Delhi District Court
Ashish Pathak vs . Akshay Pal on 7 December, 2018
Ashish Pathak vs. Akshay Pal
IN THE COURT OF SHRI SAMEER BAJPAI : PRESIDING OFFICER :
MACT, SOUTH DISTT. : SAKET COURTS : NEW DELHI
Petition No. : 252/17
FIR No. : 334/16, PS : Hauz Khas
Ashish Pathak
S/o Sh. Rajesh Pathak
R/o RZ2557/B,
Gali no.27, Tughlkabad Ext.,
New Delhi
...... Petitioner
Versus
1. Akshay Pal
S/o Sh. Vikas Pal
R/o Pal Farm House,
Suwa Bojh Mailani, Khiri,
U.P. (Driver)
2. Arun Gupta
S/o Sh. Uma Shankar
R/o 119/411, Darshan Purva,
Kanpur, U.P. (Owner)
3. Oriental Insurance Co. Ltd.
New Delhi (Insurer)
......Respondents
Date of Institution : 02.06.2016
Date of reserving of judgment/order : 26.11.2018
Date of pronouncement : 07.12.2018
Petition No. : 252/17 Page No. 1 of 17
Ashish Pathak vs. Akshay Pal
J U D G M E N T :
1. By this order I shall dispose of the Detailed Accident Report (DAR) filed by SHO police station Hauz Khas for the injuries sustained by Ashish and Parminder in a road accident on 01.04.2016 at 3.00 AM at Shahpur Jat red light, August Kranti Marg, New Delhi due to rash and negligent driving of vehicle bearing no. UP 14 CQ 1272 by respondent no.1, owned by respondent no.2 and insured with respondent no.3.
2. In the present case injured namely Parminder has appeared only once at the time filing of DAR but thereafter, he stopped appearing. He even did not lead his evidence, therefore, his claim is dismissed for nonprosecution.
3. Respondent no.1 and 2 did not file any reply to the DAR.
4. Respondent no.3 i.e. the insurance company filed legal offer of Rs.13,47,500/. However, the same was not accepted by the injured.
5. In the present case formal issues have not been framed. However, to decide the present case following issues are framed :
1. Whether Ashish Pathak sustained injuries in a road accident on 01.04.2016 at 3.00 AM at Shahpur Jat red light, August Kranti Marg, New Delhi due to rash and negligent driving of vehicle bearing no. UP 14 CQ 1272 by respondent no.1, owned by respondent no.2 and insured with respondent no.3?Petition No. : 252/17 Page No. 2 of 17
Ashish Pathak vs. Akshay Pal
2. To what amount of compensation the injured Ashish Pathak is entitled and from whom?
3. Relief.
6. Petitioner examined himself as PW1. He relied upon the documents PW1/A to Ex.PW1/H.
7. Dr. Majid Anwar, Sr. Resident, JPN Apex Trauma Center, AIIMS was examined as PW2. He has brought the admission note and discharge summary of the petitioner.
8. Ms. Deepshikha, Associate Prosthetics & Orthotist, Ottobock Healthcare was examined as PW3. She brought the original invoices for liner and socket change (two times), fitment of complete prosthesis issued in favour of petitioner. She stated that the total amount paid in the whole process comes to Rs. 3,52,000/. He proved the receipt/invoices Ex.PW3/1 (Colly.). She also brought the Prosthetic estimate for 10 years and annual maintenance of the prosthetic limb for a total sum of Rs. 9 lakh for the petitioner Ex.PW3/2.
9. ASI Ramesh Chand was examined as PW4. He proved the FIR Ex.PW4/A.
10. Sh. Parminder (eyewitness) was examined as PW5.
11. Respondents did not examine any witness.
Petition No. : 252/17 Page No. 3 of 17Ashish Pathak vs. Akshay Pal I S S U E No. 1
12. It is well settled law that where petition under Section 166 of the Act is instituted, it becomes the duty of the petitioner to establish rash and negligent driving by the driver. In a petition under Motor Vehicles Act, Tribunal need not go into the technicality because strict rules of procedure and evidence are not followed. Basically, in road accident cases, Tribunal has simply to quantify the compensation which is just rational and reasonable on the basis of enquiry. Though it is an admitted legal position that the negligence on part of the driver with respect to the use of vehicle needs to be established but the same is to be established on the principles of preponderance of probabilities as decided in New India Assurance Co. Ltd. vs. Harsh Mishra & Ors. III (2015) ACC 435 Delhi.
PW1 has stated that on 31.03.2016 he was going to South Extension from his house. At around 12 mid night when he was crossing Shahpur Jat red light, where the light was not working properly, he stopped for the car coming from his left side. All of a sudden, the offending vehicle came from the right side at a high speed in a rash and negligent manner and hit his motorcycle. Due to the impact, he fell down and sustained injuries on his right leg and all over his body. He was taken to AIIMS Trauma Center where his MLC was prepared. He remained hospitalised for 20 days. His right leg was amputated below knee, his liver was also damaged and his spleen was also removed.
During crossexamination he stated that he is having a driving licence to drive the motorcycle. He further stated that at the time of Petition No. : 252/17 Page No. 4 of 17 Ashish Pathak vs. Akshay Pal incident, the red light was not working and it was only blinking. He further stated that he does not know that due to whose negligence the accident took place. He voluntarily stated that he came to know after the accident from his fellows. He further stated that he came to know about the number of the offending vehicle from the owner of the Indica car. He denied the suggestion that his motorcycle was also at a high speed at the time of accident.
PW4 ASI Ramesh Chand has proved the FIR Ex.PR4/A and endorsement on the rukka Ex.PW4/B. PW5 Sh. Parminder stated that on the intervening night of 01/02.04.2016 at about 12.0012.15 a.m. he alongwith injured Ashish Pathak was going on a motorcycle bearing no. DL 3SE G 0006 from Panchsheel to South Extension. When they reached crossing of Shahpur Jat, one Verna car came from Shahpur Jat side at a high speed and rammed against their motorcycle. Ashish was driving the motorcycle. Due to the impact they were thrown away and in that accident Ashish lost his one leg. The Verna car driver was driving at a high speed and in a rash and negligent manner and after the accident ran away from the spot and number plate of the Verna car broke down and fell on the spot. They were taken to AIIMS Trauma Center by some unknown person where their MLCs were prepared.
He was not crossexamined.
13. In the present case the Investigating Officer alongwith the DAR has filed FIR, charge sheet, site plan, mechanical inspection report etc. As per the FIR, the case was registered on the statement of one Sanjay Petition No. : 252/17 Page No. 5 of 17 Ashish Pathak vs. Akshay Pal Brown, he stated the same facts to the police as deposed by PW5 in the Tribunal. As per the site plan the accident took place at a crossing. At that time the signal was blinking. The car hit the motorcycle after entering the road on which the motorcycle was coming. After hitting the motorcycle it also hit a car on the same road. This act of the respondent no.1 shows gross negligence on his part. Even the number plate of the alleged car fell down on the spot. No other version of accident has come on record. PW5 was not crossexamined despite giving the opportunity. Therefore, it is established on record that Ashish Pathak sustained injuries in a road accident on 01.04.2016 at 3.00 AM at Shahpur Jat red light, August Kranti Marg, New Delhi due to rash and negligent driving of vehicle bearing no. UP 14 CQ 1272 by respondent no.1, owned by respondent no.2 and insured with respondent no.3.
Hence, issues no.1 is decided in favour of the petitioner and against the respondents.
I S S U E No. 214. The petitioner has claimed compensation in respect of the injuries sustained by him. In a road accident a person is entitled to compensation for the pecuniary and nonpecuniary damages. Let me assess the compensation which the claimant is entitled for under different heads :
15. Medical Expenses : The petitioner has filed on record medical bills of Rs. 16,488/. I therefore, award Rs. 16,500/ to the petitioner towards Petition No. : 252/17 Page No. 6 of 17 Ashish Pathak vs. Akshay Pal medical expenses.
16. Pain & Suffering and Enjoyment of Life : As per the discharge summary Ex.PW2/1 the petitioner was diagnosed with RTA with Right BKA with BKA with splenectomy with Liver Laceration packing. He remained hospitalised in Trauma Center from 01.04.16 to 19.04.16. He was operated. RTA BKA Guillotoine performed, midline laprotomy was given and packing was done. His spleen was also removed. He has suffered 60% physical impairment. His Right leg below knee was amputated.
PW2 stated that he had done midline laparatomy alongwith removal of lacerated spleen alongwith surgical haemostasis alongwith right elbow knee guillotoine amputation performed and made the discharge summary of the petitioner. Having regard to the injuries, treatment and disability of the petitioner, I award him Rs. 3,00,000/ to the petitioner towards pain and sufferings & enjoyment of life.
Special Diet, Conveyance and Attendant and Future Attendant charges :
17. PW1 stated that he remained bed ridden for five months. One artificial leg was affixed at his right leg. He further stated that he is facing day to day problems and financial problems. In the present case the petitioner has not filed on record any document with regard to special diet, conveyance and attendant charges. However, having regard to the injuries, treatment and disability of the petitioner, I award Rs. 15,000/ to the petitioner towards special diet, Rs. 25,000/ towards Petition No. : 252/17 Page No. 7 of 17 Ashish Pathak vs. Akshay Pal conveyance and Rs. 35,000/ towards attendant charges. The petitioner was 27 years of age at the time of accident. His physical condition is such that he needs full time attendant for his day to day need and even for performing ordinary pursuits. I therefore, award a sum of Rs. 2,00,000/ to the petitioner towards future attendant charges. Hence, the total award amount comes to Rs. 2,75,000/.
18. Loss of Income/Future Income : The petitioner stated that at the time of accident he was working as an Interior Designer and part time Tattoo artist. He further stated that he has studied upto 12 th standard. He has also done two diploma courses i.e. one of Tattoo Artist and another of Interior Designer. He has placed on record his income tax return for the year 201516 Ex.PW1/G. He further stated that he is having phantom pain in his leg due to the amputation which will remain for rest of his life. Due to the amputation, he will not be able to drive motorcycle. He has limitations for his walking and sitting. He is not able to sit for more than four hours and he cannot travel in a bus. He further stated that due to amputation, he is jobless. Before accident he was working as an Interior Designer at Ghaziabad. During cross examination he stated that after the accident, he is not working as an interior designer as he cannot go to the construction site.
As per the income tax return for the year 201516 the gross total income of the petitioner was Rs. 2,76,650/. He has suffered 60% permanent disability. His Right leg below knee was amputated. He is jobless. The petitioner is stated to be a Tattoo Artist and Interior Designer. With this disability, he cannot do the work an Interior Petition No. : 252/17 Page No. 8 of 17 Ashish Pathak vs. Akshay Pal Designer as for such work frequent site visits are required which is not possible, due to amputation of leg. Therefore, the functional disability of the petitioner is taken as 60%. As per the education certificate, the date of birth of the petitioner is 02.12.1989. The accident took place on 01.04.2016. Therefore, he was 27 years of age at the time of accident. Taking a multiplier of '17', the future loss of income comes to Rs.2,76,650 x 17 x 60% = Rs. 28,21,830/ which is rounded off to Rs. 28,21,900/. I therefore, award Rs. 28,21,900/ to the petitioner towards loss of income/future loss of income.
19. Cost of Artificial Limb : PW3 brought the original invoices for liner and socket change (two times) and fitment of complete prosthesis issued in favour of the petitioner. She further stated that the total amount of Rs.3,52,000/ vide receipt Ex.PW3/1 (colly.) was paid by the petitioner. She also brought the prosthetic estimate for 10 years and annual maintenance of the prosthetic limb for the petitioner amounting to Rs. 9,00,000/ Ex.PW3/2. The amount towards cost of artificial limb i.e. Rs.3,52,000/ which was already paid by the petitioner is awarded to him. However, qua the prosthetic estimate of Rs.9,00,000/ Ex.PW3/2 for 10 years, it is ordered that the said amount shall be paid by the insurance company directly to the manufacturer/dealer of the prosthetic limb as and when the petitioner produces the bill to it.
20. Shortage of Life : Ld. counsel for the petitioner contended that without leg the petitioner would not be able to walk, run or even move Petition No. : 252/17 Page No. 9 of 17 Ashish Pathak vs. Akshay Pal properly and without movement his life will definitely be shortened and he should be given reasonable amount towards this head. It is a common fact of knowledge that regular movement like walk, running and other physical activity make the life longer and keeps a person healthy. In the case in hand as the petitioner's right leg below knee has been amputated, his movements will definitely be reduced but it is also to be kept in mind that the Tribunal has awarded certain amount to the petitioner towards artificial limbs using such sophisticated and expensive limbs the petitioner will be able to move and keep himself active to certain extent.
As per PW2 Dr. Md. Majid Anwar spleen of the petitioner was removed which plays multiple supporting roles in the body. It acts as a filter for blood as part of the immune system. Further, old red blood cells are recycled in the spleen and platelets and white blood cells are stored there. More importantly, the spleen helps fight certain kind of bacterias that case pneumonia and meningitis. Thus, after removal of the spleen the petitioner would definitely be prone to more infections which may shorten his life.
Keeping in view the overall circumstances, I award Rs. 5,00,000/ to the petitioner under this head.
21. Loss of Amenities : Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his daily life to pursue his talents, recreation interest, hobbies and evocations. The injuries would also have an affect on his social life. I therefore, award Rs. 2,00,000/ to the petitioner towards loss of amenities.
Petition No. : 252/17 Page No. 10 of 17Ashish Pathak vs. Akshay Pal
22. The total compensation awarded in favour of the petitioner is as under :
MEDICAL EXPENSES :Rs. 16,500/
PAIN & SUFFERING & ENJOYMENT OF LIFE :Rs. 3,00,000/
SPEICAL DIET, CONVEYANCE, ATTENDANT
& FUTURE ATTENDANT CHARGES :Rs. 2,75,000/
LOSS OF INCOME/FUTURE LOSS OF INCOME :Rs. 28,21,900/
COST OF ARTIFICIAL LIMBS :Rs. 3,52,000/
SHORTAGE OF LIFE :Rs. 5,00,000/
LOSS OF AMENITIES :Rs. 2,00,000/
============
Rs. 44,65,400/
Less : Interim award vide
order dated 22.09.2017 : Rs. 25,000/
============
TOTAL : Rs. 44,40,400/
============
L I A B I L I T Y
23. As the offending vehicle was being driven by respondent no. 1, primary liability to compensate the petitioner is of respondent no. 1. Since the vehicle was owned by respondent no.2, he is vicariously liable to compensate the petitioner. It has come on record that the vehicle was insured with respondent no.3, so it is contractually liable to compensate the petitioner.
R E L I E F
24. In view of my findings, I award Rs. 44,40,400/ (Rs. Forty Four Lakh Forty Thousand Four Hundred only) to the petitioner as compensation alongwith interest @ 9% per annum from the date of filing the DAR till its realisation.
Petition No. : 252/17 Page No. 11 of 17Ashish Pathak vs. Akshay Pal The amount of Rs. 9,00,000/ is also awarded to the petitioner towards future prosthetic limbs including maintenance. This amount shall be paid by the insurance company directly to the manufacturer/dealer of the prosthetic limb as and when the petitioner produces the bill to it. It is made clear that this amount shall not carry any interest as will not be given to the petitioner at this stage.
Out of the awarded amount, a sum of Rs. 44,00,000/ is directed to be kept in the form of FDRs in the following phased manner :
1. Rs. 2,00,000/ for a period of 01 year.
2. Rs. 3,00,000/ for a period of 02 years.
3. Rs. 3,00,000/ for a period of 03 years.
4. Rs. 3,00,000/ for a period of 04 years.
5. Rs. 3,00,000/ for a period of 05 years.
6. Rs. 3,00,000/ for a period of 06 years.
7. Rs. 3,00,000/ for a period of 07 years.
8. Rs. 3,00,000/ for a period of 08 years.
9. Rs. 3,00,000/ for a period of 09 years.
10. Rs. 3,00,000/ for a period of 09 years.
11. Rs. 3,00,000/ for a period of 09 years.
12. Rs. 3,00,000/ for a period of 09 years.
13. Rs. 3,00,000/ for a period of 09 years.
14. Rs. 3,00,000/ for a period of 09 years.
15. Rs. 3,00,000/ for a period of 09 years.
Deposition of awarded amount with STATE BANK OF INDIA, Saket Court Branch, New Delhi.
25. In consonance to the idea conceptualized and formulated in various land mark judgments of our own Hon'ble High Court, by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, respondents are directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Petition No. : 252/17 Page No. 12 of 17 Ashish Pathak vs. Akshay Pal Saket Courts Complex Branch, against account of petitioners within a period of 30 days from today, failing which the respondent no.3 shall be liable to pay future interest @ 12% per annum till realization (for the delayed period).
26. The respondent no. 3 is directed to credit the amount directly to the MACT account of State Bank of India, District Court, Saket branch. Details of the bank i.e. IFSC code etc. have been provided to the ld. counsel for the insurance company.
27. Upon the aforesaid amount being deposited, the State Bank of India, Saket Court Complex, New Delhi, is directed to keep the awarded amount in the "fixed deposit / saving account'' in the following manner:
1. The interest on the fixed deposit be paid to the petitioners / claimants by Automatic Credit of interest of their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
2. Withdrawal from the aforesaid account shall be permitted to claimants / petitioners after due verification and the Bank shall issue photo identity Card to claimants / petitioners to facilitate identity.
3. No cheque book be issued to claimants / petitioners without the permission of this Court.
4. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimants/petitioners alongwith the photocopy of the FDRs .
5. The original fixed deposit receipts shall be handed over to claimants / petitioners at the end of the fixed deposit period.
6. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
Petition No. : 252/17 Page No. 13 of 17Ashish Pathak vs. Akshay Pal
7. Half yearly statement of account be filed by the Bank in this Court.
8. On the request of claimants / petitioners, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
9. Claimants / petitioners shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Saket Courts Complex Branch, New Delhi.
10. The bank is also directed to get the nomination form filled by the claimants at the time of preparation of FDRs.
11. The bank is also directed to keep the money received from the respondents in an FDR in the name of the bank till the FDRs are prepared in the name of the claimant, so that the benefit of better interest may be given to the claimant for the said period.
12. The Manager, State Bank of India, District Court Saket branch is directed not to release any amount to the petitioner from this branch, unless ordered by the Tribunal in terms of the order of the Hon'ble High Court in FAO No. 842/2003 and CM Applications No. 32859/2017, 4112541127/2017 in Rajesh Tyagi & Ors. vs. Jaibir Singh & Ors. dated 09.03.2018. It is made clear that the amount including the maturity amount of the FDRs shall be released to the petitioner through RTGS/ NEFT directly in the personal bank account of the petitioners of the bank nearest to their place of residence, the details of which have been given by the petitioner to the Tribunal and same details shall be given by them to the Manager SBI, District Court Saket branch.
DIRECTIONS FOR THE RESPONDENT No. 328. The Respondent no.3 is directed to file the compliance report of its having deposited the awarded amount with State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
29. The Respondent no.3 is directed to furnish a copy of this award alongwith the cheque of the awarded amount to the Manager of State Petition No. : 252/17 Page No. 14 of 17 Ashish Pathak vs. Akshay Pal Bank of India, Saket Court Branch, so as to facilitate the Manager of State Bank of India, Saket Court Branch to have the identification of the claimant/petitioner in whose favour the award has been passed.
30. The Respondent no.3 shall intimate the claimant/petitioner about its having deposited the cheque in favor of the claimant in terms of the award, at the address of the claimant mentioned at the title of the award, so as to facilitate him to withdraw the same.
31. Copy of this award / judgment be given to the claimant who is directed to furnish the same to the Manager of State Bank of India, Saket Court Branch for necessary compliance after his having received the notice of the deposit of awarded amount by the respondent no.3.
32. Copy of this Award / Judgment be given to the parties for compliance.
33. The case is now fixed for compliance by the respondent no.3 for 07.01.2019.
34. FormIV of the Modified Claims Tribunal Agreed Procedure to be mentioned in the Award is as under :
1 Date of the accident 01.04.2016 2 Date of intimation of the accident by the 02.04.2016 Investigating Officer to the Claims Tribunal 3 Date of intimation of the accident by the Not available Investigating Officer to the insurance company Petition No. : 252/17 Page No. 15 of 17 Ashish Pathak vs. Akshay Pal 4 Date of filing of Report u/s 173 Cr.P.C. Not available before the Metropolitan Magistrate 5 Date of filing the Detailed Accident Report 02.06.2016 (DAR) by the Investigating Officer before Claims Tribunal 6 Date of service of DAR on the insurance 02.06.2016 company 7 Date of service of DAR on the claimant 02.06.2016 8 Whether DAR was complete in all Yes respect?
9 If not, state deficiencies in the DAR N.A. 10 Whether the police has verified the Yes documents filed with DAR 11 Whether there was any delay or deficiency No on the part of the Investigating Officer? If so, whether any action/direction warranted?
12 Date of appointment of the Designated Not known Officer by the insurance company. 13 Name, address and contact number of the Not known designated officer of the insurance company.
14 Whether the designated officer of the No insurance company submitted his report within 30 days of the DAR?
15 Whether the insurance company admitted No the liability? If so, whether the designated officer of the insurance company fairly computed the compensation in accordance with law.Petition No. : 252/17 Page No. 16 of 17
Ashish Pathak vs. Akshay Pal 16 Whether there was any delay or deficiency No on the part of the designated officer of the insurance company? If so, whether any action/direction warranted 17 Date of response of the claimant(s) to the 19.09.2016 offer of the insurance company.
18 Date of the award 07.12.2018 19 Whether the award was passed with the No consent of the parties?
20 Whether the photographs, specimen Yes signatures, proof of residence and particulars of bank account of the injured/legal heirs of the deceased taken at the time of passing of the award?
21 Mode of disbursement of the award Some amount is amount to the claimant (s). released and some amount is directed to be kept in the form of fixed deposit.
22 Next date for compliance of the award. 07.01.2019
Digitally signed
by SAMEER
BAJPAI
SAMEER Date:
BAJPAI 2018.12.11
Announced in the Open Court
10:10:55
+0530
on 07th day of December, 2018 (SAMEER BAJPAI)
Presiding Officer : MACT (S)
Saket Courts : New Delhi
Petition No. : 252/17 Page No. 17 of 17