Delhi District Court
Pulkit Dutta vs Vipin Sood And Ors on 22 September, 2023
IN THE COURT OF MS. SHEFALI BARNALA TANDON
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
PULKIT DUTTA Vs. VIPIN SOOD & ORS.
MACP NO. 89/2020
Master Pulkit Dutta
Through Sh. Atul Dutta (Father/next friend of the minor)
R/o Flat No. 001, Ground Floor, Tower Peace A,
Sikka Karmic Greens, Sector-78,
Noida - 201301.
........Petitioner/Injured
Versus
1. Sh. Vipin Sood (Driver)
S/o Sh. Bablu Sood
R/o Sara, Ghaziabad,
Uttar Pradesh - 201201.
2. Sh. Darshan Singh (Owner)
R/o 141, Hargobind Enclave,
New Delhi-110092.
3. Branch Manager (Insurer)
Liberty General Insurance
Alps Building, 56, Janpath Road,
Connaught Place, New Delhi-110001.
...........Respondents
Date of filing of Claim Petition : 28.09.2020 Date of framing of issues : 21.12.2021 Date of concluding arguments : 22.09.2023 Date of decision : 22.09.2023 MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 1 of 35 AWARD/JUDGMENT
1. The present claim petition for compensation relates to grievous injuries suffered by the petitioner in a road accident that took place on 06.01.2019 at about 3:00 a.m. near Film City Flyover, Noida caused regarding which an FIR bearing No.28/2019, under Sections 279/337/338 IPC was registered at PS Noida, Sector-39. The offending vehicle involved in this case is a Car bearing registration No. DL-10CJ-6892, which at the time of accident was being driven by respondent No. 1, owned by respondent No.2 and insured with respondent No. 3.
2. Succinctly put, facts of the case as per claim petition are that on the aforesaid date, time and place of accident, the petitioner along with his friend left his home to attend a party at Sector-18, Noida in the Car (Make Eco Sports) bearing registration No. DL-10CJ-6892. After the party, while they were returning, they met with an accident and the petitioner sustained grievous injuries. He was shifted to Sardarjung Hospital by the Noida Police. MLC of petitioner was prepared. His NCCT of brain was conducted as per which it was observed that "Diffuse Axonal Injury with Subarachnoid Haemorrhage. Since, the condition of the petitioner was serious, he was shifted and admitted to Indraprastha Apollo Hospital from 06.01.2019 to 08.01.2019. As the financial condition of father of petitioner was not sound, he was taken to ICU, GB Pant Hospital for further treatment. Since, the day of accident, the MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 2 of 35 petitioner is stated to be bed ridden and under vegetative state.
3. Joint written statement was filed by the respondents No. 1 & 2 stating that the respondent No. 1 was driving the vehicle bearing registration No. DL-10CJ-6892 (Ford Eco Sports) in which the petitioner was sitting on front left side of the vehicle. It is further stated that since, it was raining, petitioner told respondent No. 1 to take the vehicle on the left and the vehicle slipped and hit with the divider. It is further stated that the accident had occurred due to rain and dark in night but not due to negligence on the part of the respondent No. 1. It is further stated that vehicle was duly insured with the respondent No. 3 at the relevant time.
4. Written statement has also been filed by respondent No.3/Insurance Company stating that father of the injured has categorically stated in his complaint to the police that the offending vehicle was being driven rashly and negligently by Sh. Sukprit Singh, however, he has not been made party to the present claim petition and plantation of the driver in the present matter cannot be overlooked. It is further submitted that petitioner has availed the medical insurance from New India Assurance Company, hence, no medical expenses are liable to be paid to the petitioner.
5. It is pertinent to mention herein that vide order dated 21.12.2021, interim award of Rs.25,000/- was passed in favour of the petitioner under Section 140 of the Motor Vehicle Act.
MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 3 of 356. On 21.12.2021, the following issues were framed by the Ld. Predecessor of this Tribunal as:-
1. Whether the injured sustained injuries in the accident which occurred on 06.01.2019 at about 3:00 a.m. Near Filmcity Flyover, Noida caused by rash and negligent driving of vehicle No. DL-10CJ-6892 being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3? OPP.
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. Heard arguments advanced by Sh. Ajay Kumar, Ld. Counsel for the petitioner and Sh. Amitej Kumar Nagar, Ld. Counsel for respondent No. 3/Insurance Company. Vide order dated 12.04.2023, respondents No. 1 & 2 were proceeded ex-parte. The case record has also been perused including written submissions and case laws. The finding on the aforesaid issues is reproduced in succeeding paragraphs hereinafter.
8. ISSUE No. 1Whether the injured sustained injuries in the accident which occurred on 06.01.2019 at about 3:00 a.m. Near Filmcity Flyover, Noida caused by rash and negligent driving of vehicle No. DL- 10CJ-6892 being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3? OPP.
MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 4 of 359. The onus to prove this issue was upon the petitioner. In order to prove rashness and negligence of respondent No. 1, the petitioner has examined Sh. Atul Dutta, father of petitioner as PW-2. He tendered his evidence by way of affidavit as Ex.PW-2/A wherein it is stated that the petitioner sustained serious injuries in an accident which had occurred on 06.01.2019 at about 3:00 a.m. near Filmcity Flyover, Noida. However, he made a complaint against Sukhpreet Singh under the impression that he was driving the offending vehicle, but, during investigation, it was revealed that the offending vehicle was being driven by one Vipin Sood/respondent No. 1. He relied and exhibited certified copy of FIR as Ex.PW2/5 and certified copy of criminal record as Ex.PW2/6 (Coll.) Despite cross examination, no effective cross examination regarding rashness and negligence on the part of the driver of the offending vehicle/respondent No. 1 was put to the witness but he denied the suggestion specially that the Sukhpreet was driving the offending vehicle at the time of accident and he was deliberately concealing the same. He specifically deposed that he was not eye witness to the present accident.
10. Moreover, it has not been disputed that respondent No.1 has been charge-sheeted in the aforesaid FIR for offences punishable under Sections 279/338 IPC for rash and negligent driving of the offending vehicle, as certified copy of the chargesheet has been filed on record. Moreso, respondent No. 1 himself has admitted in his written statement that he was MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 5 of 35 driving the offending vehicle at the time of accident and the injured/petitioner was sitting in the offending vehicle.
11. Reliance is placed upon the judgment rendered by the Hon'ble Apex Court in Mangla Ram Vs. Oriental Insurance Co. Ltd. & Ors. reported in 2018 Law Suit (SC) 303, has observed that :
" ......filing of charge sheet against the driver prima facie points towards his complicity in driving the vehicle rashly and negligently. It has been further observed that even when the accused were to be acquitted in the criminal case, the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."
12. Pertinently, the driver of the offending vehicle/respondent No. 1 himself in his written statement has admitted that he was driving the offending vehicle at the relevant time, however, he has taken the defence that he hit it against the divider being dark in night and raining. He was the best witness who could have stepped into the witness box to explain the facts and circumstances of the accident and to rebut his rash and negligent driving which he has failed to do. Therefore, an adverse inference is drawn against the driver of the offending vehicle/respondent no. 1 in terms of judgment of Hon'ble High Court of Delhi passed in the case of Cholamandalam M.S. General Insurance Company Ltd. Vs. Kamlesh reported in 2009 (3) AD (Delhi) 310.
13. It is well settled that the procedure followed for MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 6 of 35 proceedings conducted by an Accident Tribunal is similar to that followed by a Civil Court and in civil matters, the facts are required to be established on preponderance of probabilities and not beyond reasonable doubt, as are required in a criminal prosecution. Reference in this regard is made to the judgment of Hon'ble Apex Court reported as (2009) 13 SC 530 in case titled as Bimla Devi and others Vs. Himachal Road Transport Corporation and others, wherein it has been observed that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability.
14. In view of foregoing discussion, it is held that on the basis of admission of driver of the offending vehicle/respondent No.1 that he was driving the offending vehicle at the time of accident which is duly substantiated by the documentary evidence i.e. chargesheet, it stands proved on preponderance of probabilities that the aforesaid accident took place due to rash and negligent driving of the offending vehicle bearing No. DL-10CJ-6892 which was being driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 at the relevant time of accident. Hence, this issue is decided in favour of the petitioner and against the respondents.
15. ISSUE No. 2Whether the petitioner is entitled for compensation? If so, to what amount and from MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 7 of 35 whom?
16. As the issue No.1 has been proved in favour of the petitioner, he has become entitled to be compensated for the injuries suffered by him in the accident, but the computation of compensation and liability to pay the same are required to be decided.
17. In terms of Section 168 of the Motor Vehicle Act, 1988, the compensation which is to be awarded by this Tribunal is required to be 'just'. In injury cases, a claimant is entitled to two different kinds of compensation i.e. pecuniary as well as non- pecuniary damages. The Hon'ble Apex Court in Raj Kumar Vs. Ajay Kumar reported in (2011) 1 SCC 343, has laid down heads under which compensation is awarded in personal injury cases as:-
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages) MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 8 of 35
(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).
18. Having considered the ratio of aforesaid judgment, the compensation payable to petitioner is assessed hereinafter under the following heads as:-
(i) Medical or Treatment Expenses
19. Sh. Atul Dutta, father and natural guardian of injured Pulkit Dutta has examined himself as PW2 who tendered his evidence by way of affidavit Ex. PW2/A and placed on record MLC of petitioner as Ex.PW2/7 and copies of discharge summaries of injured as Ex. PW2/8 (colly), as per which the injured was admitted in Apollo Indraprastha Hospital on 06.01.2019 and was discharged on 08.01.2019, where he was diagnosed with diffuse anoxal injury grade III, skull base fractures and right pneumothorax. Thereafter, on 09.01.2019, the injured was taken to GB Pant Hospital where he remained admitted on 09.01.2019 to 03.09.2019 and underwent carnioplasty using autologous bone. Thereafter, the injured was again admitted to GB Pant Hospital on 21.11.2019 and discharged on 21.12.2019, again admitted on 04.03.2020 and discharged on 21.03.2020 where the injured was diagnosed with B/L Frontal Decompressive Craniotomy with hydrocephalus and post operative VP shunt shrunken bone flap and had undergone for two surgeries MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 9 of 35 i.e. on 11.03.2020 for left sided medium pressure VP shunt and another on 16.03.2020 for B/fronto temporo parietal cranioplasty using bone cement.
20. PW2 has also tendered on record photographs of petitioner showing his present status as Ex.PW2/9 (Colly.), consolidated list of medical bills along with original treatment record & original medical bills upto August 2020 as Ex. PW2/10 (Colly) and consolidated list of medical bills along with additional medical bills of injured from August 2020 to March 2022 as Ex. PW2/11 (Colly) which are totalling to a sum of Rs.7,47,532/- Petitioner has also placed on record the medical bills of the petitioner after filing the present claim petition which are totalling to a sum of Rs. 3,30,503/-. The entire medical bills as aforesaid are totalling to Rs.10,78,035/-.
21. However, respondents have not led any evidence to show that the said bills do not relate to the injuries suffered by the petitioner in the aforesaid accident. Thus, the testimony of PW-2 that he had spent the aforesaid amount towards medical expenses remained unrebutted and uncontroverted. In the absence of any plausible evidence produced by respondents on record, there is no reason to disbelieve the testimony of PW-2 that he had spent the aforesaid amount towards medical expenses. Hence, he is held entitled to Rs.10,78,035/- towards medical expenses. Further, the Insurance Company have not brought any piece of evidence to prove that the aforesaid medical bills have been reimbursed by any Department or any other forum, though they have taken a plea in their written statement.
MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 10 of 35(ii) Loss of earnings, present as well as future
22. As per disability certificate, the injured is in vegetative state and had suffered 100% permanent disability in relation to whole body. In order to prove the same, the petitioner has examined PW1 Dr. Ashok Kumar from Dr. RML Hospital, who has deposed that he was one of the member of the disability board constituted by the hospital for assessment of disability of the petitioner Mr. Pulkit Dutta and proved disability certificate of the petitioner as Ex.PW1/A. During cross examination, PW-1 stated that there is no possibility of the patient coming out of the vegetative state.
23. The law with regard to grant of compensation due to permanent disability and determination of functional disability etc. was well settled by the Hon'ble Supreme Court in the case of Raj Kumar Vs Ajay Kumar & Anr., (2011) 1 SCC 343, wherein it was held as under :-
"4..........The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal have to assess the damages objectively and exclude from consideration any speculation or fancy,though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as mush as he used to earn or could have earned as much MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 11 of 35 as he used to earn or could have earned. Thus tribunal has to assess whether the petitioners suffered loss of future earning on account of permanent disability."
"6.Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 12 of 35 permanent disabilities for the purpose of claiming compensation''.
"8 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)."
24. Considering the legal position discussed above coupled with the testimony of PW1, the functional disability of petitioner is taken as 100% in relation to whole body, i.e. equivalent to the disability as mentioned in the disability certificate as well as proved by PW-1.
25. Further, petitioner in its written submissions has stated that the minimum wages of skilled person has to be applied in the present matter as the petitioner was a bright student studying in class Xth. It has also been stated that the father of the petitioner is a graduate having Trade Diploma in Hotel Manager/Cookery and was drawing salary of Rs.45,000/- and other incentives and the mother of the petitioner is graduate from Delhi University having various trade certificates. It has also been stated that elder brother of the petitioner is a B.Tech in Bio Medical Engineering and presently pursuing his Masters from Rwthaachen University, Germany. It is further stated that considering the family background and petitioner was a brilliant student, it can be presumed that the petitioner would MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 13 of 35 have also joined higher profession and would have earned minimum Rs.1 - 2 Lacs per month, however, he is claiming for future compensation @ Rs.25,000/- per month only . To substantiate his arguments, Ld. Counsel for petitioner has placed reliance upon judgment rendered by the Hon'ble Supreme Court in M.R. Krishna Murthi Vs. New India Assurance Co. Ltd., Civil Appeal Nos. 2476-2477 of 2019 (arising out of SLP (C) Nos. 31521-31522 of 2017), decided on 05.03.2019).
26. In this regard, reliance has been placed upon the judgment filed and relied upon by Ld. Counsel for petitioner of M.R. Krishna Murthi (Supra), wherein it has been held that :
"23) From the conjoint reading of the aforesaid judgments, inter alia, following principles can be culled out which would be relevant for deciding the instant appeal:
(i) In those cases where the victim of the accident is not an earning person but a student, while assessing the compensation for loss of future earning, the focus of the examination would be the career prospect and the likely earning of such a person in future. For example, where the claimant is pursuing a particular professional course, the poseer would be: what would have been his income had he joined a service commensurating with the said course. That can be the future earning.
(ii) There may be cases where the victim is not, at that stage, doing any such course to get a particular job. He or she may be studying in a school. In such a case, MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 14 of 35 future career would depend upon multiple factors like the family background, choice/interest of the complainant to pursue a particular career, facilities available to him/her for adopting such a career, the favourable surrounding circumstances to see which would have enabled the claimant to successfully pick up the said career etc. If the chosen field is employment, then the future earning can be taken on the basis of salary and allowances which are payable for such calling. In case, career is a particular profession, the future earning would depend on host of other factors on the basis of which chances to achieve success in such a profession can be ascertained.
27. Further, the Hon'ble Apex Court in Civil Appeal No. 735 OF 2020, Kajal vs Jagdish Chand decided on 5.02.2020, has observed as under :
20. Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs.15,000/- per annum can be taken into consideration.
We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs.15,000/- per annum. Each case has to be decided on its own evidence but taking notional income to be Rs.15,000/- per annum is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs.4846/- per month. In our opinion this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs.6784.40/- per month, i.e., 81,412.80 per annum. Applying the multiplier of 18 it works out to Rs.14,65,430.40, which is rounded off to Rs.14,66,000/-.
MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 15 of 3528. Accordingly, in view of the aforesaid law laid down by the superior Courts as well as considering the family background of the petitioner and also considering that he was a student pursuing class X at the time of accident, this Tribunal deems it fit that the minimum wages of skilled worker is applicable in the present matter, which were Rs. 16,962/- at the relevant time of accident.
29. To apply the multiplier, it is necessary to ascertain the age of the petitioner. In this regard, PW2 has tendered on record copy of Aadhar card of his son as Ex.PW2/1 (OSR) as well as copy of birth certificate of his son as Ex. PW2/2 (OSR). In both these documents, the date of birth of petitioner is found recorded as 28.12.2002. Hence, going by these documents, the age of the petitioner as on 06.01.2019 i.e. date of accident was 16 years and 09 days. Therefore, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, which has also been upheld by the Constitution Bench of the Hon'ble Apex Court in a judgment of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., SLP (Civil) No. 25590 of 2014 dated 31.10.2017, the multiplier of '18' is applicable for calculating the loss of future earnings of the petitioner arising out of above disability.
30. Further, the petitioner is also held entitled to 40% future prospects in view of the law laid down by the Hon'ble Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi & MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 16 of 35 Ors.(Supra) as he was below the age of 40 years at the time of accident. Thus, the loss of future earnings caused to the petitioner due to his permanent disability comes to Rs.51,29,309/- (rounded off) (Rs.16,962/- X 12 X 100/100 X 18 X 140/100).
(iii) Loss of Education
31. PW2 has claimed in his affidavit that the injured was studying in class Xth at the relevant time of accident. However, due to the injuries sustained in the accident, he is bed ridden with 100% disability and on vegetative coma stage and unable to sit, stand, talk and walk. Petitioner has also claimed expenses for loss of education as due to accident, he could not complete his matriculation. PW2 has tendered on record copy of educational qualification documents of the petitioner as Ex. PW2/3 (OSR) which reflect that the petitioner had passed Class IXth and he was studying in Class Xth.
32. It is explicit from the testimony of PW2 coupled with the educational qualification documents of the petitioner, the petitioner could not complete his matriculation due to the injuries sustained in the accident. Hence, a lumpsum amount of Rs.2,00,000/- is provided to the petitioner under this head.
(iv) Attendant Charges
33. As per disability certificate, the injured is in vegetative state and had suffered 100% disability in relation to MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 17 of 35 whole body. PW2 in his affidavit has claimed that he had incurred an expenditure of Rs. 7,92,000/- towards attendant charges for 20 months and further a sum of Rs.5,40,000/- for 12 months as per the written submission filed on behalf of the petitioner, however, there is no bill/document with regard to attendant placed on record. Further, it is also claimed that in future also two attendants are also required round the clock by the petitioner which has been calculated to a total sum of Rs.86,40,000/- as Rs.20,000/- per month are required for each of the skilled nursing attendant with multiplier of '18'.
34. The claim is corroborated by the testimony of PW1 Dr. Ashok Kumar, who has also deposed that the the injured requires PEG revision periodically and will require 24X7 attendant and also nursing care till he survives.
35. In this regard, reliance has been placed upon by Ld. Counsel for petitioner upon the judgment of the Hon'ble Apex Court in Civil Appeal No. 735 OF 2020, Kajal vs Jagdish Chand decided on 5.02.2020 wherein it was held as under :-
"22. The attendant charges have been awarded by the High Court @ Rs.2,500/− per month for 44 years, which works out to Rs.13,20,000/−. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 18 of 35 for determining the compensation on account of loss of income but also for determining the attendant charges etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami9. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum 9 AIR 1962 SC 1 award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of just compensation within the meaning of the Act.
25. Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, 11 1966 ACJ 57 12 (1996) 4 SCC 362 13 (2017) 3 SCC 351 wherein the wages for skilled labourer is Rs.4846/− per month. We, therefore, assess the cost of one attendant at Rs.5,000/− and she will require two attendants which works out to Rs.10,000/− per MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 19 of 35 month, which comes to Rs.1,20,000/− per annum, and using the multiplier of 18 it works out to Rs.21,60,000/− for attendant charges for her entire life. This takes care of all the pecuniary damages."
36. Keeping in view the aforesaid law laid down by the superior Court and considering the fact that the injured is in vegetative state and suffered 100% disability in relation to whole body as per the testimony of PW1, consequently he would not be able to take care of his personal chores and requires nursing attendant 24 X 7, the minimum wages of skilled worker which was Rs.16,962/- per month, is taken and therefore, cost of two attendants is Rs. 33,924/- per month, which comes out to be Rs. 4,07,088/- per annum and using the multiplier of 18, it works out to be Rs.73,27,584/- for attendant charges for entire life of the petitioner.
(v) Future treatment expenses
37. PW2 in his affidavit Ex. PW2/A has claimed that the petitioner requires special surgical bed, motorized power wheel chair, oxygen concentrator and other accessories which could not be purchased by the petitioner till date due to non availability of funds.
38. PW1 Dr. Ashok Kumar has deposed that as per the medical condition of the petitioner, he requires proper physiotherapy and occupational therapy. He further deposed that the patient will also require specialized surgical bed with air mattress to prevent bed sore. He will also require specialized wheel chair and also oxygen concentrator and other accessories. All these accessories etc. are to MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 20 of 35 be changed periodically. When the witness was specially asked for the treatment recommended for the patient, he emphatically stated that he also needs regular physiotherapy, occupation therapy, care of tracheostomy tube, nursing care and care/prevention of bed sores and there is absolutely no chances of recovery of the patient/petitioner in the present condition. The petitioner might require to visit hospital every six months to one year and also on SOS basis. PW2 has tendered on record physiotherapy bills of petitioner, which are totalling to a sum of Rs. 3,13,840/-.
39. In order to substantiate the above claim, Ld. Counsel for petitioner has relied upon the judgment of Hon'ble Supreme Court in case Abhimanyu Partap Singh Vs. Namita Sekhon & Anr., Civil Appeal No. 4648 of 2022 (arising out of SLP (C) No. 18886 of 2019), decided on 06.07.2022, wherein it was held as under :-
Similarly for medical expenses in the head of physiotherapy required to the claimant, the Tribunal awarded Rs.2,88,000/- @ Rs.50 per day. The High Court granted lumpsum amount of Rs.8,00,000/- including the expenses for diapers. In our considered opinion, the said amount is not adequate. In these days the physiotherapist would charge at least Rs.150/- per day to treat the patient for one hour which monthly comes to Rs.4,500/- and annually 54,000/-, applying the multiplier of 18, the amount in the head of physiotherapy charges comes to Rs.9,72,000/- For the purpose of use of diapers, regular medical check-up and medical expenses if we further add Rs.2,00,000/- then in the head of MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 21 of 35 future medical expenses the amount comes to Rs.11,72,000/-.
40. In view of the aforesaid judgment and considering the vegetative state of petitioner along with present prevailing rates, the Tribunal deems it appropriate that the physiotherapist would charge atleast Rs. 500/- per day to treat the patient which monthly comes out to be Rs.15,000/- (Rs. 500/- X 30) and annually Rs. 1,80,000/- (Rs. 15,000/- X 12) and after applying the multiplier of 18, the amount under the head of physiotherapy charges comes out to be Rs. 32,40,000/- (Rs.1,80,000/- X 18). The physiotherapy bills of petitioner placed on record are also considered under the same amount as they were for limited period, but now the Tribunal has granted the same from the date of accident till he survives by applying the multiplier.
41. Further, as per testimony of PW1, the petitioner would also require specialized surgical bed with air mattress, specialized wheel chair, oxygen concentrator and other accessories which have to be changed periodically. PW2 has filed copy of online quotation of motorized power wheel chair, surgical bed and oxygen concentrator etc. as Mark A (colly).
42. Ld. Counsel for petitioner in the written submissions has stated that all the aforesaid items have to be replaced atleast one and in this regard, he has relied upon the judgment of Hon'ble Supreme Court in case Master Ayush Vs. Reliance General Insurance Co. Ltd., Civil Appeal No. 2205-06/2022 (arising out MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 22 of 35 of SLP (civil) Nos. 7238-39 of 2021).
43. In view of aforesaid judgment as well as considering the testimony of PW1 coupled with the online quotation of motorised wheel chair, oxygen concentrator and surgical bed, placed on record as Mark A (colly), as wellas considering the requirement of other toiletries and accessories, which needs to be replaced periodically, the tribunal deems it just and reasonable to award a lumpsum amount of Rs. 20,00,000/- towards the aforesaid requirements for petitioner's lifetime as he is an adolescent of 16 years of age and requires this all till he survives.
44. Therefore, the petitioner is held entitled to an amount of Rs. 52,40,000/- (Rs.32,40,000/- + Rs. 20,00,000/-) towards the future treatment expenses.
(vi) Mental and Physical Shock, Pain and Sufferings & Loss of Amenities.
45. As already discussed above, the petitioner is in vegetative state and had suffered 100% permanent disability in relation to whole body. Though, it is not possible to exactly compensate his for the shock, pain and sufferings etc. which he will suffer throughout his life because of the above injuries and disability, but an effort has to be made to compensate him for the same in a just and reasonable manner. Hence, keeping in view the extent and nature of the injuries and disability suffered by the petitioner and duration of the treatment taken by him etc., an MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 23 of 35 amount of Rs.5,00,000/- each is being awarded to him towards mental and physical shock & for pain and sufferings. Further, an amount of Rs.5,00,000/- is also awarded to him towards the loss of amenities suffered by him during the said period of his treatment. Thus, the petitioner is awarded total amount of Rs.15,00,000/- under this head.
(vii) Conveyance and Special Diet
46. PW2 in his affidavit has claimed that he had spent an amount of Rs. 7,20,000/- on special diet for 36 months @ Rs. 20,000/- per month approx. However, he has not placed on record any document in order to substantiate his above claim. PW2 has tendered on record the ambulance bills to the tune of Rs. 34,600/-. This Tribunal can very well take note of the requirement of conveyance for petitioner for frequently visiting the hospitals and doctors in connection with his treatment and special diet for his early recovery from the injuries suffered because of the accident. Hence, considering the fact that the petitioner is in vegetative state and suffered 100% disability in relation to whole body, a lumpsum amount of Rs. 5,00,000/- each is being awarded to the petitioner towards conveyance and special diet for the amount already spent by the petitioner as well as future expenses under this head. Therefore, the petitioner is held entitled to Rs. 10,00,000/- under this head.
MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 24 of 35(viii) Loss of prospects of marriage
47. As already discussed above, the petitioner is in vegetative state and completely bed ridden, an inference can also be drawn that the marriage prospects of the claimant will certainly be affected to great extent and he will have difficulties in finding a suitable match and hence, an amount of Rs.5,00,000/- is also awarded to the petitioner under this head.
(ix) Misc Expenses claimed
48. Besides the above, the petitioner has also claimed an amount of Rs. 7,20,000/- towards food expenses of family members staying in hospital during the period of hospitalization and an amount of Rs. 22,50,000/- towards loss of income of father of petitioner. However, he has not placed on record any document in order to substantiate his above claims. Further, this Tribunal is of the opinion that the amounts claimed under these heads are considered as remote damages and hence, no amount is being awarded to the petitioner under these heads.
ISSUE No. 3/Relief
49. In view of foregoing discussion, the petitioner is thus awarded a sum of Rs.2,19,74,928/- (Rupees Two crore Nineteen Lakh Seventy Four Thousand Nine Hundred Twenty Eight only) (Rs.10,78,035/- + Rs. 51,29,309/- + Rs. 2,00,000/- + Rs. 73,27,584/- + Rs. 52,40,000/- + Rs. 15,00,000/- + Rs.10,00,000/- + MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 25 of 35 Rs. 5,00,000/-) along with 7.5% interest from the date of filing of claim petition. However, it is directed that the amount of interim award and interest for the suspended period, if any, during the course of this inquiry, shall be liable to be excluded from the award amount.
RELEASE
50. Out of amount awarded, 90% amount is directed to be kept with UCO Bank, Patiala House Court, New Delhi in the Motor Accident Claims Annuity Deposit (MACAD) in form of 350 monthly fixed deposit receipts (FDRs) of equal amounts for a period of 1 to 350 months in succession, as per scheme formulated by the Hon'ble Delhi High Court vide order dated 01.05.2018 in FAO No. 842/2003, titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. and as implemented vide subsequent order dated 07.12.2018 and order dated 08.01.2021 passed in the said case. The amount of FDRs on maturity would be released in savings/MACT Claims SB Account of petitioner opened/to be opened under the guardianship of his father Sh. Atul Dutta near the place of his residence and the remaining 10% amount is also directed to be released into his above said account, which can be withdrawn through withdrawal form and utilized by him.
51. The disbursement to the petitioner is, however, subject to addition of future interest till deposit proportionately and also deduction of proportionate tax on the interest amount or amount of MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 26 of 35 interim award, if any, to/from his share.
52. The bank shall not permit any joint names to be added in the savings bank account or MACAD scheme account of petitioner i.e. the bank account of petitioner shall be individual account and not a joint account.
53. The original fixed deposits shall be retained by the UCO Bank, PHC, New Delhi in safe custody. However, the statement containing FDR numbers, amounts, dates of maturity and maturity amounts shall be furnished by the said bank to the petitioner and the above amount shall be released in account of petitioner by the Manager, UCO Bank, PHC, ND through RTGS/NEFT/or any other electronic mode.
54. The monthly interest be credited by Electronic Clearing System (ECS) in the saving bank account of the claimant(s) near the place of his residence.
55. The maturity amount of the FDR (s) on monthly basis net of TDS be credited by Electronic Clearing System (ECS) in the above account of petitioner.
56. No loan, advance or withdrawal or pre-mature discharge be allowed on the MACAD without permission of the Court.
57. The concerned bank shall not issue any cheque book and/or debit card to claimant(s). However, in case the debit card and/or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 27 of 35 debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
58. The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
59. It is clarified that the endorsement made by the bank along with the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause above.
LIABILITY
60. The Insurance Company has examined one witness Sh. Roshan Kumar Thakur, Manager (Legal) from their office as R3W1who deposed that the claim of respondent no. 2 qua the damage of his vehicle was rejected by the Insurance Company and later on by the Ombudsman. However, admittedly, the petitioner was neither a party to the claim of damages of accidental vehicle before the Insurance Company or before the Insurance Ombudsman nor the claim of petitioner is related to the same. Hence, R3W1 is not a relevant witness in the present matter.
61. In view of foregoing discussions, all the respondents are though being held jointly and severally liable to pay the awarded MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 28 of 35 amount of compensation to petitioner, but respondent no. 3 being insurer of offending vehicle, is directed to deposit the award amount with UCO Bank, Patiala House Court Branch, along with interest @ 7.5% per annum from the date of filing of DAR by RTGS/NEFT/IMPS in bank account being maintained in the above said bank in name of this tribunal within 30 days from today, failing which it is liable to pay interest at the rate of 9% per annum for the period of delay. In case even after lapse of 90 days from today, respondent no. 3 fails to deposit this compensation with interest, in that event, in light of judgment of the Hon'ble High Court of Delhi passed in the case of New India Assurance Company Limited Vs. Kashmiri Lal 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of respondent no. 3 with a cost of Rs.5,000/-.
62. The respondent No. 3 shall inform the petitioner and her counsel through registered post that the awarded amount has been deposited so as to facilitate him to collect the same.
63. The copy of this award be given to the parties free of cost or be sent by email. Ahlmad is directed to send the copy of the Award to Ld. Metropolitan Magistrate concerned and Delhi Legal Services Authority in view of Judgment titled as Rajesh Tyagi Vs. Jaibir Singh & Ors. passed in FAO no.842/2003 dated 12.12.2014.
64. Further, Nazir is directed to maintain the record in Form XVIII as per the directions given by the Hon'ble Delhi High Court in the above case on 08.01.2021.
MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 29 of 3565. The particulars of Form-XVII of the Modified Claims Tribunal Agreed Procedure, in terms of directions given by the Hon'ble Delhi High Court in the Rajesh Tyagi Vs. Jaibir Singh & Ors.(supra) on 08.01.2021, are as under:-
1. Date of the accident 06.01.2019
2. Date of filing of Form I- First NA Accident Report (FAR)
3. Date of delivery of Form-II to the NA victim(s)
4. Date of receipt of Form-III from NA the Driver
5. Date of receipt of Form-IV from NA the owner
6. Date of filing of the Form-V- NA Interim Accident Report (IAR)
7. Date of receipt of Form-VIA and NA Form VIB from the Victim (s)
8. Date of filing of Form-VII- NA as it is an Detailed Accident Report (DAR) outstation matter
9. Whether there was any delay or No deficiency on the part of the Investigating Officer? If so, whether any action/direction warranted?
10. Date of appointment of the Not given Designated Officer by the Insurance Company.
11. Whether the Designated Officer of NA the Insurance Company submitted his report within 30 days of the DAR?MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 30 of 35
12. Whether there was any delay or No deficiencies on the part of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
13. Date of response of the claimant(s) Legal offer not filed of the offer of the Insurance Company.
14. Date of the Award 22.09.2023
15. Whether the claimant(s) were Yes directed to open savings bank account(s) near their place of residence?
16. Date of order by which claimant(s) 28.09.2020 were directed to open savings bank account(s) near his place of residence and produce PAN Card and Adhaar Card and the direction to the bank not issue any cheque book/debit card to the claimant (s) and make an endorsement to this effect on the passbook(s).
17. Date on which the claimant(s) Yet to furnish produced the passbook of their savings bank account near the place of their residence along with the endorsement, PAN Card and Adhaar Card?
18. Permanent Residential Address of R/o Flat No. 001, the Claimant(s) Ground Floor, Tower Peace A, Sikka Karmic Greens, Sector-78, Noida-
201301.
19. Whether the claimant(s) savings Yet to furnish MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 31 of 35 bank account(s) is near his place of residence?
20. Whether the claimant(s) were No examined at the time of passing of the award to ascertain his/their financial condition?
66. File be consigned to Record room after completion of necessary formalities. Separate file be prepared for compliance report and be put up on 08.01.2024.
Announced in the open court. (Shefali Barnala Tandon) on 22.09.2023 PO/MACT, New Delhi
Encl: The summary of computation in the prescribed format MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 32 of 35 SUMMARY OF THE COMPUTATION OF AWARD IN INJURY CASES IN FORM XVI
1. Date of accident : 06.01.2019
2. Name of the injured : Pulkit Dutta
3. Age of the injured : 16 years 9 days
4. Occupation of the injured : Minimum wages for skilled worker
5. Income of the injured : Rs.16,962/- per month
6. Nature of injury : Grievous
7. Medical treatment taken by : Safdarjung Hospital, the injured Indraprastha Apollo Hospital and GB Pant Hospital.
8. Period of hospitalization : As mentioned above
9. Whether any permanent : 100% permanent disability? physical disability
10. Computation of Compensation Sr.N Heads o.
11. Pecuniary Loss
(i) Expenditure on treatment : Rs. 10,78,035/-
(ii) Expenditure on conveyance : Rs. 5,00,000/-
(iii) Expenditure on special diet : Rs. 5,00,000/-
(iv) Cost of nursing/attendant : Rs. 73,27,584/-
(v) Loss of earning capacity : Nil (vi) Loss of Income : Nil
(vii) Any other loss which may : Rs. 52,40,000/-
require any special
treatment or aid to the
injured for the rest of his life
(future expenses)
MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 33 of 35
12. Non-pecuniary Loss:
(i) Compensation for mental : Rs.5,00,000/-
and physical shock
(ii) Pain and suffering : Rs.5,00,000/-
(iii) Loss of amenities of life : Rs.5,00,000/-
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Rs.5,00,000/-
(vi) Loss of earning, : Nil inconvenience, hardships, disappointment,frustration, mental stress, dejectment and unhappiness in future life etc.
(vii) Loss of education : Rs. 2,00,000/-
13. Disability resulting in loss of earning capacity
(i) Percentage of disability : 100% permanent assessed and nature of physical disability in disability as permanent or relation to whole body. temporary
(ii) Loss of amenities or loss of : Nil expectation of life span on account of disability.
(iii) Percentage of loss of : 100% functional earning relation to disability disability
(iv) Loss of future income : Rs.51,29,309/-
14. Total Compensation Rs. 2,19,49,928/-
15. Interest Awarded : 7.5% pa from date of filing of claim petition till the date of award to be deposited in 30 days and 9% thereafter.
16. Interest amount up to the : Rs. 49,11,672.24 MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 34 of 35 date of award
17. Total amount including : Rs. 2,68,61,600.24 interest (rounded off to Rs.
2,68,62,000/-)
18. Award amount released : 10% share
19. Award amount kept in the : 90% share FDRs/ Motor Accident Claims Annuity Deposit (MACAD)
20. Mode of disbursement of : Through Bank the award amount to the claimant (s)
21. Next date for compliance : 08.01.2024 of the award (Shefali Barnala Tandon) PO/MACT, New Delhi 22.09.2023 MACP No. 89/2020 Pulkit Dutta Vs. Vipin Sood & Ors. Page 35 of 35