Delhi District Court
Master Himanshu vs Sh. Parmod Kumar on 4 May, 2023
MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
IN THE COURT OF SH. VINOD YADAV, PRESIDING OFFICER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH DISTRICT,
ROHINI COURTS, DELHI
MAC Petition No. 514/19
CNR/UID No. DLNT010082042019
1. Master Himanshu,
S/o Sh. Joginder
(Being minor through his father/natural guardian Sh. Joginder)
R/o Bhopan,
Bohar(part)(68),
Bohar, Rohtak,
Haryana.
......Petitioner
VERSUS
1. Sh. Parmod Kumar,
S/o Sh. Thakur Dass,
R/o Village Gopalpur,
Sikandra Raw,
Hathras, UP.
(Driver)
2. Smt. Rekha,
W/o Sh. Krishan
R/o VPO Dubaldhan
Tehsil & District Jhajjar,
Haryana.
(Registered Owner)
Master Himanshu Vs. Parmod Kumar & Ors. Page 1 of 32
MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
3. United India Insurance Company Ltd.,
8/130, Dharampura,
Rohtak Road, Bahadurgarh,
Jhajjar, Haryana.
(Insurer)
...............Respondents
Date of Institution : 22.08.2019
Date of Arguments : 24.04.2023
Date of Decision : 04.05.2023
APPEARANCES:
Sh. Manak Chand, Ld. Counsel for petitioner.
None for driver and owner (already exparte and defence struck off vide order dated 12.12.2019) Ms. Neeru Garg, Ld. Counsel for insurance co.
Petition under Section 166 & 140 of M.V. Act, 1988 for grant of compensation AWARD
1. The petitioner aged about 5 years is seeking compensation in the wake of Detailed Accident Report (DAR) filed by police corresponding to the investigation carried out in case FIR No. 61/19 U/s 279/337 IPC registered at PS. Narela, with regard to Motor Vehicular Accident which occurred on 20.02.2019 at about 12:30 pm at Y Point, near ICICI Bank, Narela, Delhi, involving Truck bearing registration no. HR63B9201 (offending vehicle) being driven by respondent no. 1 in a rash and negligent manner. DAR filed by police, was treated as claim petition under Section 166(4) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act').
Master Himanshu Vs. Parmod Kumar & Ors. Page 2 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
2. According to DAR, on 20.02.2019, the petitioner i.e. minor injured Master Himanshu alongwith his mother namely Smt. Mamta, sister Vanshika and grandfather Sh. Ram Niwas were going towards Village Bohar, Rohtak, Haryana on motorcycle bearing registration no. HR12AG3734. The said motorcycle was being driven by grandfather of petitioner, Vanshika was sitting in the front portion of the motorcycle and petitioner was sitting with his mother at the back seat of aforesaid motorcycle. At about 12:30 pm, when they reached at Y point, near ICICI Bank, Narela, Delhi, offending vehicle which was being driven by its driver at a very high speed, in a rash and negligent manner, came from behind and hit the aforesaid motorcycle as a result thereof, they all fell down on the road and sustained injuries. They all were removed to SRHC Hospital, Narela, Delhi. The offending vehicle was found to be owned by respondent no. 2 and insured with United India Insurance Company Ltd /respondent no. 3 during the period in question.
3. Although, the respondent no. 1 & 2 i.e. driver and registered owner put their appearance before this Tribunal on 22.08.2019 i.e. on the date of filing of DAR but they failed to file their WS despite grant of sufficient time and opportunities. Similarly, the respondent no. 3/insurance company also failed to file its WS despite grant of sufficient time and opportunities. Ultimately, defence of all the respondents was struck off and they all were proceeded exparte vide order dated 12.12.2019.
Master Himanshu Vs. Parmod Kumar & Ors. Page 3 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
4. It may be noted here that an application u/o 9 Rule 7 r/w Section 151 CPC for setting aside the exparte order dated 12.12.2019 and grant of permission to file written statement on behalf of insurance company was moved and the same was allowed vide order dated 14.07.2022. Accordingly, WS of insurance company had been taken on record on 14.07.2022.
5. In its WS, the respondent no. 3/insurance company claimed that accident had taken place due to rash and negligent act of Ram Niwas(injured in connected case) while driving the motorcycle bearing registration no. HR12AG3734 alongwith three pillion rider and thus, contributed in the accident and as such, it is not liable to pay any compensation to the petitioner. It has not been denied that the offending vehicle was not insured with it during the period in question. The averments made in the DAR petition have been simply denied and prayer has been made to dismiss the DAR petition.
6. While going through the record of case, it was revealed that inadvertently, the issues in the matter never came to be framed. Accordingly, after going through the facts of the case and DAR filed by the police/investigation agency in the matter, the main points of consideration before this Tribunal for deciding the instant claim petition are as under:
Master Himanshu Vs. Parmod Kumar & Ors. Page 4 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 POINTS OF CONSIDERATION
1) Whether the minor injured Master Himanshu has suffered the injuries in road traffic accident on 20.02.2019 at 12:30 pm at Y Point, Near ICICI Bank, Narela, Delhi due to rashness and negligence on the part of driver Sh. Parmod Kumar/R1, who was driving Truck bearing registration no. HR63B9201, owned by Smt. Rekha/R2 and insured with respondent no.
3/United India Insurance Co. Ltd?OPP.
2) Whether the injured is entitled to any compensation if so to what amount and from whom? OPP.
3) Relief.
7. In support of his claim, the petitioner has examined three witnesses i.e. PW1 Sh. Joginder (father of minor injured), PW2 Sh. Kamlesh Bharti, Sr. Prosthetist & Orthotist (ClassII), M/s. Endolite India Limited and PW3 Dr. Manish Kumar, SR(Ortho), BSA Hospital, Rohini, Delhi and PE was closed vide order dated 03.01.2023. On the other hand, no evidence was adduced by any of the respondents and their respective evidence was closed vide order dated 28.03.2023.
8. I have heard arguments addressed by Ld. Counsel for the petitioner as well as insurance company. I have also gone through the record. My findings on the issues are as under: Master Himanshu Vs. Parmod Kumar & Ors. Page 5 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 Issue No. 1
9. For the purpose of this issue, the testimony of PW1 Sh. Joginder (father of minor injured) is relevant. He deposed in his evidence by way of affidavit(Ex. PW1/A) on the lines of averments made in the DAR.
He has relied upon the following documents: S.No. Description of documents Remarks 1. Copy of his Aadhaar Card Ex PW1/1
2. Original discharge slip of his Ex. PW1/2(colly) son HImanshu
3. Original discharge slip of his Ex. PW1/3(colly) son HImanshu
4. Original OPD Cards and Ex. PW1/4(colly) reports of his son Himanshu
5. Original medical bills of Ex. PW1/5(colly) Rs. 11,935/
6. Copy of Aadhaar Card and Ex. PW1/6(colly) date of birth certificate of his son Himanshu
7. Copy of Report Card of his son Ex. PW1/7 Himanshu
8. Photograph of his son Ex. PW1/8
9. Original quotation for Ex. PW1/9(colly) prosthesis for his son Himanshu
10. DAR Ex. PW1/10(colly)
11. Original disability certificate Ex. PW1/11 Master Himanshu Vs. Parmod Kumar & Ors. Page 6 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
10. During his crossexamination on behalf of insurance company, he admitted that he was not an eyewitness to the accident.
11. Ld. counsel for insurance company vehemently argued that PW1 Sh. Joginder is not an eye witness of the accident and no eye witness has been examined by petitioners during the course of inquiry. He, therefore, contended that the petitioner has failed to prove that the accident in question was caused due to the negligent act of driver/Respondent no. 1.
12. On the other hand, Ld. Counsel for petitioner vehemently argued that testimonies of PW1 Smt. Mamta and PW1 Sh. Ram Niwas (both the injured persons) recorded in connected cases bearing MACP No. 512/19 & 515/19 respectively be read in the present case as eyewitness account because they both also got injured with the petitioner/minor injured Master Himanshu in the accident in question.
13. It is pertinent to mention here that in the present case four separate DARs have been filed by the police for the injuries suffered by Sh. Ram Niwas, Smt. Mamta, Master Himanshu and Ms. Vanshika in the accident in question for which criminal case bearing FIR No. 61/19 was registered on 20.02.2019. A bare perusal of chargesheet filed in the aforesaid criminal case clearly shows that Sh. Ram Niwas, Smt. Mamta and Vanshika had also sustained injuries in the same accident. In view of the Master Himanshu Vs. Parmod Kumar & Ors. Page 7 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 aforesaid discussion, I am in agreement with the contention raised by Ld. Counsel for petitioner to the effect that testimony of PW1 Smt. Mamta is relevant to decide this issue.
14. PW1 Smt. Mamta (petitioner in MACP No. 512/19) has deposed on the similar lines of averments made in the DAR. During her crossexamination on behalf of insurance company, she admitted that there were four persons travelling on a motorcycle at the time of accident. She volunteered that out of the said four persons, there were two children. She denied the suggestion that since they were four persons travelling on a motorcycle due to which their motorcycle got disbalanced and they all fell down on the road and sustained injuries. She further denied the suggestion that the accident had taken place due to rash and negligent driving of motorcycle by Sh. Ram Niwas. Respondents no. 1 & 2 did not cross examine this witness as they both were exparte.
15. The careful perusal of testimony of aforesaid witness i.e. PW1 Smt. Mamta in case MACP No. 512/19 would go to show that the respondents have not been able to impeach her testimony through litmus test of crossexamination. Even otherwise, the testimony of aforesaid witness inspires confidence as she herself shown to have sustained injuries due to the accident. Moreover, it is an undisputed fact that FIR No. 61/19 u/s 279/337/338 IPC was registered at PS. Narela with regard to accident in Master Himanshu Vs. Parmod Kumar & Ors. Page 8 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 question. Copy of said FIR (which is part of DAR), would show that same was registered on 20.02.2019 i.e. on the date of accident itself on the statement of aforesaid witness i.e. PW1 Smt. Mamta. Thus, FIR is shown to have been registered promptly and without any delay. The contents of said FIR would show that she had disclosed therein the same sequence of facts leading to the accident as deposed by her as PW1 during her evidence in case bearing MACP No. 512/19. Thus, there is no reason to disbelieve the testimony of aforesaid witness made on oath.
16. Ld. Counsel for petitioner has also relied upon the criminal case record in order to bring home his point that the accident in question had taken place due to rash and negligent driving of offending vehicle by Respondent no. 1. He further argued that respondent no. 1 Sh. Parmod Kumar was also chargesheeted by police for offences punishable U/s 279/337/338 IPC, which clearly establishes that the accident had taken place due to rash and negligent driving of offending vehicle by respondent no. 1.
17. 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 Master Himanshu Vs. Parmod Kumar & Ors. Page 9 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 accident in question had taken place due to rash and negligent driving of offending vehicle by him.
18. Not only this, the respondent no. 1 namely Sh. Parmod Kumar (respondent no.1) has been charge sheeted by the investigating agency after arriving at the conclusion on the basis of investigation carried out by it that the accident in question had taken place due to rash and negligent driving of offending vehicle by him. Same would also point out towards rash and negligent driving of aforesaid offending vehicle by respondent no. 1.
19. Furthermore, PW1 Sh. Joginder is the father of minor injured. There is nothing on record to show that said witness was previously knowing respondents no. 1 & 2 prior to the accident or had any kind of ill will or previous enmity with either of them so as to falsely implicate respondent no. 1 in the criminal case or to depose falsely against them during the course of inquiry.
20. Copy of MLC (which are part of criminal case record) of injured Himanshu filed would show that he had been removed to SRHC Hospital, Narela, Delhi with alleged history of RTA on 20.02.19 at 1:19 PM. On his local examination, he 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 Master Himanshu Vs. Parmod Kumar & Ors. Page 10 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 the said document from the side of respondents including insurance company.
21. Not only this, copy of mechanical inspection report dt. 24.02.2019 of offending vehicle, would show that its front side safety rod and middle portion were found scratched. Likewise, copy of mechanical inspection report dated 24.02.19 (which is also part of DAR) of motorcycle of victims, would show that its rear side body tail was found scratched and tail light glass was broken; its rear side number plate middle portion was slightly dented; its rear side wheel mudguard was found bended; its right side body parts and headlight visor were found scratched; its right front side indicator light brakes was broken. Said documents have not been disputed by the respondents and corroborates the ocular testimony of PW1 Smt. Mamta to the extent that the offending vehicle came from back side and hit their vehicle from its back.
22. In view of the aforesaid discussion and the evidence which has come on record, it is held that the petitioner has been able to prove on the basis of preponderance of probabilities that he had sustained grievous injuries in road accident which took place on 20.02.2019 at 12:30 pm at Y Point, near ICICI Bank, Narela, Delhi, due to rash and negligent driving of offending vehicle by respondent no.1.
Master Himanshu Vs. Parmod Kumar & Ors. Page 11 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 ISSUE NO. 2
23. 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.
MEDICAL EXPENSES
24. PW1 Sh. Joginder (father of injured ) deposed in his evidence by way of affidavit(Ex. PW1/A) that his minor injured son had sustained grievous injuries in the accident and he was removed to SRHC Hospital, Narela, Delhi, where he was medically examined. Thereafter, he was referred to Lok Nayak Hospital, where he remained admitted from 20.02.2019 to 07.03.2019 and he was operated in the said hospital. He further deposed that during treatment, left leg below knee of his son was amputated. He further deposed that his son was again admitted in Lok Nayak Hospital on 09.03.2019 where the concerned doctor diagnosed amputation stump raw area left above knee SSG. GA on 16.03.2019, amputation was done and he was discharged on 24.03.2019. He deposed that thereafter, his son was getting treatment continuously as OPD Patient from various hospitals from 28.03.2019 to 07.11.2019. He deposed to have Master Himanshu Vs. Parmod Kumar & Ors. Page 12 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 spent about Rs. 11,935/ on the treatment of his son. He has relied upon original medical bills only to the tune of Rs. 11,935/ (Ex. PW1/5 colly). It is quite evident that the respondents have not disputed the authenticity and genuineness of the said medical bills during the course of inquiry. Accordingly, a sum of Rs.11,935/ is awarded to the petitioner under this head.
CONVEYANCE, SPECIAL DIET & ATTENDANT CHARGES
25. PW1 has deposed that he had spent Rs. 1,00,000/ on special diet, Rs. 80,000/ on attendant and Rs. 40,000/ on conveyance during treatment due to injuries suffered by his son Himanshu. However, no definite evidence whatsoever has been led to prove the same. Nevertheless, the injured Himanshu is shown to have sustained 80% permanent disability in relation to his left lower limb and he had sustained A/K amputation left on account of injuries sustained due to the accident in question. Thus, it would involve guess work on the part of Tribunal to award notional amount under this head since petitioner would have definitely taken rich protein diet for his speedy recovery. He would have also used the facility of conveyance for visiting the hospital from time to time as OPD patient during the period of his treatment. He would have been definitely helped by some person either outsider or from his family, to perform his daily activities as also while visiting the hospital during the course of his Master Himanshu Vs. Parmod Kumar & Ors. Page 13 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 medical treatment. In these facts and circumstances, I hereby award a sum of Rs. 50,000/ on account of special diet, Rs. 20,000/ on account of conveyance charges and Rs. 30,000/ on account of attendant charges.
Compensation under nonpecuniary heads
26. PW1 Sh. Joginder (father of minor injured) has deposed in his evidence by way of affidavit(Ex. PW1/A) that injured Himanshu was 5 years old and he was studying in Nursery Class (Session 201819) in New Bhartiya Sr. Secondary Public School, Haryana. He further deposed that injured had sustained grievous injuries in the accident and had suffered A/K amputation left. He further deposed that injured Himanshu remained absent from his school for a considerable period due to his prolonged treatment and as such suffered loss of studies also. During his crossexamination on behalf of insurance company, he denied the suggestion that injured had not suffered loss of studies due to the accident. He deposed that his son Himanshu was studying in 2nd class.
27. The ocular testimony of PW1 is duly corroborated by the document i.e. report card (Ex. PW1/7) to the extent that injured Himanshu was studying in Nursery Class in Bhartiya Public School, Bohar, Haryana at the time of accident.
Master Himanshu Vs. Parmod Kumar & Ors. Page 14 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
28. It is relevant to mention here that the injured is also shown to have suffered permanent physical impairment to the extent of 80% in relation to his left lower limb, as already mentioned above. For this purpose, the testimony of PW3 Dr. Manish Kumar,SR (Ortho), BSA Hospital, Rohini, Delhi is relevant. He deposed that the disability suffered by injured Himanshu is 80% in relation to his left lower limb and same is of permanent in nature and is likely to continue throughout his life. He further deposed that the case of injured was of post traumatic above knee amputation left. He deposed that on account of aforesaid disability, injured can not function with his left lower limb; he can not walk without support. He further deposed that there would be limb length discrepancy and growth of left femur would also be affected. During his crossexamination on behalf of insurance company, he denied the suggestion that the disability assessed by the Board did not have any correlation with the injuries as mentioned in MLC and treatment record of injured Himanshu.
29. As already noted above, injured was of tender age of 5 years at the time of accident. During the period of his childhood, he unfortunately met with an accident and has suffered 80% disability in relation to his left lower limb which is of permanent nature. His left leg below knee has been amputated. He was definitely ray of hope for his parents and other family members and due to those injuries, the quality of his life has definitely been Master Himanshu Vs. Parmod Kumar & Ors. Page 15 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 affected to a great extent. No amount of money would be sufficient to compensate the injured as money can not restore his childhood and the activities/functions which would have been done by him in his youth as well as in latter part of his life. Still, notional amount of compensation has to be awarded, in an attempt to alleviate his sufferings.
30. The relevant document(Ex. PW1/7) showing that the petitioner/injured Himanshu was studying in Nursery at the time of accident, has gone unchallanged and unrebutted from the side of respondents. Moreover, the nature of injuries sustained by injured child, as already noted above, would leave no scope of doubt that he would have to suffer loss of studies for a considerable period due to those injuries. Nevertheless, it can not be overlooked that the child was aged about 5 years at the time of accident and there was ample time and scope for improvement in his academic performance in future.
31. Hon'ble Apex Court in the celebrated decision in the case of "Master Mallikarjun Vs. Divisional Manager, the National Insurance Company Ltd. & Anr. (s) " in Civil Appeal No. 7139/2013 decided on 26.08.13, while dealing with the question of assessment of compensation in case of children suffering disability on account of motor vehicular accident, held that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability Master Himanshu Vs. Parmod Kumar & Ors. Page 16 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs.
32. Now turning back to the facts of the present case, as already noted above, child namely Master Himanshu has suffered 80% disability in this case, as proved in view of testimony of PW3 Dr. Manish Kumar as well as the disability certificate dated 07.11.2019. While relying upon the decision in Master Mallikarjun's case(supra), I hereby award a sum of Rs. 5,00,000/ in favour of petitioner and against the respondents under this head.
LOSS OF MARRIAGE PROSPECTS
33. Ld. Counsel for petitioner argued that the chances of marriage prospect of petitioner have decreased considerably due to his permanent physical impairment and amputation. He therefore, urged that reasonable amount of compensation should be awarded to him 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.
34. After considering the rival submissions made on behalf of both the sides, I find substance in the submissions raised on behalf of Master Himanshu Vs. Parmod Kumar & Ors. Page 17 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 petitioner/claimant. In view of permanent physical impairment to the extent of 80% sustained by the injured, his chances of getting married have definitely been considerably reduced. He was aged about 5 years at the time of accident and his left leg has been amputated. It has been established from the testimony of PW3 Dr. Manish Kumar that disability suffered by the child is likely to continue throughout his life. Thus, compensation under the head of loss of marriage prospects also deserves to be awarded in favour of petitioner. Hence, notional sum of Rs. 3,00,000/ is awarded to him under this head.
ARTIFICIAL LIMB AND ITS MAINTENANCE EXPENSES
35. PW1 Sh. Joginder deposed in his evidence by way of affidavit (Ex. PW1/A) that since the case of injured is of amputation, he would need artificial limb due to the amputation and the same alongwith its requisite components would cost around Rs. 1,47,000/. He further deposed that the components need to be changed after every six months to one year and thus, its yearly maintenance cost would come around Rs. 26,000/ as per the document Ex. PW1/9. He further deposed that the injured would require an adult prosthesis when he attains the age of 14 years or his weight become 55 to 60 kg and the approximate price of adult system has the range from 2,50,000/ to Rs. 7,50,000/, again depend upon the physical assessment of the patient at the time of fitment. During his cross Master Himanshu Vs. Parmod Kumar & Ors. Page 18 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 examination on behalf of insurance company, he denied the suggestion that his son Himanshu had never been examined by any doctor for the need of prosthesis. He further denied the suggestion that document Ex. PW1/9 was issued to them by Endolite without examining the injured Himanshu. He further denied the suggestion that document Ex. PW1/9 was a procured document.
36. Apart from the ocular testimony of PW1, the petitioner has also examined PW2 Sh. Kamlesh Bharti , Sr. Prosthetist & Orthotist (Class - II), Endolite India Ltd, produced quotation dated 17.10.2022 of his company regarding left transfemoral prosthetis with attachment block, socket adaptor, pediatric 4Bar knee joint with manual lock, tube pediatric, child female adaptor, chid sach base, sach foot, child A.K. fairing, A.K. Cosmetic stockings, juvenile TES belt and socket and fitment charges, total amounting to Rs. 1,83,792/(including taxes) and exhibited the same as Ex. PW2/1(colly). He further deposed that the socket of the artificial limb would be required to be changed between every six months to one year upto 19 20 years and after that the same would be changed after 23 years and the same process would continue till lifetime of patient. He further deposed that the one time expenses regarding change of socket was around Rs. 20,000/ to Rs. 25,000/. He further deposed that even sach foot would require change every six months till the age of 18 years and every such change would incur an expense of about Rs. 6,000/ to Rs. 10,000/. During his Master Himanshu Vs. Parmod Kumar & Ors. Page 19 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 crossexamination on behalf of insurance company, he deposed that he had not brought any document to show that patient had visited their clinic/examined by them for the purpose of artificial limb. He denied the suggestion that patient Master Himanshu had never visited their clinic for the purpose of examination of artificial limb. He admitted that he had not placed on record any price list of artificial limbs of their company. He further admitted that there was no medical advise available with them to show that patient had been advised artificial limb. He admitted that document Ex. PW2/1 was a computer generated record and the same was not accompanied by any certificate u/s. 65B of Indian Evidence Act. He denied the suggestion that patient had not required any artificial limb. He further denied the suggestion that the quotation filed by him regarding artificial limb was highly exaggerated.
37. During the course of arguments, Ld. counsel for petitioner argued that artificial limb is to be provided to the petitioner and same is required to be replaced after every 56 years as per quotation Ex. PW1/9. He also contended that cost of Endolite above knee prosthesis with attachment block etc on26.06.2020 was Rs. 1,47,000/ as per quotation (Ex. PW1/9) given by Endolite India Limited. He therefore urged that appropriate compensation amount may also be awarded to the petitioner under this head.
Master Himanshu Vs. Parmod Kumar & Ors. Page 20 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
38. On the other hand, Ld. counsel for insurance company vehemently argued that no amount should be awarded to the petitioner under this head.
39. Similar question arose before Hon'ble Apex Court in the matter titled as "Mohd. Sabeer @ Shabir Hussain Vs. Regional Manager, U.P. State Road Transport Corporation." Civil Appeal Nos. 90709071 of 2022, decided on 09.12.2022. In the said case, Hon'ble Apex Court had the occasion to deal with the issue as to how much amount should be awarded to the petitioner for the purchase and maintenance of the prosthetic leg. The relevant paragraphs related to the issue in hand are reproduced as under: xxxxx " 22. The High Court has awarded a compensation of Rs.5,20,000/ for the prosthetic limb and Rs.50,000/ towards repair and maintenance of the 4 (2017) 16 SCC 680 same. The Appellant submits that the cost of the prosthetic limb itself is Rs. 2,60,000/ and the life of the prosthetic limb is only 56 years. The prosthetic limb also requires repair and maintenance after every 6 months to 1 year, and each repair costs between Rs.15,000 to Rs.20,000/. This would mean that the prosthetic limb would last the Appellant for only 15 years under the current compensation. The Appellant at the time of the accident was aged 37 years and has a full life ahead. It has been clearly stated by this Court in the case of Anant Son of Sidheshwar Dukre (Supra) that the purpose of fair compensation is to restore the injured to the position Master Himanshu Vs. Parmod Kumar & Ors. Page 21 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 he was in prior to the accident as best as possible.
The relevant paragraph of the judgment is being extracted herein:
"In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the nonpecuniary losses which he has suffered due to the injury. The Claimant is entitled to be compensated for his inability to lead a full life and enjoy those things and amenities which he would have enjoyed, but for the injuries." "The purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident."
23. As per the current compensation given for the prosthetic limb and its maintenance, it would last the Appellant for only 15 years, even if we were to assume that the limb would not need to be replaced after a few years. The Appellant was only 37 years at the time of the accident, and it would be reasonable to assume that he would live till he is 70 years old if not more. We are of the opinion that the Appellant must be compensated so that he is able to purchase three prosthetic limbs in his lifetime and is able to maintain the same at least till he has reached 70 years of age. For the Prosthetic limbs alone, the Appellant is to be awarded compensation of Rs. 7,80,000 and for maintenance of the same he is to be awarded an additional Rs. 5,00,000/."
xxxxx Master Himanshu Vs. Parmod Kumar & Ors. Page 22 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
40. After bestowing my thoughtful consideration to the respective submissions made on behalf of both the sides as well as the aforesaid decision of Hon'ble Apex Court, I find substance in the arguments raised on behalf of petitioner/claimant. The condition of left lower limb of the petitioner was noticed by Claims Tribunal during the course of arguments.
41. There is another reason which persuades me to accept the contention raised on behalf of claimant. In case, the argument raised on behalf of insurance company is accepted, it would lead to injustice in the sense that the cost of artificial limb to be provided to the claimant in this case, is stated to be Rs. 1,47,000/ as per quotation of Endolite India Ltd and it is not one time cost, rather, said artificial limb is required to be replaced after every 56 years. Moreover, the injured would require an adult prosthesis when he attains the age of 14 years and the range of the same would be Rs. 2,50,000/ to Rs. 7,50,000/. 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 cost of artificial limb required by petitioner to lead normal life, should also be awarded separately to him under this head.
42. After carefully perusing the deposition of PW1 & PW2 and keeping in view the fact that petitioner has suffered above knee amputation Master Himanshu Vs. Parmod Kumar & Ors. Page 23 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 of left lower limb and consequently, he has suffered 80% permanent disability in relation to his left lower limb and the installation of prosthesis would definitely minimize the sufferings of petitioner who is just 8 years old or would help him to lead normal life, I hereby award a notional sum of Rs. 7,00,000/(Rs. 5,00,000/ for artificial limb and Rs. 2,00,000/ for its maintenance) under this head for installation of artificial limb and its maintenance.
PAIN & SUFFERING CAUSED TO THE PARENTS
43. Ld. Counsel for claimant has also relied upon decision of Hon'ble Apex Court in the matter titled as "Kumari Kiran Vs. Sajjan Singh & Ors.", (2015) 1SCC 539, in support of his contention that appropriate compensation should also be awarded on account of pain and suffering caused to parents of the injured child.
44. In the above cited decision, Hon'ble Apex Court while following the view taken in Master Mallikarjun(supra), calculated the compensation awardable to minor children who were rendered permanently disabled to the extent of 30% and 20% respectively, added Rs. 1,00,000/ each on account of pain and suffering in addition to the amount of compensation awarded under nonpecuniary heads of agony to parents, transportation, special diet, nutrition and future medical expenses, besides the actual expenditure under the heads of medical expenses and attendant.
Master Himanshu Vs. Parmod Kumar & Ors. Page 24 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
45. Now reverting back to the facts of the present case. As already noted above, minor child namely Master Himanshu has sustained permanent physical impairment to the extent of 80% in relation to his left lower limb. Thus, while following the decision rendered by Hon'ble Apex Court in Kumari Kiran(supra), I hereby award compensation of Rs.1,00,000/ towards pain and suffering caused to the parents of injured child.
Thus, the total compensation is assessed as under:
1. Medical bills Rs. 11,935/
2. Conveyance, special diet & attendant Rs. 1,00,000/ charges.
3. Compensation under nonpecuniary heads Rs. 5,00,000/
4. Loss of marriage prospects Rs. 3,00,000/
5. Compensation for artificial limb and its Rs. 7,00,000/ maintenance
6. Pain and suffering caused to the parents Rs. 1,00,000/ Total Rs. 17,11,935/ Rounded off to Rs. 17,12,000/
46. This brings me down to the next question as to which of the respondents is liable to pay the compensation amount. Ld. Counsel for insurance company tried to avoid the liability of insurance company on the ground that since there were four persons riding on a motorcycle on which Master Himanshu Vs. Parmod Kumar & Ors. Page 25 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 petitioner was travelling at the time of accident, same constitutes violation of Section 128 M.V Act and thus, there is contributory negligence on the part of pillion riders and the driver of the said motorcycle. Hence, appropriate amount should be deducted from the compensation amount.
47. No doubt, it is an admitted position on record that four persons were travelling on motorcycle bearing registration No. HR12AG3734 at the time of accident. It is relevant to mention here that out of the said four riders on the motorcycle, two were children aged about 5 years and 6 years. However, it does not ipsofacto lead to any inference that there was any contributory negligence on the part of persons riding on the said motorcycle, in the occurrence of accident in question. While deciding issue no. 1 in the preceding paras, it has already been held that the accident in question was caused solely due to rash and negligent driving on the part of offending vehicle.
48. The plain reading of Section 128 of M.V. Act, would show that it casts a duty on driver of two wheeled motor vehicle not to carry more than one person in addition to himself/herself on such vehicle. Rule 123 of Road Safety Rules is also relevant in this regard but at the same time, it is relevant to note that these provisions are made as safety measures for driver and pillion rider and breach thereof may amount to 'negligence' but such negligence will not ipsofacto amount to 'contributory negligence' on Master Himanshu Vs. Parmod Kumar & Ors. Page 26 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 the part of pillion rider or 'composite negligence' on the part of driver of the motorcycle, unless such negligence was partly the immediate cause of the accident. In other words, if the damage in the accident has not been caused partly on account of violation of Section 128 of M.V. Act by rider of the motorcycle, the rider is not guilty of contributory negligence. There is another aspect of the matter. The driving of four persons on the motorcycle, may constitute violation of traffic rules but it does not ipsofacto establishes that motorcycle was being driven rashly or negligently or that it was out of the control of its driver. It is evident that offending vehicle had come from behind and hit against the motorcycle. While taking this view, I am fortified by the judgments rendered in cases titled as "Uttar Pradesh State Road Transport Corporation Vs. Sabra & Ors", MAC APP. 107/2017, decided on 18.09.17 by Hon'ble Delhi High Court, "Devi Singh Vs. Vikram Singh & Ors", 2008(1) Transport And Accidents Cases (T.A.C.) 696(M.P.), "National Insurance Company Limited Vs. Vimla & Ors.", II(2017) ACC 307(DB)(All.), "New India Assurance Co. Ltd. Vs. Jaswinder Kaur & Ors.", 2016 ACJ 936(P&H), "Oriental Insurance Company Limited Vs. Rajesh Devi & Ors.", II (2017) ACC 746 (DB)(All.), "Bimla Devi Vs. Surjeet Singh & Ors.", 2018 ACJ 945 (P & H), "Bharma Kallappa Murashetti & Ors. Vs. Karamjeet Kaur & Anr." 2017 ACJ 1758 (Karnt.). Similar view was also expressed by Hon'ble Supreme Court in case titled "Mohammed Siddique & Anr. Vs. National Insurance Co. Ltd. & Ors.", Civil Appeal No. 79 of 2020, decided on 08.01.2020.
Master Himanshu Vs. Parmod Kumar & Ors. Page 27 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
49. Now turning back to the facts of the present case. The respondents have failed to establish during the course of inquiry that either driver of motorcycle or any of his pillion riders, had contributed in any manner to the occurrence of accident or that any kind of overt fact on behalf of either of them, led to the accident in question. 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. 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
50. In view of my findings on issues no. 1 and 2, I award compensation of Rs. 17,12,000/ (including interim award amount, if any) alongwith interest @ 7% per annum in favour of petitioner and against the respondents w.e.f. date of filing of the petition i.e. 22.08.2019 till the date of its realization (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.
Master Himanshu Vs. Parmod Kumar & Ors. Page 28 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
51. It is made clear that interest @ 7% per annum shall be paid only on the amount of Rs. 10,12,000/ (Rs. 17,12,000/ minus Rs. 7,00,000/ awarded under the head artificial limb and its maintenance) by the insurance company.
APPORTIONMENT
52. Statement of petitioner in terms of Clause 29 MCTAP was recorded on 21.02.2023. Having regard to the facts 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. 3,00,000/(Rupees Three Lakhs Only) shall be immediately released to the petitioner through his saving bank account no. 41554341207 with State Bank of India, VPO Bohar, Rohtak, Haryana, having IFSC Code SBIN0002320 and remaining amount alongwith interest amount be kept in the form of FDRs in the multiples of Rs. 30,000/ each for a period of one month, two months, three months and so on and so forth, having cumulative interest. The petitioner is at liberty to withdraw his monthly interest in order to meet his educational expenses through his father. It is also ordered that apart from aforesaid amount of Rs. 3,00,000/, a sum of Rs. 3,00,000/ out of the total amount awarded under the head of artificial limb shall be released to the petitioner only after production of original bill and certificate of doctor and remaining amount be kept in the bank account of the petitioner for future use.
Master Himanshu Vs. Parmod Kumar & Ors. Page 29 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
53. All the FDRs to be prepared as per aforesaid directions, shall be subject to the following conditions:
(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.
(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 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.
(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.
Master Himanshu Vs. Parmod Kumar & Ors. Page 30 of 32MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023
(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.
(i) The petitioner is directed to open a Motor Accident Claims Annuity (Term) Deposit Account (MACAD) in terms of order dated 07.12.2018 of Hon'ble Justice J.R. Midha in case titled as Rajesh Tyagi and Others Vs. Jaibir Singh and Others F.A.O No. 842/03 as per clause 31 of MCTAP and form VIII titled as Motor Accident Claims Annuity Deposit (MACAD) Scheme as directed in the said order.
(j) Concerned Manager, SBI, Rohini Court branch is further directed to disburse the FD amount in Motor Accident Claims Annuity Deposit (MACAD) Scheme account as directed by Hon'ble Delhi High Court vide order dated 07.12.18, on completing necessary formalities as per rules.
54. Respondent no. 3/United India Insurance Co. Ltd., being insurer of the offending vehicle, is directed to deposit the award 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 a sum of Rs. 3,00,000/ in the aforesaid saving bank account of petitioner, on completing necessary formalities as per rules. He be further directed to keep the said amount in fixed deposit in its own 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 the award be given dasti to the petitioner and also to counsel for the insurance company for compliance. Copy of this award alongwith one photograph each, specimen signatures, copy of bank passbooks and copy Master Himanshu Vs. Parmod Kumar & Ors. Page 31 of 32 MACP No. 514/19; FIR No. 61/19.; PS. Narela DOD: 04.05.2023 of residence proof of the petitioner, be sent to Nodal Officer of SBI, Rohini Court, Branch, Delhi for information and necessary compliance. Form XVI & 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 04.05.2023 (VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Certified that above award contains 32 pages and each page is signed by me.
(VINOD YADAV) Judge MACT2 (North) Rohini Courts, Delhi Master Himanshu Vs. Parmod Kumar & Ors. Page 32 of 32