Delhi District Court
198/09 Master Farhan Abbas vs Shah Alam Page 1 Of 21 on 18 August, 2018
198/09 Master Farhan Abbas vs Shah Alam Page 1 of 21
IN THE COURT OF SH. AMIT BANSAL : JUDGE : MOTOR ACCIDENTS
CLAIMS TRIBUNAL :NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New No. 5045016
MACT PETITION No. : 198/09
UNIQUE ID No. : 02404C0077522009
Master Farhan Abbas S/o Sh. Abbas Haider
R/o 65A, EWS Flats Pitampura, Delhi34
(Petitioner being minor though his father Sh. Abbas Haider.)
........ Petitioner
Vs.
1. Sh. Shah Alam S/o Sh. Fakar Hussain
R/o Mohalla Nai Sarai, Dhampur, PO & PS Dhampur,
District Bijnor, UP
....... Driver/R1
2. Sh. Fakar Hussain S/o Mohd. Hussain
R/o Mohalla Nai Sarai, Dhampur, PO & PS Dhampur,
District Bijnor, UP
...... Owner/R2
3. United India Insurance Co. Ltd.
8Th Floor, Kanchanjunga Building,
Barakhamba Road, Cannaught Place, Delhi
..... Insurance co/R3
Other details
DATE OF INSTITUTION : 12.02.2009
DATE OF RESERVING JUDGMENT : 10.08.2018
DATE OF PRONOUNCEMENT : 18.08.2018
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198/09 Master Farhan Abbas vs Shah Alam Page 2 of 21
FORM - V
1. COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS
TRIBUNAL AGREED PROCEDURE TO BE MENTIONED IN THE
AWARD AS PER FORMAT REFERRED IN CLAUSE 4.3 OF THE
ORDER PASSED BY THE HON'BLE HIGH COURT IN FAO 842/2003
RAJESH TYAGI Vs. JAIBIR SINGH & ORS. & SOBAT SINGH VS
RAMESH CHANDRA GUPTA & ANR., MAC.APP 422/2009 VIDE
ORDER DATED 15.12.2017
1. Date of the accident 15.11.2006
2. Date of intimation of the accident by the No provision of DAR
investigating officer to the Claims Tribunal was at that time.
(Clause 2)
3. Date of intimation of the accident by the No provision of DAR
investigating officer to the insurance company. was at that time.
(Clause 2)
4. Date of filing of Report under section 173 No provision of DAR
Cr.P.C. before the Metropolitan Magistrate was at that time.
(Clause 10)
5. Date of filing of Detailed Accident Information No provision of DAR
Report (DAR) by the investigating Officer before was at that time.
Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance No provision of DAR
Company (Clause 11) was at that time.
7. Date of service of DAR on the claimant (s). No provision of DAR
(Clause 11) was at that time.
8. Whether DAR was complete in all respects? No provision of DAR
(Clause 16) was at that time.
9. If not, whether deficiencies in the DAR removed No provision of DAR
later on? was at that time.
10. Whether the police has verified the documents No provision of DAR
filed with DAR? (Clause 4) was at that time.
11. Whether there was any delay or deficiency on No provision of DAR
the part of the Investigating Officer? If so, was at that time.
whether any action/direction warranted?
12. Date of appointment of the Designated Officer No provision of DAR
198/09 Master Farhan Abbas vs Shah Alam Page 2 of 21
198/09 Master Farhan Abbas vs Shah Alam Page 3 of 21
by the insurance Company. (Clause20) was at that time.
13. Name, address and contact number of the Sh. D.K. Sharma,
Designated Officer of the Insurance Company. Advocate
(Clause 20)
14. Whether the designated Officer of the Insurance No provision of DAR
Company submitted his report within 30 days of was at that time.
the DAR? (Clause 20)
15. Whether the insurance company admitted the No provision of DAR
liability? If so, whether the Designated Officer of was at that time.
the insurance company fairly computed the
compensation in accordance with law. (Clause
23)
16. Whether there was any delay or deficiency on No provision of DAR
the part of the Designated Officer of the was at that time.
Insurance Company? If so, whether any
action/direction warranted?
17. Date of response of the claimant (s) to the offer No provision of DAR
of the Insurance Company .(Clause 24) was at that time.
18. Date of the Award 18.08.2018
19. Whether the award was passed with the consent No
of the parties? (Clause 22)
20. Whether the claimant(s) were directed to open Yes
saving bank account(s) near their place of
residence? (Clause 18)
21. Date of order by which claimant(s) were 29.05.2018
directed to open saving bank account (s) near
his place of residence and produce PAN Card
and Aadhar Card and the direction to the bank
not issue any cheque book/debit card to the
claimant(s) and make an endorsement to this
effect on the passbook(s). (Clause 18)
22. Date on which the claimant (s) produced the 26.07.2018
passbook of their saving bank account near the
place of their residence along with the
endorsement, PAN Card and Aadhar Card?
(Clause 18)
23. Permanent Residential Address of the As mentioned above
Claimant(s) (Clause 27)
24. Details of saving bank account(s) of the Petitioner Master
claimant(s) and the address of the bank with Farhan savings bank
IFSC Code (Clause 27) a/c no.
520101253317336
with Corporation
198/09 Master Farhan Abbas vs Shah Alam Page 3 of 21
198/09 Master Farhan Abbas vs Shah Alam Page 4 of 21
Bank, Saraswati
Vihar Branch, Delhi
IFSC : CORP0003232
25. Whether the claimant(s) saving bank account(s) Yes
is near his place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the Yes
time of passing of the award. (Clause 27)
27. Account number/CIF No, MICR number, IFSC 86143654123,
Code, name and branch of the bank of the 110002427,
Claims Tribunal in which the award amount is to SBIN0010323, SBI,
be deposited/transferred. (in terms of order Rohini Courts, Delhi
dated 18.01.2018 of Hon'ble Delhi High Court in
FAO 842/2003 Rajesh Tyagi vs Jaibir Singh.
JUDGMENT
1. Present claim petition has been preferred under Section 166 and 140 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the M.V. Act') claiming compensation for a sum of Rs. 75,00,000/ (Rupees Seventy Five Lakhs Only) along with interest @ 12% p.a. in respect of accidental injuries sustained by Master Farhan Abbas s/o Sh. Abbas Haider in a motor vehicular accident.
2. Brief facts of the case as mentioned in the petition are that on 15.11.2006 at about 5:00 pm, the minor petitioner Master Farhan was standing on a roadside vacant plot, near Mohalla Nai Sarai, Dhampur. At that time, one truck bearing registration no. HR46A4568 (hereinafter referred to the offending vehicle ) came at a very high speed, rashly and negligently turned the vehicle in left side and ran over the petitioner. Due to said impact, the petitioner sustained grievous injuries. It has been stated that petitioner was admitted in Kamal Nursing Home and after taking first aid, he was taken to Sai hospital, Moradabad, UP where his MLC was prepared. It has been stated that thereafter he was referred to AIIMS hospital, Delhi. It is mentioned in the petition that the FIR no. 264/06, Cr. No. 1528/06, PS Dhampur, Bijnor was registered u/s 279/338 IPC.
198/09 Master Farhan Abbas vs Shah Alam Page 4 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 5 of 21It has been mentioned in the petition that petitioner was aged about 6 years at the time of accident and was a student of Nursery Class.
3. R1/Sh. Shah Alam/driver and Sh. Fakar Hussain owner of the offending vehicle have filed a written statement jointly wherein they have stated that petitioner has filed the present petition just to harass the respondents as R1 and R2 have already paid the compensation to the petitioner just after the said accident. It was submitted that minor petitioner was not playing at that time but he suddenly came in front of the vehicle upon which the driver applied the brakes and the speed of the truck was about 10 km/h.
R1 and R2 did not appear thereafter for various date of hearing and were ultimately proceeded against exparte on 08.09.2017.
4. United India Insurance co/R3 has filed written statement wherein it has been admitted that offending vehicle was insured with it in the name of Sh. Fakar Hussain/R2 vide policy no.
112002/31/05/01/00003397 valid from 08.09.2006 to 07.01.2007 i.e. covering the date of accident dated 15.11.2006.
5. Following issues were framed by learned Predecessor of this court vide orders dated 04.07.2009 as under :
1. Whether on 15.11.06 at 5:00 pm in front of Mohalla Nai Sarai, Dhampur, truck no. HR46A4568 which was put in motion suddenly by the driver resulted in injuries to the petitioner?OPP
2. Whether petitioner is entitled to compensation, if so, to what amount and from whom?OPP
3. Relief.
Sh. Abbas Haider, the father of minor petitioner/injured, has been examined himself as PW1, Sh. Naseem Haider (eye witness) as PW2, Sh. Parmod Joshi, LDC, AIIMS as PW3, Dr. P.S. Khatana, Urology, Dr. BSA hospital as PW4 and Sh. Sushil Kumar Tyagi has been examined as PW5.
198/09 Master Farhan Abbas vs Shah Alam Page 5 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 6 of 21The record would show that respondents have not examined any witness in support of their case.
6. I have heard arguments addressed on behalf of ld counsel for petitioner and ld counsel for insurance co/R3 and have carefully perused the record. Now, I proceed to discuss the issues in the succeeding paragraphs.
7. Issue wise findings are as under: Issue No.1 The onus of proving this issue beyond preponderance of probabilities is on the petitioner.
Sh. Naseem Haider (grander father of petitioner) who is an eye witness has tendered his evidence by way of affidavit as Ex. PW2/A. He deposed in his evidence Ex. PW2/A that on 15.11.2006 at about 5:00 pm, the petitioner/injured was standing on a roadside vacant plot, near Mohalla Nai Sarai, Dhampur, when the truck bearing registration no. HR46A4568 (offending vehicle) came at a very high speed, rashly and negligently and turned the vehicle towards left side without blowing any horn and taking any precaution and ran over the petitioner due to which he sustained injuries. He deposed that he immediately took the petitioner to Sanjivani Nursing Home, Dhampur for treatment. He deposed that after providing first aid, the petitioner was referred to Sai Hospital, Moradabad, UP and thereafter petitioner was referred to AIIMS hospital. He deposed that this accident was caused due to rash and negligent driving of the R1. He deposed that FIR no. 264/2006 was registered at PS Dhampur on his statement. PW2 was not cross examined on behalf of R1 and R2 and his cross examination by R1 and R2 was nil, opportunity given. R1 and R2 shall thus be deemed to admit the above said testimony of PW2 to the effect that the case accident was caused by offending vehicle being driven by R1 in the above said rash and negligent manner.
198/09 Master Farhan Abbas vs Shah Alam Page 6 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 7 of 21PW2 was cross examined on behalf of insurance co/R3 wherein he inter alia denied the suggestions that he did not witness the accident or that accident occurred due to his negligence as he did not guide the child to remain out of the road. He denied the suggestions that there was no negligence on the part of the driver of the offending vehicle or that the driver of the offending vehicle was driving the vehicle at a normal speed and towards its correct side.
Nothing material has come on record to shake the version of PW2 regarding the manner in which the said accident was caused by R1 while driving the above said offending vehicle in a rash and negligent manner.
In the facts and circumstances, the copies of FIR and charge sheet u/s 279/338 IPC against respondent no. 1 can also be looked into to determine the negligence on the part of respondent no. 1. There is thus nothing on record to suggest even remotely that R1 did not cause the said accident in the manner as deposed on behalf of PW2. Nothing has also appeared in the cross examination of PW2 to discredit his testimony. Accordingly, in view of the totality of facts and circumstances of the case, on the basis of material as placed on record and in view of above discussion, Issue No.1 is decided in favour of the petitioner and against the respondents to the effect that the case accident was caused by R1 while driving the above said offending vehicle negligently and that the petitioner suffered injuries in the said accident in question due to rash and negligent driving of respondent no.1.
Issue no. 1 is accordingly decided in favour of the petitioner and against the respondents.
8. Issue no. 2.
In view of findings on issue no.1, the petitioner is entitled to compensation.
PW1 Sh. Abbas Haider (father of minor petitioner) has filed his 198/09 Master Farhan Abbas vs Shah Alam Page 7 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 8 of 21 evidence by way of affidavit as Ex. PW1/A. He has inter alia proved the discharge summary from AIIMS as Ex. PW1/3, medical reports issued by AIIMS as Ex. PW1/4 (colly), OPD card as Ex. PW1/5, discharge summary from Sri Sai Hospital along with medical bills as Ex. PW1/6, medical bills issued by Vikas Medicos as Ex. PW1/7, medical bills issued by National Medical Store as Ex. PW1/8 (colly), medical bills issued by Shikha Medicos as Ex. PW1/9 (colly) and bill issued by Sanjivani Nursing Home and other medical store and ambulance charges as Ex. PW1/10 (colly).
He was cross examined only on behalf of insurance co. wherein he inter alia denied the suggestions that injured did not suffer the injuries as mentioned in Para no. 4 in the affidavit or that the medical bills furnished by him were not as per prescriptions prescribed by the doctor and the hospital. He denied the suggestion that the mother of the injured was not working with an Anganwari or that she was not earning Rs. 2500/ per month or that she was not terminated due to the said accident.
Petitioner has examined Sh. Parmod Joshi, LDC, Medical Record, AIIMS as PW3 who proved the attested copies of all medical record of patient namely Master Farhan Abbas as Ex. PW1/3 to Ex. PW1/5. He was not cross examined by any of the respondent.
Petitioner has also examined Dr. P.S. Khatana, HOD, Urology, Dr. BSA hospital, as PW4. He deposed that patient Farhan Abbas was examined by the board on 01.05.2012 and after examination report was given by him as 75% permanent disability based on incontinence of urine. He has proved the said disability certificate dated 01.05.2012 as Ex. PW4/A. He deposed that the percentage was based on amount of incontinence of urine and standard guidelines available to give the exact percentage. He deposed that the patient was permanently impotent.
The said witness was cross examined only on behalf of insurance co. wherein he deposed that patient was physically examined by them and that the patient was aged about 9 years at the time of examination. He deposed that the patient would require detailed reassessment regarding 198/09 Master Farhan Abbas vs Shah Alam Page 8 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 9 of 21 erectile dysfunction at the age of 1720 years. He deposed that with medical intervention and operations, the erectile dysfunction can be improved. He volunteered that treatment would be very costly and would cost around Rs. 10 lakh. He deposed that at the stage of examination, there was lack of early morning erection which should be there even at that stage but it would require through assessment at the age of 17 to 20 years.
Petitioner has also examined Sh. Sushil Kumar Tyagi as PW5 who has proved the original medical bills of Vikas Medicos as Ex. PW1/7 (colly).
The said witness was cross examined only on behalf of insurance co/R3 wherein he deposed that he had no personal knowledge regarding the medical bills.
In the present case, the minor petitioner was having the year of birth as 2002 (as mentioned in his aadhar card as placed on record), whereas, the date of accident was 15.11.2006 i.e. he was aged about 4 years at the time of accident. He also suffered permanent disability as mentioned above. In the said circumstances, the compensation to be given to him has to be calculated in terms of the following judgments:
1. Kumari Kiran Thr. Her father Harinarayan vs Sajjan Singh & Ors., Civil Appeal No. 8632 of 2014 date of decision 11.09.2014 of Hon'ble Supreme Court of India:(2015)1 SCC 539
2. National Insurance Co. Ltd. Vs Baby Heena & Ors., MAC Appeal No. 345/2011, date of decision 14.03.2016 of Hon'ble Delhi High Court.
Accordingly, the petitioner is entitled to following compensation: A. Loss of Future income due to disability.
No compensation was granted by the Hon'ble Supreme Court of India to minor petitioner who had suffered permanent disability under the said head in the case of Kumari Kiran (Supra). In view of the said settled law, no compensation to the minor petitioner is being granted under the said head.
198/09 Master Farhan Abbas vs Shah Alam Page 9 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 10 of 21B. Pain & Suffering.
Compensation under this head was granted in both the cases of Kumari Kiran (Supra) & Baby Heena (Supra).
The petitioner at the time of accident was a minor aged only about 4 years and suffered 75% permanent disability based on incontinence of urine and as deposed by PW4, the said patient was also rendered permanent impotent. On the peculiar facts of the case wherein a minor child had to suffer incontinence of urine, was rendered permanently impotent and suffered from erectile dysfunction, the Tribunal is of the considered opinion that the quantum of pain and suffering should be more than the other cases. In facts, the petitioner is being granted Rs. 3,00,000/ on account of pain and suffering.
C. Agony to parents It would be a great mental agony to the parents to see their minor child suffering the trauma of an accident with consequent permanent disability and no prospects of any marriage or giving birth to their grand children. In view of the settled law of Hon'ble Apex Court in the case of Kumari Kiran (Supra) & that of Hon'ble Delhi High Court in the case of Baby Heena (Supra), the petitioner is being granted Rs. 25,000/ towards agony to parents. D. Medical Expenses PW1 Sh. Abbas Haider, PW3 Sh. Pramod Joshi and PW5 Sh. Sushil Kumar Tyagi have proved the original medical bill as Ex. PW1/6 to Ex. PW1/10. The same comes to Rs. 1,41,548/ including ambulance charges. Hence, Rs. 1,41,548/ are granted under this head. E. Attendant Charges Compensation under this head was granted in both the cases of Kumari Kiran (Supra) & Baby Heena (Supra).
Petitioner has not proved on record any document regarding the expenses incurred by him on attendant charges. Petitioner suffered grievous injuries with suffered 75% permanent disability based on incontinence of urine. In view of above said discussion and taking the 198/09 Master Farhan Abbas vs Shah Alam Page 10 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 11 of 21 probable period of treatment for about 2 years, a reasonable lump sum amount of Rs. 50,000/ is granted under the said head. E. Transportation Compensation under this head was granted in both the cases of Kumari Kiran (Supra) & Baby Heena (Supra).
Petitioner has not proved on record any document regarding the expenses incurred by him on private conveyance/transportation. Petitioner suffered grievous injuries with suffered 75% permanent disability based on incontinence of urine. In view of above said discussion and taking the probable period of treatment for about 2 years , a reasonable lump sum amount of Rs. 50,000/ is granted under the said head. F. Special Diet & Nutrition Compensation under this head was granted in both the cases of Kumari Kiran (Supra) & Baby Heena (Supra).
Petitioner has not proved on record any document regarding the expenses incurred by him on special diet. Petitioner suffered grievous injuries with suffered 75% permanent disability based on incontinence of urine and was rendered permanently impotent due to the accident. In view of above said discussion and taking the probable period of treatment for about 2 years, a reasonable lump sum amount of Rs. 50,000/ is granted under the said head.
G. Permanent disability/loss of amenities.
In both the cases of Kumari Kiran (Supra) & Baby Heena (Supra), the Hon'ble Supreme Court of India and the Hon'ble Delhi High Court in that regard referred to the judgment of Hon'ble Supreme Court of India in the case of Master Mallikarjun vs Divisional Manager, National Insurance Company Limited & Anr, 2014(14)SCC 396:2013(13)JT 465 wherein the Hon'ble Supreme Court of India has interalia held : "12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the 198/09 Master Farhan Abbas vs Shah Alam Page 11 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 12 of 21 approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant etc., should be, if the disability 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. For permanent disability upto 10%, it should be Re. 1 lakh, unless there are exceptional circumstances to take different yardstick. .............................................................
In the present case, the petitioner suffered grievous injuries, suffered 75% permanent disability based on incontinence of urine and the disability certificate in that regard has been proved as Ex. PW4/A. PW4 Dr. P.S. Khatana, HOD, Urology, Dr. BSA hospital specifically deposed that the patient was rendered permanently impotent and that at the stage of examination , when the patient was of about 9 years of age, there was lack of early morning erection. From the material available on record, as the minor child suffered from incontinence of urine and was rendered permanently impotent, the functional disability suffered by the claimant in the case at hand is taken as 75% in relation to whole body. Therefore, the compensation under the present head of 'permanent disability/loss of amenities' would be Rs. 4,00,000/. H. Future Medical Expenses Compensation under this head was granted in both the cases of Kumari Kiran (Supra) & Baby Heena (Supra).
As discussed above, the present case is based upon peculiar facts and circumstances, where the minor injured has not suffered any normal injury or disability but has suffered from incontinence of urine and has been rendered permanently impotent. The disability certificate in that regard has been proved as Ex. PW4/A. PW4 Dr. P.S. Khatana, HOD, Urology from Dr. BSA hospital has specifically deposed in his examination in chief that the patient suffered from incontinence of urine and was rendered permanently impotent. In his cross examination by ld counsel for insurance company, PW4 deposed that the patient was aged about 9 years at time of examination and that he would require detailed reassessment regarding erectile dysfunction at 198/09 Master Farhan Abbas vs Shah Alam Page 12 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 13 of 21 the age of 1720 years. He admitted the suggestion of the ld counsel for insurance co. that with the medical intervention and operation, this could improve but added that the treatment would be very costly and would cost about Rs. 10 lakhs. No further cross examination was done by ld counsel for insurance co. regarding said future expenditure on medical treatment to be incurred by the petitioner when he would reach the age of 1720 years. No suggestion was also given to PW4 by the ld counsel for insurance co/R3 to the effect that the said treatment which the minor patient had to take at the age of 1720 years would not cost about Rs. 10 lakhs. It would show that the insurance co/R3 has admitted that the future medical treatment of the minor petitioner qua medical intervention and operation at the age of 1720 years to improve his condition of erectile dysfunction would cost about Rs. 10 lakhs. Even otherwise, PW4 being a Government doctor of BSA hospital specifically related to the issue is an expert witness on the subject and the future expenses required for medical intervention and operation. In view of the above said peculiar facts and circumstances of the case, nature of disability and injury suffered by the minor petitioner including incontinence of urine, permanent impotency and erectile dysfunction, above said evidence of PW4 on record and discussion, the petitioner is entitled to and granted Rs. 10 lakhs towards future medical expenses.
In terms of Judgment of Hon'ble Delhi High in case of Arvind Pathak vs Parshant Kumar, MAC.APP 107/2007, date of decision 21.04.2016, having regard to the fact that the compensation under the head of loss of future income is being given in advance, there shall be no interest levied on that part of the award for the period the claim petition remained pending before the Tribunal. Thus, in calculating the total compensation, the period of 12.02.2009 to 18.08.2018 shall be excluded for computing the effect of interest against the said head of compensation.
198/09 Master Farhan Abbas vs Shah Alam Page 13 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 14 of 21I. Loss of Marriage prospects The compensation under said head was awarded by the Hon'ble Delhi High Court in the case of Baby Heena (Supra).
In the present case, the petitioner suffered grievous injuries and suffered 75% permanent disability based on incontinence of urine. As per testimony of PW4 Dr. P.S. Khatana, HOD, Urology, Dr. BSA hospital, Rohini, Delhi, the said minor petitioner was also rendered permanently impotent. PW4 also deposed in his cross examination that at the time of examination, the petitioner suffered from lack of early morning erection and erectile dysfunction. It is evident that due to the said injuries including permanent impotency and permanent disability as reflected from disability certificate Ex. PW4/A and the testimony of PW4, he would definitely suffer loss of marriage prospects as being permanently impotent he would not be able to give birth to any child.
In the peculiar facts and circumstances, the petitioner is awarded Rs. 3,00,000/ on account of loss of marriage prospects.
9. Accordingly, the over all compensation which is to be awarded to the petitioner thus comes to Rs. 23,16,548 / which is tabulated as below: Sl. No Compensation Award amount
1. Loss of Future income due to Nil.
disability.
2 Pain & Suffering Rs. 3,00,000/
3. Agony to parents Rs. 25,000/
4. Medical Expenses Rs. 1,41,548/
5. Attendant Rs. 50,000/
6. Transportation Rs. 50,000/
7. Special diet & Nutrition Rs. 50,000/
8. Permanent disability/loss of Rs. 4,00,000/ amenities
9. Future Medical Expenses Rs. 10,00,000/ 10 Loss of Marriage Prospects Rs. 3,00,000/ Total Rs.23,16,548 / 198/09 Master Farhan Abbas vs Shah Alam Page 14 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 15 of 21 After rounding of to Rs. 23,17,000/ ( Rupees Twenty Lakh Seventeen Thousand only) The claimant/petitioner is also entitled to interest @ 9% per annum from the date of filing of petition i.e. w.e.f 12.02.2009 till realisation of the compensation amount. The said interest @ 9% p.a. was awarded on the award amount by the Hon'ble Apex Court in case Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC) .
The amount of interim award, if any, shall however be deducted from the above amount, if the same has already been paid to the petitioner.
10. Liability The United India Insurance Co/R3 has not been able to show anything on record that R1, who was the driver of the offending vehicle was not having any valid driving licence to drive the offending vehicle or that the permit of offending vehicle was not valid and as per settled law, since the offending vehicle was duly insured with the insurance company/R3, hence R3 is liable to pay the entire compensation amount to the petitioner as per law. Accordingly, in the case in hand, in terms of order dated 16.05.2017 of Hon'ble High Court by Hon'ble Mr. Justice J.R. Midha in case of Rajesh Tyagi Vs. Jaibir Singh and Ors., United India Insurance company/R3 is directed to deposit the awarded amount of Rs. 23,17,000/ within 30 days from today within the jurisdiction of this Tribunal i.e. State Bank of India, Rohini Courts Branch, Delhi alongwith interest at the rate of 9 % per annum from the date of filing of the petition till notice of deposition of the awarded amount to be given by R3 to the petitioner and his advocate and to show or deposit the receipt of the acknowledgement with the Nazir as per rules. R3 is further directed to deposit the awarded amount in the above said bank by means of cheque drawn in the name of above said bank alongwith the name of the claimant mentioned therein. The said bank is further directed to keep the said amount in fixed deposit in its own name till the claimant 198/09 Master Farhan Abbas vs Shah Alam Page 15 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 16 of 21 approaches the bank for disbursement, so that the awarded amount starts earning interest from the date of clearance of the cheque.
It is directed that petitioner is not entitled to interest on the amount of Rs. 10,00,000/ as mentioned under the head (H) i.e. Compensation for Future medical expenses of the claimant, from the date petition i.e. 12.02.2009 till 18.08.2018.
APPORTIONMENT
11. Statement of father of minor petitioner in terms of clause 27 MCTAP was recorded. I have heard the father of minor petitioner and ld. counsel for the petitioner/claimant regarding financial needs of the injured/petitioner and in view of the judgment in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631, for appropriate investments to safeguard the amount from being frittered away by the beneficiaries owing to their ignorance, illiteracy and being susceptible to exploitation, following arrangements are hereby ordered: An amount of Rs. 2,00,000/ be released to petitioner in his saving bank a/c no.520101253317336 with Corporation Bank, Saraswati Vihar Branch, Delhi i.e. the branch near his place of residence as mentioned in his statement recorded under clause 27 MCTAP with necessary endorsement regarding no cheque book and debit card in terms of orders of Hon'ble Mr. Justice J.R. Midha in FAO No. 842/2013 dated 15.12.2017 and 18.01.2018 and remaining amount be kept in FDR in his name till he attains the age of majority without the facility of advance, loan and premature withdrawal without the prior permission of the Tribunal.
It is clarified that an amount of Rs. 10,00,000/ which is granted under the head of Future Medical Expenses be kept in a separate FDR for a period of 10 years or till petitioner moves an application for release of the said amount with requisite medical documents before the Tribunal or whichever is earlier.
It shall be subject to the following further conditions and directions 198/09 Master Farhan Abbas vs Shah Alam Page 16 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 17 of 21 in terms of order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in case of Sobat Singh vs Ramesh Chandra Gupta and case of Rajesh Tyagi vs Jaibir Singh, MAC.APP . 422/2009 and FAO 842/2003 :
(a) The bank shall not permit any joint name(s) to be added in the savings bank account or fixed deposit accounts of the victim i.e. the saving bank account(s) of the claimant(s) shall be individual savings 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 maturity amount of the FDR(s) shall be credited to the saving bank account of the claimant(s) in a nationalised bank near the place of his residence i.e. above said a/c.
(e) No loan, advance or 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.
(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.
12. Relief United India Insurance company/R3 is directed to deposit the award amount of 23,17,000/ with interest @ 9% per annum from the date of filing of petition i.e. 12.02.2009 till realization within the jurisdiction of this Tribunal i.e. SBI , Rohini Court Branch, Delhi within 30 days from today under 198/09 Master Farhan Abbas vs Shah Alam Page 17 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 18 of 21 intimation of deposition of the awarded amount to be given by R3/insurance to the petitioner and his advocate failing which the United India Insurance company/R3 shall be liable to pay interest @ 12% per annum from the period of delay beyond 30 days.
United India Insurance company/R3 is also directed to place on record the proof of the award amount, proof of delivery of notice in respect of deposit of the amount in the above said bank to the claimant and complete details in respect of calculations of interest etc in the court within 30 days from today. A copy of this judgment/award be sent to R3 for compliance within the granted time. Nazir is directed to place a report on record in the event of non receipt/deposit of the compensation amount within the granted time.
13. A copy of this award be forwarded to the concerned Metropolitan Magistrate and DLSA in terms of the orders passed by the Hon'ble High Court in FAO 842/2003 Rajesh Tyagi Vs. Jaibir Singh & Ors. vide order dated 12.12.2014.
In view of the directions contained in order dated 18.01.2018 of Hon'ble Mr. Justice J.R. Midha in FAO no. 842/2003 titled as Rajesh Tyagi vs Jaibir Singh, the statement of father of minor petitioner was also recorded wherein he had stated that he was entitled to exemption from deduction of TDS and that he would submit form 15G to the insurance co. so that no TDS is deducted.
14. Form IVB has also been attached herewith.. File be consigned to record room as per rules after compliance of necessary legal formalities. Copy of order be given to parties for necessary compliance as per rules. The insurance co./R3 is also directed to obtain the copy of relevant documents regarding the bank account etc. of the petitioner from the record. Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.08.18 14:24:48 +0530 Announced in open court (AMIT BANSAL) on 18 August 2018 PO MACT N/W/Rohini Courts, Delhi.
th 198/09 Master Farhan Abbas vs Shah Alam Page 18 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 19 of 21 FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD
1.Date of accident 14.05.2002
2. Name of injured Master Farhan Abbas
3. Age of the injured 4 years at the time of accident and now 16 years
4. Occupation of the injured: Minor Child
5. Income of the injured. Nil.
6. Nature of injury: Grievous
7. Medical treatment taken by the injured. For about 2 years
8. Period of hospitalization: 30 days.
9. Whether any permanent disability ? If yes, give details.
Yes. 75% permanent disability
10. Computation of Compensation S.No. Heads Awarded by the Tribunal
11. Pecuniary Loss
(i) Expenditure on treatment Rs. 1,41,548/ and Rs.
10,00,000/ towards future expenses.
(ii) Expenditure on conveyance Rs. 50,000/ (iii) Expenditure on special diet Rs. 50,000/ (iv) Cost of nursing/attendant Rs. 50,000/ (v) Loss of earning capacity Nil. (vi) Loss of income Nil. (vii) Any other loss which may require any Rs. 25000/ towards parents
special treatment or aid to the injured for agony.
the rest of his life 198/09 Master Farhan Abbas vs Shah Alam Page 19 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 20 of 21
12. NonPecuniary Loss:
(I) Compensation for mental and physical
shock
(ii) Pain and suffering Rs. 3,00,000/
(iii) Permanet disability/Loss of amenities of Rs. 4,00,000/
life
(iv) Disfiguration
(v) Loss of marriage prospects Rs. 3,00,000/
(vi) Loss of earning, inconvenience,
hardships, disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and 75% permanent disability nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in 75% relation of disability
(iv) Loss of future income - (Income X Nil.
%Earning capacity X Multiplier)
14. TOTAL COMPENSATION Rs. 23,17,000/ ( interest is calculated only on Rs 13,17,000/ as no interest is given on future medical expenses of Rs. 10,00,000/)
15. INTEREST AWARDED 9%
16. Interest amount up to the date of award Rs. 11,26,032/
17. Total amount including interest Rs. 34,43,032/
18. Award amount released Rs. 2,00,000/
19. Award amount kept in FDRs Rs. 32,43,032/
20. Mode of disbursement of the award As per award and in terms of 198/09 Master Farhan Abbas vs Shah Alam Page 20 of 21 198/09 Master Farhan Abbas vs Shah Alam Page 21 of 21 amount to the claimant (s) (Clause29) clause 29 of MCTAP
21. Next date for compliance of the award. 22.09.2018 (Clause 31) Digitally signed AMIT by AMIT BANSAL BANSAL Date: 2018.08.18 14:25:02 +0530 (AMIT BANSAL) PO MACT N/W Rohini Courts, Delhi.
18.08.2018 198/09 Master Farhan Abbas vs Shah Alam Page 21 of 21