Delhi District Court
Baby Anshika vs Sh. Anand Kumar Urmaliya on 14 February, 2023
MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
IN THE COURT OF SHRI VINOD YADAV, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH DISTRICT,
ROHINI COURTS, DELHI
MAC Petition No. 1031/17
UID/CNR No. DLNT010096162017
Baby Anshika,
D/o Sh. Rajroop
R/o H.No. 143,
Singhu Border Road,
Harijan Basti, Narela,
Delhi.
(Minor injured)
.......Petitioners
VERSUS
1. Sh. Anand Kumar Urmaliya,
S/o Sh. Shyam Lal Urmaliya,
R/o H.No. 1190,
Shai Naka Garahna,
Jabalpur,
UP.
(Driver)
2. Smt. Mala Devi,
W/o Sh. Rajender Prasad,
R/o B205, Gali No. 2,
Raja Vihar,
Delhi.
(Registered owner)
3. Cholamandalam MS General Insurance Co. Ltd.
Pusa Road,
New Delhi.
(Insurer)
........Respondents
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 1 of 27
MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 Date of Institution : 18.12.2017 Date of Arguments : 08.02.2023 Date of Decision : 14.02.2023 APPEARENCES Sh. R.K. Jain, Ld. Counsel for petitioner.
Sh. Deepak Sharma, Ld. Counsel for driver and owner. Ms. Sadhna Rawat, Ld. Counsel for insurance co.
Petition under Section 166 and 140 of M.V. Act, 1988 for grant of compensation AWARD:
1. Baby Anshika, aged about 6 years was a cheerful, full of merriment and lovely girl, however, the fateful day of 24.07.2017 drastically swallowed her childhood on account of the injuries suffered by her in motor vehicular accident in question. She was a bright young girl. She used to attend school, play with her friends and lead a normal life like any other child. Unfortunately, on 24.07.2017, while Anshika was crossing the road with her aunt, she was hit by the truck bearing registration no. HR39C 8327(offending vehicle) which was driven by respondent no. 1 at a very high speed, in a rash and negligent manner. In the said accident, Anshika suffered serious injuries resulting in extensive scarring on her left lower limb, right upper limb, left groin area and pubic area. Her photographs which were taken after the accident depict a horrendous picture of her body remains.
2. The petitioner i.e. Child Anshika, aged about 6 years is seeking compensation in the wake of Detailed Accident Report filed by police Anshika Vs. Anand Kumar Urmaliya & Ors. Page 2 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 corresponding to the investigation carried out in case FIR No. 589/17 U/s 279/338 IPC registered at PS. Narela with regard to Motor Vehicular Accident which occurred on 24.07.2017 at about 2:10 pm at Narela Singhu Border Road, near Om Shanti Om Mandir, Harijan Basti, Narela, Delhi, involving Truck bearing registration no. HR39C8327 (offending vehicle) being driven by respondent no. 1 in a rash and negligent manner. Detailed Accident Report (hereinafter called DAR) filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
3. According to DAR, on 24.07.2017, petitioner child Anshika and her aunt Smt. Pramila were proceeding towards V.P.O Matan, PS. Bahadurgarh, Haryana by foot from their residence at Narela. At about 2:10 pm, they reached at Narela Singhu Border Road, near Om Shanti Mandir, Harijan Basti, Narela, Delhi and were crossing the road and in the meantime, offending vehicle which was being driven by respondent no. 1 at a very high speed in a rash and negligent manner, came from Singhu Border side and hit against the child Anshika with a great force, as a result of which, she fell down on the road and sustained serious/grievous injuries.
She was removed to SRHC Hospital, Narela, Delhi, where she was medically examined. The offending vehicle was found to be owned by respondent no. 2 and it was insured with Cholamandalam MS General Insurance Company Ltd /respondent no. 3 during the period in question.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 3 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
4. Although, the respondents no. 1 & 2 i.e. driver and registered owner put their appearance before this Tribunal at the time of filing of DAR i.e. on 18.12.2017, however, they failed to file their written statement despite grant of sufficient time and opportunity. Consequently, their defence was struck off vide order dated 06.02.2018.
5. Respondent no. 3/insurance company filed its legal offer, whereby it offered to pay a sum of Rs. 44,000/ as compensation towards full and final satisfaction of the claim raised by petitioner for the injury sustained by her in the accident in question. However, the said offer was not acceptable to the petitioner in the present case.
6. From the pleading of the parties, the following issues were framed vide order dated 06.02.2018 :
1) Whether the injured Baby Anshika suffered injuries in road traffic accident on 24.07.2017 at 2:10 pm, Narela Singhu Border, near Om Shanti Om Mandir, Harijan Basti, Narela within the jurisdiction of PS. Narela due to rashness and negligence on the part of Sh. Anand Kumar Urmaliya, who was driving Truck bearing registration no. HR39C8327, owned by Sh. Ram Avtar and insured with Cholamandalam General Insurance Co. Ltd?
OPP.
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 4 of 27
MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
3) Relief.
7. In support of her claim, the petitioner has examined five witnesses i.e. Smt. Pramila as PW1, PW2 Sh. Raj Roop (father of petitioner/minor injured), PW3 Ms. Renu, Record Clerk, LNJP Hospital, PW4 Sh. Ram Pyare Pandey, Record Clerk, LNJP Hospital and PW5 Dr. Arun Goel, Consultant, Plastic Surgeon, LNJP Hospital and his evidence was closed vide order dated 22.11.2022. On the other hand, no evidence was adduced by either of the respondents.
8. I have heard the arguments advanced by Ld. Counsels for the parties. My findings on the issues are as under: ISSUE NO. 1
9. For the purpose of this issue, the testimony of PW1 Smt. Pramila (eyewitness) is relevant. She has deposed in her evidence by way of affidavit (Ex. PW1/A) on the similar lines of averments made in the DAR.
10. During her crossexamination on behalf of insurance company, she deposed that she and baby Anshika were present at the spot of accident. She further deposed that the road where the accident had taken place was having zebra crossing at the time of accident. She denied the suggestion that there was no zebra crossing at the spot. She further denied Anshika Vs. Anand Kumar Urmaliya & Ors. Page 5 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 the suggestion that she and baby Anshika were crossing the road without seeing the traffic. She denied the suggestion that the accident had taken place in the middle of the road. She denied the suggestion that the accident had taken place due to their negligence as they were crossing the road negligently. She deposed that she did not receive injury in the said accident. She further deposed that they both were standing adjacent to each other. She deposed that she was holding the hand of Baby Anshika. She denied the suggestion that there was no fault of driver of offending vehicle.
11. It is evident from the testimony of PW1 that the respondents could not impeach her testimony through litmus test of crossexamination and said witness is found to have successfully withstood the test of cross examination. Moreover, FIR No. 589/17 (which is part of DAR) is shown to have been registered on the statement of this witness. The contents of said FIR would show that she has disclosed therein the same sequence of facts leading to the accident. Thus, there is no reason to disbelieve the testimony of this witness made on oath.
12. It is pertinent to note that the respondent no.1/driver of offending vehicle, was the other material witness to throw light by testifying as to how and under what circumstances, the accident had taken place. However, he has preferred not to enter into the witness box. Thus, an adverse inference is liable to be drawn against him to the effect that the Anshika Vs. Anand Kumar Urmaliya & Ors. Page 6 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 accident in question occurred due to rash and negligent driving of offending vehicle.
13. Moreover, FIR No. 589/17 (supra) was also registered at PS. Narela with regard to accident in question. Copy of said FIR alongwith copy of chargesheet filed before Ld. Magistrate in State case, have been annexed alongwith DAR (Ex. PW2/5 colly). Copy of said FIR(which is part of DAR) would show that same was registered on the statement of PW1 Smt. Parmila who was also present at the spot at the time of accident. The presence of complainant at the spot of accident at the time of accident can be substantiated by seeing the list of witnesses annexed alongwith the chargesheet filed in the criminal case wherein name of complainant/PW1 Smt. Parmila is mentioned at S.No. 1. On the other hand, respondents no. 1 & 2 have not examined any witness in order to rebut the testimony of PW1 during the course of inquiry. Hence, there is no reason to disbelieve her uncontroverted testimony on the point of accident in question being caused by respondent no. 1 while driving the offending vehicle.
14. The very fact that respondent no. 1 was chargesheeted(which is part of DAR) by the police for offences punishable u/s. 279/338 IPC would further show that Investigating Agency also concluded after completion of the investigation that the said accident had taken place due to rash and negligent driving of offending vehicle by its driver/respondent no. 1 herein.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 7 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
15. The MLC (Mark A) of injured prepared at SRHC Hospital, would show that she had been removed to said hospital on 24.07.2017 with alleged history of Road Traffic Accident(RTA). On her local examination, she was found to have sustained multiple injuries as mentioned therein. The said injuries are consistent with the injuries which are sustained in motor vehicular accident. Again, there is no challenge to the said document from the side of respondents including insurance company.
16. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioners have been able to prove on the basis of pre ponderence of probabilities that baby Anshika had sustained grievous injuries in the road accident which took place on 24.07.2017 at about 2:10 pm at Narela Singhu Border Road, near Om Shanti Om Mandir, Harijan Basti, Narela, Delhi, due to rash and negligent driving on the part of driver of offending vehicle. Thus, issue no.1 is decided accordingly.
ISSUE NO.2
17. Section 168 of the Act enjoins the Claims Tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to it to be just and reasonable. It has to be borne in mind that the compensation is not expected to be a windfall or a bonanza nor it should be niggardly.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 8 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 MEDICAL EXPENSES
18. PW2 Sh. Rajroop (father of minor injured) has deposed in his evidence by way of affidavit Ex. PW2/A that baby Anshika had sustained grievous injuries in the accident and she was taken to SRHC Hospital, Narela, Delhi where she was medically examined and thereafter, she was referred to Higher Centre for further treatment. He further deposed that he took baby Anshika from SRHC Hospital to Lok Nayak Jai Prakash Hospital on 25.07.2017 and from where she discharged on 09.09.2017. He further deposed that during the period of admission in Lok Nayak Jai Prakash Hospital, left thigh bone of baby Anshika was operated upon by open reduction and external fixation. He further deposed that blood transfusion was done, Split Skin Grafting (SSG) harvested from right thigh and leg and raw area over left thigh and leg was covered with split skin grafting and POP slab was also given. He further deposed that thereafter baby Anshika visited in the OPD of LNJPN Hospital for about 2025 times for regular checkup. He further deposed that baby Anshika had sustained degloving injury over ANT. & LAT. Outer aspect of left thigh extending upto groin region and lower abdomen, fracture humerus, fracture radius, ulna with raw area over forearm. He further deposed that he had spent more than Rs. 10,000/ on the treatment of his daughter. During his crossexamination on behalf of insurance company, he admitted that his daughter had received entire medical treatment from government hospital.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 9 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
19. It may be noted here that although, father of petitioner admitted during his crossexamination that his daughter had received the entire treatment from government hospital but it can not be overlooked that he definitely might have spent some amount on medicines which were not available in the hospital at that time. It is also relevant to mention here that baby Anshika had sustained grievous injuries in the present case and her treatment continued for a considerable period in different hospitals. Thus, in view of treatment record and nature of injury suffered by petitioner, I award a notional sum of Rs. 10,000/ to her under this head.
Loss of Studies
20. PW2 has deposed in his evidence by way of affidavit (Ex. PW2/A)that baby Anshika was studying in UKG Class in Bal Vikas High School, VPO Matan, District Jhajjar, Haryana. He further deposed that due to the injuries suffered by baby Anshika, she could not attend her school from August 2017 to March 2018 and suffered loss of studies for about one year. For this, he has relied upon certificate issued by the Principal of Bal Vikas High School, VPO Matan, District Jhajjar, Haryana and exhibited the same as Ex. PW2/2.
21. During the course of arguments, Ld. Counsel for petitioner argued that the injured suffered loss of studies for about one year as she could not attend her school from August 2017 to March 2018 and suffered Anshika Vs. Anand Kumar Urmaliya & Ors. Page 10 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 academic loss. Therefore, appropriate compensation amount may be awarded to her.
22. It stands established on record that injured was student of UKG class, as per Certificate (Ex. PW2/2) issued by Bal Vikas High School during academic session 201718. From the ocular testimony of PW2 in this regard, coupled with documentary evidence referred to above, as also from the medical treatment record (Ex. PW2/1 colly) of injured showing that she had received medical treatment from Lok Nayak Hospital from 25.07.17 to 09.09.2017, it can not be overlooked that studies of injured were definitely affected due to the injuries sustained by her on account of accident. Discharge Slip (which is part of Ex. PW2/1 colly) of injured, would reveal that her case was of post traumatic raw area over left thigh and leg with fracture humerus with fracture radius ulna with raw area over forearm. The claimant would have to incur extra amount in order to make up for the loss of his studies during the aforesaid Academic Session. Thus, a notional sum of Rs. 50,000/ is awarded in favour of petitioner and against the respondents under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
23. PW2 has deposed in his evidence by way of affidavit (Ex. PW2/A) that he has incurred about Rs. 20,000/ on conveyance, Rs. 30,000/on special diet and liquid diet. He further deposed that at the time Anshika Vs. Anand Kumar Urmaliya & Ors. Page 11 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 of accident, he was working as labourer and earning Rs. 15,000/ per month. He further deposed that due to the injuries sustained by his daughter, he could not work for about 3 months and thus, suffered loss of income of Rs. 45,000/. However, he has failed to lead any cogent evidence on record in this regard. At the same time, it cannot be overlooked that the petitioner had sustained severe injuries due to the accident in question which can be seen from the photographs filed by the petitioner on record. Thus, she would have taken special rich protein diet for her speedy recovery and would have also incurred considerable amount towards conveyance charges while commuting to the concerned hospital as OPD patient for her regular check up & follow up during the period of her medical treatment. She would have been definitely helped by some person either outsider or from her family, to perform her daily activities as also while visiting the hospital during the course of her medical treatment. In these facts and circumstances, I hereby award a notional sum of Rs. 1,50,000/ under this head.
PAIN AND SUFFERING
24. Hon'ble High Court of Delhi in the matter titled as " Vinod Kumar Bitoo Vs. Roshni & Ors." passed in appeal bearing no. MAC.APP 518/2010 decided on 05.07.12, has held as under: " It is difficult to measure the pain and suffering in terms of money which is suffered by a victim on account of serious injuries caused to him in a motor vehicle accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some Anshika Vs. Anand Kumar Urmaliya & Ors. Page 12 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 objective relation with the pain and suffering underwent by the victim. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the part of the body where the injuries were sustained, surgeries, if any, underwent by the victim, confinement in the hospital and the duration of treatment".
25. PW2 has deposed in his evidence by way of affidavit (Ex PW2/A) that his daughter had sustained grievous injuries in the accident in question. Apart from this, the case of the petitioner is of extensive scarring on left lower limb, right upper limb, left groin area, pubic area. Thus, she would have undergone great physical sufferings and mental shock on account of the accident in question. Moreover, the petitioner will have mental trauma of a scarred body throughout her life. Keeping in view the medical treatment record of petitioner available on record and the nature of injuries suffered by her, I hereby award a sum of Rs. 2,00,000/ towards pain and sufferings to the petitioner.
LOSS OF GENERAL AMENITIES & ENJOYMENT OF LIFE
26. As already mentioned above, there is sufficient evidence on record to establish that the petitioner had sustained grievous injuries due to the accident. Apart from this, the case of the petitioner is of extensive scarring on left lower limb, right upper limb, left groin area, pubic area. Thus, she would have undergone great physical sufferings and mental shock on account of the accident in question. Moreover, the petitioner will have mental trauma of a scarred body throughout her life. Thus, he would Anshika Vs. Anand Kumar Urmaliya & Ors. Page 13 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 not be able to enjoy general amenities of life after the accident in question, during rest of her life and her quality of life has been definitely affected. In view of the nature of injuries suffered by her, I award a notional sum of Rs. 1,50,000/ towards loss of general amenities and enjoyment of life to the petitioner.
LOSS OF FUTURE EARNING
27. Ld. Counsel for petitioner vehemently argued that petitioner is also entitled to compensation for loss of earning capacity. For the said purpose, he placed heavy reliance upon report Ex. PW5/2 issued by Disability Board, Lok Nayak Hospital, New Delhi. On the other hand, Ld. counsel for insurance company argued that no compensation should be awarded to petitioner under this head as she has not suffered any disability due to the accident.
28. As per the report (Ex. PW5/2), the petitioner had no functional disability. However, there was extensive scarring on left lower limb, right upper limb, left groin area, pubic area. It is relevant to note here that in the said report Ex. PW5/2, it has been requested by Incharge Disability Board of Lok Nayak Hospital that this Tribunal may grant appropriate consideration in view of scarring of petitioner as there were no available guidelines for the scarring of limbs.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 14 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
29. The petitioner in the present case was a girl aged about 6 years at the time of accident. The impacts of injuries i.e. extensive scarring on left lower limb, right upper limb, left groin area and pubic area sustained by her the accident are not limited to her; the same also extends to the entire family. Such impact may include emotional stress and mental health conditions, time off work by the parents, unemployment and financial stress. Children and adolescents are vulnerable part of our population for whom the burden of postinjury morbidity may be experienced during the remainder of their lifetime. At this stage, it could not be comprehended as to what effect the scarring at private part of baby Anshika would cause effect on her reproductive capacity as the characteristics of reproductive system development may not have started as yet. This assessment can only be made after she attains the age of puberty. Keeping in view the overall facts and circumstances of the case including the nature of injuries sustained by petitioner who is a minor girl as well as the extensive scarring suffered by her and after seeing the photographs showing the injuries suffered by her, I am inclined to take her functional disability as 20% with regard to whole body.
30. During the course of arguments, Ld. Counsel for petitioner vehemently argued that monthly income of petitioner has to be assessed as that of an unskilled person under Minimum Wages Act applicable during the period in question. For this, he has relied upon judgment titled "Divya Vs. Anshika Vs. Anand Kumar Urmaliya & Ors. Page 15 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 National Insurance Co. Ltd. & Another", Civil Appeal No. 7605 of 2022, decided on 18.10.2022 by Hon'ble Supreme Court.
31. Before coming to any conclusion regarding the computation of loss of earning capacity of minor injured, it is relevant to have a look at the position of women in the society in the present era. India is rising. Our country is zooming ahead in all fields that count at break neck speed. The boom in economy, innovative technologies and improved infrastructure are testament to that. Women have provided considerable contribution to this progress, with them taking up every possible job. From preparing the morning breakfast to sending the Orbiter to Mars, they have made their presence felt in every sphere of life. Pandit Jawaharlal Nehru had opined that "Women empowered means mother India empowered" and to have empowered women in future we need to empower our girl child of today. Present day champions of women excellence in India are numerous - from a woman Prime Minister, Indira Gandhi, to the heroic deeds of Kiran Bedi, the first woman IPS officer of India, there should be no doubt that our women.
32. Girls are proficient in balancing multiple roles and they are naturally made for multitasking. Today, girls are applying for jobs that were once considered solely for men and tackling them with élan. Not just in their traditional roles of wife, daughter and mothers, girls are even the sole breadwinner of the family.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 16 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
33. In case titled "Kajal vs Jagdish Chand", Civil Appeal No. 735 of 2020, decided on 5 February, 2020, the Hon'ble Supreme Court also referred to its early decision in Raj Kumar vs Ajay Kumar & Anr on 18 October, 2010. Para 6 of judgment in Rajkumar's case (supra) is worthy to be noticed for awarding compensation for personal injuries. It reads thus:
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation,nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a)Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expense.
Nonpecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i),(ii)(a) and (iv). It is only in Anshika Vs. Anand Kumar Urmaliya & Ors. Page 17 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 serious cases of 3 (2011) 1 SCC 343 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), (iv) 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."
34. Now turning back to the facts of the present case, the petitioner Baby Anshika in the present case was a minor girl aged about 6 years at the time of accident. She was definitely a ray of hope for her parents and other family members and due to the injuries suffered by her in the accident, the quality of her life has definitely been affected to a great extent. No amount of money would be sufficient to compensate the injured as money can not restore her childhood and the activities/functions which would have been done by her in her youth as well as in latter part of her life. Having considered the aforesaid judgment and the discussions made hereinabove on the role of a woman, I find substance in the contention raised on behalf of petitioner that the income of minor injured should be assessed on minimum wages of an unskilled person. The Minimum Wages of an unskilled person under Minimum Wages Act were Rs. 13,584/ per month as on the date of accident i.e. 24.07.2017.
35. Since, the petitioner was aged about about 6 years at the time of accident. Hence, the appropriate multiplier would be 15 in view of judgment passed in case titled as "Sarla Verma Vs. DTC", 2009 ACJ 1298 SC. The monthly income of petitioner has been taken as Rs. 13,584/ Anshika Vs. Anand Kumar Urmaliya & Ors. Page 18 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 per month as discussed above. Thus, the loss of monthly future income would be Rs. 2,716.80 (Rs. 13,584/ x 20/100 ). The total loss of future income would be Rs. 4,89,024/ (Rs. 2,716.8 x 12 x 15). Thus, a sum of Rs. 4,89,000/ (rounded off) is awarded in favour of petitioner under this head.
LOSS OF MARRIAGE PROSPECTS
36. Ld. Counsel for petitioner argued that the chances of marriage prospect of petitioner have decreased considerably due to extensive scarring on her left lower limb, right upper limb, left groin area and pubic area. He therefore, urged that reasonable amount of compensation should be awarded to her under this head. Per contra, Ld. counsel for insurance company vehemently argued that there is no evidence led on this aspect during the course of inquiry and thus, no amount of compensation should be awarded under this head.
37. PW5 Dr. Arun Goel, Consultant, Plastic Surgeon, Lok Nayak Hospital, New Delhi deposed that as per their record, the case of Baby Anshika was of extesive avulsion injury left lower limb and fracture right humerus. He further deposed that on examination, there were skin grafted areas on left lower limb with hypertrophic scars on both lower limbs. He exhibited the copy of examination report as Ex. PW5/1. He further deposed that there was extensive scarring on left lower limb, right upper limb, left Anshika Vs. Anand Kumar Urmaliya & Ors. Page 19 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 groin area and pubic area. On being asked by the court, he deposed that the patient will have mental trauma of a scarred body throughout her life. He further deposed that injured and her parents may have difficulty in finding suitable match for her marriage.
38. After considering the testimony of aforesaid witness i.e. PW5, I find substance in the submissions raised on behalf of petitioner/claimant. In view of extensive scarring on left lower limb, right upper limb, left groin area and pubic area, her chances of getting married have definitely been considerably reduced. She was aged somewhere about 6 years at the time of accident. Since, the petitioner has suffered extensive scarring on her pubic area, there can be a possibility that the same would affect her bodily integrity, sexuality and reproduction. Thus, compensation under the head of loss of marriage prospect also deserves to be awarded in favour of petitioner after keeping the aforesaid fact in mind. In view of extensive scarring suffered by the minor injured, I hereby award a notional sum of Rs. 5,00,000/ to her under this head.
DISFIGUREMENT
39. During the course of arguments, Ld. Counsel for petitioner urged that reasonable amount of compensation should be awarded to petitioner under this head. Ld. counsel for petitioner/injured, after referring to the photographs (Ex. PW2/4) argued that there are extensive scarring on Anshika Vs. Anand Kumar Urmaliya & Ors. Page 20 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 the left lower limb and right upper limb of minor injured resulting into disfigurement of her body. Hence, appropriate amount should also be awarded to the petitioner for disfigurement. On the other hand, Ld. counsel for respondents vehemently argued that there is no definite evidence led by petitioner in this regard and therefore, no amount whatsoever should be awarded to her under this head.
40. PW2 deposed that due to accident in question, petitioner had sustained extensive scarring on left lower limb, right upper limb, left groin area and pubic area. He further deposed that petitioner had undergone skin grafting during the course of her admission in Hospital. The said portion of his testimony has gone unrebutted from the side of respondents.
41. As already noted above, the injured is shown to have sustained extensive scarring on left lower limb, right upper limb, left groin area and pubic area. It is apparent on record after seeing the photographs (Ex. PW2/4) of minor injured that there are scars on the aforesaid parts. The said scars are shown to be permanent in nature. During the course of arguments, the injured was present before Claims Tribunal and her condition as depicted from those photographs, was found to be same. The injured will have mental trauma of disfigured body throughout her life Hence, notional amount of Rs. 1,50,000/ is awarded in favour of petitioner under this head.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 21 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 EXPENSES FOR FUTURE TREATMENT
42. During the course of arguments, Ld. Counsel for petitioner argued that Baby Anshika would have to undergo plastic surgery in future for which her parents would have to spend considerable amount and thus, appropriate amount should be awarded to the petitioner under this head. PW2 has deposed in his evidence that in future one more operation for releasing of contracture from left groin of injured is to be done. This part of his testimony remained unrebutted from the side of respondents during the course of inquiry.
43. On the other hand, Ld. counsel for insurance company vehemently argued that no amount should be awarded to the petitioner under this head.
44. After bestowing my thoughtful consideration to the respective submissions made on behalf of both the sides, I find substance in the arguments raised on behalf of petitioner/claimant. There is extensive scarring on left lower limb, right upper limb, left groin area and pubic area. Her photographs which were taken after the accident depict a horrendous picture of her body remains.
45. There is another reason which persuades me to accept the contention raised on behalf of claimant. In case, the argument raised on Anshika Vs. Anand Kumar Urmaliya & Ors. Page 22 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 behalf of insurance company is accepted, it would lead to injustice to the petitioner who is a minor girl. It goes without saying that it is a beneficial legislation enacted by our Parliament in order to compensate the victims of road accidents and to alleviate their sufferings to some extent. Hence, I am of the considered opinion that notional amount representing the expenses of future treatment required by victim to lead normal life, should also be awarded to her under this head. For want of any cogent and definite evidence being available on record in this regard, I hereby award notional amount of Rs. 1,00,000/ to the petitioner under this head.
46. Thus, the total compensation is assessed as under:
1. Medical Expenses Rs. 10,000/
2. Loss of Studies Rs. 50,000/
3. Conveyance, special diet & attendant Rs. 1,50,000/ charges.
4. Pain & Suffering Rs. 2,00,000/
5. Loss of enjoyment of amenities of life Rs. 1,50,000/
6. Loss of future earning capacity Rs. 4,89,000/
7. Loss of marriage prospects Rs. 5,00,000/
8. Disfigurement Rs. 1,50,000/
9. Expenses for future treatment Rs. 1,00,000/ TOTAL Rs. 17,99,000/ Anshika Vs. Anand Kumar Urmaliya & Ors. Page 23 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
47. Now, the question which arises for determination is as to which of the respondents is liable to pay the compensation amount. Respondent no. 3/insurance company did not adduce any evidence as it had no statutory defence. It is nowhere the case of insurance company that any term or condition of insurance policy was breached/violated by insured. Rather, it had given legal offer in the present case which was not acceptable to the petitioner. Keeping in view the existence of valid insurance policy, respondent no. 3/insurance company becomes liable to pay the compensation amount, as insurance company is liable to indemnify the insured. Issue no. 2 is decided accordingly.
ISSUE NO.3/RELIEF
48. In view of my finding on issues no. 1 & 2, I award a sum of Rs. 17,99,000/ (including interim award amount if any) alongwith interest @ 7% per annum w.e.f date of filing petition i.e. 18.12.2017 in favour of Lrs of deceased/petitioners and against the respondents(Reliance placed on judgment "Oriental Insurance Company Ltd. Vs. Sangeeta Devi & Ors" bearing MAC. APP. 165/2011 decided on 22.02.2016). Issue no. 3 is decided accordingly.
APPORTIONMENT
49. Statement of father of petitioner/minor injured in terms of Clause 29 MCTAP was recorded on 17.01.2023. Having regard to the facts Anshika Vs. Anand Kumar Urmaliya & Ors. Page 24 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 and circumstances of the case and in view of the said statement, it is hereby ordered that out of the awarded amount, a sum of Rs. 4,99,000/ (Rupees Four Lakhs and Ninety Nine Thousand Only) shall be immediately released to the petitioner through her saving bank account no. 41592648246 with State Bank of India, SME Narela, 1 st Floor, Aggarwal Chetan Plaza, Delhi, having IFSC Code SBIN0021402. The remaining amount alongwith proportionate interest be kept in FDR for the period till she attains the age of majority and thereafter, her entire remaining amount alongwith proportionate interest is directed to be immediately released to her through her saving bank account. However, the petitioner is at liberty to withdraw her monthly interest in order to meet her educational expenses through her father/natural guardian.
50. The FDRs to be prepared as per the aforesaid directions, shall be subject to the following directions:
(a) The Bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the claimant(s) i.e. the savings bank account(s) of the claimant(s) shall be an individual savings bank account(s) and not a joint account(s).
(b) The original fixed deposit shall be retained by the bank in safe custody. However, the statement containing FDR number, FDR amount, date of maturity and maturity amount shall be furnished by bank to the claimant(s).
(c) The monthly interest be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
Anshika Vs. Anand Kumar Urmaliya & Ors. Page 25 of 27MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023
(d) The maturity amounts of the FDR(s) be credited by Electronic Clearing System (ECS) in the savings bank account of the claimant(s) near the place of their residence.
(e) No loan, advance, withdrawal or premature discharge be allowed on the fixed deposits without permission of the Court.
(f) The concerned bank shall not to issue any cheque book and/or debit card to claimant(s). However, in case the debit card and /or cheque book have already been issued, bank shall cancel the same before the disbursement of the award amount. The bank shall debit card(s) freeze the account of the claimant(s) so that no debit card be issued in respect of the account of the claimant(s) from any other branch of the bank.
(g) The bank shall make an endorsement on the passbook of the claimant(s) to the effect that no cheque book and/or debit card have been issued and shall not be issued without the permission of the Court and claimant(s) shall produce the passbook with the necessary endorsement before the Court on the next date fixed for compliance.
(h) It is clarified that the endorsement made by the bank alongwith the duly signed and stamped by the bank official on the passbook(s) of the claimant(s) is sufficient compliance of clause(g) above.
51. Cholamandalam MS General Insurance Co. Ltd., being insurer of offending vehicle, is directed to deposit the compensation amount with SBI, Rohini Courts branch within 30 days as per above order, failing which insurance company shall be liable to pay interest @ 9% p.a for the period of delay. Concerned Manager, SBI, Rohini Court Branch is directed to transfer the amount of Rs. 4,99,000/ in the aforesaid saving bank account mentioned supra, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own Anshika Vs. Anand Kumar Urmaliya & Ors. Page 26 of 27 MACP Nos. 1031/17, FIR No. 589/17; PS.Narela DOD: 14.02.2023 name till the claimant approaches the bank for disbursement so that the award amount starts earning interest from the date of clearance of the cheques. Copy of this award be given dasti to claimant and to counsel for insurance company. Copy of this award alongwith one photograph, specimen signature, copy of bank passbook and copy of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI and Form XVII in terms of MCTAP are annexed herewith as AnnexureA. Copy of order be also sent to concerned M.M and DLSA as per clause 31 and 32 of MCTAP.
Announced in the open Court on 14.02.2023 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 27 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Anshika Vs. Anand Kumar Urmaliya & Ors. Page 27 of 27