
34. 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
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 18 of 54
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–
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
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 19 of 54
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
35. Damages under pecuniary heads primarily involves
reimbursement of actual amount spent on account of injury
suffered in an accident to undo the monetary loss, suffered by the
claimant, as ascertainable from the evidence on record. Given
hereunder are various heads under which compensation for
pecuniary damages is assessed:
(A) Expenditure on Medical Treatment:
(i) Medical bills have been filed on record as Ex.PW1/8 (colly)
for a total sum of Rs. 8,17,479/-. Perusal of record reflects that
the injured had undergone several procedures and prolonged
treatment. Sundry / miscellaneous expenses cannot be ruled out
during the admission in the hospital and subsequently also.
Accordingly, injured is awarded Rs.8,47,479/- (Rs. 8,17,479/- +
Rs. 30,000/-) as actual amount spent on the treatment of injuries
sustained by him.
(B) Expenditure on Conveyance:
(i) PW-1/Wife of injured affirmed that an amount of Rs. 2
lakh has been spent on conveyance. However, Claimant has not
filed any bill towards expenditure on conveyance. Injured has
suffered substantial neurological disability. Accident took place
in the year 2016 and the injured remained under active treatment
for several years including recurrent hospitalization. It is evidentMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 20 of 54
that proper arrangement for travel of injured along with the
support person to the hospital facilities would have been required
to be made. An amount of Rs. 1,00,000/- is awarded towards the
head of conveyance.
(C) Expenditure on Special Diet:
(i) PW-1 affirmed that an amount of Rs. 2,50,000/- has been
spent towards arrangement for special diet for injured. Any
particular bill, however, has not been placed on record towards
special diet expenditure in support of averments made. As per the
Discharge Summary, injured was put on Ryles Tube Feeding and
was advised high protein diet. He was also put on T piece
tracheostomy filter and was advised tracheostomy care. PEG
Tube was placed by a procedure for tube feeding. It can be
inferred that injured would have been required to adhere to a
controlled and strict dietary specifications in terms of type of
food, quantity and mode of feed. It is thus evident that family of
injured would have incurred considerable expenses on special
diet, prescribed and required by injured for efficient healing.
Accordingly, an amount of Rs. 2,00,000/- is awarded to claimant
towards expenditure on special diet.
(D) Expenditure towards services of Attendant:
(i) PW-1 / wife of injured deposed that she had to appoint a
permanent male attendant for 2 years at a monthly salary of Rs.
12,000/-. She also deposed that the injured is not capable of
performing his daily routine work and is dependent upon others
for his day to day routine work. During cross examination, she
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 21 of 54
admitted that she has not filed any bill or receipt in respect of the
attendant charges. She however, stated that name of one of the
attendant of her husband is Manoj. She declined the suggestion
that the attendant was not drawing a monthly salary of Rs.
12,000/-.
Injured suffered traumatic brain injury and underwent
several procedures and recurrent hospitalization. As per the
record, he remained bed ridden for at least one year as noted in
the prescriptions filed on record as Ex.PW1/5 (colly) and also in
the prescription of year 2021, it is mentioned that the injured
required assistance even for basis activities and was on
psychiatric consultation as well since January 2017. It is
mentioned therein that the patient did not show any significant
improvement with the past treatment. It is also noted that the
patient developed organic personality disorder post head injury
and later assessed by the medical board with moderate disability
on the basis of IQ examination and profound disability on the
basis of chronic neurological condition. It is mentioned in the
prescription of year 2021 that injured has been displaying
aggressive and hallucinatory behavior and is not cooperative. It is
also mentioned that he has developed tendency of self inflicting/
self harm and poor self control. Therefore, it is evident that the
injured would constantly require active medical, physical,
mental, emotional, financial and psychological support for all
times to come till he is alive.
(ii) It is settled that the multiplier system should be followed not
only for determining the compensation on account of loss of
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 22 of 54
income but also for determining the attendant charges. {as
recognized in Gobald Motor Services Ltd. Vs. R. M. K.
Veluswami 9 AIR 1962 SC 1 as refereed and relied in Kajal Vs.
Jagdish Chand CIVIL APPEAL NO. 735 OF 2020 and Sidram
(supra)}
(iii) A similar case of Kajal (supra) where injured suffered 100%
disability and was rendered to do any incapacitation to do any
activity for entire life, Hon’ble Supreme Court of India
recognized the applicability of multiplier system for realistic
determination of attendant charges. Following observations
pertaining to the aspect under consideration are reproduced
hereunder:
“This Court has reaffirmed the multiplier method in various cases
like Municipal Corporation of Delhi v. Subhagwati 10 1971 AC 115
14and Ors.11, U.P. State Road Transport Corporation and Ors. v.
Trilok Chandra and Ors.12, Sandeep Khanduja v. Atul Dande and
Ors.13. This Court has also recognised that Schedule II of the Act
can be used as a guide for the multiplier to be applied in each case.
Keeping the claimant’s age in mind, the multiplier in this case
should be 18 as opposed to 44 taken by the High Court.
25. Having held so, we are clearly of the view that the basic amount
taken for determining attendant charges is very much on the lower
side. We must remember that this little girl is severely suffering
from incontinence meaning that she does not have control over her
bodily functions like passing urine and faeces. As she grows older,
she will not be able to handle her periods. She requires an attendant
virtually 24 hours a day. She requires an attendant who though may
not be medically trained but must be capable of handling a child
who is bed ridden. She would require an attendant who would
ensure that she does not suffer from bed sores. The claimant has
placed before us a notification of the State of Haryana of the year
2010 wherein the wages for skilled labourer is Rs.4846/ per month.
We, therefore, assess the cost of one attendant at Rs.5,000/ and she
will require two attendants which works out to Rs.10,000/ per
month, which comes to Rs.1,20,000/ per annum, and using the
multiplier of 18 it works out to Rs.21,60,000/ for attendant charges
for her entire life. This takes care of all the pecuniary damages.”
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 23 of 54
(iv) Similarly in the case of Abhimanyu Pratap Singh Vs.
Namita Sekhon & Anr, (2022) 8 SCC 489, the claimant suffered
100% disability and was awarded attendant charges applying the
appropriate multiplier on the rates as accepted in the case of
Kajal (supra). Following observations pertaining to the aspect
under consideration are reproduced hereunder:
“16. In view of the said legal position, the compensation can be
assessed in pecuniary heads i.e. the loss of future earning, medical
expenses including future medical expenses, attendant charges and
also in the head of transportation including future transportation. In
the nonpecuniary heads, the compensation can be computed for the
mental and physical pain and sufferings present and in future, loss of
amenities of life including loss of marital bliss, loss of expectancy in
life, inconvenience, hardship, discomfort, disappointment,
frustration, mental agony in life etc.
“17. On perusal of the record out of the pecuniary heads MACT has
not awarded any amount in future loss of earning even having 100%
permanent disability while the High Court granted Rs.6,00,000/ only
for 10 years because the appellant is now practicing as an advocate
in the Court accepting his earning Rs.60,000/ per annum. From the
pleadings and evidence brought, it is clear that the father of the
appellant was a Professor and the mother was an IAS officer. The
claimant has been nurtured and brought up in a status enjoyed by his
parents. He was planning to become an Executive or IAS officer. On
account of the injuries in temporal region and the permanent
disability suffered, he was unable to do his studies as expected or
planned. After sincere efforts he could have passed the LL. B and
started the advocate profession. A judicial notice can be taken of the
fact that for a proficient advocate the person must be physically fit
as he is required to move frequently to attend the professional work
reaching from one Court to other, and for movements to complete
other professional commitments. Looking to the nature of injuries
and the permanent disablement which the claimant has suffered, i.e.,
lower limb is completely paralyzed while his upper limb is partially
paralyzed having 100% permanent disability resulting in bodily
movements being hampered. The capacity of the claimant being an
advocate cannot be equated with other practicing advocate having
no deformity in the same profession. The claimant is required to
make extraordinary efforts to attend the proceedings in the Court
and to come up to the expectations of the client. The disablement
suffered to the claimant is for whole life and in the said fact, in ourMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 24 of 54
considered view, the future loss of earning calculated by the High
Court only for 10 years is not justified. If we accept the future loss
of earning Rs.5,000/ per month as decided by the High Court which
annually comes to Rs.60,000/ and apply the multiplier of 18 as
applicable looking to the age, then the sum comes to Rs.10,80,000/,
in the said head.
23. Considering the facts and circumstances of the case and nature
of injuries in our considered opinion, the appellant is entitled for a
sum of Rs.4,00,000/ in the head of loss of amenities of life and
marital bliss, pain and sufferings, loss of enjoyment and loss of
expectancy, Rs.1,00,000/ as awarded by the High Court is
maintained in the head of special diet. Thus, in the nonpecuniary
heads, the compensation as determined comes to Rs.5,00,000/.”
(v). Attendant charges were fixed at Rs. 2,000/- per month in
the case of Sidram (supra) where permanent physical disability of
45% of whole body was certified by the doctors for an accident
in the year 2012.
(vi). PW-1/wife of injured claimed that they had to appoint a
permanent male attendant for approximately 2 years at a salary of
Rs. 12,000/- to look after the injured person. However, any
document has not been placed on record with respect to this.
However, considering that the minimum wages in the State of
Uttar Pradesh was Rs.7,107/- on the date of accident and
acknowledging the need of at least one attendant in a day, the
amount towards monthly attendant charges comes to be
Rs.7,107/-. Further it is also noted that that he would
nonethelsess continue to require assistance and support from his
family member or any external help or attendant for basic routine
work/sustenance considering the nature of profound disability . It
is settled that services rendered by family members also need to
be compensated. Applying the standard multiplier method, the
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 25 of 54
attendant charges are calculated as under:
Rs. 7,107/- x 12 x 15 = Rs. 12,79,260/-.
(vii) Accordingly Rs. 12,79,260/-. is awarded under the head of
Attendant Charges.
(E) Loss of earning during the period of treatment:
(i) PW-1 deposed that her husband used to run a grocery store at
Jogabai Extension, Jamia Nagar earning Rs. 35,000/- per month,
however, after the accident, he has never been able to work
again. During cross examination, she stated that the shop was
owned by a relative of theirs. She admitted that she has not filed
any document in respect of her husband running a Kirana Shop.
She declined a suggestion that her husband was not running any
such shop. She has not filed on record any educational
qualification certificate for her husband, however, she has filed
income tax return of the Financial Year 2015 to 2019 filed by the
injured relied as Ex.PW1/7 as per which his gross total income
was Rs. 298529/- in the AY 2016-2017 which increased to
Rs. 3,36,759/- in the AY -2017-2018, however, in the year 2018-
2019 it plunged to Rs.45,433/- possibly because injured was
never able to return back to work. Gross Total Income for AY
2017-2018 is Rs.3,36,759/-. Relying on the last ITR covering the
phase of accident and phase immediately thereafter which can be
reasonably relied, as per which his monthly income comes out to
be Rs. Rs.28,063/-. It is settled that Income Tax Return is an
statutory document and can be relied to determine the actual of
assessee. Support drawn from the case of Malarvizhi & Ors. Vs.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 26 of 54
United India Insurance Co. Ltd. & Ors., AIR (2020) SC 90 as
also relied upon Smt. Anjali & Ors. Vs. Lokendra Rathor, 2022
Live Law (1012).
(ii) As such injured remained hospitalized for 2 & ½ months
right after the accident and again had to be intermittently
admitted in the month of November and December for
procedures. Subsequently, he remained under treatment as OPD
patient for behavioral issue as well as for further treatment of the
injuries. Considering the period of hospitalization as well nature
and severity of the injuries, total income loss for the period of
treatment is made out for at least 12 months which is
Rs.3,36,756/- (Rs.28,063/- x 12 ).
(F) Loss of future earning
(i) It is settled that a person is required to be compensated not
just for the physical injury but also for the loss he suffered during
treatment as well as the cost which he might entail and endure for
the rest of his life on account of those accidental injuries which
he sustained in the accident. This necessarily means that he is
required to be compensated for his inability to lead a full life, his
inability to enjoy normal amenities, which he would have
enjoyed but for the injury, his inability to earn as much as he
used to earn or could have earned. (Support drawn from the
judgment titled as C. K. Subramania Iyer v. T. Kunhikuttan Nair
(1969) 3 SCC 64.
(ii) Claimant was directed to be assessed for his disability vide
order dated 01.11.2019. Disability Assessment Certificate was
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 27 of 54
received in compliance of order as per which injured was
diagnosed with head injury with severe Quadriparesis with
Modified Rankin Scale of 5 based on MRS, his % PPI
(Permanent Physical Impairment) was calculated to be 100%.
(iii) Before proceeding further, it is important to understand as
to what disability means and also types thereof. This aspect has
been delved into by Hon’ble SC in Raj Kumar (supra):
“8. Disability refers to any restriction or lack of ability to perform
an activity in the manner considered normal for a human being.
Permanent disability refers to the residuary incapacity or loss of
use of some part of the body, found existing at the end of the
period of treatment and recuperation, after achieving the
maximum bodily improvement or recovery which is likely to
remain for the remainder life of the injured. Temporary disability
refers to the incapacity or loss of use of some part of the body on
account of the injury, which will cease to exist at the end of the
period of treatment and recuperation. Permanent disability can be
either partial or total. Partial permanent disability refers to a
person’s inability to perform all the duties and bodily functions
that he could perform before the accident, though he is able to
perform some of them and is still able to engage in some gainful
activity. Total permanent disability refers to a person’s inability to
perform any avocation or employment related activities as a result
of the accident. The permanent disabilities that may arise from
motor accident injuries, are of a much wider range when
compared to the physical disabilities which are enumerated in the
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (“the Disabilities Act”,
for short). But if any of the disabilities enumerated in Section 2(i)
of the Disabilities Act are the result of injuries sustained in a
motor accident, they can be permanent disabilities for the purpose
of claiming compensation.”
(iv) The term ‘disability’ means the decrements to the
functional efficacy of body of injured whereas ‘functioning’
encompass all the body functions and activities for an
independent life. Functional disability is to determine the extent
of loss or extent of restrictive functionality considering the nature
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 28 of 54
of activities required to be necessarily performed in efficient
discharge of duties and the limb effected. This computes the
extent of adverse effect of physical disability upon the functional
efficacy of an injured person, in turn adversely impacting his
earning capacity. The process entails understanding and
enumerating the skill set required for performing specific
activities. To sum up, functional disability basically measures the
extent of ability having been compromised to carry out basic
everyday tasks or even more complex tasks required for and
independent living. The limitations may occur on account of
disability in the personal sphere, in the social sphere and in the
occupational sphere. In the personal sphere it may encompass the
daily activities of a person, his body function and his
involvement in basis life situations. At the societal level, it could
mean difficulty in involvement and participation in social and
community activities interfering the interpersonal interaction and
relationship adversely impacting the civic life. When disability
restricts the vocation or employment avenues to make earning for
his living, it falls in the category of disability in the occupational
sphere. The disability might occur on account of age or any
illness and in the case at hand by way of an accident. A person
living a normal life in particular set of circumstance and making
his living by engaging in any work has suffered disability which
might impede his daily life activities, both on a personal and
social scale and might also impact his ability to continue earning
as much as before and his future employment avenues.
(v) What is thus required to be assessed is the effect and
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 29 of 54
impact of disability upon the working efficiency of injured and
whether it would adversely impact his earning capabilities in
future. It is settled that the Tribunal should not mechanically
apply the percentage of permanent disability as the percentage of
economic loss or loss of earning capacity.
(vi) Hon’ble SC laid down certain guidelines for the Tribunal
to be able to arrive at an objective figure to quantify the loss for
the purpose of computing the compensation in the judgment of
Raj Kumar (supra). Relevant extracts of this judgment for the
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) ofMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 30 of 54
permanent disability would result in a corresponding loss of
earning capacity, and consequently, if the evidence produced
show 45% as the permanent disability, will hold that there is 45%
loss of future earning capacity. In most of the cases, equating the
extent (percentage) of loss of earning capacity to the extent
(percentage) of permanent disability will result in award of either
too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of
the permanent disability on the earning capacity of the injured;
and after assessing the loss of earning capacity in terms of a
percentage of the income, it has to be quantified in terms of
money, to arrive at the future loss of earnings (by applying the
standard multiplier method used to determine loss of
dependency). We may however note that in some cases, on
appreciation of evidence and assessment, the Tribunal may find
that the percentage of loss of earning capacity as a result of the
permanent disability, is approximately the same as the
percentage of permanent disability in which case, of course, the
Tribunal will adopt the said percentage for determination of
compensation. (See for example, the decisions of this Court in
Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010)
10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298]
and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10
SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is
any permanent disability and, if so, the extent of such permanent
disability. This means that the Tribunal 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
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 31 of 54
actual earning capacity involves three steps. The Tribunal has to
first ascertain what activities the claimant could carry on in spite
of the permanent disability and what he could not do as a result of
the permanent disability (this is also relevant for awarding
compensation under the head of loss of amenities of life). The
second step is to ascertain his avocation, profession and nature of
work before the accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from earning any
kind of livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on the activities
and functions, which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his previous
activities and functions, but could carry on some other or lesser
scale of activities and functions so that he continues to earn or can
continue to earn his livelihood.
.
.
.
.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to
the whole body of a person, cannot be assumed to be the
percentage of loss of earning capacity. To put it differently,
the percentage of loss of earning capacity is not the same as
the percentage of permanent disability (except in a few
cases, where the Tribunal on the basis of evidence,
concludes that the percentage of loss of earning capacity is
the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who
examined him subsequently to assess the extent of his
permanent disability can give evidence only in regard to the
extent of permanent disability. The loss of earning capacity
is something that will have to be assessed by the Tribunal
with reference to the evidence in entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different persons,
depending upon the nature of profession, occupation or job,
age, education and other factors.”
(vii) Further in the case of “Mohan Soni Vs. Ram Avtar Tomar
& Ors. I (2012) ACC 1 (SC), the question at hand wasMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 32 of 54
deliberated and following observations as relevant in the context
were made:
“In the context of loss of future earning, any physical
disability resulting from an accident has to be judged with
reference to the nature of work being performed by the
person suffering the disability. This is the basic premise and
once that is grasped, it clearly follows that the same injury or
loss may affect two different persons in different ways. Take
the case of a marginal farmer who does his cultivation work
himself and ploughs his land with his own two hands; or the
puller of a cycle-rickshaw, one of the main means of
transport in hundreds of small towns all over the country.
The loss of one of the legs either to the marginal farmer or
the cycle-rickshaw-puller would be the end of the road
insofar as their earning capacity is concerned. But in case of
a person engaged in some kind of desk work in an office, the
loss of a leg may not have the same effect. The loss of a leg
(or for that matter the loss of any limb) to anyone is bound
to have very traumatic effects on one’s personal, family or
social life but the loss of one of the legs to a person working
in the office would not interfere with his work/earning
capacity in the same degree as in the case of a marginal
farmer or a cycle-rickshaw-puller.
(viii) The question of assessment of impact of disability on the
earning capacity has been dealt in several cases but it is
understood that each case has to be evaluated on its contextual
dynamics established by way of evidence at hand. It brings us to
a question whether extent of permanent disability as medically
determined can simply be taken to be the extent of functional
disability and hence, the loss of earning capacity. It has been held
in various pronouncements of Hon’ble Supreme Court of India
and Hon’ble High Court that equating the two as a criteria would
result in an inobjective and absurd compensation. There however,
might be certain cases where the two would correspond to each
other but it cannot be mechanically applied rather requires
evaluation of applicable factors independently in each case toMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 33 of 54
reach at a fair quantification of loss of earning capacity.
(ix) In the case of Raj Kumar (supra), the physical functional
disability of left leg was assessed to be 75% and total body
disability at 37.5 %. In this case, functional disability was also
assessed at 75% and it was observed that the extent of physical
functional disability has to be considered so as to grant just and
proper compensation towards loss of future earning as the
earning capacity of injured was totally negated having been
rendered incapable of doing any manual work. It was also held
that if permanent disability in relation to particular limb renders
the injured permanently disabled from pursuing his normal
vocation or any other similar work, there is no reason as to why
compensation should be granted on the basis of physical
disability in relation to whole body. In another matter of Syed
Sadiq Etc vs Divisional Manager,United India AIR 2014
SUPREME COURT 1052, where functional disability was
considered to be 65% by Hon’ble High Court in case of a
vegetable vendor whose right leg had to be amputated was set
aside and it was observed that loss of limb is often equivalent to
loss of livelihood specially in manual labour cases and
determined the functional disability at 85%. In yet another matter
titled as of Arvind Kumar Mishra v. New India Assurance Co. Ltd .
[(2010) 10 SCC 254 , injured suffered grievous injuries and
remained in coma for about 2 months and was held to be
permanently disabled to the extent of 70% with his right hand
amputated whereas his loss of earning capacity was held to be
90%. Similarly in case of K Janardhan Vs. United India
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 34 of 54
Insurance Company AIR 2008 Supreme Court 2384, Hon’ble
Supereme Court of India, held that a tanker driver suffered 100%
functional disability and incapacitated to earn as a tanker driver
as his right leg was amputated from the knee. In this case, the
Court referred and relied upon another decision given by it in the
case of Pratap Narain Singh Deo vs Srinivas Sabata And Anr,
1976 AIR 222, in which a carpenter having suffered amputation
of left arm from elbow was held to have suffered complete loss
of earning capacity. In the case of Pappu Deo Yadav (supra),
injured suffered loss of an arm and therefore, was unable to carry
out his functions as a typist / data entry operator and thus
acknowledging the impact of injury upon the income generating
capacity of victim, the extent of functional disablement and loss
of income generating earning capacity was equated with the
extent of permanent disablement as medically assessed at 89%.
(x) In the case of Sidram (supra), injured suffered paraplegia due
to accident and was medically assessed with permanent disability
to the tune of 45%, however, he was held to have suffered 100%
loss of earning capacity.
(xi) Injured had suffered severe head injury with diffuse axonal
injury and multiple small contusion in the brain, along with a
compound grade III B/C fracture of the ankle. He also sustained
a left ankle bimalleolar fracture and a minor cervical spine
vertebral fracture. Due to the traumatic brain injury, he
experienced impaired consciousness, confusion and required a
tracheostomy to assist with breathing, followed by ventilator
support. Injured remained admitted for more than 2 & ½ months
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 35 of 54
in Columbia Asia Hospital followed by several visits to different
hospital, clinics in subsequent years. Additionally, injured had
lacerations on his face and ankle which were sutured and his
ankle fracture was treated with open reduction and internal
fixation using K-wires. He was managed in the ICU with
medications for pain, infection and cerebral odema. It is opined
that injured remained at risk of infection, respiratory distress and
neurological deterioration. He was advised to continue nostalgic
tube feeding, maintain head elevation and undergo regular
monitoring. Few months after the accident, injured started
showing behavioural issues and remained under psychiatric
consultation since January 2017, however, did not show any
significant improvement. As mentioned in the OPD Consultation
Slip of 01.07.2021, he started displaying aggressive and abusive
and hallucinatory behaviour, irritability, poor self control. It is
also mentioned that he was unable to speak post accident due to
tracheostomy and used to interact with gesture. Subsequently, he
had slurred incoherent speech. As per the observation, he was
diagnosed with Organic Personality Disorder as well as
Significant Cognitive Decline. It was mentioned that the patient
would fall under secondary mental retardation category.
Subsequently, upon assessment of disability by Disability
Assessment Board, set up by G. B. Pant Institute of Post
Graduate Medical Education and Research, Govt of NCT of
Delhi, placed reliance upon as Ex.PW1/6, he was certified to
have moderate disability (75%) on the basis of IQ examination
and profound disability of 90% on the basis of chronic
neurological condition (MRS Score 5). No dispute has been
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 36 of 54
raised by the insurance company in respect of its genuineness,
competency of the doctors constituting the Board, the principles
and methodology adopted to assess and certify the impairment
and percentage thereof. It is thus evident that injured has been
incapcitated to perform any work to make his living rather would
remain dependent upon his family/external assistance for basic
sustenance. It is therefore, held that injured suffered with 100%
functional disability and is totally incapacitated to make his
living for the entire life.
(F1) Future Prospect:
(i) It is also held therein that future prospect (as laid down in the
well considered judgment of National Insurance Company Vs.
Pranay Sethi (2017) 16 SCC 680) shall be payable, not only in
fatal cases but also in the case of permanent disability. The
observations made in the said case as relevant to the context are
reproduced hereunder:
“6. The principle consistently followed by this court in assessing
motor vehicle compensation claims, is to place the victim in as near a
position as she or he was in before the accident, with other
compensatory directions for loss of amenities and other payments.
These general principles have been stated and reiterated in several
decisions.
7. Two questions arise for consideration: one, whether in cases of
permanent disablement incurred as a result of a motor accident, the
claimant can seek, apart from compensation for future loss of income,
amounts for future Govind Yadav v. New India Insurance Co. Ltd.
[Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683.
This court referred to the pronouncements in R.D. Hattangadi v. Pest
Control (India) (P) Ltd., (1995) 1 SCC 551; Nizam’s Institute of
Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1; Reshma
Kumari v. Madan Mohan (2009) 13 SCC 422; Raj Kumar v. Ajay
Kumar, (2011) 1 SCC 343. Govind Yadav spelt out these principles by
stating that the courts should, “in determining the quantum of
compensation payable to the victims of accident, who are disabledMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 37 of 54
either permanently or temporarily. If the victim of the accident suffers
permanent disability, then efforts should always be made to award
adequate compensation not only for the physical injury and treatment,
but also for the loss of earning and his inability to lead a normal life
and enjoy amenities, which he would have enjoyed but for the
disability caused due to the accident.” These decisions were also
followed in ICICI Lombard General Insurance Co. Ltd. v. Ajay
Kumar Mohanty, (2018) 3 SCC 686. prospects too; and two, the
extent of disability. On the first question, the High Court no doubt, is
technically correct in holding that Pranay Sethi involved assessment
of compensation in a case where the victim died. However, it went
wrong in saying that later, the three-judge bench decision in Jagdish
was not binding, but rather that the subsequent decision in Anant10 to
the extent that it did not award compensation for future prospects, was
binding. This court is of the opinion that there was no justification for
the High Court to have read the previous rulings of this court, to
exclude the possibility of compensation for future prospects in
accident cases involving serious injuries resulting in permanent
disablement. Such a narrow reading of Pranay Sethi11 is illogical,
because it denies altogether the possibility of the living victim
progressing further in life in accident cases – and admits such
possibility of future prospects, in case of the victim’s death.
.
.
(ii) Hon’ble Supreme Court further discussed several cases
involving permanent disability and observed as under:
20. Courts should not adopt a stereotypical or myopic approach, but
instead, view the matter taking into account the realities of life, both
in the assessment of the extent of disabilities, and compensation under
various heads.
.
.
….What is to be seen, as emphasized by decision after decision, is the
impact of the injury upon the income generating capacity of the
victim. The loss of a limb (a leg or arm) and its severity on that
account is to be judged in relation to the profession, vocation or
business of the victim; there cannot be a blind arithmetic formula for
ready application. On an overview of the principles outlined in the
previous decisions, it is apparent that the income generating capacity
of the appellant was undoubtedly severely affected”.
(iii) PW-1 has filed his Aadhar Card as Ex.PW1/H on record as
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 38 of 54
per which his date of birth is 20.08.1978, therefore, his age as on
the date of accident was about 38 years. Since the injured was
below the age of 40 years (at the time of accident) and was
employed on a fixed salary, thus as laid down in the case of
Pranay Sethi (Supra), the percentage towards future prospect is
taken to be @ 40 % upon application of category of ”self-
employed or on a fixed salary”.
(F2) Multiplier:
(i) The Multiplier Method was coined by Hon’ble Supreme
Court of India in the case of Sarla Verma Vs. Delhi Transport
Corporation & Anr. Civil Appeal No. 3483 of 2008, decided on
15.04.2009 to ascertain the future loss of income in relation to
the age of the deceased, in order to bring about the uniformity
and consistency in determination of compensation payable in
fatal and serious injuries matters. Relevant observations with
respect to the multiplier method in the abovementioned case read
as under:
“The multiplier method involves the ascertainment of the loss of
dependency or the multiplicand having regard to the circumstances of
the case and capitalizing the multiplicand by an appropriate multiplier.
The choice of the multiplier is determined by the age of the deceased
(or that of the claimants whichever is higher) and by the calculation as
to what capital sum, if invested at a rate of interest appropriate to a
stable economy, would yield the multiplicand by way of annual
interest. In ascertaining this, regard should also be had to the fact that
ultimately the capital sum should also be consumed-up over the
period for which the dependency is expected to last.”
(xxviii) 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
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 39 of 54
Kumar (supra)}. In a recent Judgment of Pappu Deo Yadav vs
Naresh Kumar, AIR 2020 SUPREME COURT 4424, Hon’ble
Supreme Court of India relied upon and reiterated the principles
laid in various judgments passed by it in the case of Sr. Antony
@ Antony Swamy Vs. Managing Director KSRTC, Civil Appeal
No. 2551 of 2018 and held that stereotypical or myopic approach
must be avoided and pragmatic reality of life must be taken into
account to determine the impact of extent of disability upon the
income generated capacity of victim.
(xxix) The income of the injured per annum as determined upon
appreciation of evidence, thus, forms the multiplicand. A table of
multiplier with reference to the age was laid down by Hon’ble
Supreme Court of India. The appropriate multiplier, applicable in
this case would be 15 (for age group 35-40 years).
(xxx) 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 (3,36,759/-) = Rs.3,36,759/-
(b) Future prospect (40% of 3,36,759/-) = Rs. 134704/-
________________
(c) Total = Rs. 4,71,463/-
(d) Thus, Multiplicand = Rs. 4,71,463/-
(e) Hence, the ‘Total Loss of Future Income’ shall be :-
Percentage of Functional Disability (Multiplicand X Multiplier).
100% (Rs. 4,71,463/- X 15) = Rs. 70,71,945/- MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 40 of 54 (G) Future medical expenses:
(i) Given the medical condition of injured and the nature of
impairment, the need for constant medical reviews, attention,
hospitalization and treatment looks imperative. Injured has been
hospitalized for recurrent seizures and also developed
hydrocephalus (building of fluid in cavities called ventricles deep
within the brain which increase its size and put pressure on the
brain further damaging it) as post traumatic complications. It is
significant as the Discharge Advice proved on record as part of
discharge summary (Ex.PW1/2 colly) already made mention of
possibility of seizures, meningitis and hydrocephalus. At this
stage, any bifurcation or any fixed expenses cannot be made
available to decipher any actual amount. The condition of injured
is such that he would continue to require long term treatment and
frequent hospitalization even to maintain his present level of
medical health.
(ii) In support, observations made by Hon’ble High Court of
Gujarat, in case of Vijay Kumar Babu Lal Modi v. State of
Gujarat (Deleted) & Gujarat State Road Transport Corporation,
2011 SCC OnLine Guj 7349 would be of guidance which are
given as under:
“So far as future medical expenses are concerned, the
amount claimed in the petition was to the tune of Rs. 2 lac,
whereas the Tribunal has thought fit to award Rs. 25,000=00.
We have noticed that the injured as on today is 100%
disabled due to paraplegia. He has no control over his bowels
or bladder. In such type of cases, treatment like
physiotherapy, etc. needs to be given for a very very long
period of time. The importance of physiotherapy for persons
injured in road accidents has been elaborately stressed upon
by the Supreme Court in the case of R.D. Hattangadi (supra).
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 41 of 54
It is hence important to account for all expenses incurred and
likely to be incurred and award reasonable sum for each
head. It is also important to remember the decreasing money
value. The life expectancy of the injured is also to be kept in
mind. We feel that life expectancy of the victim in such a
case can reasonably be assumed to be atleast 55 years, given
the advancement in medical science, etc. The claimant’s age
on the date of the accident was 17 years, which means that
the remaining period of life expectancy from that date of
accident would be 38 years i.e. 1991 to 2029. We, therefore,
propose to assess future medical expenses at about Rs.
1,000=00 per month. In that case, the adequate amount
which can be awarded for future medical expenses would be
Rs. 1 lac. We, therefore, enhance the amount of Rs.
25,000=00 awarded towards future medical expenses to Rs.
1 lac.”
(iii). In another case of Sanjay Verma v. Haryana Roadways,
(2014) 3 SCC 210, Hon’ble Supreme Court made observations in
a similar context which are given hereunder:
“20. Insofar as “future treatment” is concerned we have no
doubt that the claimant will be required to take treatment
from time to time even to maintain the present condition of
his health. In fact, the claimant in his deposition has stated
that he is undergoing treatment at Apollo Hospital at Delhi.
Though it is not beyond our powers to award compensation
beyond what has been claimed (Nagappa v. Gurudayal Singh
[(2003) 2 SCC 274 : 2003 SCC (Cri) 523]), in the facts of
the present case we are of the view that the grant of full
compensation, as claimed in the claim petition i.e. Rs
3,00,000 under the head “future treatment”, would meet the
ends of justice. We, therefore, order accordingly.”
(iv) In view of the discussion made above, considering the age of
injured, present medical condition, nature of impairment, nature
of complication which might arise, a lumpsum amount for
meeting future potential medical expenses is granted to the tune
of Rs. 5,00,000/-.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 42 of 54
NON-PECUNIARY LOSS
(i) 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.
(ii) Regarding non-pecuniary loss, following was stated in
Halsbury’s Laws of England, 4th 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.
(iii) In Common Cause, A Registered Society v. Union of India,
(1999) 6 SCC 667, the Hon’ble Supreme Court of India held that
the object of an award of damages is to give the plaintiffMACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 43 of 54
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.
(iv). In the case of Nagappa v. Gurudayal Singh, (2003) 2 SCC
274, the Hon’ble Supreme Court of India held that if a collection
of cases on the quantum of damages is to be useful, it must
necessarily be classified in such a way that comparable cases can
be grouped together. No doubt, no two cases are alike but still, it
is possible to make a broad classification which enables one to
bring comparable awards together. Inflation should be taken into
account while calculating damages.
The above two cases were also referred and relied in the case of
A. Rupin Manohar Through Sh. S. Anandha … vs Mohd. Ansari
& Ors. MAC App. 602/2015 decided on 17 August, 2017 by
Hon’ble Delhi High Court.
(v) To sum up, Compensation under non-pecuniary heads
involves objective assessment of the damages in a bid to undo the
loss, the injured would incur on account of his inability to lead a
normal life and earn as much as he would, but for the injuries
sustained. The whole idea behind assessment for damages for
compensation is to put the claimant in the same position in so far
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 44 of 54
as money can. The very nature of these damages, compulsorily
involves some guesswork and hypothetical considerations,
however, efforts should be made to adjudicate these on the basis
of objective parameters rather than guided by subjective
sympathy. The nature and severity of injury, the age, nature of
disability are some of those parameters. Given hereunder are
various heads under which compensation for non-pecuniary loss
(general damages) is assessed:
A Damages for pain, suffering and trauma on account of injuries:
(i) The mental and physical loss cannot always be
arithmetically computed in terms of money. These form the
intangible losses suffered by injured for no fault of his. Although
any form of human suffering cannot be equated in money,
however, the object remains to compensate in so far as the money
can compensate. Certain observations made by the Supreme
Court of India in R. D. Hattangadi are relevant in the context:
“10. It cannot be disputed that because of the accident the appellant
who was an active practising lawyer has become paraplegic on
account of the injuries sustained by him. It is really difficult in this
background to assess the exact amount of compensation for the pain
and agony suffered by the appellant and for having become a
lifelong handicapped. No amount of compensation can restore the
physical frame of the appellant. That is why it has been said by
courts that whenever any amount is determined as the compensation
payable for any injury suffered during an accident, the object is to
compensate such injury “so far as money can compensate” because
it is impossible to equate the money with the human sufferings or
personal deprivations. Money cannot renew a broken and shattered
physical frame.
(ii) Certain factors were also laid down for consideration in the
case of The Divisional Controller, KSRTC vs Mahadeva Shetty
And Anr Appeal (Civil) 5453 of 2003 further relied in the case of
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 45 of 54
Sidram (supra) for awarding compensation for pain and
suffering. The observations made in the aforesaid case as relevant
to the context are reproduced hereunder:
“113. Before we close this matter, it needs to be underlined, as
observed in Pappu Deo Yadav (supra) that Courts should be
mindful that a serious injury not only permanently imposes
physical limitations and disabilities but too often inflicts deep
mental and emotional scars upon the victim. The attendant
trauma of the victim’s having to live in a world entirely different
from the one she or he is born into, as an invalid, and with
degrees of dependence on others, robbed of complete personal
choice or autonomy, should forever be in the judge’s mind,
whenever tasked to adjudge compensation claims. Severe
limitations inflicted due to such injuries undermine the dignity
(which is now recognized as an intrinsic component of the right
to life under Article 21) of the individual, thus depriving the
person of the essence of the right to a wholesome life which she
or he had lived, hitherto. From the world of the able bodied, the
victim is thrust into the world of the disabled, itself most
discomfiting and unsettling. If courts nit-pick and award
niggardly amounts oblivious of these circumstances, there is
resultant affront to the injured victim. [See: Pappu Deo Yadav
(supra)]
(iii) Hon’ble Supreme Court of India in the case of K. Suresh
(supra) observed as follows:
“2. … There cannot be actual compensation for anguish of the heart or
for mental tribulations. The quintessentiality lies in the pragmatic
computation of the loss sustained which has to be in the realm of
realistic approximation. Therefore, Section 168 of the Motor Vehicles
Act, 1988 (for brevity “the Act”) stipulates that there should be grant
of “just compensation”. Thus, it becomes a challenge for a court of
law to determine “just compensation” which is neither a bonanza nor
a windfall, and simultaneously, should not be a pittance.”
But the measure of compensation must reflect a genuine attempt of
the law to restore the dignity of the being. Our yardsticks of
compensation should not be so abysmal as to lead one to question
whether our law values human life. If it does, as it must, it must
provide a realistic recompense for the pain of loss and the trauma of
suffering. Awards of compensation are not law’s doles. In a discourse
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 46 of 54
of rights, they constitute entitlements under law. Our conversations
about law must shift from a paternalistic subordination of the
individual to an assertion of enforceable rights as intrinsic to human
dignity. (as relied in the case of Jagdish Vs. Mohan AIR 2018
SUPREME COURT 1347, by Hon’ble Supreme Court of India).
(iv) Injured has suffered traumatic head injury and
subsequently was assessed with profound neurological disability
of permanent nature. It is thus evident that an accident of few
moments changed the entire course of his life. He remained bed
ridden at least for a year after the accident. It is mentioned that
the he wanted to move but was unable to do so due to injuries.
He was unable to speak as tracheostomized and later developed
serious behavioural issues and eventually lost control over self.
The disability is in permanent in nature and his family has to bear
this condition for all times. He would not be able to contribute to
the welfare of his family and would not be able to perform any
family duties. He would remain dependent upon external
assistance even for basic sustenance. As such, no amount can be
stated to be sufficient to undo the suffering of injured and family,
however, an attempt is being made to compensate the pain which
they had to endure for basic survival. An amount of Rs.
20,00,000/- is awarded to the claimant against pain, suffering and
and trauma sustained in the accident.
(B) Loss of amenities of life:
(i) It compensates the victim on account of his inability to
enjoy the basis amenities of life as any other normal person can,
taking into account the age and the deprivation he would have to
undergo and suffer due to injuries. Certain observations were
made by Hon’ble High Court of Gujarat in the case of
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 47 of 54
Vijaykumar Babulal Modi vs State Of Gujarat SPECIAL CIVIL
APPLICATION NO. 20488 of 2017 referred by HSC in the case
of Sidram (supra) which is reproduced hereunder:
“It appears that the claim under this head is to the tune of Rs.3
lac. However, the Tribunal has not awarded any sum under the
head ‘loss of amenities’. We are of the opinion that this head
must take into account all aspects of a normal life that have been
lost due to the injury caused. As per R.D. Hattangadi‘s case
(supra), this includes a variety of matters such as the inability to
walk, run or sit, etc. We include here too the loss of childhood
pleasure such as the ability to freely play, dance, run, etc., the
loss of ability to freely move or travel without assistance. Then,
there is the virtual impossibility of marriage as well as a
complete loss of the ability to have sex and to have and nurture
children.”
(ii) Injured has suffered profound neurological disability
which is bound to adversely affect all basic bodily function. He
would never be in a position to exercise personal choice even in
basic matters. He is no longer an able bodied man who can freely
move around, travel, dance, sing, eat what he wants talk to
people, express himself, have friends or perform family duties. It
is evident that he would not be able to live a wholesome life and
enjoy the amenities which he would have enjoyed but for the
injuries suffered by him. An amount of Rs. 2,00,000/- is awarded
towards loss of amenities.
56. The compensation awarded against pecuniary and non-
pecuniary damages under various heads is being sequentially put
in a tabulated form hereunder for ease of reference to all
concerned:
Sl. no. Pecuniary loss : - Quantum
1. (i) Expenditure on treatment : Rs. 8,47,479/-
As discussed above.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 48 of 54
(ii) Expenditure on Conveyance : Rs. 1,00,000/-
As discussed above.
(iii) Expenditure on special diet : Rs.2,00,000/-
As discussed above.
(iv) Cost of nursing / attendant : Rs.12,79,260/-
(v) Loss of income : Rs.3,36,756/-
(vi) Cost of artificial limbs (if NA
applicable) :
(iii) Percentage of loss of earning 100%
capacity in relation to disability: As
already discuss above.
(vii) Any other loss / expenditure : NA
(viii) Loss of future income: Rs.70,71,945/-
2. Non-Pecuniary Loss :
(i) Damages for pain, suffering and Rs. 20,00,000/-
trauma on account of injuries:
(ii) Loss of amenities of life Rs. 2,00,000/-
(vi) Future medical expenses Rs. 5,00,000/-
Total Compensation Rs.1,25,35,440/-
Deduction, if any, Nil
Total Compensation after deduction Rs.1,25,35,440/-
Interest As directed
below
Interest
57. It is settled that any fixed rate of interest cannot be
prescribed for all cases at all times and would largely depend
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 49 of 54
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).
LIABILITY
58. 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 indemnify
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 claim
petition till actual realization. (If there is any order regarding
excluding of interest for specific period same be complied at the
time of calculation of award amount).
59. The award amount shall be deposited by the Insurance
Company. Counsel for the Insurance Company/Nodal Officer of
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
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 50 of 54
Delhi while 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.
MODE OF DISBURSEMENT OF THE AWARD AMOUNT TO
THE CLAIMANTS AS PER THE PROVISIONS OF THE
‘MODIFIED CLAIM TRIBUNAL AGREED PROCEDURE’
(MCTAP).
60. 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.
Release of Amount
61. Out of the total award amount, a sum of Rs.1,00,00,000/-
is kept in form of monthly FDR of Rs.50,000/- each. Remaining
amount of Rs.25,35,440/- shall be released in the bank account of
injured.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 51 of 54
Directions to the Branch Manager, SBI, Saket Court Complex
62. The Manager, SBI, Saket Court Complex, is 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 (ordered to be
released) directly into the verified bank account of the claimant
under notice to this Tribunal.
Directions with respect to Fixed Deposit:
(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 and to renew the same
after periodical intervals till further orders are passed
by the Tribunal.
(a) The Bank shall not permit any joint name (s) to
be added in the savings bank account or fixed
deposit accounts of victim i.e. the savings bank
account of the claimant shall be individual savings
bank account and not a joint account.
(b) The original fixed deposit shall be retained by the
bank in safe custody. However, the statement
containing FDR number, FDR amount, date of
maturity and maturity amount shall be furnished by
bank to the claimant.
(c) The monthly interest be credited by Electronic
Clearing System (ECS) in the savings bank account
of the claimant near the place of their residence.
(d) The maturity amounts of the FDR (s) be credited
by Electronic Clearing System (ECS) in the savings
bank account of the claimant.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 52 of 54
(e) No loan, advance or withdrawal or pre-mature
discharge be allowed on the fixed deposits without
permission of the Court.
(f) The concerned bank shall not issue any cheque
book and/ or debit card to claimant (s). However, in
case the debit card and/ or cheque book have already
been issued, bank shall cancel the same before the
disbursement of the award amount. The bank shall
debit freeze the account of the claimant so that no
debit card be issued in respect of the account of the
claimant from any other branch of the bank.
(g) The bank shall make an endorsement on the
passbook of the claimant to the effect, that no cheque
book and / or debit card have been issued and shall
not be issued without the permission of the Court
and claimant shall produce the passbook with the
necessary endorsement before the Court on the next
date fixed for compliance.
SUMMARY OF COMPUTATION OF AWARD
AMOUNT IN INJURY CASES TO BE INCORPORATED IN
THE AWARD.
1 Date of accident 31.07.2018
2 Name of injured Saleem Khan Mewati
3 Age of the injured 38 years
4 Occupation of the injured As per record
5 Income of the injured Rs.28,063/-
6 Nature injury Grievous injury and Modified
Rankin Scale of ‘5’ and PPI was
calculated to 100% with severe
Quardriparesis.
7 Medical treatment taken As per record.
by the injured:
8 Period of Hospitalization As per record.
MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 53 of 54
9 Whether any permanent Grievous injury and Modified
disability? Rankin Scale of '5' and PPI was
calculated to 100% with severe
Quardriparesis.
63. Copy of this award be given to the parties free of cost. The
copy of award be also sent to the DLSA and Ld. Metropolitan
Magistrate.
64. Put up for compliance on 19.07.2025.
Announced in the open court
on 19.05.2025
(Shelly Arora)
PO (MACT)-02, SE/Saket/Delhi
19.05.2025
Digitally signed
by SHELLY
SHELLY ARORA
ARORA Date:
2025.05.19
17:38:38 +0530MACT No.:775/2018 Saleem Khan Mewati Vs. Harun Khan & Anr. Page No. 54 of 54
[ad_1]
Source link