Delhi District Court
Sh. Palak Sharma S/O Sh. Ajay Sharma vs Amit Kumar S/O Sh. Om Prakash on 9 September, 2014
1
IN THE COURT OF MS. BARKHA GUPTA : JUDGE : MACT :
(NORTH WEST DISTRICT) DELHI
MACT No. : 330/10
UNIQUE ID No. : 02404C0169122010
Sh. Palak Sharma S/o Sh. Ajay Sharma,
R/o 2267/172, Ganesh Pura,
Tri Nagar,
Delhi110035. ......
(Petitioner/Injured/Claimant)
(Through his father/natural guardian,
Namely, Sh. Ajay Sharma)
Versus
1.Amit Kumar S/o Sh. Om Prakash,
R/o Village Hindole, Post Sanwar,
PS Bondkala,
Distt. Bhiwani,
Haryana. .........(Driver/Respondent No.1)
2.M/s Top Wheels Tours & Travels Pvt. Ltd., Through its Director/Managing Director, MACT No.330/10 Palak Sharma v. Amit Kumar 1 of 92 2 3334, 1st Floor, Peach Tree Building, CBlock, Sushant LokI, DLF, Q.E.S.O, Gurgaon, Haryana. .........(Owner/Respondent No.2)
3.Chola Mandalam MS General Insurance Co. Ltd., Plot NO.6, 1st Floor, Pusa Road, Near Metro Pillar No.81, Delhi. .......(Insurer/Respondent No.3) Other details: DATE OF INSTITUTION : 16.07.2010 DATE OF RESERVING ORDER : 08.09.2014 DATE OF PRONOUNCEMENT : 09.09.2014 AWARD/JUDGMENT
1.The petition under sections 166 & 140 of the Motor Vehicles Act, 1988 has been filed by Sh. Ajay Sharma, being father & natural guardian of the injured/petitioner/claimant namely, Sh. Palak Sharma (hereinafter referred to as the 'petitioner') as from the day of accident till the filing of the present petition, the petitioner was in coma and MACT No.330/10 Palak Sharma v. Amit Kumar 2 of 92 3 was unable to file the petition on his own.
In the case in hand, the Accidental Information Report (AIR) was filed by the investigating officer, inter alia mentioning therein that two persons namely Sh. Palak Sharma (i.e. the petitioner/injured in this case) and Sh. Sanjay Bansal had sustained injuries due to the accident caused by Sh. Amit Kumar/R1, who was driving the offending vehicle i.e. Innova Car bearing registration no. HR55HT3382 at the relevant time in a rash and negligent manner and the offending vehicle was owned by M/s Top Wheels Tours and Travel Pvt Ltd/R2 and the offending vehicle was insured with Chola Mandlam MS General Insurance Co. Ltd/R3. The IO had also filed the copy of FIR No. 97/10 u/s 279/337 IPC registered at P.S. Keshav Puram, Delhi with respect to the said accident along with other necessary documents and also verified the medical condition/treatment of both the injured persons including that of the petitioner namely Sh. Palak Sharma. During the course of trial, the other injured namely Sh. Sanjay Bansal and the insurance Co/R3 entered into a mutual settlement and qua Sh. Sanjay Bansal, the matter was compromised and Sh. Ajay MACT No.330/10 Palak Sharma v. Amit Kumar 3 of 92 4 Sharma, who is the father of petitioner/injured Palak Sharma had filed the petition u/s 166 and 140 of the Act on behalf of petitioner.
As per record, during the course of trial, the amended claim petition alongwith amended memo of parties was filed by Sh. Ajay Sharma as Sh. Ashwani Kumar Mangla, who was earlier shown as respondent No.3 was deleted from the array of parties by my Ld. Predecessor vide order dt. 28.02.2011.
2.Brief facts of the case as revealed from the petition are that on 12.03.2010 at about 6:30 A.M, the petitioner Sh. Palak Sharma along with his friend namely, Sh. Sanjay Bansal was going to Mahrashi Dayanand Park at Keshav Puram, Delhi for doing Yoga on the two wheeler scooter bearing registration No. DL8SV3616, which at the relevant time, was driven by Sh. Sanjay Bansal and the petitioner was sitting on it as a pillion rider. Further, when they reached at the T point, Parmeshwar Dham, in front of Maharshi Dayanand Park, Keshav Puram, Delhi, suddenly an innova car bearing registration No. HR55HT3382 (hereinafter referred to as the 'offending MACT No.330/10 Palak Sharma v. Amit Kumar 4 of 92 5 vehicle') which at the relevant time was driven by Sh. Amit Kumar/R1 in a rash and negligent manner and at a high speed came from the side of Hathora Ram Park and it hit against their scooter due to which, the accident took place wherein the petitioner and his friend sustained injuries. The petitioner was admitted in Max Hospital, Pitampura, Delhi, where he remained admitted for a considerably long time, as he had sustained very serious injuries and also went in coma.
It is further submitted that at the time of filing of the petition, the petitioner was still in coma since the day, he sustained injuries and though, later on, he came out of coma but he remained in a vegetative state as he had sustained a lot of grievous injuries including injuries on his head and also sustained multiple fractures all over his body and was under
treatment.
It is further submitted that in the month of March, 2010 (i.e in the same year itself), the petitioner had to appear for his final year exams of BBA course which he was pursuing and he had also qualified the entrance test of MBA course, but due to the said accident, he could not appear for his final exams MACT No.330/10 Palak Sharma v. Amit Kumar 5 of 92 6 and so, he could not complete BBA and in view of injuries sustained by him, his prospects of higher studies are over.
It is also submitted that while studying, the petitioner was also working as a commission agent in the field of copper scrape and he was earning Rs.30,000/ per month and he used to file the income tax returns and pay the income tax and was having PAN card.
The case of the petitioner further is that due to the said accident, the petitioner has suffered innumerable injuries, remained in coma for a considerable long time and sustained multiple fractures and also suffered a lot of pain and undergone stress and trauma. Further, he has also suffered loss of income, his future prospects are totally destroyed and a lot of money is incurred on his medical treatment, special diet, conveyance etc. It is further contended that Sh. Amit Kumar/R1, who was driving the offending vehicle at the relevant time, M/s Top Wheels Tours & Travels Pvt. Ltd./R2, who was the owner of MACT No.330/10 Palak Sharma v. Amit Kumar 6 of 92 7 the offending vehicle and Chola Mandalam MS General Insurance Co. Ltd./R3 with whom the offending vehicle was insured at the relevant time, are jointly and severally liable to pay the compensation amount to the petitioner to the tune of Rs.1,00,00,000/ alongwith interest at the rate of 12% per annum from the date of filing of the petition till its realization. It is also submitted that with respect to the said accident, FIR No. 97/10 U/s 279/337 IPC was also registered against Sh. Amit Kumar/R1 at P.S. Keshav Puram, Delhi wherein he is prosecuted.
3.As per record, in the case in hand, Sh. Amit Kumar/R1 and M/s Top Wheels Tours & Travels Pvt. Ltd./R2, who are the driver and owner of the offending vehicle respectively have filed their written statement jointly, wherein it is submitted that the alleged accident was not caused by the offending vehicle. It is also submitted by R2 that at the time of employment of R1 with it, R2 had duly ensured and satisfied itself that R1 was carrying a valid driving licence and it MACT No.330/10 Palak Sharma v. Amit Kumar 7 of 92 8 had also ensured that R1 was having good experience of driving the vehicle/car.
In their written statement, R1 and R2 have denied that at the relevant time, R1 was driving the offending vehicle in a rash or negligent manner or while driving so, he caused the said accident and they have further denied their liability to pay any compensation amount to the petitioner as claimed by him.
4. In the case in hand, as per record, The Chola Mandalam Insurance Company Ltd./R3 has also filed its written statement, wherein it has stated that the offending vehicle i.e. the Innova car bearing registration No. HR55HT3382 was duly insured with it vide policy No. 3373/0023960/000/01 which was valid from 23.06.2009 to 22.06.2010. It has also submitted that the said accident did not take place due to rash and negligent driving of R1 and so, it has no liability to pay any compensation amount to the petitioner. It has further contended that the compensation amount as claimed by/on behalf of the petitioner is highly exorbitant and as such, it is under no legal obligation to pay any compensation amount to the petitioner.
MACT No.330/10 Palak Sharma v. Amit Kumar 8 of 92 9
5.In the case in hand, as per record, vide order dt. 08.08.2011, my Ld. Predecessor had framed the following issues:
1. Whether on 12.03.10 at about 6:30 A.M. at T point, Parmeshwar Dham in front of Maharishi Dayanand Park, Keshavpuram, vehicle No. HR55HT3382 which was being driven rashly and negligent hit the scooter of petitioner and caused injuries to him?
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?
3. Relief.
6. It needs to be discussed even at the cost of repetition that Sh. Ajay Sharma has filed the present petition on behalf of the petitioner being his father/natural guardian as since the day of accident, the petitioner was in coma.
7.As per record, five witnesses have been examined in all by/on behalf of the petitioner in support of his case.
Sh. Ajay Sharma (the father of the petitioner) has examined himself as PW1, Sh. Chandan Kumar (the attendant) is examined as PW2, Dr. Nimit Gupta (Neurosurgeon from Dr. MACT No.330/10 Palak Sharma v. Amit Kumar 9 of 92 10 BSA Hospital, Delhi) is examined as PW3, Sh. Praveen Kumar (the physiotherapist) is examined as PW4 and Sh. Laxmi Narain Gupta (an eye witness of the occurrence) is examined as PW5. The certified copies of the criminal case pertaining to FIR No.97/10 u/s 279/337 IPC, PS Keshav Puram, Delhi, pertaining to the said accident are also placed on record.
As per record, it is shown that none of the respondents have adduced any evidence on record and vide order dated 22.07.2013. Sh. Amit Kumar/R1 and M/s Top Wheels Tours Pvt. Ltd/R2 who are the driver and owner of the offending vehicle are proceeded exparte by my Ld. predecessor.
8.I have heard final arguments as advanced by Advocate Sh.
Yogesh Narula, Ld. Counsel for the petitioner and Advocate Sh. Navdeep Singh, Ld. Counsel for insurance company/R3. None has appeared on behalf of R1 & R2, to advance final arguments. Now, I proceed to discuss the various issues framed vide order dt. 08.08.2011 in the succeeding paragraphs.
9. Issue No.1 MACT No.330/10 Palak Sharma v. Amit Kumar 10 of 92 11 "Whether on 12.03.10 at about 6:30 A.M. at T point, Parmeshwar Dham in front of Maharishi Dayanand Park, Keshavpuram, vehicle No. HR55HT3382 which was being driven rashly and negligent hit the scooter of petitioner and caused injuries to him?"
10.In the case in hand, Sh. Laxmi Narain Gupta, who is an eye witness of the occurrence has been examined as PW5 by/on behalf of the petitioner.
Sh. Laxmi Narain Gupta (PW5) has adduced his evidence by way of affidavit Ex.PW5/A, bearing his signatures at points A & B respectively. He has testified that on 12.03.2010 at about 6:30 a.m, he went for morning walk at Maharishi Dayanand Park, Keshavpuram, Delhi in routine and was walking out side the park on the pavement/patari. He has further testified that he saw that two boys were riding i.e. coming on a scooter bearing registration No. DL8SV3616, which scooter was driven at a moderate speed and when it reached at the T point, Parmeshwar Dham, in front of Maharshi Dayanand Park, Keshav Puram, Delhi, suddenly a MACT No.330/10 Palak Sharma v. Amit Kumar 11 of 92 12 car and later clarified that it was Innova car bearing registration No. HR55HT3382 (i.e. the offending vehicle) which was being driven by its driver in a rash and negligent manner and at a high speed came from the side of Hathora Ram Park and it hit against the said scooter forcibly due to which both the persons on the scooter sustained severe injuries, however, the driver of the offending vehicle absconded from the spot. He has also deposed that public gathered at the spot and he, with the help of another person stopped another car and helped the injured to sit in that car for taking them to the hospital and in the meantime, someone had also informed the police officials, but prior to their reaching at the spot, the injured were already taken to the hospital. He has also deposed that he had noted down the registration number of the offending vehicle and the police official has also recorded his statement.
11.It would be pertinent to discuss here that neither Sh. Amit Kumar/R1 nor M/s Top Wheels Tours & Travels Pvt. Ltd./R2, who are the driver and owner of the offending vehicle have crossexamined the MACT No.330/10 Palak Sharma v. Amit Kumar 12 of 92 13 said witness on any aspect at all and have not challenged his version on any count, though he is an eye witness and has narrated at length the manner in which the entire accident took place wherein the petitioner had also sustained injuries. Keeping in view that the entire version of PW5, who is a very material witness being witness to the accident has remained unrebutted and uncontroverted in entirety by/on behalf of R1 and R2 as they have preferred not to cross examined him on any aspect at all and hence, in the given facts and circumstances, the only reasonable conclusion that can be drawn is that R1 & R2 had nothing to offer to PW5 during crossexamination and they have rather clearly admitted that at the relevant date, time and place, Sh. Amit Kumar/R1 was driving the offending vehicle in a rash and negligent manner and while driving so, he caused the said accident, wherein the petitioner had also sustained injuries. It is well settled law that if a witness is not crossexamined on any aspect/point, then it amounts to truthfulness of the same.
Accordingly, in the given facts and circumstances, on the basis of material as placed on record and in view of the aforesaid discussion, it is clearly shown and rather proved on record that R1 & R2 have admitted that at the relevant date, MACT No.330/10 Palak Sharma v. Amit Kumar 13 of 92 14 time and place, Sh. Amit Kumar/R1 was driving the offending vehicle in a rash and negligent manner and caused the said accident wherein the petitioner had sustained injuries.
12.In the case in hand, Chola Mandalam MS General Insurance Co. Ltd./R3 (with whom the offending vehicle was insured) has crossexamined Sh. Laxmi Narain Gupta (PW5) during which he has interalia stated that the distance between the place where he was walking and the place of accident was about 5060 meters and he had seen the scooter when it was only about 100 yards away from the place of accident. He has also stated that the said scooter was of 'LML make' it was of Metallic gray colour and also stated that the petitioner was not driving the said scooter. He has also stated that the offending vehicle had come from the side of Hathora Ram Park, which was 'Innova car' and it was white in colour. During further cross examination, he has stated that except the present accident, he has not seen any other accident in his life. He has also stated that the scooter was coming from the left side and it was on extreme left side and it was taking a right turn. He has denied if he was not present at the place of occurrence.
MACT No.330/10 Palak Sharma v. Amit Kumar 14 of 92 15 During further crossexamination, he has stated that the petitioner was taken to the hospital in another car after about 15 minutes, but he could not tell the colour or make of the said car. He has also stated that the police official had recorded his statement at the spot and he could not tell the name of police official who recorded his statement. He has denied if his affidavit Ex.PW5/A was prepared by the advocate of the petitioner on his own or that he had signed his affidavit only to help the petitioner. During further crossexamination, he has clarified that the police officials had met him at the spot on the same day and made inquiries, however, his statement was recorded on 16.04.2010 in the police station.
After going through the entire crossexamination of PW5 as conducted by the insurance co. i.e. Chola Mandalam MS General Insurance Co. Ltd./R3, in considered opinion of the court, as such, nothing is shown on record if PW5 was not present at the spot or that he did not witness the occurrence/said accident and rather, even during lengthy crossexamination, the testimony of PW5 is nowhere shattered MACT No.330/10 Palak Sharma v. Amit Kumar 15 of 92 16 or shaken and there is nothing on record to show if he did not witness the said occurrence or that his presence at the spot is doubtful. Rather, he has explained the reason of his presence at the spot and has deposed at length about the manner in which he saw the accident and also narrated about the various details which took place even after the accident by stating that the driver of the offending vehicle had absconded after the accident and the public had also gathered and the petitioner was shifted to hospital in another car and he has also stated that the police officials also reached to the spot after the petitioner was taken to hospital. As such, there is no reason to disbelieve the version of PW5 and nothing is shown if he has deposed falsely. Rather, the testimony of PW5 is cogent, convincing and inspire confidence of court in as far as he has came out with the true picture of the occurrence and his testimony does not suffer from any inherent infirmity or from any artificiality/exaggeration. Though, in his examinationin chief, he has stated that his statement was recorded on the same day, but during his crossexamination, he has clarified that on the day of occurrence, the police officials had met him MACT No.330/10 Palak Sharma v. Amit Kumar 16 of 92 17 at the spot and also made inquiries about the accident from him and thereafter, on 16.04.2010, he went to police station, where his statement was recorded. The same, in considered opinion of the court is not a grave discrepancy as sometimes a person may get confused as in the case in hand on the same day also the police officials made enquiries from PW5 and as such he is a common man. The above may be a discrepancy but it is very minor in nature and considering that the entire testimony of PW5 is nowhere shaken on merits of the case or so far, as the factum of said accident by R1 is concerned and as such, there is no reason to disbelieve the version of PW5 on that count. It may also be noted here that PW5 cannot be expected to remember each and every minor detail of the case by heart, particularly after lapse of considerable time and has clearly stated that though the police official had made inquiries from him on date of accident, but his statement was recorded on 16.04.2010 and accordingly, in view of totality of facts and circumstances, the said discrepancy does not effect merits of case and does not go to the root of the matter and shake the basic version of this witness as his deposition is MACT No.330/10 Palak Sharma v. Amit Kumar 17 of 92 18 cogent, convincing and inspire confidence of court in as far as he has come forward with true picture of the accident.
It may also be mentioned even at the cost of repetition that Sh. Amit Kumar/R1 who is driver of the offending vehicle has nowhere challenged the version of PW5 on any ground despite opportunity given and hence, so far as the factum of driving of the offending vehicle by him in a rash and negligent manner is concerned and so far as factum of causing of present accident is concerned, the same remain admitted by R1 in entirety as already discussed.
Further, the certified copy of the charge sheet U/s 173 Cr. PC in the criminal case FIR No.97/10 u/s 279/337 IPC, P.S. Keshav Puram, Delhi has been filed along with other various documents which are relied upon in the charge sheet and the copy of FIR 97/10 U/s 279/337 IPC PS Keshav Puram is also filed which clearly shows that Sh. Amit Kumar/R1 was arrested and prosecuted in the case and the offending vehicle was also seized and as such, nothing is shown on record if R1 MACT No.330/10 Palak Sharma v. Amit Kumar 18 of 92 19 is falsely implicated or that R1 was not driving the offending vehicle at the relevant time or that he did not cause the said accident in the manner as narrated by PW5.
Further, criminal prosecution of R1 also leads to the necessary inference that the version regarding the accident given by Sh. Laxmi Narain Gupta (PW5) is correct and nothing is shown on record that the offending vehicle was not driven by R1 at the relevant date, time and place or that the said accident was not caused due to rash and negligent driving of R1, wherein the petitioner Sh. Palak Sharma had received injuries. Further, R1 has not lodged any complaint to any higher authority regarding his alleged false implication in the criminal case and has not alleged even in the written statement that he had any enmity with the petitioner or any of his family members or with the investigating officer, and so, the possibility of his false implication in criminal case exists. Admittedly, R1 was arrested and prosecuted in the criminal case FIR No. 97/10 U/s 279/337 P.S. Keshav Puram, Delhi and the offending vehicle was also seized which are nowhere MACT No.330/10 Palak Sharma v. Amit Kumar 19 of 92 20 in dispute. It needs to be discussed that during course of final arguments, ld. counsel for the petitioner had also submitted that another person namely Sh. Sanjay Bansal had also received injuries in the said accident, however, the insurance co./R3 has settled the claim of Sh. Sanjay Bansal. The same is also admitted by the insurance co. namely Cholamandlam MS General Insurance Co/R3 and it also goes to show that even the insurance Co/R3 has neither disputed the said accident as caused by R1 by driving the offending vehicle in a rash and negligent manner and has also not disputed that the offending vehicle was insured with it.
Accordingly, in view of the totality of the facts and circumstances and on the basis of material as placed on record, court is of the considered opinion that at the relevant date, time and place, Sh. Amit Kumar/R1 was driving the offending vehicle in a rash and negligent manner and while driving so, he caused the said accident wherein the petitioner Sh. Palak Sharma had sustained injuries. Accordingly, on the basis of material as placed on record, Issue No.1 is decided in MACT No.330/10 Palak Sharma v. Amit Kumar 20 of 92 21 favour of the petitioner and against the respondents.
13.ISSUE NO.2 QUA QUANTUM OF COMPENSATION:
"Whether petitioner is entitled to compensation, if so, to what amount and from whom? OPP
14. Section 166 of the Act mandates payment of just compensation.
Further, in the case of General Manager, Kerala Road Transport Corporation, Trivandrum v. Susamma Thomas & Ors., (1994) 2 SCC 176, the Hon'ble Supreme Court has observed that: "5...... The determination of the quantum must answer 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". The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales'. All this means that the sum awarded must be fair and reasonable by accepted legal standards." Further, in the case of Arvind Kumar Mishra v. New India Assurance Company Limited, (2010) 10 SCC 254, The Hon'ble Supreme Court has also observed that while MACT No.330/10 Palak Sharma v. Amit Kumar 21 of 92 22 awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was as far as money can do. It has laid down that: "9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered."
15. Now, turning to the case in hand, as per record, Sh. Ajay Sharma, who is the father and natural guardian of the petitioner namely Sh. Palak Sharma has filed the present petition on behalf of petitioner as after sustaining injuries in the accident, the petitioner went in coma and was in coma even at the time of filing of the petition and even thereafter, though he came out of coma, yet he has suffered from 100% permanent disability and his physical and mental faculties are totally paralysed.
MACT No.330/10 Palak Sharma v. Amit Kumar 22 of 92 23 Now, in the succeeding paragraphs, the amount of compensation to be awarded to the petitioner Sh. Palak Sharma and the settled law would be discussed.
16. In the case of Raj Kumar vs Ajay Kumar IV (2010) ACC 815 (SC), the Hon'ble Apex Court observed that " The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourshing 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.
MACT No.330/10 Palak Sharma v. Amit Kumar 23 of 92 24 Nonpecuniary 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. 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 MACT No.330/10 Palak Sharma v. Amit Kumar 24 of 92 25 ascertainable from the evidence. Award under the head of future medical expensesitems (iii)depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non pecuniary damagesitems (iv),
(v) and (vi) involves determination of lump sum amounts with reference to circumstances such as age nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this court and 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 disabilityitem (ii) (a). We are concerned with that assessment in this case"
17. It is accordingly well settled law that the injured/petitioner is entitled to 'pecuniary damages/special damages' which are granted to make good the pecuniary losses which can be monetarily calculated and further, he is also entitled to 'non pecuniary/general damages' although, they cannot be arithmetically calculated.
MACT No.330/10 Palak Sharma v. Amit Kumar 25 of 92 26 Further, every method or mode adopted for assessing the compensation amount has to be considered in the background of 'just compensation' which is the pivotal consideration. Now, under the head of 'pecuniary damages', the petitioner Sh. Palak Sharma is entitled to compensation towards loss of income, attendant charges, physiotherapy, special diet, equipments, conveyance/ambulance charges and medical bills.
18.In the case in hand, Sh. Ajay Sharma, who is the father of petitioner has filed the petition on his behalf has examined himself as PW1 and adduced his evidence by way of affidavit Ex. PW1/A wherein he has also proved the requisite documents as Ex. PW1/A to PW1/O which pertain to the medical treatment of the petitioner, medical expenses and other expenses incurred, disability certificate etc. He has interalia testified that the petitioner Sh. Palak Sharma is completely bed ridden due to various injuries sustained in the accident resulting in 100% permanent disability. Further, the petitioner is completely paralytic and MACT No.330/10 Palak Sharma v. Amit Kumar 26 of 92 27 has also become a person of unsound mind since the day he had sustained injuries in the accident and accordingly, the petitioner has become absolutely physically and mentally incapacitated. He has also deposed that initially, the petitioner was admitted in Max Hospital at Pitampura, Delhi where he received treatment and thereafter, he was also treated at Shri Tirath Ram Shah Charitable hospital and DITO Sant Parmanand Hospital, Delhi. Further, he has also given the details of admission/treatment of the petitioner in various hospital i.e. the petitioner was admitted in the Max hospital, Pitampura on various dates i.e. 29.04.2010 to 30.04.2010, on 17.05.2010 to 28.05.2010, 12.06.2010 to 17.06.2010, 19.07.2010 to 26.07.2010, 28.09.2010 to 01.10.2010, 18.10.2010 to 23.10.2010, 24.11.2010 to 26.11.2010, 12.02.2011 to 17.02.2011 and was further treated in Tirath Ram Shah Charitable Hospital on 17.02.2011 to 23.02.2011 and at DITO Sant Parmanand hospital on 14.12.2011 to 26.12.2011.
He could not tell as to how much time and expenses it MACT No.330/10 Palak Sharma v. Amit Kumar 27 of 92 28 would take to cure the petitioner and deposed that the petitioner has to be medicated for the rest of his life. Further, he has already incurred an amount of Rs.18,57,000/ on the hospitalization, fees of doctor, purchasing of medicine etc for the petitioner.
He has further deposed that he has also incurred an amount of Rs.10,000/ to Rs.15,000/ per month towards the treatment, fees of the doctor, purchase of medicine etc for the petitioner. Further, since the petitioner is completely bed ridden, so he had also to purchase special equipments as advised by the doctors as mentioned in para no. 7 of his affidavit i.e. catheter, food pipe, dressing materials, special airbed, pillows, special mattresses, bottleholdingstand, urinetoilets pots, room heater, oxygen cylinder etc. for the petitioner and has spent an amount of more than Rs.2,00,000/ on them. Further, he has also incurred an amount of Rs. 30,000/ on the hearing and speech therapy of his son i.e. the petitioner as advised by the doctors. He has also proved the permanent disability certificate of the petitioner as EX PW MACT No.330/10 Palak Sharma v. Amit Kumar 28 of 92 29 1/C as issued by the doctors of BSA hospital to show that the petitioner has suffered from 100% permanent disability and has testified that the doctors have also opined that there are very remote chances of improvement in his condition. Further, due to the said accident, the life expectancy of the petitioner has also shortened he also needs regular physiotherapy, attendant and special diet and he has already spent an amount of Rs.1,55,600/ as on date of filing of his affidavit to the physiotherapist at the rate of Rs.400/ per day and due to the miserable condition of the petitioner, an attendant is required 24 hours a day to assist him in his daily needs and routine and accordingly, he has engaged a person namely Chandan Kumar (PW2) as attendant to whom he pays an amount of Rs.20,000/ per month, besides the facility of boarding and lodging and even, he and other family members of the petitioner also look after him apart from the said attendant.
He has also testified that so far as the conveyance/ambulance charges qua the petitioner are concerned, he has already spent an amount of more than Rs. MACT No.330/10 Palak Sharma v. Amit Kumar 29 of 92 30 1,00,000/ for taking the petitioner to hospital for regular check ups even after he was discharged, either in an ambulance or in a private vehicle and certain persons/personnel were also required as the petitioner is completely bed ridden and paralytic.
He has further deposed that as per advice of the doctor, the petitioner is on special diet i.e. liquid/semi liquid diet which is given to him through a special food pipe and hence, since the day of accident, he has incurred an amount of Rs.3,00,000/ on the special diet of petitioner, which diet he would require for the rest of his life.
He has also testified that at the relevant time, the petitioner was a student of final year of BBA and he had also qualified the entrance examination i.e. MAT examination for MBA course and as such, the petitioner was a meritorious student. He has further submitted that apart from studying, the petitioner was also working and was earning Rs.3,50,000/ p.a. and he was also an income tax payee and had got a PAN card in his name.
MACT No.330/10 Palak Sharma v. Amit Kumar 30 of 92 31 He has also deposed that at the time of accident, the petitioner was unmarried and due to the injuries sustained in the said accident, the petitioner has become a person of unsound mind and has been completely paralytic and he has suffered from 100% permanent disability, due to which his marriage prospects are also completely ruined. Further, the accident has also resulted into loss of enjoyment/amenities of life, curtailment of normal life expectancy of the petitioner and further, the entire future/career/income prospect of the petitioner are completely ruined and has stated that apart from the petitioner, his other family members are also miserably suffering.
He has proved the relevant medical records of the petitioner as Ex. PW1/A (colly total 30 pages), original medical bills of petitioner for Rs.18,57,000/ as Ex. PW1/B (colly total 161 pages), the permanent disability certificate of petitioner as Ex. PW1/C, copy of PAN Card of petitioner as Ex. PW1/D, copies of income tax returns of the petitioner for the last three years as Ex. PW1/F (colly, total 3 pages) and copies of his MACT No.330/10 Palak Sharma v. Amit Kumar 31 of 92 32 10th, and 12th class certificates, mark sheets for BBA course as Ex. PW1/G to PW1/K respectively and various merit certificates of the petitioner as Ex. PW1/L (total 05 pages), copy of his voter I card and copy of the I Card of the petitioner as Ex. PW1/M & N, MAT score card and various call letters for MBA course as Ex. PW1/O (colly total 15 pages), the photocopies of cheques for the payments made to the attendant, the speech therapist and physiotherapist as marked X.
19.It would be not out of place to mention here that Sh. Ajay Sharma/(PW1) is not cross examined on any aspect by or on behalf of Sh. Amit Kumar/R1 and M/s Top Wheels Tours & Travels/R2, who are the driver and owner of the offending vehicle on any aspect whatsoever and they have accordingly nowhere disputed the amount incurred on the treatment of the petitioner under various heads as elaborately described by PW1 in his affidavit and as such, the entire deposition of PW1 is nowhere rebutted by them. The only reasonable conclusion that can be drawn in the given facts and circumstances that R1 and R2 have nothing to offer to PW1 regarding either the MACT No.330/10 Palak Sharma v. Amit Kumar 32 of 92 33 physical or the mental condition of the petitioner and they have nowhere disputed if the petitioner did not suffer from 100 % permanent disability due to injuries in the said accident or that he had not become totally physically and mentally incapacitated or that due to injuries sustained in the accident, the petitioner has not become a person of unsound mind. Further, it is also not challenged by either of them that the petitioner was treated at various hospitals and was advised various medicines, medical equipments necessary for his survival and it is nowhere even whispered that he did not require special diet/conveyance charges/attendant for 24 hours a day for the rest of his life. It needs to be discussed even at the cost of repetition that the testimony of PW1 and the various documents as proved by him are nowhere shown to be false, fabricated or manipulated and R1 and R2 have not disputed regarding the amount incurred on the treatment etc of the petitioner which would be required to be incurred for the rest of his life.
20.During cross examination of PW1 by the insurance co./R3, he has inter alia stated that the certificate Ex. PW1/R1X was issued by the Max hospital, Pitampura, Delhi to show that the petitioner had become a MACT No.330/10 Palak Sharma v. Amit Kumar 33 of 92 34 person of unsound mind and has clarified that the said certificate was obtained after filing of the petition in order to show his locus standi to file the present petition on behalf of the petitioner. He has denied that the petitioner was mentally alert and could understand all the things. He has fairly admitted that he is not a witness to the occurrence.
During further cross examination, he has stated that as per prescription of the doctor, he used to purchase the medicine for petitioner and has denied if he did not spend an amount of Rs.18,57,000/ towards the hospitalization etc. of the petitioner. He has also stated that on 29.11.2010, the doctor had advised the petitioner to take conventional medicines initially for three years. He has denied if the documents vide Ex. PW1/A are fabricated or if they were obtained for taking enhanced amount of compensation. He has further denied that the disability certificate of the petitioner which is Ex. PW1/C mentions of exaggerated percentage of disability. He has denied if he did not incur the expenses on the medical treatment of his son/petitioner as mentioned by him in his MACT No.330/10 Palak Sharma v. Amit Kumar 34 of 92 35 affidavit. He has also stated that a person namely Chandan Kumar, who was earlier employed with Sanjivani Hospital had left his job and he was employed by PW1 to look after the petitioner i.e. his son to whom he would make the payment through cheques and he availed the services of said attendant for the petitioner from 23.04.10 onwards.
During further cross examination by insurance co./R3, he has stated that the petitioner is on liquid diet as advised by the doctor and further, on 16.03.11, the doctor had also advised for the hearing and speech therapy of the petitioner which is continuing.
During further cross examination regarding income of the petitioner, he has stated that the petitioner used to sell the metal scrap on commission basis from the same premises from where he used to work and he has stated that the petitioner had started filing the income tax returns from the year 200708 onwards. He has stated that petitioner was maintaining the bank account in joint name with his grand father. He has denied if the petitioner was not doing any such MACT No.330/10 Palak Sharma v. Amit Kumar 35 of 92 36 independent work or that his returns were filed only to show his income or for making his capital. He has proved the original acknowledgment of ITR for the year 200708 as Ex. PW1/RX2. He has also denied that the income as reflected in ITRs of the petitioner is the income of his grand father.
21. Now in the light of the above, the compensation to be awarded to the petitioner Sh. Palak Sharma under the head of 'pecuniary damages' would be discussed which includes, loss of income, attendant charges, physiotherapy, special diet, equipments, conveyance/ambulance charges and medical bills.
22. Loss of Income Sh. Ajay Sharma (PW1), who is the father of petitioner and is pursing the petition on his behalf has inter alia testified that at the relevant time, the petitioner was a student of final year of B.B.A and he had also qualified the entrance examination i.e. MAT examination for MBA course and as such, the petitioner was a meritorious student. He has further submitted that apart from studying, the petitioner was also working as a MACT No.330/10 Palak Sharma v. Amit Kumar 36 of 92 37 commission agent and at the relevant time, he was earning Rs. 3,50,000/ p.a. and he was an income tax payee and also had got a PAN card. He has also proved the copy of PAN Card of the petitioner as Ex. PW1/D, copies of income tax returns of the petitioner for the last three years as Ex. PW1/F (colly, total 3 pages) and copies of 10th and 12th class certificates, mark sheets for BBA course as Ex. PW1/G to Ex. PW1/K respectively and various merit certificates of petitioner as Ex. PW1/L (total 5 pages), copy of his and copy voter I Card of petitioner as PW1/M & N, MAT score card and various call letters for petitioner for MBA course as Ex. PW1/O (colly total pages 15).
As per record, Sh. Amit Kumar/R1 and M/s Top Wheels Tours and Travels Pvt. Ltd/R2, who are the driver and owner of the offending vehicle have nowhere either disputed the educational qualifications of the petitioner nor disputed that he was earning while he was studying or that the income tax returns filed by him are not genuine and have admitted the same in totality as correct.
MACT No.330/10 Palak Sharma v. Amit Kumar 37 of 92 38 Though, the insurance co./R3 has cross examined PW1, but it also could not show anything on record if the petitioner was not in the final year of B.B.A Course or if while studying, the petitioner was not earning the amount as testified by the PW1 or if the ITRs of the petitioner are fake, fabricated or manipulated in any manner. The only contention of insurance co/R3 is that the petitioner was doing the same business as was done by PW1 and was doing it from the premises of PW1 and hence, the petitioner could not have separate business or income apart from that of his father i.e. PW1. The same in considered opinion of the court does not sound convincing as if PW1 is in a particular business, then it cannot be presumed that his son i.e. the petitioner cannot carry on the same business or must be forced to do something else. Further, the contention of insurance co that the petitioner used to run his business/used to work from the same premises from where his father i.e. PW1 used to work and hence, the testimony of PW1 is unreliable also does not sound convincing as if two persons, particularly father and son are doing business from MACT No.330/10 Palak Sharma v. Amit Kumar 38 of 92 39 the same premises independently, then it cannot be considered that it is a lie or if there is some bar that they cannot operate independently from the same premises and being father and son, it is very natural that PW1 had permitted his son i.e. the petitioner also to do his work independently from the premises of PW1, after all, if PW1 would not help his son, then who else will help and it nowhere implies that their business or income were joint or common. Further, the contention of insurance co./R3 that the petitioner used to maintain a joint bank account with his grand father and so, he did not have any independent income also does not hold any water as 'joint account' does not necessary implies 'joint income' and it does not indicate that the petitioner did not work and earn independently as testified by PW1 and nothing is shown if PW1 is deposing falsely in this regard.
In fact, during lengthy cross examination of PW1 by the insurance co/R3, there is nothing on record to come to the conclusion if PW1 has deposed falsely with respect to the qualifications or income of the petitioner and further, nothing MACT No.330/10 Palak Sharma v. Amit Kumar 39 of 92 40 is shown if the ITR of the petitioner does not reveal correct income of the petitioner or if the income as shown in the ITR of the petitioner for the year 200910 is false, fabricated or exaggerated. Rather, during his cross examination, the testimony of PW1, qua income of the petitioner is nowhere shaken or shattered. Further, there is no reason to disbelieve the version of PW1 that while studying the petitioner was also used to earn as now a days, it is a matter of common parlance that in general, a person of the age of petitioner wants to be financially independent and as such, there is nothing wrong in it if he also starts earning. The insurance co/R3 has miserably failed to show anything on record to the contrary. Accordingly, in the given facts and circumstances and on the basis of material as placed on record and considering that the ITR of petitioner for the year 200910 is duly proved on record by PW1 and needs to be taken into consideration. In the case of Amrit Bhanu Shali and others vs. National Insurance co. and others, IV (2012) ACC 248 (SC), the Hon'ble Apex court has relied on the income tax returns of the MACT No.330/10 Palak Sharma v. Amit Kumar 40 of 92 41 deceased and treated it as truthful.
As per record, the accident took place on 12.03.2010 and the ITR of the petitioner for the year 200910 which is duly proved on record is taken into consideration which shows that the gross income of the petitioner for the year 200910 was Rs.3,24,811/ and the petitioner had paid an amount of Rs. 17,539/ towards income tax and accordingly, the net income of petitioner thus comes to Rs.3,07,272/ per annum.
Further, as per class 10th and 12th certificates of petitioner, it is duly shown on record that at the time of accident, he was around 22 years of age. The same is nowhere in dispute by either of the respondents and as per observations of Hon'ble Apex Court in the case of Sarla Verma v. DTC (2009) 6 SCC 121, the multiplier of '18' would be applicable in the case in hand.
23. Dr. Nimit Gupta (Neurosurgeon, BSA hospital) is also examined as PW3 who has testified that initially vide document Ex. PW1/A (colly) at pages 28 and 29, the MACT No.330/10 Palak Sharma v. Amit Kumar 41 of 92 42 initial disability of petitioner was ascertained and the first disability certificate was issued on 20.10.2010 with recommendations to review the petitioner after six month and thereafter, on 07.05.11, the other disability certificate of petitioner was issued with recommendation to review his condition after 12 months and thereafter, Ex. PW1/C, which is the final disability certificate bearing no. 1024 was issued on 11.06.2012 showing that the petitioner had suffered from 100% permanent disability. He has also deposed that all the said certificates bear his signatures at point A. He has also deposed that at the time of examination, the petitioner was neither mentally nor physically fit and needed special semi liquid diet as otherwise, the diet given through the mouth could go to the respiratory tract and could have been harmful to the petitioner. He has also deposed that since a period of 2 years have already lapsed, hence the chances of recovery of petitioner are very less. He has also testified that such a patient needs regular attendant and physiotherapy. He had also brought the relevant record i.e the copies of applications dated 15.10.10 and 25.04.11, OPD tickets and copies of disability MACT No.330/10 Palak Sharma v. Amit Kumar 42 of 92 43 certificate pertaining to the petitioner.
It needs to be discussed that the said doctor PW3 was not at all cross examined by R1 and R2 and they have accordingly nowhere disputed that the petitioner has suffered from 100% permanent disability or that he is not physically or mentally incapacitated.
During his cross examination by insurance co./R3, Dr. Nimit Gupta (PW3) has interalia stated that he had also brought the record of hospital pertaining to assessment of disability of the petitioner and at the time of his examination, Dr. G.C. Verma, Dr. P S Nayyar, Dr. Amardev, Dr. Ashish and he himself was present in the board of doctors constituted for assessment of disability of the petitioner and he has also deposed that the petitioner was examined thrice. He has denied if MRI report of the petitioner was not seen prior to issuance of the disability certificate and has further denied that the assessment regarding disability of petitioner is excessive or that it was made without examination of the petitioner. He has also denied if the disability of petitioner is assessed on the MACT No.330/10 Palak Sharma v. Amit Kumar 43 of 92 44 basis of hearsay.
24. After going through the testimony of the doctor i.e PW3 and the entire relevant material as placed on record, it is nowhere shown that the disability certificate Ex. PW1/C which shows that the petitioner had suffered from 100% permanent disability is fake or if at all the percentage of disability of petitioner is exaggerated or enhanced. It may also be discussed that no motive is whispered as to why the doctor would issue a false disability certificate to the petitioner to the extent of 100% permanent disability, in case he did not suffer it to that an extent. Moreover, as revealed from the testimony of PW3, a board of doctors was constituted consisting of 5 doctors and all of them had unanimously reached to the conclusion that injuries of the petitioner had resulted in 100% permanent disability and nothing is shown on record if the said disability certificate Ex. PW1/C is not truthful or if the doctors had favoured the petitioner by giving him a permanent disability certificate to the extent of 100%. Simply giving a suggestion by the insurance co/R3 that the MACT No.330/10 Palak Sharma v. Amit Kumar 44 of 92 45 said disability certificate Ex. PW1/3 is manipulated would not serve any purpose and no inference as such can be drawn that the disability certificate Ex. PW1/C is false/fabricate/manipulated or if the doctors have deliberately exaggerated the disability of petitioner to the extent of 100% permanent disability. As such, no document or evidence is produced by either of the respondent to whisper even remotely that the disability certificate Ex. PW1/C is not reliable and there is nothing on record to come to the conclusion that the petitioner did not suffer from 100% permanent disability or he has not become totally physically and mentally incapacitated.
A bare perusal of document Ex. PW1/C which the permanent disability certificate also reveal that it was issued on 06.11.12 i.e. about more than 2 years of the occurrence/accident and PW3 has clearly stated that after lapse of 2 years, there is very remote chances of improvement in the condition of the petitioner.
25. In considered opinion of the court, though an efforts is made by the insurance co/R3 that the said disability certificate EX MACT No.330/10 Palak Sharma v. Amit Kumar 45 of 92 46 PW1/C is not genuine, but nothing is shown or placed on record by or on behalf of either of the respondents if the petitioner did not suffer from 100% permanent disability or that the petitioner has not become totally physically or mentally incapacitated due the injuries sustained in the accident.
26. In the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, Hon'ble Supreme Court has laid down that compensation on account of loss of earning capacity has to be granted in accordance with the nature of job of the victim of motor accident. It has observed that : "11. What requires to be assessed by the Tribunal is the effect of the permanently 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 MACT No.330/10 Palak Sharma v. Amit Kumar 46 of 92 47 Tribunal may find that 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 and Yadava Kumar v. D.M., National Insurance Co. Ltd. 2010 (10) SCC 341.
x x x
x
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any MACT No.330/10 Palak Sharma v. Amit Kumar 47 of 92 48 compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
27. The Hon'ble Apex Court in the case of Rajesh and Others vs Rajbir Singh and others, 2013 (6) SCALE 563 has clearly observed that the compensation amount has to be fair and equitable. It has also laid down that Hon'ble Apex Court observed that : "...in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing MACT No.330/10 Palak Sharma v. Amit Kumar 48 of 92 49 future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years."
Accordingly, in the case in hand, since it is duly proved on record that at the relevant time the petitioner Sh. Palak Sharma was 22 years old, hence, an addition of 50% towards inflation would be added.
28. In the case in hand, in the given facts and circumstances, on the basis of material as placed on record and in view of aforesaid discussion, it is duly established on record that due to the injuries sustained in the accident, the petitioner Sh. Palak Sharma has suffered from permanent disability to the extent of 100% and has become physically and mentally incapacitated. Accordingly, he is not able to work and earn and has certainly suffered loss of earnings. Thus, the petitioner Sh. Palak Sharma is entitled to compensation towards 100% loss of earning capacity/income and is also entitled to addition of 50% towards inflation as already MACT No.330/10 Palak Sharma v. Amit Kumar 49 of 92 50 discussed earlier in view of settled law. The amount thus comes to Rs.82,96,344/ (i.e. 3,07,272 p.a.X18+50% of 3,07,272 p.a.X18) towards loss of income and loss of future income. Accordingly, an amount of Rs.
82,96,344/ is granted to the petitioner towards loss of income which also includes loss of future income.
29. Towards Attendant Charges In the case in hand, Sh. Ajay Sharma (PW1) has interalia testified that as the petitioner suffered from 100% permanent disability and is totally physically and mentally incapacitated to look after himself and is entirely bed ridden and hence, he is not able to look after himself for anything at all and accordingly, a person is required round the clock to look after him, hence Sh. Chandan Kumar (PW2) was engaged as an attendant to look after the petitioner Sh. Palak Sharma for 24 hours a day.
Dr. Nimit Gupta (PW3), as already discussed at length has duly proved on record the permanent disability certificate of the petitioner as Ex. PW1/3 which shows that the petitioner MACT No.330/10 Palak Sharma v. Amit Kumar 50 of 92 51 had become 100% permanently disabled and he has also deposed that the petitioner needs regular attendant and there are remote chances of recovery of the petitioner. Accordingly, the testimony of PW1 is duly corroborated by the testimony of PW3 and also finds support from medical documents of the petitioner as proved on record and nothing is shown to the contrary by any of the respondents. In the case in hand, Sh. Chandan Kumar, who is the attendant of the petitioner has also been examined as PW2, who has testified that since 23.04.2010, he is looking after the petitioner as his attendant for 24 hours a day for which he was and is charging Rs.20,000/ per month which is paid to him by way of cheque. He has also proved the details of said payment in his pass book as Ex. PW2/1 (colly 5 pages).
30. Sh. Amit Kumar/R1 and R2, who are the driver and owner of the offending vehicle have not cross examined the said witnesses on any aspect and have admitted their versions in totality that the petitioner needs an attendant all the time due MACT No.330/10 Palak Sharma v. Amit Kumar 51 of 92 52 to 100% permanent disability they have nowhere disputed that an amount of Rs.20,000/ was paid to PW2 towards the same. Though, the aforesaid witnesses was cross examined on behalf of insurance co./R3, yet nothing is shown on record if either of them is telling a lie or if the petitioner did not suffer from 100% permanent disability or that he did not need an attendant round the clock. The testimonies of PW1 and PW3 are nowhere shaken and nothing is shown if they are deposing falsely. Further, R3 could not show if PW2 is not engaged to look after the petitioner as testified by him or that he did not look after the petitioner since 23.04.2010 for 24 hours a day as his attendant or that he did not charge Rs.20,000/ per month for the same. PW2 has also explained that earlier, he was working in Sanjivani Hospital as a ward boy since the year 2006 where he used to work for 8 hours per day and used to get Rs.7000/ per month and later on, he gave up his job in the said hospital and since 23.04.2010, he was and is working as an attendant for the petitioner.
After going through the entire versions of PW1, PW3 and MACT No.330/10 Palak Sharma v. Amit Kumar 52 of 92 53 PW2 i.e. the father, Doctor and attendant of petitioner, nothing is shown on record if they are deposing falsely or if since 23.04.2010, the petitioner did not require the attendant for 24 hours a day or if PW2 was not paid an amount of Rs.20,000/ per month for rendering his said services as an attendant. Rather, PW2 has corroborated the version of Sh. Ajay Sharma (PW1) on all necessary and material aspects and it is duly shown and proved on record that an amount of Rs. 20,000/ per month was paid to PW2 to look after petitioner for 24 hours a day as attendant.
Even at the cost of repetition it is discussed that there is nothing on record even to show remotely that since the day of accident, the petitioner did not require an attendant for 24 hours a day as well as, keeping in view the nature of injuries, his remaining in coma for a considerable long time, various operations including operation of brain as well, his repeated medication throughout the period, his 100% permanent disability etc, in considered opinion of the court, undoubtedly the petitioner was and is in an extremely miserable condition MACT No.330/10 Palak Sharma v. Amit Kumar 53 of 92 54 since the day of accident and initially, he was attended/looked after by his family members and since 23.04.2010, Sh. Chandan Kumar(PW2) was engaged as an attendant for 24 hours a day to look after the petitioner for which he was given Rs. 20,000/ per month, which is duly proved on record and as per the condition of the petitioner, he also requires an attendant throughout his life. As such, nothing is shown on record by or on behalf either of the respondents if at all the petitioner did not suffer such injuries or that he is not 100% permanently disabled or that he can take care of his day to day needs. In the given facts and circumstances and on the basis of material as placed on record, though the family members of the petitioner may be there to look after him but still, an attendant for 24 hours a day throughout is required to take care of petitioner properly for rest of his life. Further, nothing is shown on record if an amount of Rs.20,000/ per month was not charged by PW2 as attendant. Accordingly, in the given facts and circumstances, it is clearly shown on record that PW2 has been attending the petitioner round the clock since 23.04.2010 for which he is paid an amount of Rs.20,000/ per MACT No.330/10 Palak Sharma v. Amit Kumar 54 of 92 55 month and as per medical condition of petitioner and his 100% permanent disability, the attendant would be required by him throughout his life. Nothing is shown to the contrary by or on behalf of either of the respondents. Accordingly, as also discussed earlier, considering the age of the petitioner, the multiplier of '18' would be applicable and the amount to be awarded to the petitioner towards attendant charges and future attendant charges, thus would be Rs.43,20,000/(Rs. 20,000/ per month X 12 X 18).
It is worth mentioning that ld counsel for the petitioner has submitted that even if 50% of the said amount is awarded as attendant charges and would be kept in FDR, then it may fetch an amount equivalent to approximately Rs. 20,000/ per month and would serve the purpose towards the payment to the attendant. Considered. Keeping in view the above, an amount of Rs.22,00,000/ is granted to the petitioner towards the attendant charges which would also include future attendant charges.
MACT No.330/10 Palak Sharma v. Amit Kumar 55 of 92 56
31. Towards Physiotherapy From the testimony of Sh. Ajay Sharma (PW1) as already discussed at length, it is shown on record that the petitioner needs regular physiotherapy as he is completely bed ridden and is unable to move any of his limbs or any other part of his body which is duly supported by the medical record of the petitioner wherein the petitioner is also advised physiotherapy.
PW1 has also testified that the doctors have opined that there are very remote chances of improvement in the condition of the petitioner which is duly corroborated by the testimony of Dr. Nimit Gupta (Neurosurgeon, BSA hospital) who is examined as PW3 and also find support from the medical record of petitioner.
In the case in hand, Sh. Parveen Kumar (Physiotherapist) is examined as PW4, who has testified that he used to do physiotherapy of the petitioner Sh. Palak Sharma from MACT No.330/10 Palak Sharma v. Amit Kumar 56 of 92 57 October, 2010 to December, 2011 and he used to charge Rs. 400/ per day as he would visit the house of the petitioner twice a day for 2 hours in the morning and for 2 hours in the evening and the payment was made to him on monthly basis by way of cheques. He has also proved the copy of his pass book in this regard as mark PW4/3.
He was not cross examined by R1 and R2 and accordingly, they have not disputed that the petitioner needed regular physiotherapy and PW4 used to do it for which he charged Rs. 400/ per day.
During his cross examination by the insurance co/R3, he has interalia stated that he used to visit the house of the petitioner everyday but he did not maintain any record. He has denied if he did not do the necessary physiotherapy of the petitioner. He has denied the suggestion put by R3 that " it is wrong to suggest that the payments claimed by me as per the bank pass book were not the payments, given by the grand father of petitioner towards the treatment of petitioner". It is MACT No.330/10 Palak Sharma v. Amit Kumar 57 of 92 58 pertinent to discuss here that the said suggestion was put to him by the insurance co./R3 which clearly shows that the insurance co./R3 has admitted that certain payments were made to this witness by the grand father of the petitioner and although, the insurance co. is emphasizing that the said payments were not with respect to physiotherapy of the petitioner, however, PW4 and father of the witness(PW1), as already discussed earlier have clearly shown on record that the petitioner needed regular physiotherapy which was done by PW4 and the amount given to him was towards the services of physiotherapy rendered by PW4 to the petitioner. As such the insurance co./R3 could not show anything on record during entire lengthy cross examination of this witness to the contrary and nothing is on record if this witness did not do the physiotherapy of the petitioner as testified by him and nothing is shown if he did not charge the said fees or if the fees charged by him is exaggerated.
In fact Sh. Parveen Kumar (PW4) i.e. physiotherapist has also corroborated the version of PW1 (father of petitioner) on MACT No.330/10 Palak Sharma v. Amit Kumar 58 of 92 59 material aspects, which is further corroborated by the testimony of Dr. Nimit Gupta (PW3) that the petitioner needed regular physiotherapy due to the injuries sustained in the accident which was done by PW4 for which payment was also made to PW4 at the rate of Rs. 400/ per day.
As such nothing is shown on record by any of the respondents that regular physiotherapy of the petitioner was not done as claimed by the PW1 and PW4 or if an amount of Rs.400/ per day was not given to PW4 towards the same. In the given facts and circumstances and on the basis of material as placed on record and considering the testimony the doctor (PW3) medical record of the petitioner and also considering that as per testimony of PW4 it is clearly shown on record that an amount of Rs.1,80,000/ was paid to PW4 towards physiotherapy of the petitioner @ Rs.400/ per day from October 2010 to December 2011 and the said payment is duly proved on record by PW4 as discussed earlier. Further, keeping in view that admittedly, the petitioner has suffered from permanent disability to the extent of 100% and MACT No.330/10 Palak Sharma v. Amit Kumar 59 of 92 60 is absolutely bed ridden, hence considering that regular physiotherapy of the petitioner may keep hopes of the family members of petitioner alive that one day there may be some improvement, howsoever slight it may be in the condition of the petitioner, though the chances are bleak, but in considered opinion the court, simply because chances of improvement are less, still efforts should be continuously and constantly made as the petitioner is not an object but a living human being and if anything restores any life in any of his limb, then such effort should not be curtailed and accordingly, in the given facts and circumstances of the case and on the basis of material placed on record, a lump sum amount Rs.2,00,000/ is also granted towards the amount to be incurred in future towards physiotherapy of the petitioner. Accodingly an amount of Rs. 1,80,000/ + Rs. 2,00,000/ = Rs. 3,80,000/ is granted for the expenses already incurred on the physiotherapy and to be incurred future physiotherapy of the petitioner. MACT No.330/10 Palak Sharma v. Amit Kumar 60 of 92 61
32. Towards Special Diet In the case in hand, Sh. Ajay Sharm (PW1) has interalia testified that due to the injuries sustained in the accident, the petitioner is totally bed ridden and as per advise of the doctor, the petitioner needs liquid/ semi liquid diet which is to be administered to him through a food pipe only. In this regard, the medical record as proved on record by PW1 and the testimony of Dr. Nimit Gupta (PW3) also clearly show that the petitioner is unable to eat or drink anything on his own and has to be provided with liquid/semi liquid diet through special equipments only. As per medical record of the petitioner, it is shown that he is unable to take or eat or drink anything directly and if done so, his health would be adversely effected and food may go to his respiratory tract and can cause damage. Nothing is shown on record to the contrary by any of the respondent if at all the petitioner is able to take normal diet or if he can survive normal diet or if PW1 is telling a lie in this regard or if the medical record of the petitioner is not truthful or that he does not need special diet as stated by PW1. MACT No.330/10 Palak Sharma v. Amit Kumar 61 of 92 62 Further, the contention of the PW1 that an amount of Rs.200/ per day is incurred towards special diet of the petitioner is nowhere shown to be false and further, nothing is shown on record if the said amount is not required towards special diet of the petitioner. Even in considered opinion of the court, keeping in view the nature of injuries suffered by the petitioner and his medical treatment record, the petitioner undoubtedly needs special diet through special equipment and accordingly, an amount of Rs.12,96,000/ (Rs.6,000/ per month X 12 X 18 = 12,96,000/) is calculated towards expenditure already incurred and to be incurred in future towards special diet of the petitioner.
It needs to be discussed that ld counsel for the petitioner has fairly conceded that even if 50% of the said amount is awarded towards special diet and would be kept in FDR, then it may fetch an amount equivalent to approximately Rs.6,000/ per month and would serve the purpose. Considered. Keeping in view the above, an amount of Rs.7,00,000/ is granted to the petitioner towards the special diet which also include MACT No.330/10 Palak Sharma v. Amit Kumar 62 of 92 63 expenses on future special diet.
33. Towards Equipments As per record, Sh. Ajay Sharma (PW1) has inter alia proved the medical records of the petitioner at length and has interalia deposed that the petitioner has suffered from 100% permanent disability and as per advise of the doctor, special equipments were purchased which include catheter, food pipe, dressing materials, special airbed, pillows, special mattresses, bottle holdingstand, urinetoilets pots, room heater, oxygen cylinder etc. for the petitioner on which, he had spent an amount of Rs. 2,00,000/. It also needs to be discussed here that PW1 has also placed and proved on record certain photographs of the petitioner showing his condition wherein he is shown bed ridden with various equipments attached which are not rebutted by either of the respondents. During his testimony, PW1 has also deposed that he had also incurred an amount of Rs. 30,000/ on the hearing and speech therapy of his son i.e. the petitioner as advised by the doctors and nothing is shown MACT No.330/10 Palak Sharma v. Amit Kumar 63 of 92 64 to the contrary. He was not cross examined by or on behalf of R1 and R2 and his testimony is nowhere challenged. Despite lengthy cross examination of PW1, the Insurance Co/R3 has not been able to show anything on record if at all the petitioner does not suffer from 100% permanent disability or he does not need those special equipments or if he could survive without them or if the said equipments were not purchased for the petitioner or if the said amount was not incurred on buying them. Accordingly, in the given facts and circumstances, on the basis of material as placed on record, keeping in view the testimony of PW1, photographs of petitioner and medical record of petitioner, it is shown that the said equipments are necessary for survival of the petitioner and hence, though receipts of said equipments are not filed yet considering that the said equipments for the basic survival of the petitioner are nowhere disputed, hence, there is no reason to disbelieve the version of PW1 or the medical record or the photographs and hence, an amount of Rs. 2,00,000/ + Rs. 30,000/ = Rs.2,30,000/ is awarded towards purchase of special equipments to the petitioner.
MACT No.330/10 Palak Sharma v. Amit Kumar 64 of 92 65
34. Conveyance/Ambulance charges Sh. Ajay Sharma (PW1) has inter alia deposed that the petitioner was discharged from the hospital while he was still in coma and since then, he is completely bed ridden as he is entirely physically and mentally incapacitated and as per advise of the doctor, he needs regular check ups and since the petitioner is 100% permanently disabled, hence, the petitioner can not go to the hospital on his own and needs to be taken either an ambulance or in a private vehicle which is to be hired to take him to the hospital. It may be mentioned here that from the medical record of the petitioner, the contention of PW1 stands corroborated and it is duly shown on record that the petitioner has suffered from 100% permanent disability and is to be regularly taken to the hospital for his medical treatment/regular check ups. No document or evidence is placed on record and nothing is shown by any of the respondents if PW1 is telling a lie in this regard or that the petitioner did not and does not visit or need not visit the MACT No.330/10 Palak Sharma v. Amit Kumar 65 of 92 66 hospital for his treatment and regular check ups and hence, in view of totality of facts and circumstances and on the basis of material placed on record, though, no receipts of the expenses incurred on conveyance of petitioner is placed on record, yet in the given facts and circumstance, the petitioner is entitled to an amount towards his conveyance charges as his regular visits to the hospital are undisputed. As per PW1, sometimes the petitioner is taken in ambulance and sometimes, a private vehicle was also hired and hence it is shown on record that a considerable amount was and is definitely incurred on the to and fro of the petitioner from his house to the hospital and vice versa. Further, apart from his regular attendant, some other specialised and skilled persons must also have been required for doing the necessary job. Accordingly, keeping in view the facts and circumstances of the case and also keeping in view that contention of PW1 that he incurs Rs.4,000/ per month towards conveyance charges for the petitioner to the hospital which is not disputed and accordingly, an amount of Rs.8,64,000/ (Rs.4,000/ per month X 12 X 18 = 8,64,000/) is granted to the petitioner towards amount already MACT No.330/10 Palak Sharma v. Amit Kumar 66 of 92 67 incurred and to be incurred on conveyance in future.
35. Towards medical bills.
Sh. Ajay Sharma (PW1) has adduced his evidence by way of affidavit Ex. PW1/A wherein he has also relied upon and proved various documents as Ex. PW1/A to PW1/O which also pertain to the medical treatment of the petitioner, medical expenses incurred, disability certificates etc. He has interalia testified that the petitioner Sh. Palak Sharma (his son) is completely bed ridden due to various injuries sustained in the accident which has resulted in 100% permanent disability and the petitioner has become completely paralytic and is totally physical and mentally incapacitated and further, the petitioner has become a person of unsound mind since the day he has sustained injuries in the accident. He has also deposed that initially, the petitioner was admitted in Max Hospital at Pitampura, Delhi and his treatment also continued MACT No.330/10 Palak Sharma v. Amit Kumar 67 of 92 68 in the said hospital, however, thereafter, he was also treated at Shri Tirath Ram Shah Charitable hospital and at DITO Sant Parmanand Hospital, Delhi. He has also given the details of admission/treatment of the petitioner in various hospital i.e. the petitioner was admitted and treated in the Max hospital, Pitampura on various dates i.e. 29.04.2010 to 30.04.2010, on 17.05.2010 to 28.05.2010, 12.06.2010 to 17.06.2010, 19.07.2010 to 26.07.2010, 28.09.2010 to 01.10.2010, 18.10.2010 to 23.10.2010, 24.11.2010 to 26.11.2010, 12.02.2011 to 17.02.2011 and was further treated in Tirath Ram Shah Charitable Hospital on 17.02.2011 to 23.02.2011 and was also treated in DITO Sant Parmanand hospital on 14.12.2011 to 26.12.2011.
He has further testified that the petitioner is still under treatment as he has become completely paralytic and of unsound mind and is not able to understand anything. He has deposed that the petitioner has to be medicated for the rest of his life and could not tell as to how much time it would take to cure the petitioner completely or how much amount would be MACT No.330/10 Palak Sharma v. Amit Kumar 68 of 92 69 incurred. He has also testified that he has already incurred an amount of Rs. 18,57,000/ on the hospitalization of petitioner, fees of doctor, purchasing of medicine etc for the petitioner. He has further deposed that he also incurs an amount of Rs.10,00015,000/ per month on the petitioner towards his treatment, towards payment of fees to the doctor, purchase of medicine etc. He has also proved the medical records of the petitioner as Ex. PW1/A (colly, total 30 pages), original medical bills to the tune of Rs.18,57,000/ as Ex. PW1/B (colly, total 161 pages ), the copy of permanent disability certificate of petitioner as Ex. PW1/C. It would be not out of place to mention here that Sh. Ajay Sharma/(PW1) is not cross examined on any aspect by or on behalf of Sh. Amit Kumar/R1 and M/s Top Wheels Tours & Travels/R2, who are the driver and owner of the offending vehicle on any aspect whatsoever and they have accordingly nowhere disputed about either the medical condition of the petitioner or the amount incurred on his treatment under various heads as elaborately described by PW1 in his affidavit MACT No.330/10 Palak Sharma v. Amit Kumar 69 of 92 70 and as such, the entire deposition of PW1 is nowhere rebutted by them. The only reasonable conclusion that can be drawn in the given facts and circumstances is that R1 and R2 have nothing to offer to PW1 regarding either the physical or the mental condition of the petitioner and they have nowhere disputed if the petitioner did not suffer 100 % permanent disability due to the injuries suffered in the said accident as caused by R1 or that he had not become totally physically and mentally incapacitated or that due to the injuries sustained in the accident, the petitioner has become a person of unsound mind. Further, it is also not challenged by either of them that the petitioner was treated at various hospitals as testified by PW1 and was advised various medicines, medical equipments necessary for his bare survival and it is nowhere even whispered that he did not require special diet/conveyance charges/attendant for 24 hours a day for an uncertain period. It also needs to be discussed even at the cost of repetition that the entire testimony of PW1 and the various documents as proved by him are nowhere shown to be false, manipulated or fabricated.
MACT No.330/10 Palak Sharma v. Amit Kumar 70 of 92 71 During his cross examination by the Insurance Complainant/R3, PW1 has stated that as per prescription of the doctor, he used to purchase the medicine for petitioner and has denied if he did not spend an amount of Rs.18,57,000/ towards the hospitalization or medical treatment of the petitioner. He has also stated that on 29.11.2010, the doctor had advised the petitioner to take anti conventional medicines initially for three years. He has denied if the documents vide Ex. PW1/A are fabricated or if they were obtained for taking enhanced amount of compensation. He has further denied that the disability certificate of the petitioner which is Ex. PW1/C mentions of exaggerated percentage of disability. He has denied if he did not incur the expenses on the medical treatment of his son/petitioner as mentioned by him in his affidavit.
Though, the insurance co/R3 has cross examined PW1 at length, however, it has miserably failed to show anything on record if PW1 is telling a lie or if he is not truthful witness or that he did not incur an amount of Rs.18,57,000/ towards MACT No.330/10 Palak Sharma v. Amit Kumar 71 of 92 72 medical expenses of petitioner or that the petitioner has not become 100% permanently disabled. Further, the documents as produced and proved by PW1 in this regard are nowhere shown to be false, fabricated or manipulated. As such, the testimony of PW1 is nowhere shattered or shaken despite lengthy cross examination by the insurance co./R3.
36. In the case in hand, Dr. Nimit Gupta (Neurosurgeon, BSA hospital) is examined as PW3 who has also proved the permanent disability certificate of the petitioner as Ex. PW1/C which shows and proves on record that the petitioner has suffered from 100% permanent disability.
It needs to be discussed that PW3 was not cross examined by R1 and R2 on any aspect and they have accordingly nowhere disputed that the petitioner has suffered from 100% permanent disability.
During his cross examination by insurance co./R3, Dr. Nimit Gupta (PW3) has inter alia stated that a board of doctors consisting of Dr. G.C. Verma, Dr. PS Nayyar, Dr. Amardev, Dr. Ashish and he himself was constituted for ascertaining the MACT No.330/10 Palak Sharma v. Amit Kumar 72 of 92 73 extent of disability of the petitioner and it was observed that the petitioner had suffered from 100% permanent disability. He has denied if MRI report of the petitioner was not seen prior to issuance of said disability certificate and has further denied that the assessment regarding disability of petitioner is excessive or that it was made without any examination of petitioner. He has also denied if the disability of petitioner was assessed on the basis of hearsay. He had also brought the requisite record which has nowhere been rebutted.
After going through the entire testimony of PW3 and document Ex. PW1/C, it is duly proved on record that the petitioner had suffered from 100% permanent disability and nothing is shown on record even remotely if Ex. PW1/C is fake or if at all the percentage of permanent disability of the petitioner is exaggerated or enhanced. As such, there is no reason to disbelieve the testimony of doctor (PW3) or to doubt the veracity of Ex. PW1/C. It is not out of place to mention here that the testimony of Dr. Nimit Gupta (PW3) and the permanent disability MACT No.330/10 Palak Sharma v. Amit Kumar 73 of 92 74 certificate of the petitioner which is Ex. PW1/C has already been discussed at length while discussing the aspect of 'loss of income' of petitioner and hence, for the sake of brevity, the said detailed discussion is not repeated again. Further, the medical documents as proved on record by Sh. Ajay Sharma (PW1) as already discussed at length earlier also clearly show that he has already incurred an amount of Rs.18,57,000/ towards treatment/medicines of petitioner from the date of accident till the filing of the affidavit by him and his contention that an amount of Rs.10,000/ to Rs.15,000/ per month is also incurred towards fees/medicines of doctors from the date of filing of the affidavit onwards and further as per advise of the doctor, the treatment of the petitioner has to continue throughout the entire life of petitioner. He has also filed the details of medicines prescribed for the petitioner as shown in the discharge slip of the petitioner as proved on record.
Accordingly, on the basis of material placed on record as discussed, an amount of Rs.18,57,000/ is granted to the MACT No.330/10 Palak Sharma v. Amit Kumar 74 of 92 75 petitioner towards the medical expenses already incurred from the date of his accident till filing of affidavit by Sh. Ajay Sharma (PW1). Further considering that the petitioner was still under treatment from the date of filing of affidavit by PW1 till 08.09.2014 i.e. till the day, final arguments were advanced and contention of PW1 that an amount of Rs. 10,000/ to Rs.15,000/ per month is incurred towards medical expenses of petitioner which is nowhere rebutted and hence, an amount of Rs.10,000/ per month is also granted to the petitioner towards medical expenses from the date of filing of affidavit by PW1 till date of advancement of final arguments. Further, the contention of PW1 that in future and practically for whole life, the petitioner is to be medically treated and has to be regularly medically checked up is also nowhere controverted by or on behalf of any of the respondents. Further, the medical record of the petitioner also suggest that he has become 100% permanently disabled and there are very less chances of recovery and the testimony of PW1 stands corroborated on all material aspects by the testimony of Dr. Nimit Gupta (PW3) and by the documentary MACT No.330/10 Palak Sharma v. Amit Kumar 75 of 92 76 evidence as well. There is no reason to disbelieve any of them and nothing is shown to the contrary. Accordingly, keeping in view the same, court is of the considered opinion that the petitioner requires regular treatment/medication even in future and medicines would also be required, however, it is not shown as to how much would be the amount to be incurred in future on the medicines/medical treatment of the petitioner, hence, in view of material placed before the court as already discussed, at least an amount of Rs.1,000/ per month would definitely be required towards the same .
Accordingly, the amount of Rs.23,23,000/ (Rs. 18,57,000+2,50,000+2,16,000/) is granted to the petitioner towards medical expenses/future medical expenses and fees/future fees of the doctors and the detailed calculation is given as under: A. Medical bills for Rs.18,57,000/ B. Rs. 2,50,000/ (Rs.10,000/ X 25 months, as PW1 has filed his affidavit on 09.07.12 and final arguments were MACT No.330/10 Palak Sharma v. Amit Kumar 76 of 92 77 heard on 08.09.2014).
C. Rs.2,16,000/ (Rs.1,000/ per month X 12 X 18) .
37. NON PECUNIARY DAMAGES.
As already discussed, it is held in catena of cases that apart from 'pecuniary damages', the petitioner is also entitled to 'non pecuniary damages' which include pain and suffering, loss of enjoyment of life, loss of amenities and loss of expectation of life, loss of marriage prospects, disfiguration, loss of education etc. In the case of Kavita Vs. Deepak and Others. IV(2012) ACC 342 (SC), the Hon'ble Supreme Court has laid down that an attempt should always be made to award adequate compensation not only for the physical disability but also for the loss of earnings and inability to lead a normal life and to enjoy usual amenities of life. It has also laid down that the amounts awarded under the head of loss of earning capacity MACT No.330/10 Palak Sharma v. Amit Kumar 77 of 92 78 are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.
In the said case, the petitioner has suffered from 90% permanent disability and was in vegetative state and was not in a position to look after herself and as such, the compensation amount towards loss of amenities and towards loss of expectation of life was also granted. It was observed that " in determining the quantum of compensation payable to the victim of accident, who are disabled either permanently or temporarily, 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 inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not MACT No.330/10 Palak Sharma v. Amit Kumar 78 of 92 79 overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses."
In the aforesaid case, the petitioner was kept alive by feeding through a pipe and nursing care was also required for daily routine work as the petitioner had suffered from 75% permanent disability and there seemed no probability of her recovery as she had lost her capacity of hearing, understanding, speaking and establishing interaction and she was under treatment. The Hon'ble Supreme Court has observed that the petitioner has become virtually a vegetable and was not in a position to look after herself what to say of discharging her functions. The Hon'ble Supreme Court also awarded compensation under the head of loss of amenities and loss of expectation of life and granted an amount of Rs. 3,00,000/ under the head of physical and mental pain and also awarded Rs.3,00,000/ under the head of loss of amenities and loss of life expectancy.
MACT No.330/10 Palak Sharma v. Amit Kumar 79 of 92 80
38. Further, in the case of Anuj Sharma Vs. Ahsahul Haq and Others, Rev. Pet. No. 45/12, CM No. 979/2012 (decided on 16.04.2014), the Hon'ble High Court of Delhi has discussed at length the miserable condition of the petitioner who had undergone various surgeries, repeatedly visited hospital, spent huge amount on conveyance and held that the petitioner would have to depend upon others and his life may be more miserable and he would require financial, medical, physical and emotional support from others and in pursuance of observations in the case of Rajesh and Others vs Rajbir Singh and others, 2013 (6) SCALE 563, an amount of 50% was added in the actual income of petitioner towards future prospects. Apart from that, an amount of Rs.2,00,000/ was also granted towards pain and suffering, and an amount of Rs. 2,00,000/ was granted towards marriage prospect and an amount of Rs.5,00,000/ i.e. Rs.1,00,000/ each was granted on account of physical disfigurement, loss of amenities of life, for loss of expectation of life, for inconvenience, hardship, MACT No.330/10 Palak Sharma v. Amit Kumar 80 of 92 81 discomfort, disappointment, frustration and mental stress in life and for damages for mental and physical shock, agony, already suffered or likely to be suffered in future.
49. In the case of Ritu Minor Thr. Her Father & Ors vs Uttaranchal State Road Transport Corpn. I (2013) ACC 250, the Hon'ble High Court of Delhi has discussed at length the compensation amount to be granted as pecuniary/special damages and non pecuniary/general damages. It is observed that " The law with respect to the grant of compensation in injury cases is wellsettled. The injured is entitled to pecuniary as well as non pecuniary damages. Pecuniary damages also known as special damages are generally in terms of money whereas nonpecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the MACT No.330/10 Palak Sharma v. Amit Kumar 81 of 92 82 claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the nonpecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc. The above list is not exhaustive and there may be special or additional circumstances depending on the facts in each case".
In the case of Ritu Minor (Supra), the Hon'ble High Court has granted Rs.3,00,000/ for pain and suffering to petitioner who had suffered from 80% permanent disability. MACT No.330/10 Palak Sharma v. Amit Kumar 82 of 92 83 Further, considering that the petitioner was a bright and promising student, however, due to the accident, her condition has become an impediment not only to her success but also every day ordinary life and even looking after on personal hygiene has become difficult and there was loss of expectation of life i.e. the normal life span of the person being shortened due to the injury, which causes disappointment and stress and hence, compensation of Rs.3,50,000/ was granted to the petitioner under the head of loss of amenities of life which takes into account all aspects of a normal life that have been lost due to the injuries caused in the accident. It was further observed that petitioner had also suffered loss of education who was very hard working and granted an amount of Rs. 2,00,000/ on that count. Further, regarding disfiguration due to the accident, an amount of Rs.50,000/ was also granted to the petitioner.
40. In the case of Anita Gupta vs Kamlesh and Others, II (2014) ACC 914 (Delhi), the Hon'ble High court of Delhi considered that due to the accident, entire movement of the petitioner was MACT No.330/10 Palak Sharma v. Amit Kumar 83 of 92 84 restricted and considering that the functional disability of petitioner was 100% it granted compensation of Rs.3,00,000/ to the petitioner towards mental pain, agony and sufferings and also awarded Rs.1,50,000/ towards loss of amenities of life and further granted an amount of Rs.2,00,000/ each towards loss of expectation of life and loss of disfigurement and further awarded an amount of Rs.3,00,000/ each towards depression and mental state and matrimonial discomfort.
41. Now turning to the case in hand, considering that the petitioner was 22 years old and was in prime of his youth and was a student of final year of BBA and had a promising career and while studying, he was also earning, however, due to the injuries sustained in the accident, his physical and mental faculties are totally paralyzed and he has become 100% permanently disabled. The petitioner is kept alive by feeding through a pipe and nursing care is required round the clock and there seems no probability of his recovery as he has suffered from 100% permanently disability. He is practically in a vegetative state and not in a position to look after himself MACT No.330/10 Palak Sharma v. Amit Kumar 84 of 92 85 in any manner. As such, no amount of money can restore the lost limbs or can compensate for his pain and sufferings.
In fact, it is impossible to equate the money with the human sufferings or personal deprivation and money cannot renew a broken and shattered physical frame. A person not only suffers injuries on account of accident but also suffers in mind and body throughout his life and a feeling is developed that the injured is no more a normal person and cannot enjoy the amenities of life as any other normal person can and rather curses his life. The case of an injured and disabled person is more pitiable and the feeling of hurt, helplessness, despair and even destitution ensures every day. The support that is needed by a severely handicapped person comes at an enormous price not only on the victim but even on his family and the stress saps their energy and destroys their equanimity. Though no amount of money can ever compensate the pain and sufferings of the petitioner and his family members, however at the same time, law recognizes and aims at making the loss suffered good to an extent due to MACT No.330/10 Palak Sharma v. Amit Kumar 85 of 92 86 the road accident as far as money can do in a fair and reasonable manner.
42. It is settled law that if there is no possibility of improvement in condition of the injured, the compensation should be such as to ensure is a steady and reasonable income to the claimant as he/she is unable to earn for himself/herself and further, perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong and has suffered at the hands of wrongdoer and effort should be made to put the claimant in the same position as he/she was in so far as money can buy and the court must take care to give him/her full and fair compensation for what he/she had suffered. While granting compensation, the special circumstances of the claimant have to be taken into consideration including the age, the unusual deprivation the petitioner has suffered and the effect thereof on the future life as well. The non pecuniary loss cannot be arithmetically calculated which can be compensated in terms of money, however not as a substitute or replacement for other money but as a substitute to compensate the petitioner to the MACT No.330/10 Palak Sharma v. Amit Kumar 86 of 92 87 extent possible.
43. Now, turning to the case in hand, the petitioner Sh. Palak Sharma has become practically crippled and permanently disabled forever, physically and mentally. His permanent disability is 100% , prior to which he was leading a normal life. It is shown on record that he has become totally physically and mentally incapacitated and requires an attendant 24 hours a day and needs medical treatment, physiotherapy, special diet etc. throughout his life which are a recurring expenditure. Further, the plight of petitioner cannot be described in words and his pain/suffering/frustration/disappointment cannot be described in words. Further, no money can ever buy or restore him the life he was leading prior to the accident and he can never be compensated for his unending miseries. Practically, the petitioner has lost everything that makes his life worth living and he can never be adequately compensated for being rendered such a helpless and destitute person. Not only he, but even his parents too suffer enormously and their pain is MACT No.330/10 Palak Sharma v. Amit Kumar 87 of 92 88 beyond words.
In the case in hand, as already discussed, it is difficult to assess the non pecuniary damages as no money can restore the broken body and shattered life of the petitioner, however an effort can be made and a reasonable compensation amount can be granted that could at least mitigate his sufferings and hardships to reduce the intensity of his pain, if not provide him bare minimum amenities of enjoyment of life. The life of petitioner is and would be never as before. At the relevant time, the petitioner was a young boy of 22 years who was full of youth and enthusiasm with fervor to live life and was a meritorious student and side by side, he was also earning and was financially independent and was also ambitious for his higher studies. Accordingly, in the given facts and circumstances and as per settled proposition of law, the petitioner is entitled to 'non pecuniary damages' as well. Accordingly, an amount of Rs.3,00,000/ is granted to the petitioner towards his pain, agony and sufferings, further an amount of Rs.3,00,000/ is also granted under the head of loss MACT No.330/10 Palak Sharma v. Amit Kumar 88 of 92 89 of amenities of life which takes into account all aspects of his normal life that have been lost due to the injuries caused and an amount of Rs.3,00,000/ is also granted towards loss of matrimonial prospects which include virtual impossibility of marriage, complete loss of ability to have sex and to have and nurture children. Further, an amount of Rs.2,00,000/ is also granted to the petitioner towards loss of education and an amount of Rs.50,000/ is granted to the petitioner towards disfigurement.
44. The total compensation amount to be granted to petitioner is tabulated as under: S. No. Compensation under various heads Amount awarded
1. Loss of Income/Earning Capacity Rs. 82,96,344/ 2 Attendant Charges Rs. 22,00,000/
3. Physiotherapy Rs. 3,80,000/
4. Special Diet Rs. 7,00,000/
5. Purchase of equipments Rs. 2,30,000/
6. Conveyance Rs. 8,64,000/
7. Medical Bills Rs. 23,23,000/
8. Pain, agony and suffering Rs. 3,00,000/ MACT No.330/10 Palak Sharma v. Amit Kumar 89 of 92 90
9. Loss of education Rs. 2,00,000/
10. Loss of Amenities in Life Rs. 3,00,000/
11. Loss of marriage prospects/ Rs. 3,00,000/ matrimonial discomfort
12. Disfigurement Rs. 2,00,000/ Total Rs.1,62,93,344/ Thus, the total amount awarded to the petitioner Sh. Palak Sharma, comes to Rs. 1,62,93,344/ (Rs. One Crore Sixty Two Lacs Ninety Three Thousands Three Hundred and Forty Four Only)
45. Issue no. 3 Relief Accordingly, in the case in hand, in view of above and also considering that the offending vehicle was duly insured with the Chola Mandlam MS General Insurance co. Ltd./R3 and further considering that Sh. Amit Kumar/R1, who is the driver of offending vehicle had valid driving license and also keeping in view that no violation of permit etc by R2 (who is owner of offending vehicle) is shown on record and hence, in the given facts and circumstances, the Chola Mandlam MS General Insurance co. Ltd./R3 is directed to deposit with this MACT No.330/10 Palak Sharma v. Amit Kumar 90 of 92 91 Tribunal within 30 days from today, the awarded amount of Rs.1,62,93,344/ along with interest @ 7.5 % per annum from the date of filing of the petition till notice of deposit of awarded amount to be given by R3 to the petitioner and his counsel as per rules as per procedure established by law.
46. I have heard counsel for the petitioner regarding financial needs of injured/petitioner and in view of the observations in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, the following arrangement is hereby ordered:
An amount of Rs.62,93,344/ be released to the petitioner Sh. Palak Sharma out of the awarded amount. Further, remaining amount with proportionate interest be kept in FDR in the name of the petitioner for seven years in a nationalized bank in which the account of the petitioner is maintained. Further, the interest on the aforesaid fixed deposits shall be paid/deposited on monthly basis by automatic credit of interest in the Saving Account of the petitioner. MACT No.330/10 Palak Sharma v. Amit Kumar 91 of 92 92 Further, the petitioner shall not have any facility of loan or advance on the FDR, however, in the case of emergent need, he may approach this Tribunal for premature encashment of FDR.
47. The petition is accordingly disposed off. File be consigned to record room as per rules. Copy of order be given to parties for necessary compliance as per rules.
(BARKHA
GUPTA)
Announced in the open Court JUDGE/ PO MACT
today i.e.09.09. 2014 (N/W DISTT.)
ROHINI COURTS,
DELHI
MACT No.330/10 Palak Sharma v. Amit Kumar 92 of 92