Delhi District Court
( Pritam Singh vs . Oriental Insurance Co. & Ors.) on 19 July, 2011
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
IN THE COURT OF : SH. KANWAL JEET ARORA,
PRESIDING OFFICER: MOTOR ACCIDENT
CLAIMS TRIBUNAL, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
In the matter of:
PRITAM SINGH vs. ORIENTAL INSURANCE CO.
M.A.C.Pet.No.:243/08.
PRITAM SINGH,
S/o .: Shri Ishwar Singh,
...Petitioner
Through his Guardian adlitem,
Sh.Gajender Singh,
S/o.: Shri Ishwar Singh,
{Petitioner being 100% Permanently Disable is represented
through his brother / guardian adlitem Sh.Gajender Singh]
Resident of:
A44, Mahipalpur,
New Delhi.
Also at:
A103, Road No.4,
BlockA, National Highway No.8,
Mahipalpur, New Delhi.
V E R S U S
M.A.C.Pet.No.243/08 Page No.1 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
1. M/s Oriental Insurance Company Ltd.,
[Insurer of truck no.: MH18M7005]
Having Head office at:
A25/27, Asaf Ali Road,
New Delhi - 110002. ...Respondent no.1
2. Rajendra Indrasingh Girase, [Driver / Owner of truck no.:MH18M7005] S/o.: Shri Indra Singh, R/o.: Post Degaon, Tal Shindkheda, District Gule, Maharashtra. ...Respondent no.2
3. M/s United India Insurance Co.Ltd., [Insurer of Qualis: MH01CA7481] Having registered office at: Kanchanjunga 18, Barakhamba Road, Connought Place, New Delhi 110001. ... Respondent no.3 M.A.C.Pet.No.243/08 Page No.2 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
4. Smt.Maya Devi Agarwal, [Owner of Qualis: MH01CA7481] R/o.: 16/5, School View Builiding, Opposite St.Anne's High School, Sunder Lane, J.B.Colony, Orlem, Malad (West), Mumbai400064. ... Respondent no.4
5. Mohd.Akbar Kamar@Raju Mohd.Qubal (Kavval) [Driver of Qualis: MH01CA7481] R/o.: Ashiana Cooperative Housing Society, 16/73, New Lane Road, Mumbai400102. ... Respondent no.5 DATE OF FILING OF PETITION : 28.08.2008.
ARGUMENTS HEARD ON : 02.06.2011.
DATE OF DECISION : 19.07.2011.
COMPENSATION CLAIMED : Rs.3,01,15,000/.
M.A.C.Pet.No.243/08 Page No.3 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.) : JUDGEMENT :
1. Life is not mere living or surviving but living in health. Health is not just the absence of illness, but a glowing vitality. The feeling of wholeness with a capacity for continuous intellectual and spiritual growth. Physical, social, spiritual and psychological well being are intrinsically interwoven into the fabric of life.
2. These integral and essential components of life were snatched from Pritam Singh, a businessman, by a single stroke of rash and negligent act on the part of someone else, reducing him into a physical frame which is just existing. That too, when he was proceeding to visit holy shrine of Shirdi for spiritual growth. The injuries resulting from this accident have pushed him into a permanent vegetative state snatching all emotions from him, except one, i.e. "noemotion".
3. Possession and preservation of one's body is the first and most valuable of all human rights. However after this accident and in the present physical being of Pritam Singh, the preservation of life pales into insignificance.
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( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
4. Though no amount of money can infuse the lost essential ingredients of life in the physical frame of Pritam Singh, however to mitigate his and consequential sufferings of his family members, he has invoked the jurisdiction of this Tribunal, by filing the present petition under section 166 of Motor Vehicles Act, through his brother / guardian adlitem Sh.Gajender Singh. The petition is filed seeking compensation against Oriental Insurance Company, insurer of truck bearing registration number MH18M7005, Rajendra Indrasingh Girase, driver / owner of the offending truck, United India Insurance Company Limtied, Smt.Daya Devi Aggarwal and Mohd.Akrar Kavval @ Raju Mohd., insurer, owner and driver respectively of the Qualis bearing registration number MH01 CA7481, in which the petitioner was travelling.
5. The facts which constrained the petitioner to invoke the jurisdiction of this Tribunal and relevant for disposal of the same as emanating out of the petition interse, are as under:
a) Pritam Singh, took sometime off his occupation, to visit Sai Baba Shrine at Shirdi. He along with his friends for going to Shirdi had reached Mumbai on 25.08.2007. M.A.C.Pet.No.243/08 Page No.5 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
b) At about 1.30am, after reaching Mumbai, they boarded a Qualis Car bearing registration number MH01CA7481 and started their journey towards Shirdi. At about 7 - 7.30 am, when they were at a distance of about 22 kms from Shirdi on SinnarShirdi Road, a truck bearing registration number MH18M7005 came from the opposite direction and struck against the Qualis, in which they were travelling. As a result of which, Pritam Singh sustained multiple injuries on his person.
c) That accident had resulted due to negligent driving of respondent no.2 who was driving the truck bearing registration number MH18M7005 in a negligent manner flouting traffic rules and regulations.
d) Immediately after the accident, petitioner Pritam Singh was taken to Shri Sai Nath Hospital, Shirdi, but as his condition was critical, he was referred for treatment to Mumbai, where he was admitted in Bombay Hospital and Medical Research Centre.
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e) That petitioner Pritam Singh remained admitted in the said hospital from 26.08.2007 till 04.12.2007.
f) After discharge from Bombay Hospital and Research Centre, petitioner Pritam Singh was airlifted and was brought to Delhi, whereafter he was admitted in Paras Hospital, Gurgaon where he remained admitted till 13.03.2008.
g) It is stated that despite providing best possible medical treatment to the injured, only his physical being could be saved as he became 100% permanently disabled for rest of his life.
h) It is stated that injured Pritam Singh was thereafter issued a 'Permanent Disability Certificate' by Dr.R.M.L. Hospital, Delhi, whereby it was opined that he had sustained 100% disability.
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i) It is stated that Pritam Singh being a businessman was running M/s Goodluck Transport Services and M/s Goodluck Properties as "Sole Proprietor".
j) It is stated that he was also one of the Directors of M/s Goodluck Cargo Movers Private Limited.
k) It is stated that Pritam Singh was earning a sum of Rs. 54,500/ per month at the time of accident, with which he was supporting himself as well as his family members.
l) It is stated that had Pritam Singh not met with the accident, then he would have gone on to earn much more than what he was earning at the time of accident.
m) It is stated that injured Pritam Singh at the time of accident was married, having a wife Smt.Sushma Singh, two sons namely Master Prashant and Master Tanish, both of whom are studying in Delhi Public School, Vasant Kunj, New Delhi, incurring expenses to the tune of Rs.25,000/ M.A.C.Pet.No.243/08 Page No.8 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) per month on their studies.
n) It is stated that petitioner has old and feeble parents who were also dependent on him. However, owing to the injuries sustained by the petitioner and resultant disability, petitioner himself has become dependent on his family members.
o) It is stated that petitioner be adequately compensated.
6. Notice of the petition was ordered to be issued to the respondents.
7. Despite service of notice, respondent no.2 driver / owner of the truck and respondent no.4 and respondent no.5 owner & driver respectively of Qualis in which petitioner was travelling, failed to appear and were ordered to be proceeded exparte.
8. Pursuant to service of notice, written statement was filed by respondent no.1 Oriental Insurance Company, insurer of truck bearing M.A.C.Pet.No.243/08 Page No.9 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) registration number MH18M7005, wherein they admitted the fact that the said vehicle was insured with them vide Policy No. 161700/2008/60137 w.e.f. 24.04.2007 to 23.04.2008. It is contended by the insurance company that they are not liable to indemnify the insured, as the offending vehicle was being driven in violation of the terms of contract. It is stated that accident had taken place due to negligence of driver of the Qualis Car in which petitioner was travelling, therefore they are not liable to compensate the petitioner. It is stated that the claim petition filed by the petitioner is exorbitant and without any basis.
9. Separate written statement was filed on behalf of respondent no.3 M/s United India Insurance Company Limited, the insurance company with whom the Qualis in which petitioner was travelling, was insured. In their written statement, it is submitted by respondent no.3 that they had issued Insurance Policy against cheque of the premium amount. It is however stated the said cheque of the premium amount was dishonoured, therefore insurance policy was cancelled. It is stated that as after cancellation of Insurance Policy, there is no privity of contract between them and the owner of the Qualis, therefore they are not liable to compensate the petitioner and liability if any, shall be that of respondent no.4 and respondent no.5. It is stated that even otherwise, the M.A.C.Pet.No.243/08 Page No.10 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) claim petition filed by the petitioner is highly exorbitant and without any basis.
10. On the basis of pleadings of the parties, the following issues were framed vide orders dated 19.11.2009 :
i) Whether petitioner Pritam Singh had sustained injuries on his person in an accident which took place on 25.08.2007, due to negligence of respondent no.2 driver / owner of truck bearing registration number MH18/M7005 which is insured with respondent no.1 M/s Oriental Insurance Company and that of respondent no.5 driver of Toyota Qualis bearing registration number MH01/CA7481 being owned by respondent no.4 and insured with respondent no.3 United India Insurance Co. Ltd.? ...OPP
ii) In case, issue no.1 is decided in affirmative then to what amount of compensation, is the petitioner entitled and from whom? ...OPP
iii) Relief.
11. Parties to the petition were thereafter called upon to substantiate their case by examining their witnesses. M.A.C.Pet.No.243/08 Page No.11 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
12. Gajender Singh, brother of petitioner appeared in the witness box as PW1. He filed his examination in chief by way of affidavit Ex.PW.1/A. He during the course of his deposition proved the date of birth of petitioner, the dependents and the income, which petitioner had from his business. He proved the income tax returns which petitioner was regularly filing with the department as Ex.PW.1/26. He though was not the witness to the incident but stated the factum of accident and resultant injuries sustained by his brother. He proved copy of FIR No.:I96/07 registered at PS Vavi, District Nasik as Ex.PW.1/14 and copy of charge sheet as Ex.PW. 1/15. He proved the treatment record of injured at Bombay Hospital and Medical Research Centre as Ex.PW. 1/18. The treatment and discharge record of Paras Hospital as Ex.PW.1/21. He further proved the bills of expenses incurred on treatment of his brother as Ex.PW.1/23 (collectively). He deposed that despite continuous treatment, his brother could not recover from the injuries sustained and has been pushed into permanent vegetative stage. He proved the disability certificate as Ex.PW.1/24.
13. He was cross examined on behalf of the insurers of both the vehicles involved in the accident ie. Truck and Qualis being respondent no.1 and respondent no.3, during which he denied the suggestion that the bills of expenses incurred towards treatment, medicines, transportation, M.A.C.Pet.No.243/08 Page No.12 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) boarding / lodging and attendant charges are forged and fabricated.
14. Witnesses to the incident viz. Shree Bhagwan and Asit Dass, who accompanied petitioner for their visit to Shirdi, appeared in the witness box as PW2 and PW3 respectively. Both of them filed their examination in chief by way of affidavits, wherein they have given the complete description of events, which lead to the accident. Both these witnesses were cross examined on behalf of respondent no.1 Oriental Insurance Company during which they maintained their stand that accident did take place due to negligence of driver of the truck, who intruded upon the space meant for traffic coming from the opposite direction and struck against the Qualis in which they were travelling.
15. Dr.L.N.Gupta from Ram Manohar Lohia Hospital appeared in the witness box as PW4 and proved the disability certificate issued to the petitioner by the medical board as Ex.PW.1/24.
16. Inspector S.K.Sharma from Income Tax Department appeared in the witness box as PW5 and proved the Income Tax Returns filed by the petitioner for Assessment years 20032004, 20042005, 20052006 and 20062007 as Ex.PW.1/26 (collectively). M.A.C.Pet.No.243/08 Page No.13 of 105
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17. Doctor Deepak Kumar from Paras Hospital appeared in the witness box as PW6 and proved the treatment record of the petitioner and his discharge summary as Ex.PW.6/A and Ex.PW.6/B.
18. On behalf of respondent no.3 M/s United India Insurance Company, one Sh.Vikas Negi appeared in the witness box as R3W1. He deposed that they had issued a policy for the Qualis bearing registration number MH01/CA7481 against the cheque of premium amount. He deposed that the cheque was dishonored therefore, they had cancelled the policy. He deposed that as there is no privity of contract between them and insured i.e. respondent no.4, therefore, they are not liable to pay any compensation. This witness was cross examined by Ld.Counsel for the petitioner. During his cross examination, he stated that the postal receipts vide which the notice of cancellation of policy was sent to the insured, are not traceable.
19. No witness was examined on behalf of respondent no.1, the Oriental Insurance Company, who filed on record the english translation of the charge sheet Ex.PW.1/15.
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20. I have heard the arguments advanced and have perused the oral as well as documentary evidence on record. I have also gone through the precedents relied upon by Ld.Counsels of the petitioner and respondent no.1 and respondent no.3 in support of their contentions.
21. Sh.Varun Goswami, Advocate, Ld.Counsel for the petitioner contended that a healthy, hale and hearty human being who was the sole pillar of emotional and financial strength of his family has reduced to lead a vegetative life by a single stroke of negligence on the part of respondent no.2, the driver of truck MH18M7005. He contended that had the driver of offending truck followed the rules of the road and confined his vehicle to the prescribed lane, the accident could have been averted.
22. He vociferously contended that petitioner who is resident of Delhi had met with this accident on his way to Shirdi, District Nasik, was brought to Mumbai after initial Medical assistance at Shirdi. He contended that to look after him and to provide him the necessary medical treatment, his family members reached Mumbai and were forced to stay there incurring expenses on transportation, boarding and lodging. He contended that petitioner remained hospitalized at Bombay Hospital and M.A.C.Pet.No.243/08 Page No.15 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) Medical Research Centre from the date of accident till 04.12.2007. Ld.Counsel for the petitioner submitted that thereafter petitioner was brought to Delhi by Air through special arrangement by the Airline. He submitted that petitioner was then admitted in Paras Hospital, Gurgaon, where he remained admitted till 13.03.2008. It is submitted that during this hospitalization of petitioner for about 8 months, he was provided with the best medical help and the family members had left no stone unturned to get the petitioner back to shape. But that was not to be. All they could do even after incurring huge expenses is to save the physical frame of the petitioner sans the essential aspects of life. He went on saying to the extent that the condition of the petitioner is such that once a source of inspiration for the family has become a source of depression. He contended that petitioner has become permanently disabled person with no scope of improvement. He stated that petitioner has lost his earning power.
23. He contended relying upon the precedents that petitioner be adequately compensated as he has suffered untold pain and miseries, for no fault of his, taking into account his earnings which he had at the time of accident as per income tax returns. He contended that future prospects be also taken into account. He contended that petitioner be compensated towards the expenses incurred on treatment and medicines taking into M.A.C.Pet.No.243/08 Page No.16 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) account the future treatment which he would require for rest of his life.
24. Another limb of his arguments was that petitioner required a full time attendant and would continue to do so, for rest of his life, so he be compensated for that as well, besides his sufferings. He contended that other incidental expenses incurred for providing him the necessary medical help be also taken into consideration.
25. On the other hand Ms.Lalita Bajaj, Advocate, Ld.Counsel for Oriental Insurance Company, insurer of truck bearing registration number MH18M7005 contended relying upon english translation of the charge sheet with respect to FIR No: I96/2007 registered at PS Vavi, District Nasik, that their company is not liable to compensate the petitioner. She contended that as the police on conclusion of investigations had filed charge sheet against driver of the Qualis in which petitioner was travelling, therefore the accident had taken place due to negligent driving of respondent no.5. She submitted that as it was a head oncollision, then in alternative, it can be presumed that it took place due to contributory negligence on the part of drivers of both the vehicles involved in the accident. Another aspect of her contentions was that the expenses M.A.C.Pet.No.243/08 Page No.17 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) incurred by family members of the petitioner for visiting Mumbai and their stay there, cannot be taken into account.
26. She further contended that there is no treatment record of petitioner after 2008, therefore there is no scope of any compensation for future treatment as petitioner does not require any.
27. On behalf of respondent no.3 United India Insurance Company, the insurer of Qualis bearing registration number MH01 CA7481. Sh.D.K.Sharma, Advocate, Ld.Counsel contended relying upon deposition of R3W1 Sh.Vikas Negi, that there is no privity of contract between their company and insured. He contended that as cheque of premium was dishonoured and therefore the policy was cancelled being without consideration. He contended that in view thereof, their company cannot be saddled with the responsibility to compensate the petitioner.
28. I have considered the rival contentions of the parties, in the light of material available on record.
29. My issue wise finding is as under: M.A.C.Pet.No.243/08 Page No.18 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) ISSUE NO.1:
30. Standard of proof of negligence required in order to dispose off the compensation claim, stands on a much lesser footing than what is required in a criminal case or in a civil case. It was held in "Ranu Bala Paul and Ors. V/s Bani Chakraborty and Ors.", reported as 1999 ACJ 634, by Hon'ble Guahati High Court that:
"In deciding a matter Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim before the Motor Accidents Claims Tribunal, the standard proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to be decided for awarding compensation. But the Tribunal is not expected to take or to adopt the nicety of a civil or of a criminal case. After all, it is a summary inquiry and this is a legislation for the welfare of the society."
31. In "N.K.V.Bros(P) Ltd. V/s M.Karumai Ammal & Others, reported as (1980) 3 SCC 457, Hon'ble Supreme Court has M.A.C.Pet.No.243/08 Page No.19 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) observed as under: "Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their 'neighbour'. Indeed, the State must seriously consider no fault liability by legislation."
32. In the backdrop of above case law, the evidence of the petitioners is required to be considered.
33. The onus to prove this issue was on the petitioner. M.A.C.Pet.No.243/08 Page No.20 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
34. Petitioner in order to discharge this onus, examined Sh.Gajender Singh, who appeared in the witness box as PW1. This witness during the course of his deposition filed by way of affidavit Ex.PW.1/A deposed that on 25.08.2007, petitioner along with his friends namely Shree Bhagwan and Asit Dass had boarded a Qualis bearing registration number MH01CA7481 for visiting Shirdi. He deposed that at about 7 - 7.30 am, when their car was at SinnarShirdi Road, a truck bearing registration number MH18/M7005 came from the opposite direction, being driven by respondent no.2 at a fast speed and in a rash and negligent manner and struck against the Qualis with such a great force, that all the occupants of Qualis sustained multiple injuries on their persons. This witness deposed that FIR No. I96/07 was registered at PS Vavi, District Nasik. He proved copy of FIR as Ex.PW.1/14 and copy of charge sheet along with other documents as Ex.PW.1/15. This witness was cross examined on behalf of respondent no.1, the Insurance Company, with whom the truck was insured wherein he admitted the fact that he is not an eyewitness.
35. Witnesses to the incident namely Shree Bhagwan and Asit Dass were examined as PW2 and PW3 respectively. Both these witnesses filed their examination in chief by way of affidavits Ex.PW.2/A and Ex.PW.3/A respectively. Both these witnesses during the course of M.A.C.Pet.No.243/08 Page No.21 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) their deposition had narrated the sequence of events, as they had taken place, which led to the occurrence of this accident. Both these witnesses unanimously deposed that on the date of accident, at about 7 - 7.30am, when they were at SinnarShirdi Road, approximately at a distance of about 22 kilometers from Shirdi, the offending truck bearing registration number MH18M7005 came from the opposite direction, being driven at a fast speed and in a negligent manner and struck against their Qualis from front side with great force. Both these witnesses stated that accident did take place due to negligence of respondent no.2, who was driving the offending truck at the time of accident. Both these witnesses could have been cross examined on the 'aspect of negligence' on behalf of respondent no.2, driver / owner of the offending truck, however he failed to cross examine both these witnesses as he had chosen to stay away from the proceedings, for the reasons, best known to him.
36. Armed with an order under section 170 of the Motor Vehicles Act in her favor, Ms.Lalita Bajaj, Advocate, Counsel for respondent no.1 Oriental Insurance Company, insurer of the offending truck did cross examine both these witnesses regarding the manner in which accident had taken place. However nothing material emanated out of cross examination of both these witnesses, so as to discredit the cogent and M.A.C.Pet.No.243/08 Page No.22 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) consistent version given by them, during the course of their examination in chief. Both these witnesses denied the suggestion that the accident had taken place due to negligence of driver of the Qualis Car. Both of them had stated that Qualis at the time of accident was being driven at a moderate speed of about 45 - 50 km / hour. Both the witnesses stated that driver of the Qualis Car was driving the car on the left side of the road, whereas driver of the offending truck intruded upon the space meant for the traffic coming from the opposite direction, which resulted in this accident. Both these witnesses stated that they had narrated the manner in which accident had taken place to the police as well.
37. It is submitted by Ld.Counsel for the petitioner that both the witnesses to the incident who were with the petitioner at the time of accident have given consistent account of the accident. He contended that immediately after the accident, both these witnesses along with the petitioner, who had sustained injuries on their person, were taken to the hospital.
38. On the other hand, it is contended by Ms.Lalita Bajaj, Advocate, Ld.Counsel for respondent no.1 M/s Oriental Insurance Company, insurer of offending truck, relying upon translated version of M.A.C.Pet.No.243/08 Page No.23 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) charge sheet Ex.PW.1/15 that accident had taken place due to negligence of driver of the Qualis, in which petitioner was travelling. She contended that even police, on conclusion of investigations formed the opinion that accident did take place due to negligence of driver of the Qualis Car. Therefore, their company cannot be made liable to compensate the petitioner.
39. Ms.Lalita Bajaj, Advocate, Ld.Counsel for respondent no.1 Oriental Insurance Company, alternatively had contended that as it was a headoncollision between the truck and the Qualis, therefore the accident could have resulted due to 'contributory negligence' of drivers of both the vehicles involved in the accident.
40. I have considered the rival contentions advanced.
41. Whenever any accident takes place due to negligence, on the part of two or more persons and someone is injured, as a result of same, then negligence on the part of two or more wrong doers, it can be inferred that the person got injured on account of 'composite negligence' of those wrong doers. In such a case, each wrong doer is liable to compensate the M.A.C.Pet.No.243/08 Page No.24 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) injured / petitioner for all the damages caused to him.
42. Whereas, in a case where a person suffers injury partly due to negligence on the part of another person and partly as a result of his own negligence, then the negligence on the part of injured which contributed to the accident is refferred to as his ''contributory negligence''. In such an eventuality, the compensation to be awarded to the victim of such a case, is reduced in the proportion of his contributory negligence.
43. From the evidence on record in the present case, it is apparent that petitioner Pritam Singh was not driving any of the two vehicles involved in the accident, but was travelling it the Qualis Car and had sustained injuries on his person without any lapse or negligence on his part, therefore this is not the case of "contributory negligence". At best, this can be a case of "composite negligence" on the part of drivers of both the vehicles involved in the accident. But that aspect has to be ascertained on the basis of evidence on record.
44. The sole question which is required to be answered is, "Due to whose negligence the accident had taken place?" M.A.C.Pet.No.243/08 Page No.25 of 105
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45. To answer the question and to consider the argument advanced by Ld.Counsel for respondent no.1, it is to be seen as to whether FIR whose author has not been examined during the course of proceedings, can be given preference over the deposition of the witnesses to the incident, who appeared in the witness box.
46. Petitioner had examined witnesses to the incident namely Shree Bhagwan and Asit Dass. Presence of these two witnesses at the place of incident with the petitioner, has not been disputed by the respondents. Their presence at the place of incident is further established from the fact that they had also sustained injuries along with the petitioner on their persons. Therefore their presence at the place of occurrence cannot be doubted. Their deposition thus assumes importance for disposal of the present issue.
47. Both these witnesses during the course of their deposition had categorically stated following facts:
(a) That, driver of the Qualis in which petitioner was travelling, was driving the same at moderate speed of about 4550 km / hour.
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(b) That, driver of the Qualis in which they were travelling was driving the same at left side of the road with due care and caution.
(c) That, driver of the offending truck bearing registration number MH18M7005, came from the opposite direction driving his truck at a fast speed.
(d) That, driver of the offending truck while driving the truck at a fast speed and in rash and negligent manner had intruded upon the space meant for the traffic coming from the opposite directions.
(e) That, the offending truck bearing registration number MH18M7005, had struck against the Qualis Car from the front side after trespassing the lane meant for the traffic coming from the opposite direction, which resulted in the accident and sustenance of injuries to all the occupants of Qualis Car.
48. The facts as deposed by PW2 and PW3 could have been controverted by respondent no.2, driver / owner of the offending truck, but that was not to be. Counsel for respondent no.1 Oriental Insurance Company, did cross examine PW2 and PW3 on the aspect of negligence, but nothing consequential came out of the same.
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49. Counsel for respondent no.1 Insurance Company, relying upon the copy of charge sheet filed by the police against driver of Qualis, ie. Respondent no.5 contended that deposition of PW2 and PW3 is not trustworthy. Her contention is that FIR and charge sheet be considered and deposition of PW2 and PW3 be discarded.
50. I do not find any merits in the contentions advanced by Ld.Counsel for respondent no.1, Oriental Insurance Company.
51. It has been held by Hon'ble Apex Court in case titled "Manam Saraswati Vs. Manager APSRTC" reported as JT 2010 (3) 335 SC that deposition of the witnesses examined in the Tribunal cannot be discarded in the light of the facts stated in the FIR or charge sheet.
52. Hon'ble Apex Court in another case titled "Usha Rajshowa Vs. Paramount Industries" reported as JT 2009 (2) SC 512, had held that statement of the witnesses examined in the Tribunal, are of supreme importance to ascertain the aspect of negligence. It has further been held that, plea sought to be raised by the Insurance Company has to be established or proved by them, by producing relevant evidence. M.A.C.Pet.No.243/08 Page No.28 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
53. Hon'ble High Court of Madhya Pradesh in case titled "Bapu Vs. Karan Singh" reported as 2000 (1) TAC 491 (MP) DB and Hon'ble High Court of Orissa in case titled "NIC Vs. Asha Lata" reported as 2009 AIHC 1685 (Orissa), have also held that, FIR cannot be looked into, if the the maker / author of FIR has not been examined.
54. In the present case, FIR was recorded on statement of police Hawaldar Pundir Gangadhar Fartale. Neither he, nor the investigating officer who had prepared the charge sheet were examined by the Insurance Company. In absence of deposition of maker of FIR or that of the investigating officer, I am of the opinion that the same are not required to be looked into, in view of the cogent and consistent deposition of PW2 and PW3 on record. I am fortified to arrive at this conclusion, on the basis of the above referred pronouncements made by Hon'ble Superior Courts.
55. In a country like ours, where total number of vehicles far exceeds the number of vehicles which some metropolitan cities of other countries jointly possess. Certain rules and regulations have been promulgated by the government for each and every driver of motor vehicle M.A.C.Pet.No.243/08 Page No.29 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) to follow. These rules and regulations have been formed, not only for the safety of the person driving the motor vehicle, but also for the safety of others, using the public road. One such rules is to drive the vehicle on correct side of the road. This duty of the driver of motor vehicle becomes more onerous while driving his vehicle on a single road without having any divider in between.
56. On a single road, which is catering to the traffic coming from both the sides, driver of every motor vehicle is supposed to drive his vehicle on left side of the road and not to intrude upon the space meant for the traffic coming from the opposite direction.
57. In the present case, it is apparent on perusal of cogent and consistent deposition of PW2 and PW3, that driver of the offending truck bearing registration number MH18M7005 failed to adhere to these basic rules and brought the offending truck on the extreme right side of the road, intruding upon the space meant for the traffic coming from the opposite direction and struck against the Qyalis in which petitioner was travelling, which was being driven at the left and correct side of the road. M.A.C.Pet.No.243/08 Page No.30 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
58. I do not find any force in the second contention of Ld.Counsel for respondent no.1 M/s Oriental Insurance Company that it being a headoncollision, therefore it must have resulted due to negligent driving of drivers of both the vehicles. Merely because collision was head on, it cannot and should not be presumed or held to have taken place due to composite negligence, if the evidence on record speaks otherwise. In the present case, from the deposition of PW2 and PW3, which is cogent and trustworthy, it is clear that driver of Qualis car was driving his vehicle on left side of the road, whereas driver of the truck driving it at a fast speed, brought his vehicle on the other side of the road, meant for the traffic coming from the opposite direction, which resulted in this accident.
59. In view of aforementioned discussion, it is clear that the accident had taken place due to sole negligence driver of offending truck bearing registration number MH18M7005 i.e. respondent no.2 which resulted in sustenance of multiple injuries to the petitioner.
60. Issue No.1 is decided accordingly in favor of the petitioner.
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( Pritam Singh Vs. Oriental Insurance Co. & Ors.) ISSUE NO.2:
61. As issue no.1 is decided in favor of the petitioner in affirmative, petitioner is entitle for the compensation. Quantum of the compensation however is required to be calculated.
62. It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
63. In case of personal injury caused to a claimant in a motor accident, compensation, special as well as general, is awarded. In case titled "Raj Kumar Vs. Ajay Kumar & Another" reported as IX (2010) SLT 432, Hon'ble Supreme Court laid down the following general principles for computation of compensation in injury cases: M.A.C.Pet.No.243/08 Page No.32 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) "General principles relating to compensation in injury case" The provision of the Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. 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 shall have the assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and is consequences, is inevitable. A person is not only to be compensated for the 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 lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn or could have earned. 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, nourishing food and miscellaneous expenditure.
ii. Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: M.A.C.Pet.No.243/08 Page No.33 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
(a) Loss of earning during the period of treatment,
(b) Loss of future earnings on account of permanent disability, iii. Future medical expenses, Non pecuniary damages (General Damages).
iv. Damages for pain, suffering and trauma as a consequence of the injuries.
v. Loss of amenities (and / or loss of prospects of marriage).
vi. Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under head (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 damage under item (i) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) - depends upon specific medical evidence regarding need fur further treatment and cost thereof. Assessment of non pecuniary damages - items (iv), (v) and (vi) - involves M.A.C.Pet.No.243/08 Page No.34 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) determination of lump sump 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.
64. In cases of disablement by virtue of loss of limb or any permanent impairment, the compensation goes to a living person. In disablement cases, compensation awards are always higher than even in cases of death. Bodily injury leads to deprivation. The deprivation may bring with it loss of earning or earning capacity; expenses of having to pay others for what otherwise, he would do for himself and loss of enjoyment of life, or a diminution in full pleasures of life. The gravity and degree of the deprivation, i.e. whether one or more limbs have been lost, the duration of the deprivation and the degree of awareness of the deprivation have to be borne in mind. These principles have been laid down by House of Lords in "West (H) & Sons Vs. Shepherd" reported as (1964) A.C.326 and have been widely followed in the cases of Chaturji Amarji reported as (1979) Cr.L.J>107 (Guj.) and Ramesh Kumar Awasthi reported as A.I.R. 1982 All. 425. The amount granted has to be substantial and not token. M.A.C.Pet.No.243/08 Page No.35 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
65. In the backdrop of above referred established principles / norms, in order to calculate the amount of compensation, the sum is required to be considered under the various heads as delineated herein above by Hon'ble Apex Court.
(I) MEDICINES & TREATMENT:
66. Brother / guardian adlitem of the petitioner namely Gajender Singh appeared in the witness box as PW1. He during the course of his deposition stated that immediately after the accident which had taken place near Nasik, his brother was taken to Shri Sai Nath Hospital, Shirdi where after a day's hospitalization, he was shifted to Bombay Hospital and Medical Research Centre on 26.08.2007, where he remained admitted for a crucial period of 4 months and was discharged on 04.12.2007 vide Discharge Summary Ex.PW.1/18.
67. PW1 deposed that on admission of petitioner to Bombay Hospital and Medical Research Centre, he remained under continuous treatment of Specialist Neurosurgeon Dr.Keki E.Turel. During his M.A.C.Pet.No.243/08 Page No.36 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) hospitalization at Bombay Hospital, CT Scan was conducted and petitioner was diagnosed to have sustained serious head injuries comprising of "right temporal contusion with Gross Cerebral Oedema with Multiple cranio facial fractures with Fracture Mandible etc."
68. PW1 deposed that his brother ie. Petitioner Pritam Singh, during the period of his hospitalization at Bombay Hospital, had undergone critical neurological surgeries comprising of 'Bilateral frontotemporal craniectomy with right temporal polectomy with mandibular wiring and tracheostomy".
69. It is alleged that despite undergoing a number of critical neurological surgeries, no improvement was seen by the attending doctors at Bombay Hospitals, owing to which petitioner was again operated upon pursuant to advise to undergo another surgery i.e. Frontotemporal cranioplasty whith autologous bone and mandibular plating on 07.11.2007.
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70. PW1 further deposed that despite critical inbound hospitalization for 4 months at Bombay Hospital and Medical Research Centre, no improvement was observed in the physical as well as mental condition of the petitioner and everraising treatment expenses on the petitioner, forced his family members to get him discharged from the said hospital. PW1 deposed that petitioner was discharged from Bombay Hospital and Medical Research Centre on 04.12.2007.
71. PW1 further deposed that despite 4 month's inbound hospitalization of the petitioner at Bombay Hospital, he could not recuperate from the neurological disorder sustained by him in this accident and had gone in permanent comatose condition. PW1 deposed that as a result of sustenance of multiple grevious head injuries in this accident, petitioner was again admitted to Paras Hospital, Gurgaon on 07.02.2008 where he was diagnosed to be a case of "head injury with old case DVT with Pulmonary Embolism with scalp wound infection with post traumetic hydrocephalous with Pthysis Bulbi right Eye." It is further deposed by PW1 that petitioner was again operated upon by the attending Doctors at Paras Hospital, whereby "debridement of scalp wound with right eye tarsorrhaphy with right VP Shunt etc" was done. PW1 deposed M.A.C.Pet.No.243/08 Page No.38 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) that from the date of accident, petitioner remained under continuous in bound hospitalization and was finally discharged from Paras Hospital on 13.03.2008 vide Discharge Summary Ex.PW.6/A.
72. PW1 deposed that as his brother was again admitted in Paras Hospital on 25.07.2008 due to "excessive chest secretion". During the course of his hospitalization, CT Head was done, which revealed "increase in ventricular size", which was adjusted with the help of steriods and antacids. PW1 deposed that after 7 days inbound hospitalization at Paras Hospital, his brother was discharged on 31.07.2008 vide Discharge Summary Ex.PW.6/B.
73. PW1 deposed that even even after undergoing a number of surgeries in different hospitals, his brother remained in permanent vegetative state and as per the medical reports furnished by the doctors, it has come up on record that his comatose condition is not likely to improve in the future as well.
74. PW1 deposed that owing to sustenance of severe head injuries in the present accident, petitioner has sustained 100% permanent M.A.C.Pet.No.243/08 Page No.39 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) disability and is in Persistent Vegetative State. Permanent disability certificate to that effect was proved on record by the witness as Ex.PW.1/24.
75. PW1 proved on record the bills raised by the hospital authorities for the treatment administered to Pritam Singh and of the medicines purchased as Ex.PW.1/23 (collectively).
76. Perusal of the medical record as well as the photographs of the petitioner reveals that he had sustained severe head injuries comprising of "right temporal contusion with Gross Cerebral Oedema with Multiple craniofacial fractures with Fracture Mandible etc."., for which he was operated upon a number of times during which '''Bilateral frontotemporal craniectomy with righ temporal polectomy with mandibular wiring and tracheostomy" was done on different occasions.
77. It is further evident from the medical treatment record that Pritam Singh had sustained such severe head injuries that he is continuing to be in permanent vegetative stage and is not capable of responding to verbal commands. Perusal of medical treatment record of the M.A.C.Pet.No.243/08 Page No.40 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) petitioner further makes it evident that right eye of the petitioner has completely damaged and he is on urine catheter and gastric tube feeding till today. It is further clear from the medical treatment record of the petitioner that, owing to his being into "permanent comatose condition" he is under constant 24 hour nursing and medical care.
78. PW1 deposed that a sum of Rs.30 lacs has already been incurred on treatment of the petitioner, which is still continuing. PW1 has placed on record the bills of expenses incurred by him on treatment of petitioner Pritam Singh i.e. towards the bills raised by the hospital authorities for inhouse treatment, bills of the attending doctors and bills for purchase of medicines amounting to Rs.28,51,399/
79. It is submitted by counsel for Insurance Company that all these bills of purchase of medicines does not have corresponding prescription, therefore the same cannot be granted.
80. I do not find any merits in the contentions advanced by Ld.Counsel for the Insurance Company. It is apparent that the petitioner has proved the complete treatment record of the petitioner and the bills of M.A.C.Pet.No.243/08 Page No.41 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) medicines purchased by him are as per the prescriptions of the attending doctors, which fact also corroborates from the nature of injuries and the treatment administered to the petitioner, owing to the injuries sustained in this accident.
81. In view thereof and considering the duration of treatment, I am of the opinion that apart from the bills placed on record by he must have incurred the petitioner which amounts to Rs.28,51,399/, further expenses, as it is not expected of any person to retain bills of each and every rupee spend by him on treatment of the petitioner, who has met with such a serious accident and has sustained near fatal injuries, which has reduced him into a permanently disabled person.
82. Counsel for respondent no.1 Oriental Insurance Company had also placed on record a medical report of their own Doctor namely Dr.Vipin Gupta, who had personally visited the petitioner and had acknowledged his physical condition to be such, which requires constant 24 hour nursing and medical care. Dr.Vipin Gupta had also verified the bills amounting to Rs.22,46,432/ (approximately). M.A.C.Pet.No.243/08 Page No.42 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
83. Perusal of record however reveals that petitioner had incurred further expenses on his treatment, even after verification of these bills by Dr.Vipin Gupta.
84. In view thereof, I do not see any reason to doubt the genuineness of the bills placed on record by the petitioner.
85. Moreover, considering the nature of injuries sustained by the injured and the duration for which his treatment continued, I am of the opinion that petitioner must have incurred expenses over and above the amount of bills placed on record.
86. I therefore, award a sum of Rs.28,55,000/ to the petitioner towards "Medicines and Treatment". (II) COMPENSATION TOWARDS FUTURE TREATMENT:
87. In cases of personal injury or in case of loss of limb due to the accident, it is always impossible to have the exact estimate or assessment of the damage suffered by the victims of the accident as money M.A.C.Pet.No.243/08 Page No.43 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) cannot renew the physical frame that has been battered and shattered. However, the Tribunal is under a legal obligation to see that injured should be awarded such sum of money as will put him in the same position as he would have been, if he had not sustained the injuries. Though no award of money can possibly compensate a man and renew his shattered frame. However the expenses already incurred or required to be incurred for further treatment have to be awarded to the petitioner for his treatment as the same were forced on him, for no fault of his.
88. In the present case, it is apparent that right from the date of accident, till the date of filing of petition and even thereafter, till today, petitioner is continuously incurring expenses on his treatment.
89. In view of his medical treatment record proved by the petitioner during the course of evidence and the Permanent Disability Certificate Ex.PW.1/24, issued to the petitioner by Dr.Ram Manohar Lohia Hospital, New Delhi, I am of the considered opinion that petitioner is in "Persistent Vegetative State". To maintain the physical frame of the petitioner and whatever life is left in him, his treatment is likely to continue, for rest of his life, for which he is likely to incur further M.A.C.Pet.No.243/08 Page No.44 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) expenses.
90. It is submitted by Ld.Counsel for respondent no.1 M/s Oriental Insurance Company that there is no material on record to show that after 2008, petitioner had received any treatment. She further contended that there is neither material on record with respect to future treatment of the petitioner nor any estimate from any doctor or hospital has been placed and proved by the petitioner.
91. I do not find any merits in the contentions advanced by Ld.Counsel for the petitioner, in view of the physical condition in which petitioner is in. Further, the bills and treatment record of the petitioner reveals that his treatment is still continuing and is likely to continue till his lifetime as there is no scope of his recovering from the persistent vegetative state.
92. Although, petitioner has failed to bring on record any estimate with respect to future treatment, however, the Tribunal has to arrive at a reasonable estimate on the basis of evidence on record. I considering the amount of expenses i.e. more than Rs.28 lacs, already incurred by the petitioner from the date of accident till today on his M.A.C.Pet.No.243/08 Page No.45 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) treatment, and also having regards of his physical condition, am of the opinion that he is in need of regular treatment for which he is likely to incur more expenses. Even the report of the doctor appointed by the Insurance Company, i.e. Dr.Vipin Gupta for verification of bills and physical condition of the petitioner, depicts that petitioner requires constant 24 hours nursing care, for which he will have to shell out further expenses.
93. Even after continuous treatment of the petitioner for a period of three years i.e. from the date of accident till date, all that Medical assistance could do, is to save the physical frame of the petitioner sans essential ingredients of life. Though, the chances of his recovering from persistent vegetative state are minimal, but hope is not lost. Therefore, in my considered opinion, petitioner requires future treatment and is to be compensated on that account.
94. I therefore award a sum of Rs.2 lacs to the petitioner towards "future treatment" as the same is likely to continue for the rest of his life.
M.A.C.Pet.No.243/08 Page No.46 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.) (III) LOSSES SUFFERED BY THE PETITIONER OWING TO PERMANENT DISABILITY:
(i) LOSS OF INCOME / LOSS OF EARNING POWER:
95. Disability refers to any restriction or lack of ability to perform any 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.
96. Generally, compensation towards loss of income and loss of earning power are ascertained separately, as loss of income is awarded for the period when victim of road accident is under treatment and is completely immobilized to carry on with his work / occupation. Whereas, loss of earning power is calculated on the basis of 'functional disability' of the petitioner, resulting from the injuries sustained by him in the accident, after his treatment is over.
M.A.C.Pet.No.243/08 Page No.47 of 105
( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
97. In the present case, right from the date of accident till the filing of petition and even till today, petitioner is completely immobilized and has been issued "Permanent Disability Certificate" by Dr.Ram Manohar Lohia Hospital, New Delhi Ex.PW.1/24, certifying that petitioner had sustained 100% permanent disability with respect to his whole body. He being in persistent vegetative state requires constant nursing care and would continue to do so for remainder for his life. Thus, in the present case, no line can be drawn that treatment of the petitioner, for the injuries sustained is over. Therefore both these head are being considered simultaneously.
98. For the purposes of ascertaining and computing the loss of earning power, two major aspects are required to be ascertained. The same being:
(a) Functional Disability suffered by the petitioner resulting from the injuries sustained in the accident, leading to the loss of earning capacity.
(b) The income which petitioner had from his business at the time of accident, with which he was supporting himself as well as his family members.
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( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
99. In order to ascertain the first aspect, the degree of permanent disability and its resultant effect on the earning capacity of the injured, is required to be considered.
100. PW1 brother of petitioner Pritam Singh deposed that his brother was examined by the medical board, constituted by Dr.Ram Manohar Lohia Hospital, New Delhi and the said medical board, after physical examination of the petitioner and his treatment record had issued a "Permanent Disability Certificate", certifying that petitioner owing to the head injuries sustained by him, had suffered "100% Permanent Disability with respect to his whole body and he is in Persistent Vegetative State"
101. It is submitted by Ld.Counsel for the petitioner that petitioner that permanent disability suffered by the petitioner has completely eradicated the earning capacity of the petitioner, so functional disability should be considered as 100%.
102. It is contended by Ld.Counsel for respondent no.1 and respondent no.3, the Insurance Companies, that as per the Disability M.A.C.Pet.No.243/08 Page No.49 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) Certificate Ex.PW.1/24, his condition was required to be reassessed after a period of six months, therefore, it cannot be presumed that petitioner has completely lost all his earning power. It is further contended that the disability certificate has also not been proved as per the Evidence Act, therefore the same cannot be relied upon and cannot be considered as a piece of evidence.
103. This contention of Ld.Counsel for the Insurance Company, to my mind is devoid of any merits, in view of the fact that one of the doctors, who was member of the medical board, namely Dr.L.N.Gupta appeared in the witness box as PW4. He proved the disability certificate Ex.PW.1/24 issued by the Medical Board. He categorically deposed during the course of his deposition as PW4, that physical condition of the petitioner was such that there is no scope of improvement. On being cross examined on behalf of respondent no.1 Oriental Insurance Company, he stated that clinically as well as radiologically, there are no chances of any improvement in the condition of the petitioner.
104. For better appreciation of the material placed and proved on record, Ld.Counsel for the petitioner was requested to make arrangement M.A.C.Pet.No.243/08 Page No.50 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) of producing the petitioner in court. Petitioner was accordingly produced in court on a stretcher during the course of arguments. On seeing him, it was apparent that he is merely surviving / living, without any life in him.
105. In view of the deposition of PW4 Dr.L.N.Gupta as well as having regards to the physical condition of the petitioner, I do not see any reason to doubt the genuineness of the disability certificate Ex.PW.1/24 proved on record by the petitioner.
106. Another limb of the arguments of Ld.Counsel for the Insurance was that the disability mentioned in the 'disability certificate' cannot be treated as 'Disability with respect to the whole body" or with respect to the "functional disability of the petitioner" to carry on with his business or occupation.
107. In the cases of permanent disability, percentage of permanent disability is determined on the basis of disability certificate issued by the Medical Board. The assessment of compensation under the head of loss of earning power, however would depend upon the effect and impact of such 'permanent disability' on the "earning capacity of the victim of road accident".
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( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
108. In case titled "Raj Kumar Vs. Ajay Kumar & Ors. (supra), Hon'ble Apex Court has laid down the criteria for ascertainment of the effect of the permanent disability on the actual earning capacity of the petitioner / victim of road accident. Hon'ble Apex Court had held as under: Where the claimant suffers a permanent disability as a result of the injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.
What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity, as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal M.A.C.Pet.No.243/08 Page No.52 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) will adopt the said percentage for determination of compensation.
The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do, as a result of the percentage disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whethere (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on with the activities and function, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions, so that he continues to earn his livelihood.
109. In the present case, on the basis of medical treatment record of the petitioner, disability certificate and his physical condition, I am of the considered opinion that he is in "Persistent Vegetative State" or "Permanent Comatose Condition" with no chances of recovery / recuperation. In view thereof, on the basis of medical treatment reports of the doctors and deposition of PW4 Dr.L.N.Gupta and PW6 Dr.Deepak Kumar and reports of other neurosurgeons, I am of the opinion that there M.A.C.Pet.No.243/08 Page No.53 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) are no chances of recovery / recuperation of the petitioner from this stage, at any point of time for rest of his life.
110. In view thereof, what to talk of working to earn, the condition of petitioner is such that even for his normal avocation, he is dependent on others. As per the report of the doctor so appointed by respondent no.1 M/s Oriental Insurance Company themselves, petitioner is completely immobilized having lost his visual and hearing abilities.
111. In view of this evidence on record and keeping in mind the physical condition of the petitioner, I am of the opinion that all is lost so far as earning capacity of petitioner is concerned. Permanent Disability suffered by him has resulted in 100% functional disability as he in this situation is neither in a position to use his cognitive faculties nor motor faculties.
112. Having held that permanent disability of the petitioner due to injuries sustained in the accident, had completely eradicated the earning capacity of the petitioner and had resulted in 100% functional disability, second aspect for computation of actual loss of earning power is M.A.C.Pet.No.243/08 Page No.54 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) now required to be considered. It has to be ascertained on the basis of material on record, as to what was the income of the petitioner, at the time of accident, from his business.
113. PW1 Gajender Singh deposed that his brother ie. Petitioner Pritam Singh was running M/s Goodluck Transport Services and M/s Goodluck Properties as "Sole Proprietor". PW1 deposed that besides this, his brother Pritam Singh was also one of the Directors of M/s Goodluck Cargo Movers Private Limited. PW1 further deposed that his brother was earning a sum of Rs.50,000/ per month and was an income tax assessee. Income tax returns filed by the petitioner for the Assessment years 2003 2004 ; 2004 2005 ; 2005 2006 ; and 2006 2007 were proved on record as Ex.PW.1/26 (collectively). PW1 deposed that had his brother not met with the accident, then in the near future, he would have started earning much more than what he was earning at the time of accident.
114. It is contended by Ld.Counsel for the Insurance Company that petitioner was a businessman and there is no evidence of any fixed income of the petitioner, therefore his previous income as per the Income Tax Returns should not be considered and the assessment be made M.A.C.Pet.No.243/08 Page No.55 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) on the basis of minimum wages.
115. I do not find any substance in the arguments advanced by Ld.Counsel for the Insurance Company. The Income Tax Returns filed by the petitioner during the routine course of his business, for the previous assessment years, cannot be discarded. These are substantial pieces of evidence to ascertain, as to what petitioner was earning, more particularly when the same were filed by him with the department much prior to this accident. Further, these returns which have been collectively exhibited as Ex.PW.1/26 are proved by the witness from the department, ie. PW5 Inspector S.K.Sharma from Income Tax Department.
116. For the success of any business, many factors act and gel together. Capital, goodwill earned in the past, place of business and also the past factors of the business are the essential and important factors. However, the most important aspect of success is the business caliber of the person manning it. His leadership qualities, personal skills besides control and hold over the working of the business contributes to its success story. As per deposition of PW1, his brother i.e. Petitioner Pritam Singh was running the business single handedly, being sole proprietor of the two concerns.
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117. As per the income tax return for the Assessment years 20032004, 20042005, 20052006 and 20062007 as Ex.PW.1/26 (collectively)., income of the petitioner from business was recorded as under: Assessment Year Income from Business Tax Paid Return filed on 2003 - 2004 Rs.4,15,068/ Rs.97,582/ 29/09/03. 2004 - 2005 Rs.3,92,934/ Rs.86,923/ 28/10/04. 2005 - 2006 Rs.4,65,330/ Rs.97,663/ 08/11/05 2006 - 2007 Rs.6,51,977/ * Rs.1,17,906 30/06/06. * The income shown as Rs.6,51,977/ is the total income for the AY 20062007 comprises of "income from business" as Rs.4,49,775/ and includes Rs.1,50,000/ as "Income from House Property" and a sum of Rs.3,48,175/ as "Income from Capital Gains".
118. Perusal of these Income Tax Returns reveals an 'upward propagation towards the annual income of the petitioner from his business. Meaning thereby that he was progressing fairly in his business. M.A.C.Pet.No.243/08 Page No.57 of 105
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119. As per the record, the date of birth of petitioner is 01.05.1971. Meaning thereby that as on date of accident, he was 36 years of age. Considering his age to be 36 years, I am of the considered opinion that had petitioner continued with his business, then definitely he would have gone on to earn, much more than what he was earning at the time of accident.
120. Hon'ble Apex Court in case titled "Smt.Sarla Verma Vs. DTC & Another" bearing civil appeal no.3183/2008, decided on 15th April 2009, had laid down a uniform criteria for the purposes of consideration of future prospects after taking into account the rise in price index and fall in denunciation of value of currency. It has been held by Hon'ble Apex Court in said case that for a person, who is in "permanent employment" and is less than 40 years of age, then 50% of his income is required to be, added towards "future prospects".
121. In the present case, though petitioner was not in service, but being a businessman, he was doing well in his business, as is apparent from the income tax returns of the last four assessment years, which were filed by him, prior to the date of accident.
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122. Having regards to these facts and circumstances, I am of the considered opinion that 50% of his annual income is required to be added towards "future prospects".
123. Ld.Counsel for respondent no.1 Ms. Lalita Bajaj, Advocate, contended that only that part of income of petitioner should be considered for the purposes of calculation of loss of earning power which he was generating from his own skills and labour.
124. I do find some merits and substance in this contention of Ld.Counsel for the Insurance Company.
125. A person sustaining functional disability owing to the injuries resulting from an accident has lost that power with which he was earning and generating money for himself and his family members. The amount which he was earning as rental from any immovable property or as capital gain by sale of some property, is not required to be added to his "income" for the purposes of calculation, as the said income from property continues to flow in, even after sustenance of disability by the petitioner. M.A.C.Pet.No.243/08 Page No.59 of 105
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126. Perusal of last income tax return for the Assessment Year 20062007, which was filed by the petitioner on 30.06.2006, it is apparent that the total income which is depicted in the returns is Rs. 6,51,977/, which comprises of Rs.4,49,775/ as "Income from Business", Income from "House property as Rs.1,50,000/" and Income from "Capital Gains" as Rs.3,48,175/.
127. For the purposes of ascertaining actual income of the petitioner at the time of accident, regard is to be had on the income, which petitioner was generating from his own skills. The income which petitioner was getting from the fixed assets is not required to be added to his personal income, as the said assets are still in existence and can generate similar amount of income, even without the intervention of personal skills of the petitioner.
128. Further, capital gains are also not required to be added to the personal income of the petitioner, which he had at the time of accident. In view thereof, I consider the income which petitioner himself was generating from his business as his "annual income" at the time of accident. The same as per the Income Tax Return was Rs.4,49,775/, which M.A.C.Pet.No.243/08 Page No.60 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) is rounded off to Rs.4,50,000/.
129. As per the law laid down by Hon'ble Apex Court in Smt.Sarla Verma's Case (supra), by adding 50% of this annual income ie. 50% of Rs.4,50,000 towards future prospects as discussed earlier, average income of the petitioner would come out to Rs.4,50,000 + Rs.2,25,000 (50% of 4,50,000) = Rs.6,75,000/.
130. Hon'ble Apex Court has further held that tax liability of the person is required to be deducted from his gross income, so as to find out his actual average income.
131. Considering the fact that for the assessment year 20062007, on the total income shown amounting to Rs.6,51,977/, tax liability of the petitioner was Rs.1,17,900/.
132. In the same proportion, I am of the opinion that for gross average annual income, as calculated hereinabove of Rs.6,75,000/, tax liability would have been Rs.1,20,000/ (approximately), which is required to be deducted from the same.
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133. Accordingly, actual average annual income of the petitioner would come out to Rs.6,75,000 - Rs.1,20,000 (tax liability) = Rs.5,55,000/.
134. It is submitted by Ld.Counsel for the Insurance Company that out of this amount, 1/ 3rd should be deducted towards "personal expenses".
135. I do not find any merits in the contentions advanced by Ld.Counsel for the Insurance Company.
136. In cases where compensation is made towards loss of earning power, compensation goes to a living person. It is the deprivation which as brought with it loss of earning power. In this physical condition of his, he is forced to bear expenses of having to pay others which otherwise, he would have kept or spent on himself.
137. Further, Hon'ble Apex Court in "Oriental Insurance Company Vs. Ram Prasad Verma & Ors." reported as 2009 (1) SCC M.A.C.Pet.No.243/08 Page No.62 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) (Crml.) 853 has held that: "The person although alive but not in a position to move and for every small thing, he has to depend upon the services of another, a direction to deduct onethird of amount from his total income need not be insisted upon".
138. This proposition squarely applies to the facts of the present case. Accordingly, average annual gross income of petitioner is considered, after deduction of tax liability, as Rs.5,55,000/.
139. Considering the fact that petitioner was 36 years of age at the time of accident and from said date he has lost his earning power, therefore a multiplier of "15" is required to be considered.
140. Accordingly, actual loss of income / loss of earning power would come out to Rs.5,55,000 x 15 = Rs.83,25,000/. M.A.C.Pet.No.243/08 Page No.63 of 105
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141. I, therefore award a sum of Rs.83,25,000/ to the petitioner towards loss of income / loss of earning power.
(IV) LOSS OF AMENITIES
OWING TO
PERMANENT DISABILITY:
142. In cases of personal injury or in case of loss of limb due to the accident, it is always impossible to have the exact estimate or assessment of the damage suffered by the victims of the accident as money cannot renew the physical frame that has been battered and shattered in an accident.
143. It is strenously contended by Ms.Lalita Bajaj, Advocate, Counsel for respondent no.1 Oriental Insurance Company, that, if the petitioner is awarded compensation for loss of earning power owing to the permanent disability, then nothing can be awarded to the petitioner under the head of "loss of amenities of life".
144. In case of bodily injuries where injured survives and is disabled, compensation awarded is higher, than in case of death because compensation is to be given to a living victim who is rendered disabled and M.A.C.Pet.No.243/08 Page No.64 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) is not able to lead normal life or to carry on his avocation or enjoy amenities of life. Quantum of compensation awarded under this head had to take into account 'loss of diminution of full pleasure of living'.
145. I do not find any merits in the contention of Ld.Counsel for the Insurance Company that nothing can be awarded to the petitioner for "permanent disability" under the heading "Loss of Earning Power" & "Loss of amenities". To my mind, these two are distinctive and separate claims, the former being "loss of earning power" caused by disability "loss of earning power" is only one of the consequences of "permanent disability"
but the later relates to other consequences excluding "loss of earning power".
146. It is well known that permanent disability can have several consequences apart from not to work or earn. The victim of an accident who suffers from permanent disability will not be in a position to carry on his normal household activities in his house and more than anything else, he will be brooding over the life day after day till the end of his life and shall suffer untold mental agony which cannot be quantified in terms of damages. The compensation for pain and agony is only for that pain which the victim undergoes at the time of injury or the treatment M.A.C.Pet.No.243/08 Page No.65 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) whereas compensation for permanent disability will cover the mental agony which the victim of such accident would suffer in his life till he remains alive.
147. As per the material on record, it is factual position that owing to the injuries sustained, petitioner has been pushed into persistent vegetative stage, where all his cognitive faculties and motor functions have stopped responding to any external stimuli. He even from shooing away a fly, requires assistance of an attendant. Further his condition is such with which he will have to live for rest of his life.
148. In the present case, as per evidence on record, petitioner was a young, effervescent, happily married & settled man of merely about 36 years of age, running multiple businesses under his competent mental faculties as Director & Proprietor. However, due to 100% permanent disability suffered by him, he has been rendered incapacitated and has gone into "Persistent Vegetative State" chances of recuperating from which have really become dismal. Therefore, with minimal chances of getting back his consciousness / sensitivity & regaining his mental & physical faculties, there is every likelihood that petitioner might not only be bereft of M.A.C.Pet.No.243/08 Page No.66 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) the loss of amenities presently available with him due to his inability / incapacity to enjoy the same, but constant tension and mental stress on finding himself a physically paralyzed person, also lead to loss of desire to enjoy the pleasure of living. This battered frame of mind and immense pain suffered by the victim is not capable of being quantified in terms of money.
149. One can bear physical pain but the emotional and mental pain is hard to bear.
150. A person who is just existing and not living, feels so helpless on seeing his family members in any pain or hardship. At that time the mental agony which he undergoes can only be visualized but can never be ascertained. This mental agony which is not even capable of being ascertained can never be quantified in terms of money.
151. Petitioner in the present case, owing to his physical condition must be feeling this pain day in and day out. Petitioner though sees' and realizes his family member's movements of joy and sorrow but is not in a position to react to them and to participate in those movements with his family members. Petitioner owing to his physical condition because of this accident will continue to suffer till his last breath, as it has been M.A.C.Pet.No.243/08 Page No.67 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) deposed by PW4 and PW6 that there are no chances of recovery of the petitioner.
152. Petitioner every single split of second would be cursing that unfortunate movement when this accident had taken place and would continue to do so till his life time. Throughout his life time he will not be in a position to enjoy and feel happy about anything. His physical condition would not permit him to derive any pleasure from his surroundings and nature.
153. In view of above discussion, I am of the opinion that he is entitled for the mental agony which he shall undergo till his lifetime for the permanent disability which he had suffered due to the accident.
154. to the In view thereof, I award a sum of Rs.1,00,000/ petitioner for "loss of amenities" and for "loss of diminution of full pleasure of living".
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( Pritam Singh Vs. Oriental Insurance Co. & Ors.) (V) LOSS OF EXPECTANCY OF LIFE:
155. Persistent Vegetative State, Permanent Comatose State or Minimally Conscious State refers to the conditions of exceedingly severe neurological disabilities. In such a state that there is little if any, motor function. Patients in such a state may have awoken from come, but still have not regained awareness. In this state, patients can open their eyelids but completely lack cognitive functions.
156. One of the main causes of such state is "acute traumatic brain injury" which is the cause in the present case, resulting from the injuries sustained in the accident, of which the effect is petitioner Pritam Singh's Permanent Vegetative State. Medical Treatment Record of the petitioner i.e. Ex.PW.1/18, Ex.PW.6/A, Ex.PW.6/B, Ex.PW.1/24, coupled with deposition of PW4 Dr.L.N.Gupta and PW6 Dr.Deepak Kumar, leads towards the only inference that there are absolutely no chances of petitioner recovering from this state for rest of his life.
157. Several studies and debates in different parts of the world had taken place which suggests that chances of recovering from "Persistent Vegetative State (PVS)" are minimal. An ongoing debate exists, M.A.C.Pet.No.243/08 Page No.69 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) as to who much case, if any, patients in permanent vegetative state should receive in health systems, plagued by limited resources. In a case pending before New Jersey Superior Court titled "Betancourt Vs. Trinitas" a community hospital, is seeking a ruling that dialysis and CPR for such a patient constitutes futile care. An American Bioethicist namely Jacob M.Appel has argued to the extent that any money spent treating "Persistent Vegetative State (PVS) Patients" would be better spent on other patients with a higher likelihood of recovery. No explanation, thus is required to be given with respect to the life expectancy of the PVS Patients.
158. These arguments and debates are going on in different parts of the globe, as it is well known that life expectancy in "Persistent Vegetative State (PVS)" is substantially reduced.
159. In a research conducted by MultiSociety Task Force on "Persistent Vegetative State (PVS)" in the year 1994 in New England Journal of Medicine PartI:330:14991508, it is suggested that life expectancy in this condition is 2 - 5 years with survival for ten years, being uncommon. However, more recent studies suggests a somewhat better prognosis for survival. In the year 1999, Strauss D.J. et al, studies the life M.A.C.Pet.No.243/08 Page No.70 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) expectancy and risk factors for mortality of persons in "Persistent Vegetative State (PVS)" and suggested that the life expectancy to be higher than has generally been thought. Studies have revealed that lack of motor function is critical factors for morbidity and mortality.
160. No doubt, with advent of technological use in medical sciences with the risk of mortality for patients in "Persistent Vegetative State (PVS)" is considerably reduced but chances of patient regaining his shape, vigour and vitality still remains minimal.
161. Petitioner Pritam Singh who was pushed into "Persistent Vegetative State (PVS)" due to negligent driving of respondent no.2, may have got perhaps the best available medical assistance, but it cannot be ruled out that he has not suffered on account of loss of expectancy of life. His life span owing to the injuries sustained by him in the accident and resultant disability, has definitely been reduced to a considerable extent.
162. Petitioner therefore is required to be compensated on this aspect.
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163. I therefore award a sum of Rs.1,50,000/ to the petitioner under the head of "loss of expectancy of life" as the same has been considerably reduced owing to his going into "Persistent Vegetative State" as a result of the injuries sustained in the accident. (VI) PAIN & SUFFERING:
164. Pain and suffering is covered under the nonpecuniary damages. To calculate the same, the nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed are some of the factors which are required to be taken into account.
165. There is a consensus of judicial precedents on the point that when compensation towards pain and sufferings are required to be quantified, the status of claimant in his life has little significance. The injury sustained by the injured will cause, same pain, suffering and agony to the sufferer, irrespective of the fact whether he is a pauper or prince whether he rolls in luxury or sleeps in open with no roof over his head. The injury does not make any difference in causing pain and agony to the victim.
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166. Physical damage caused by an accident is capable of being quantified in terms of its severity, but its effect on one's life, cannot be measured by any scale. It is not compulsory that accident causing simple injuries to a person have a less severity as the same might have caused such intangible losses / damages to one's personality, which no human eye can see. Considering the gravity of injuries sustained by Pritam Singh, its effect on not only his life, but on the lives of his family members, does not calls for any discussion, as not only Pritam Singh lost his consciousness in this accident but his family has also lost all sources of hopes & aspirations on finding the young & bright boy of their family, reduced into a body which of merely physical existence, with no expression of any feelings of happiness or sorrow.
167. To lie conscious but unable to move or communicate, locked in a concrete shell of motor paralysis, probably in discomfort if not in pain, without hope, without stimulation, without any means of influencing care givers, it is a condition that does not bear thinking about, a living hell that may continue, day after day, week after week, month after month.
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168. Medical Science has not been able to achieve the same kind of progress, as it has had for the physical aspects of life. What such medical work has done it to create. In some of the cases of these patients suffering severe pain, the inhumane and degrading situation of prolonging their lives under conditions which are hugely detrimental to their intellectual, emotional and psychological well being.
169. In the present case, it is apparent that petitioner had met with the accident on 25.08.2007, which date proved to be so unfortunate that, he never regained his sensitivity and consciousness. Perusal of record reveals that from the date of accident ie. 25.08.2007, petitioner has been under intensive medical supervision during which he was hospitalized a number of times and had undergone multiple critical neurosurgeries.
170. Perusal of medical treatment record of the petitoner reveals that Pritam Singh, an effervescent young boy aged merely about 36 years had sustained such severe head injuries in this accident, that he had lost his consciouness on that very day and had gone into "permanent vegetative state". Record further reveals that petitioner had sustained multiple serious neurological disorders due to sustenance of grevious head M.A.C.Pet.No.243/08 Page No.74 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) injuries comprising of "right temporal contusion with Gross Cerebral Oedema with Multiple craniofacial fractures with Fracture Mandible etc." for which multiple reconstruction procedure comprising of 'Bilateral frontotemporal craniectomy with right temporal polectomy with mandibular wiring and tracheostomy, Frontotemporal cranioplasty whith autologous bone and mandibular plating was done, despite which he could not regain his consciousness and is still under complete vegetative state.
171. The treatment record of the petitioner makes it evident that immediately after the accident, he was taken to Shri Sai Nath Hospital, from where he was shifted to Bombay Hospital and Medical Research Centre where he remained admitted as an inbound patient for 4 crucial months i.e. 25.08.2007 till 04.12.2007.
172. Despite hospitalization of 4 months, petitioner could not get back to his normal avocation and his condition was further worsened. From Bombay, petitioner was shifted to Delhi and was admitted in Paras Hospital, Gurgaon, where he remained admitted for a considerable period of time i.e till 13.03.2008 and was again admitted on 25.07.2008. M.A.C.Pet.No.243/08 Page No.75 of 105
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173. Medical record proved by the petitioner reveals that from the date of accident, petitioner remained admitted in different hospitals on repeated occasions during which he had undergone critical surgeries and treatment. The pain and depression which petitioner must have suffered from the feeling that the present accident has snatched his vigour, consciousness and sensitivity and had made him ''incapacitated / incompetent'' from a hale and hearty young man, cannot be measured by any scale.
174. Perusal of treatment record of the petitioner makes it evident that the present case falls under the category of "special injury cases" where chances of petitioner's reoccupying his earlier physical / mental condition are almost impossible. Perusal of deposition of specialist neurosurgeons ie. PW4 and PW5 makes it evident that owing to sustenance of grevious head injuries, petitioner has gone into "permanent comatose condition" and chances of his regaining consciousness are improbable.
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175. Compensation in whatever sum awarded, would not really mitigate the lasting effect of the damage caused. It is quite impossible to make adequate compensation in terms of money for the tragic consequences of the injury lasting for the lifetime of the Pritam Singh, for money cannot renew the physical frame, that has been battered and shattered and alleviate the pain and suffering and restore the loss of pleasure and enjoyment of life.
176. The shattered physical frame and permanent vegetative state in which petitioner is in and is likely to remain till his last breath and the same are not likely to be obliterated, by award of any amount of compensation.
177. It is a matter of common knowledge that if a person sustains injuries in an accident which brings disability of any sort for him, it not only leaves him physically disabled but also makes him emotionally depressed.
178. In the present case, Pritam Singh a young hale and hearty boy had suffered all kinds of tangible and intangible losses, as he has M.A.C.Pet.No.243/08 Page No.77 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) lost his own self, which was snatched from him, due to reckless act on the part of respondent no.2. As discussed by me earlier and considering the reports of medical experts, this accident has not only made Pritam Singh a body with no life in him, but has also snatched the priceless years of his life by sending him into a "persistent vegetative state". His life span owing to the injuries sustained by him in the accident and resultant disability, has definitely been reduced to a considerable extent.
179. It is clear from the nature of injuries sustained by the petitioner that he is still under 24 hours constant nursing & is being feeded by gastric tubing and his treatment will continue for whole of his life with no scope of improvement. This realization in itself for the petitioner who has become permanently disabled person in the accident, is so painful.
180. Therefore, the mental agony which petitioner might have undergone at time of hospitalization and even after his discharge which has rendered him incapacitated lifeless person who is incapable of carrying out even normal avocation of life independently, cannot be equated or quantified in terms of money. Physical pain which petitioner must have undergone during the course of treatment would have been immense. M.A.C.Pet.No.243/08 Page No.78 of 105
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181. To compensate the petitioner under this head, I award a sum of Rs.2 lakh to the petitioner for the pain & sufferings which had started from the date of accident and will remain with him till his last breath.
(VII) COMPENSATION TOWARDS TRANSPORTATION / BOARDING / LODGING:
182. It is contended by Ld.Counsel for the petitioner that petitioner is resident of Delhi and had gone to visit Holy Shrine of Shirdi, District Nasik, where he met with this unfortunate accident. He contended that petitioner had suffered multiple injuries, as a result of which, his condition was such that he could not be brought to Delhi and was admitted in Bombay Hospital and Medical Research Centre. He contended that family members of the petitioner had to rush to Bombay in order to provide necessary medical assistance to the petitioner. He contended that the family members of the petitioner had to stay in a lodge, incurring expenses for boarding and lodging, besides incurring expenses on the air fare for travelling from Delhi to Bombay.
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183. Counsel for petitioner further contended that after discharge of the petitioner from Bombay Hospital and Medical Research Centre, he had to be brought to Delhi by making special arrangements of air ambulance, therefore petitioner be compensated for all these expenses incurred by him.
184. It is submitted by Ld.Counsel for respondent no.1 and respondent no.3, The Insurance Companies, that as these expenses are not incidental to the injuries sustained by the petitioner, therefore the same are not required to be considered for the purposes of grant of compensation.
185. I have given my thoughtful consideration to the rival contentions.
186. To my mind, all the damages which flow directly and and naturally or in the ordinary course of things from the wrongful act, are required to be taken as the proximate effect of the said accident. It is apparent on perusal of the facts of the present case that petitioner is resident of Delhi, who had met with the accident in Bombay, which resulted in multiple injuries on his person. His condition as per the medical treatment M.A.C.Pet.No.243/08 Page No.80 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) record was such that he could not be brought to Delhi, had to be treated in Bombay itself. Therefore all the expenses incurred by his family members for immediately rushing to Bombay for assisting and for their stay in Bombay, till the time petitioner remained hospitalized are incidental and proximate to the present accident. Thus the same are required to be considered for the purposes of grant of compensation.
187. Had this accident not taken place, either the family members of petitioner would have rushed to Bombay, nor would have stayed there incurring expenses. These expenses being thrust upon them, are required to be compensated.
188. PW1 in this case has proved on record the expenses incurred on transportation as well as boarding and lodging which are exhibited as Ex.PW.1/20. These bills amounts to Rs.1,82,295/.
189. Considering the nature of injuries and the duration of 4 months during which petitioner remained hospitalized in Bombay Hospital and Medical Research Centre, I am of the opinion that family members of the petitioner must have incurred expenses over and above of the bills M.A.C.Pet.No.243/08 Page No.81 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) placed on record.
190. I, therefore award a sum of Rs.1,85,000/ to the petitioner towards "boarding / lodging / transportation" incurred by the petitioner during his treatment in Bombay.
(VIII) ATTENDANT CHARGES:
191. PW1 deposed that owing to sustenance of severe head injuries in the present accident, petitioner has lost his consciousness and is forced to remain in permanent vegetative state.
192. PW1 deposed that being in permanent comatose condition, his brother i.e petitioner Pritam Singh has become a complete insensitive skeleton of flesh & blood which is incapable of responding to any verbal commands and executing any cognitive functions. PW1 deposed that owing to sustenance of acute neurological disorder in the accident, petitioner has lost his sensitivity & consciousness from the date of accident and is under continuous treatment & requires 24 hours nursing care.
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193. As per the medical record it is clear that petitioner had sustained severe head injuries / neurological disorder comprising of "right temporal contusion with Gross Cerebral Oedema with Multiple cranio facial fractures with Fracture Mandible etc." and various other injuries all over his body. Perusal of medical record proved by the petitioner makes it evident that owing to sustenance of head injuries in the present accident, petitioner was operated upon wherein, he had undergone critical neurological surgeries.
194. PW1 deposed that owing to sustenance of severe head injuries and multiple neurological disorders, petitioner has sustained 100% permanent disability with respect to his whole body.
195. PW1 during the course of his examination in chief filed by way of affidavit Ex.PW.1/A deposed that owing to the injuries sustained by the petitioner in the present accident, they was forced to engage one attendant round the clock during his hospitalization and even after his discharge from the hospital at their home and have thus incurred considerable expenses on the same.
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196. In order to substantiate his contention, bills of the attendant engaged by the family of petitioner were placed on record. The same were proved on record as Ex.PW.1/25 (collectively).
197. I have gone through the bills of nursing care placed on record by the petitioner. Perusal of same reveals that during his hospitalization at Bombay Hospital for four months, petitioner who required an attendant round the clock, had availed the services of multiple nursing bureaus at Bombay viz. Sh.F.D.Pavri and thereafter from M/s Mahi Tranined Nursing Bureau, Rana Nursing Care etc in Delhi. Receipts Ex.PW.1/25 (colly) further makes it evident that petitioner who was advised to undergo intense physiotherapy sessions, had availed services of various physiotherapist at Delhi viz. Virender Kumar Sharma (Consultant Physiotherapist), Kayantaran, Dr.Soniya Madhure (Orthopaedics) etc.
198. It is contended by Ld.Counsel for the Insurance Company that as the bills / receipts of nursing care have not been proved on record, therefore this amount cannot be granted to the petitioner. M.A.C.Pet.No.243/08 Page No.84 of 105
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199. I do not find any merits in the contentions advanced by Ld.Counsel for respondent no.1 Insurance Company.
200. Perusal of bills / receipts Ex.PW.1/25 of the physiotherapists, goes to on reveals that the same finds corroboration with the corresponding prescriptions of the treating doctors at Bombay and Delhi. Secondly, considering the nature of injuries and the fact that petitioner had gone in "permanent vegetative state" immediately after the accident, wherein he even for his minuscule needs is dependent on an assistant / attendant. Thus, family members of the petitioner who cannot be expected to act as "full time attendant" for the petitioner, must have been forced to engage one round the clock.
201. Dr.Vipin Gupta, an independent doctor appointed by the Insurance Company, who had personally visited the petitioner at his residence in Mahipalpur, Delhi had also opined on examining him that petitioner till date is on gastric tube feeding and his physical condition is such that he requires an attendant round the clock. M.A.C.Pet.No.243/08 Page No.85 of 105
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202. As petitioner is in permanent vegetative stage and is not capable of responding to verbal commands. More particularly, considering the fact that even after his discharge from the hospital, petitioner still is on urine catheter and gastric tube feeding and this physical condition has forced him to take the services of 24 hour nursing and medical care, for which services of full time attendant were hired by family members of the petitioner initially at Bombay and the same are still on.
203. In view of the above discussion and considering the condition of the petitioner, I am of the opinion that petitioner must have required services of an attendant during his hospitalization as an inbound patient in Bombay Hospital and at his residence, as it is not possible to leave a patient of such condition, without a permanent nurse / attendant.
204. By virtue of bills Ex.PW.1/25 (collectively) placed on record which comprises of bills / cash memos / receipts / nursing care bills, it stands established that petitioner has already incurred a sum of Rs.3,34,875/ towards engaging "attendant round the clock" from the date of accident. This amount is rounded off to Rs.3,35,000/, which was forced on the petitioner and he is required to be compensated for the same. M.A.C.Pet.No.243/08 Page No.86 of 105
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205. I therefore, award a sum of Rs.3,35,000/ to the petitioner towards "attendant charges".
(IX) FUTURE ATTENDANT / NURSING CARE CHARGES:
206. It is submitted by Ld.Counsel for the petitioner that condition of the petitioner is such that even for upkeep of his body and other minuscule functions, he requires the assistance of an attendant and will require that in future as well.
207. I have gone through the oral as well as documentary evidence on record giving due regards to the physical condition of the petitioner, when he was produced in court on a stretcher.
208. It is evident from the medical treatment record of the petitioner and the disability certificate Ex.PW.1/24 that the injuries sustained by the petitioner in this accident have rendered him incapacitated to even respond to any command or external stimuli. The persistent vegetative condition in which the petitioner is in, the same is not likely to improve as per the deposition of experts on the subject i.e. PW4 M.A.C.Pet.No.243/08 Page No.87 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) Dr.L.N.Gupta and PW6 Dr.Deepak Kumar. This being the physical state of the petitioner, he would require the assistance of an attendant for rest of his life.
209. Though petitioner is a man of family, but his family member cannot be expected to act as an attendant for him all the time, considering the other functions and avocations of the household duties.
210. Even the report of Dr.Vipin Gupta, so appointed by respondent no.1 M/s Oriental Insurance Company Limited, depicts that condition of petitioner is such that he requires 24 hours attendant / nursing care.
211. Although no evidence has been brought on record regarding future attendant charges, however considering the fact that petitioner till date has already incurred more than Rs.3 lacs (for which he has already been compensated herein above), I am of the opinion that some compensation is to be awarded towards future attendant charges M.A.C.Pet.No.243/08 Page No.88 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
212. In view thereof, I deem it appropriate to award a sum of Rs.50,000/ to the petitioner towards "future attendant charges".
(X) CONVEYANCE & SPECIAL DIET :
213. As per the medical record, it is clear that petitioner had sustained sustained 100% permanent disability with respect to his whole body, has been pushed into "Persistent Vegetative State", owing to injuries sustained in this accident.
214. Perusal of the treatment record of petitioner vide documents Ex.PW.1/18, Ex.PW.1/23, Ex.PW.6/A & Ex.PW.6/Bmakes it apparent that medication and treatment of petitioner which has started from the very day of accident, is still on and the same shall continue in the future as well.
215. Perusal of medical papers makes it evident that from the very day of accident i.e. 25.08.2007, petitioner has spent almost six months as an inbound patient and has remained a regular OPD Patient. His M.A.C.Pet.No.243/08 Page No.89 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) physical condition is such that his independent mobilization has been totally reduced and the same is possible with the help of extensive medical care / ambulance only.
216. It is a matter of common knowledge that a person after sustenance of such injuries due to the accident, is required to follow specific diet regime in order to recuperate early.
217. On the basis of the injuries sustained by the petitioner and also considering that petitioner was required to undergo surgery due to the injuries sustained by him in the accident, it is evident that petitioner must have had to visit the hospital on a number of occasions for further / follow up treatment for which family members must have had to make special arrangements for vehicle, as it would have been very difficult for them to use not only any public transport in such a critical but also their private vehicle, as condition of petitioner does not permit them to travel him without having advance medical help / assistance.
218. Therefore, it is clear from the material on record that the petitioner had incurred considerable expenses on conveyance for visiting hospitals on various occasions. Petitioner must have incurred expenses on M.A.C.Pet.No.243/08 Page No.90 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) special diet for recovering from the injuries sustained by him despite which he could not recover till date and is on tube feeding.
219. As per the report of Dr.Vipin Gupta, doctor appointed by the Insurance Company, this fact also stands established, that petitioner is still under "persistent vegetative state" and is on urine catheter and gastric tube feeding till today. It is further clear from the report of this Doctor that, owing to his "permanent comatose condition" petitioner requires 24 hour nursing and medical care.
220. Considering the facts and circumstances more particulary the fact that even after lapse of about 4 years from the date of accident, no signs of improvement are visible in the condition of the petitioner and he is still being feeded by gastric tube, I am of the opinion that considerable amount must have been incurred by the family of petitioner towards the special liquid diet being given to him so as to retain the life, left in him. Further, they will continue to incur expenses on conveyance and special diet for the petitioner, as his condition is not likely to improve.
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221. I therefore, award a sum of Rs.1 lakh to the petitioner on account of 'conveyance and special diet.' LIABILITY
222. The present accident had taken place due to involvement of truck bearing registration number MH18M7005 and Qualis Car in which petitioner was travelling, bearing registration number MH01 CA7481.
223. Ld. Counsel for respondent no.3 M/s United India Insurance Company, with whom the Qualis Car in which petitioner was travelling, was insured had examined one witness namely Sh.Vikas Negi, who appeared in the witness box as R3W1. Counsel for respondent no.3 Insurance Company relying upon the deposition of this witness contended that they had issued Insurance Policy against the cheque of the premium amount, which on its presentation to the Bank was returned "dishonoured". He contended that as the consideration amount was not paid, therefore Insurance Policy was cancelled. He contended that in view thereof, their being no "privity of contract", respondent no.3 M/s United India Insurance Company Limited cannot be made liable, to compensate the petitioner and M.A.C.Pet.No.243/08 Page No.92 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) to indemnify the insured.
224. Ld.Counsel for the petitioner in order to rebut the arguments advanced by Ld.Counsel for respondent no.3 relied upon the law laid down by Hon'ble Superior Court and stated that dishonor of the cheque of the premium amount, should not have any bearing visavis the rights of victim of road accident, who is a 'third party'.
225. In view of my find on issue no.1 wherein it has been specifically held that the present accident had taken place due to sole negligence of driver of the offending truck i.e. respondent no.2, I do not deem it appropriate to delve into the arguments so advanced by Ld.Counsel for respondent no.3 and the counter arguments advanced by Ld.Counsel for the petitioner.
226. Considering the fact that accident resulted due to sole negligence of respondent no.2, driver of the offending truck bearing registration number MH18M7005 , which was duly insured as on date of accident with respondent no.1 M/s Oriental Insurance Company Limited. Consequently liability to compensate the petitioner in terms of the awarded M.A.C.Pet.No.243/08 Page No.93 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) amount remains that of respondent no.1 M/s Oriental Insurance Company Limited, insurer of the offending truck.
227. Issue No.2 is decided in favor of the petitioner accordingly.
RELIEF:
228. In view of my finding on issue no.1 and 2, petitioner is awarded following compensation:
1. MEDICINES & TREATMENT Rs.28,55,000/
2. FUTURE TREATMENT Rs.2,00,000/
3. LOSS OF INCOME / EARNING POWER Rs.83,25,000/
4. LOSS OF AMENITIES Rs.1,00,000/
5. LOSS OF EXPECTANCY OF LIFE Rs.1,50,000/
6. PAIN AND SUFFERING Rs.2,00,000/
7. TRANSPORTATION / BOARDING / Rs.1,85,000/ LODGING CHARGES
8. ATTENDANT CHARGES Rs.3,35,000/
9. FUTURE ATTENDANT CHARGES Rs.50,000/.
10. CONVEYANCE & SPECIAL DIET Rs.1,00,000/ __________________________________________________________ TOTAL Rs.1,25,00,000/ (One Crore and Twenty Five Lacs only) ___________________________________________________________________________ M.A.C.Pet.No.243/08 Page No.94 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.)
229. I hereby award a total compensation of Rs.1,25,00,000/ (Rupees One Crore and Twenty Five Lacs only) to the petitioner along with interest at the rate of 9% per annum from the date of filing of petition till realization of the amount.
230. It is however made clear that out of the total awarded amount, as a sum of Rs.2,50,000/ is awarded to the petitioner towards future treatment + future attendant / nursing charges and these expenses petitioner is likely to incur in future, therefore this amount does not entail any interest, to be paid thereon, as the same is yet to be spent by the petitioner.
231. Perusal of record reveals that interim relief was not granted to the petitioner. In view thereof, petitioner is entitled to get entire awarded amount along with proportionate thereon.
232. In terms of the directions given by Hon'ble High Court in case titled "Rajesh Tyagi Vs.Jaibir Singh and Ors." bearing FAO number 842/2003 decided on 08.06.2009, UCO Bank / State Bank of India has M.A.C.Pet.No.243/08 Page No.95 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) agreed to open a Special Fixed Deposit Account for the victims of road accidents.
233. As per orders of Hon'ble High Court in Case titled ''New India Assurance Co. Ltd Vs. Ganga Devi & Ors bearing MAC. App. 135/2008'' as well as in another case titled as ''Union of India V/s Nanisiri'' bearing M.A.C.Appeal No.682/2005 dtd.13.01.2010, directions were given to the Claims Tribunal to deposit part of the awarded amount in fixed deposit in a phased manner depending upon the financial status and financial needs of the claimants.
234. Considering the fact that petitioner Pritam Singh is in "Persistent Vegetative State" and the present petition was filed in court through brother / guardian adlitem Sh.Gajender Singh, therefore he himself is not in a fit position to manage the awarded amount. In view thereof, I am of the opinion that awarded amount is required to be disbursed amongst the legal heirs of the petitioner, with due regard to the fact that a considerable amount, is required to be kept in the name of the petitioner in the form of Fixed Deposit (FDR), so that his future treatment and nursing care which is required round the clock as per the evidence on record, shall M.A.C.Pet.No.243/08 Page No.96 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) continue, from the interest amount.
235. As per the deposition of PW1 on record, petitioner Pritam Singh has old and feeble parents namely Ishwar Singh and Smt.Vedwati, besides which he has a wife namely Smt.Sushma and two minor sons namely Master Prashant and Master Tanish, who were financially dependent on the petitioner at the time of accident.
236. In consonance to the idea by which part of the awarded amount is ordered to be kept in fixed deposit / savings account by Hon'ble High Court, Insurance company is directed to deposit the awarded amount in favour of the petitioners with State Bank of India, Dwarka Court Complex Branch, against accounts of:
(a) Pritam Singh s/o.: Shri Ishwar Singh,
(b) Smt.Sushma Singh w/o.:Shri Pritam Singh,
(c) Master Prashant s/o.: Shri Pritam Singh,
(d) Master Tanish, s/o.: Shri Pritam Singh,
(e) Sh.Ishwar Singh (father of petitioner Pritam Singh)
(f) Smt.Vedwati, (mother of petitioner Pritam Singh) M.A.C.Pet.No.243/08 Page No.97 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) within a period of 30 days from today, failing which respondent no.1 Oriental Insurance Company shall be liable to pay future interest @ 12%per annum till realization (for the delayed period).
237. Out of the total awarded amount of Rs.1,25,00,000/ (One crore and twenty five lacs) along with proportionate interest thereon, a sum of Rs.5 lacs each is awarded in favor of Sh.Ishwar Singh and Smt.Vedwati, being parents of petitioner Pritam Singh, along with proportionate interest thereon. The awarded amount in favor of parents of petitioner Pritam Singh, be transferred to their savings bank account, so as to facilitate them to withdraw the same as per their needs.
238. A sum of Rs.15 lacs each, along with proportionate interest thereon, is being awarded in favor of Master Prashant (aged 14 years as on today) and Master Tanish (aged 12 years as on today), being minor sons of petitioner Pritam Singh. The awarded amount in favor of minor sons of Pritam Singh, ie. Master Prashant & Master Tanish, be kept M.A.C.Pet.No.243/08 Page No.98 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) in the form of FDR, till they attains 21 years of age. Minor sons of petitioner shall be entitled to get monthly / quarterly on the FDRs prepared in their names, through their mother Smt.Sushma w/o Sh.Pritam Singh, the petitioner.
239. A sum of Rs.25 lacs along with proportionate interest thereon, is being awarded in favor of Smt.Sushma, being wife of petitioner Pritam Singh. Out of the total awarded amount of Rs.25 lacs along with interest in share of Smt.Sushma wife of Sh.Pritam Singh (Petitioner), a sum of Rs.15 lacs be deposited in the form of FDR in her name in the following phased manner:
(a) A sum of Rs.3 lacs for a period of two years.
(b) A sum of Rs.3 lacs for a period of four years.
(c) A sum of Rs.3 lacs for a period of six years.
(d) A sum of Rs.3 lacs for a period of eight years.
(e) A sum of Rs.3 lacs for a period of ten years.
240. Remaining amount along with proportionate interest thereon in the share of Smt.Sushma wife of petitioner Pritam Singh, be transferred to her savings bank accounts, so opened with SBI, Dwarka M.A.C.Pet.No.243/08 Page No.99 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) Court Branch, New Delhi, so as to facilitate her to withdraw the same as per her needs and needs of the family.
241. Rest of the awarded amount, amounting to Rs.60 lacs along with proportionate interest thereon, is awarded in favor of petitioner Pritam Singh, to be kept in the form of FDR in the name of Pritam Singh, the petitioner, for a period of 15 years. Both minor children of Pritam Singh are appointed as "nominee" of this FDR with their mother viz. Smt.Sushma Singh, being their natural guardian.
242. It is made clear that no loan shall be granted on this FDR. Interest on this FDR be transferred to the saving bank account of the Pritam Singh, which shall be for the use of his benefit and treatment. The said saving bank account shall be operated jointly by wife of petitioner Pritam Singh namely Smt.Sushma Singh and brother / guardian adlitem of petitioner namely Sh.Gajender Singh.
243. The State Bank of India, Dwarka Court Branch, shall open a separate Savings Account in the name of the petitioner Pritam Singh as well as in the name of his family members, details of which are given in M.A.C.Pet.No.243/08 Page No.100 of 105 ( Pritam Singh Vs. Oriental Insurance Co. & Ors.) Para 236 (supra) and the entire interest on all the aforesaid fixed deposits be credited in the said accounts.
244. The interest on the fixed deposit be paid to the petitioner / claimant by Automatic Credit of interest of his saving bank accounts with State Bank of India, Dwarka Court Branch, New Delhi.
245. Withdrawal from the aforesaid account shall be permitted to claimant / petitioner after due verification and the Bank shall issue photo identity Card to claimant / petitioner to facilitate identity.
246. No cheque book be issued to claimant / petitioner without the permission of this court.
247. The original fixed deposit receipts shall be retained by the Bank in safe custody. However, the original Pass Book shall be given to the claimant / petitioner alongwith the photocopy of the FDRs.
248. The original fixed deposit receipts shall be handed over to claimant / petitioner at the end of the fixed deposit period. M.A.C.Pet.No.243/08 Page No.101 of 105
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249. No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.
250. Half yearly statement of account be filed by the Bank in this court.
251. On the request of claimant / petitioner, the Bank shall transfer the Savings Account to any other branch of State Bank of India, according to their convenience.
252. Claimant / petitioner shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Branch Manager, State Bank of India, Dwarka Court Complex Branch, New Delhi.
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( Pritam Singh Vs. Oriental Insurance Co. & Ors.) DIRECTIONS FOR RESPONDENT NO.1 M/S ORIENTAL INSURANCE COMPANY LIMITED: [Para No.253 to Para No.256]
253. Respondent no.1 M/s Oriental Insurance Company Limited is directed to file the compliance report in this court of their having deposited the awarded amount with State Bank of India, Dwarka Court Branch to this tribunal within 45 days from today.
254. Respondent no.1 M/s Oriental Insurance Company Limited is directed to furnish a copy of this award alongwith the cheques of the awarded amount to the Branch Manager of State Bank of India, Dwarka Court Branch, so as to facilitate the Branch Manager of State Bank of India, Dwarka Court Branch to have the identification of the claimants/ petitioners in whose favour the award has been passed. M.A.C.Pet.No.243/08 Page No.103 of 105
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255. Respondent no.1 M/s Oriental Insurance Company Limited is further directed to furnish the claim petition number and name of the parties at the back side of the cheques of the awarded amount so that the same be not misplaced.
256. Respondent no.1 M/s Oriental Insurance Company Limited shall intimate to the claimant / petitioner about their having deposited the cheques in favor of the petitioner in terms of the award, at the address of the petitioner mentioned at the title of the award, so as to facilitate them to withdraw the same.
257. Copy of this award / judgment be given to the Counsel for petitioner who is directed to furnish the same to the Branch Manager of State Bank of India, Dwarka Court Branch, New Delhi, for necessary compliance after his having received the notice of the deposit of awarded amount from the Insurance company.
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258. Copy of this Award / Judgment be given to counsel for the Oriental Insurance Company for necessary compliance.
259. File be consigned to record room after receipt of the compliance report from the Insurance company.
Announced in the Open Court On the 19th Day of July, 2011 (KANWALJEET ARORA) PRESIDING OFFICER MOTOR ACCIDENT CLAIMS TRIBUNAL, DWARKA COURTS, NEW DELHI.
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