Delhi District Court
Baby Muskan vs . Prem Nath & Anr. on 21 August, 2019
IN THE COURT OF DR. HARDEEP KAUR
ADDITIONAL DISTRICT AND SESSIONS JUDGE
PO MACT(SE), SAKET COURTS: NEW DELHI
MACT No. 3430/16
Old MACT No. 287/14
FIR No. 171/14
PS: Okhla Industrial Area
Baby Muskan Vs. Prem Nath & Anr.
CNR no. DLSE010007992014
Compensation case regarding injury to Baby Muskan, aged about 5 years
Baby Muskan
D/o Mohd. Kalam
R/o B886, Transit Camp,
Govindpuri, New Delhi
Also at H. no. S181/41, Janta
Jeewan Camp
Okhla, Phase II, New Delhi.
(represented through her mother/ natural guardian
namely Rubi)
...........................Petitioners/claimants
VERSUS
1. Prem Nath
S/o Surat Singh
R/o Plot no. 22, Khasra no. 286,
Gali no. 8, Block C, Deenpur
Extension, Najafgarh, New Delhi.
.............Driver/Respondent no. 1
2. Asst. Commissioner DEMS (HQ)
Add South Delhi, Municipal Corporation
MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 1 of 18
Gata no. 9, Dr. B. R. Ambedkar Nagar, STDM
J. N. Marg, New Delhi.
............Owner/Respondent no. 2
.....Respondents
Date of accident : 08.03.2014
Date of filing of DAR : 08.05.2014
Date of Award : 21.08.2019
JUDGMENT
1. DAR/Claim petitions where no serious question of law or facts are involved can be disposed of by short orders. Negligence on the part of respondent no.1 is to be proved on the basis of preponderance of probability, quantum of compensation is to be determined and in case the insurance company has raised any defence the liability to pay compensation is to be fixed. In the present case, petition has also filed by petitioner on 07.08.2014 and the same was clubbed with the DAR on the same day.
2. It is pertinent to mention here that vide order dated 24.10.2016, the Predecessor of this Tribunal passed award in this matter which was challenged by the petitioner seeking enhancement of compensation. Vide order dated 01.02.2018, Hon'ble High Court of Delhi set aside the award and remanded back the case to the Claim Tribunal on the ground that the Claim Tribunal has not awarded any compensation towards loss of amenities of life, disfiguration, loss of matrimonial prospects, loss of earning, inconvenience, hardships, disappointment, frustration, mental MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 2 of 18 stress, dejection and unhappiness in future life. The Claim Tribunal has also not awarded any compensation for the future treatment and surgeries that would be required by the appellant. The compensation under the heads of medical expenses, special diet and conveyance, pain and suffering and towards loss of studies is very low. The Hon'ble High Court has also permitted petitioner to lead additional evidence and directed this Tribunal to pass a fresh award.
3. Brief facts of the case are that on 08.03.2014, at about 12.30 pm, minor injured along with her mother were crossing the road in front of Madeena Masjid, Maa Anandmai Marg, near C Lal Chowk, Okhla Industrial Area, PhaseIII, New Delhi, then all of sudden a vehicle bearing no. DL 1GC 1346 which was being driven by its driver came in very rash and negligent manner and hit the injured. Due to this injured fell down on the road and sustained injuries in her lower back and other injuries on all over her body. After this injured was immediately removed to ESI Hospital, where her MLC was prepared by the concerned doctors.
4. FIR no. 171/2014 under Section 279/337 IPC, PS Okhla Industrial Area was registered. During investigation, police prepared the site plan of the place of occurrence, seized the offending vehicle, conducted mechanical inspection of the offending vehicle, collected MLC and arrested respondent no. 1 driver. On completion of investigation found respondent no. 1 of rash and negligent driving, hence, chargesheeted him for the commission of offence under Section 279/338 IPC.
5. During proceedings, driver has filed his reply and stated that the MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 3 of 18 alleged accident had taken place due to negligent of petitioner, therefore, he is not liable to pay any compensation. He further stated that he was having valid and effective driving license at the time of accident and he has been falsely roped in this case and false FIR was registered against him by the police for the purpose of facilitating the petitioner to get compensation.
6. During proceedings, Written Statement filed by respondent no.
2/owner/SDMC and stated that no such accident as alleged has taken place with the vehicle no. DL 1GC 1346 as alleged and there was no negligence on the part of respondent no. 1 i.e. driver employee of respondent no. 2 as informed by the respondent no. 1 to the department. It is further stated that although no such accident had taken place from the vehicle owned by respondent no. 2, still, it is submitted that the claim raised by the petitioner is highly exorbitant and without any basis as the bills annexed along with the claim petition do not corroborate the claim raised by the petitioner, hence the petition under reply is liable to be dismissed and there is no liability of respondent no. 2 to pay any compensation to the petitioner.
7. Vide order dated 03.10.2016, driver was proceeded ex parte.
8. From pleadings, following issues were framed vide order dated 29.10.2014 by the Predecessor of this Tribunal:
1. Whether the petitioner received injuries in the accident which took place on 08.03.2014 at 12.30 pm involving offending vehicle i.e MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 4 of 18 bearing no. DL 1GC 1346 due to rash and negligent driving of respondent/driver, owned by respondent/owner ? OPP
2. To what amount of compensation the petitioner is entitled to claim and from whom ?
3. Relief.
9. During evidence, petitioner Rubi mother of injured (minor) and eye witness examined herself as PW1 on 08.10.2015 and relied upon certain documents i.e. copy of election I Card of petitioner as Ex.PW1/1, copy of date of birth of her daughter Muskan as Ex.PW1/2, copy of MLC as Ex.PW1/3, copy of first discharge summary dated 08.03.2014 issued from AIIMS Trauma Center as Ex.PW1/4, copy of second discharge summary dated 24.03.2014 issued from AIIMS Trauma Center as Ex.PW1/5, copy of third discharge summary dated 07.06.2014 issued from AIIMS Trauma Center is Ex.PW1/6, copy of OPD and original medical bills are Ex.PW1/7 and DAR as Ex.PW1/8. She further stated that her daughter is being operated upon and is being cured in the Government Hospital.
10. After remand back of the case, additional evidence has been led on behalf of Ruby mother of injured (minor) as PW1A and filed her affidavit as EX.PW1A/A and relied upon her Aadhar card as Ex.PW1A/9, discharge summary and OPD cards as Ex.PW1A/10, original medical bills as Ex.PW1A/11 and medical report, issued by Ganga Ram Hospital as Mark A.
11. No witness was got examined by any of the respondents.
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12. Arguments were addressed by learned counsel for the petitioner.
Written Submissions in Form VIB has been filed on behalf of petitioner.
13. On the basis of pleadings of the parties, evidence adduced and arguments addressed, issuewise findings are as under: Issue No. 1
14. In the MACT cases, petitioner are required to prove the rash and negligent driving by the driver of the offending vehicle.
15. In this case, petitioner mother of injured (minor) and eye witness/PW1 has deposed regarding the manner of accident and deposed that accident occurred due to negligence of driver of offending vehicle. On the contrary, no evidence has been led by the respondents. In Cholamandlam Insurance Company Ltd. vs. Kamlesh 2009 (3) ADDelhi 310, it was held that if driver of offending vehicle does not enter the witness box, an adverse inference can be drawn against him.
16. In this case, FIR No.171/14 was registered at PS Okhla Industrial Area, New Delhi. IO had filed detailed accident report on record. Charge sheet u/s 279/338 IPC was filed against respondent no.1. In National Insurance Co. Vs. Pushpa Rana 2009 ACJ 287 Delhi, it was laid down that completion of investigation and filing of charge sheet u/s 279/304A IPC are sufficient proof of negligence of the driver of the offending vehicle.
MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 6 of 18
17. It is well settled that the proceedings before the Claims Tribunal are in the nature of inquiry and the finding of rash and negligent driving by driver of the offending vehicle is to be returned only at the touch stone of preponderance of probabilities. The factors noted above are sufficient to conclude that preponderance of probability is made out showing negligence of respondent in causing the accident.
18. In view of the evidence adduced by petitioner, coupled with chargesheet against respondent no.1, issue no.1 is decided accordingly, in favour of the petitioner.
19. Now, the compensation would be assessed on the basis of evidence adduced on record by the petitioner.
20. In view of direction of Hon'ble High Court in MAC.APP232/2017 and CM Appl. 9465/2017 dated 01.02.2018 a medical board was constituted by the order of the Additional Director Medical Sir Ganga Ram Hospital to examine and report of clinical condition and future surgeries require by the patient Ms. Muskan 7 years of age D/o Late Kalam. Ms. Muskan was admitted in the Sir Ganga Ram Hospital for 4 days from 09th to 12th March 2018. The Hon'ble High Court had instructed that the mother of Ms. Muskan complete all requisite formalities required for treatment in BPL Category. Regrettably, no documentary evidence was submitted in support of Ms. Muskan belonging to the BPL category. No bills have been raised for hospitalization or doctors fee. The medical board has evaluated Ms. Muskan in terms of her current physical, mental and emotional health. The complete history of the accident and treatment MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 7 of 18 given to the child at various stages in various institutions in the past was reviewed by all board members and findings noted. The individual reports of all board members were submitted to the presiding officer including the psychometric mental health evaluation of a clinical psychologist. It was noted that patient has undergone a severe physical injury at time of accident which was treated at various stages. The ultimate result as evaluated now has shown that there are well healed scars of injury as well as subsequent operative intervention on her back, left leg and abdomen. These scars have been evaluated by the plastic surgery expert. The skin grafting carried out has resulted in very well healed supple graft uptake with minimal scarring. The texture of the skin graft is always different from the normal skin and the extent of this disfiguration is not quantifiable. The skin graft surface is about 20% of total body surface area but causing no functional limitation. The pediatric surgery expert has opined that the previously recorded surgical operations have been conducted very well resulting in normal healthy scars of surgery and a recovery is free of any complication and good functional outcomes. All her developments evaluated by gynecology expert were normal for age. While it is not in the purview of any expert to predict future complications the present status of healing she has attained, indicates very good results. A detailed psychometric mental health evaluation was done by mental health expert and opinion arrived at was that Muskan is:
(I) Mentally agile, happy, cheerful and confident child for age
(ii) In her growing years however, while she might need care MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 8 of 18 and support to deal with body image and socio emotional issues.
(iii) Emotional distress persists as the accident and injury with surgeries has led the child to be away from peers and school for a long time. It has already started to affect her with anxiety, low mood, and poor body image.
(iv) Her future romantic body scaring, the likelihood of peer group ostracism is immense.
(v) Scar tissue can result in social, emotional and psychological effects. Scars impact people in two primary ways: by creating a physical trigger that reminds people of the events surrounding the injury and by creating new emotional consequences for having to manage life with the presence of a physical scar which may impact their appearance. Some to the common emotional effects of a scar include insecurity, fear, anger, worry, pain, feelings of guilt, disgust or sadness.
21. In view the above report, the entire compensation payable is shown in the following table: Sl. Pecuniary loss : Quantum no.
1. (I) Expenditure on treatment : As per Rs. 4,150/ Ex.PW1/5 & Ex.PW1A/11 there are medical bills worth Rs. 4,150/.
MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 9 of 18
(ii) Expenditure on Conveyance : The Rs. 20,000/ petitioner has not filed any bill for conveyance. The nature of injuries are grievous. By guess work, compensation can be awarded for conveyance.
(iii) Expenditure on special diet : There is Rs.20,000/ no prescription for special diet. The nature of injuries are grievous. By guess work, compensation can be awarded for special diet.
(iv) Cost of nursing / attendant : Even in Rs. 20,000/ the absence of documentary proof, compensation for attendant's charges is to be given even if services were rendered by family members.
(v) Loss of income : Nil
(vi) Cost of artificial limb (if applicable) : Not Applicable
(vii) Any other loss / expenditure : Not applicable
2. NonPecuniary Loss :
(I) Compensation of mental and physical Rs.1,00,000/
shock : As the petitioner has suffered
grievous injuries, she would have
undergone mental and physical shock.
(ii) Pain and suffering : Compensation for Rs.1,00,000/
pain and suffering is to be awarded keeping in mind the nature of injuries suffered by the petitioner.
(iii) Loss of amenities of life : Rs. 1,50,000/
(iv) Disfiguration : Nil
(v) Loss of marriage prospects : Rs. 1,50,000/
(vi) Loss of earnings, inconvenience, Already covered above
hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc. MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 10 of 18
3. Disability resulting in loss of earning capacity (I) Percentage of disability assessed Nil and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of Already covered. expectation of life span on account of disability :
(iii) Percentage of loss of earning Nil capacity in relation to disability:
(iv) Loss of future Income: Nil.
Total Compensation Rs. 5,64,150/ (As per
direction of Hon'ble high
Court, the previous award
amount of Rs. 49,000 will
be adjusted in total
compensation). Now total
compensation is Rs.
5,64,150 Minus 49,000/=
5,15,150/
Interest 9% p.a. from the date of
filing of DAR which is
08.05.2014 till realization
22. The compensation payable to the petitioner is 5,15,150/ along with interest @ 9 per cent per annum from the date of filing of DAR i.e. 08.05.2014 till realization which is Rs. 5,15,150/ + Rs. 2,44,901/ =Rs.
7,60,051/.
LIABILITY
23. The next question is which respondent is liable to pay the MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 11 of 18 compensation to the petitioner.
24. The driver Respondent no. 1 is the principal tort feasor and respondent no.2 being the owner vicariously liable for the acts of respondent no. 1.
25. In view of the above discussion, respondent no. 2 is directed to deposit the award amount in the bank within a period of 30 days from the date of filing of DAR till its realization.
26. The respondent no. 2 is directed to file the compliance report of their having deposited the awarded amount with the State Bank of India, Saket Court Branch in this Tribunal within a period of 30 days from today.
27. The award amount shall be deposited with State Bank of India, Saket Court Branch, New Delhi by way of RTGS/NEFT/IMPS in account of MACT FUND PARKING, A/c No. 35195787436, IFS Code SBIN0014244 and MICR code 110002342 under intimation to the Nazir along with calculation of interest and to the Counsel for the petitioner. Insurance company shall also furnish TDS certificate, if any, to the petitioner.
28. Petitioner is awarded as total compensation of Rs. 7,60,051/ including interest at the rate of 9% per annum since the date of filing of DAR till realization. The award amount be kept in FDR till the minor/ Baby Muskan attains age of 21 years.
MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 12 of 18 FORM - IV B SUMMARY OF COMPUTATION OF AWARD AMOUNT IN INJURY CASES TO BE INCORPORATED IN THE AWARD.
1 Date of accident 08.03.2014 2 Name of injured Baby Muskan 3 Age of the injured 5 years at the time of accident.
4 Occupation of the injured Petitioner is minor 5 Income of the injured Petitioner is minor 6 Nature injury Grievous injury 7 Medical treatment taken by the Injuries: Degloving injuries entire injured: lower back left gluteal region pill perineum back of thigh.
8 Period of Hospitalization 08.03.2014 to 22.03.2014 JPNA Trauma Center, AIIMS, New Delhi, 24.03.2014 to 11.04.2014, 07.06.2014 to 16.06.2014 9 Whether any permanent No disability?
Computation of Compensation
S. No. Heads Awarded by the Tribunal
1 Pecuniary Loss:
(i) Expenditure on treatment Rs. 4,150/
MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 13 of 18
(ii) Expenditure on conveyance Rs. 20,000/
(iii) Expenditure on special diet Rs. 20,000/
(iv) Cost of nursing / attendant Rs. 20,000/
(v) Loss of earning capacity NIL
(vi) Loss of income Nil
(vii) Any other loss which may NIL
require any special treatment
or aid to the injured for the rest
of her life.
2 NonPecuniary Loss:
(i) Compensation for mental and Rs. 1,00,000/
physical shock
(ii) Pain and suffering Rs.1,00,000/
(iii) Loss of amenities of life Rs.1,50,000/
(iv) Disfiguration Nil
(v) Loss of marriage prospects Rs.1,50,000/
(vi) Loss of earning, Already covered above
inconvenience, hardships,
disappointment, frustration,
mental stress, dejectment and
unhappiness in future life etc.
3 Disability resulting in loss of earning capacity:
(i) Percentage of disability NIL
assessed and nature of
disability as permanent or
temporary
(ii) Loss of amenities or loss of NIL
expectation of life span on
account of disability
(iii) Percentage of loss of earning NIL
capacity in relation to disability
(iv) Loss of future income
(income x percentage earning NIL
capacity x multiplier)
MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 14 of 18
4 TOTAL COMPENSATION Rs. 5,64,150/ (As per direction
of Hon'ble high Court, the
previous award amount of Rs.
49,000 will be adjusted in total
compensation). Now total
compensation is Rs. 5,64,150/
49,000/= 5,15,150/
5 INTEREST AWARDED
6 Interest amount up to the date Rs. 2,44,901/
of award
7 Total amount including interest Rs. 7,60,051/
8 Award amount released Nil
9 Award amount kept in FDRs 100%
10 Mode of disbursement of the Award amount is kept in FDR
award amount to the petitioner till the minor/ Baby Muskan
(s) (Clause 29) attains age of 21 years.
11 Next Date for compliance of 23.09.2019
the award. (Clause 31)
Particulars of FormV are as under:
1. Date of the accident 08.03.2014
2. Date of intimation of the accident by the 08.03.2014
Investigating Officer to the Claims Tribunal. (Clause 2)
3. Date of intimation of the accident by the Without insurance.
Investigation Officer to the Insurance Company. (Clause 2)
4. Date of filing of Report under Section 173 Not mentioned Cr.P.C. before the Metropolitan Magistrate. (Clause 10)
5. Date of filing of Detailed Accident Information 08.05.2014 Report (DAR) by the Investigating Officer before Claims Tribunal. (Clause 10) MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 15 of 18
6. Date of service of DAR on the Insurance Without insurance Company. (Clause 11)
7. Date of service of DAR on the petitioner(s). 08.05.2014 (Clause 11)
8. Whether DAR was complete in all respects? Yes (Clause 16)
9. If not, state deficiencies in the DAR Not applicable
10. Whether the police has verified the Yes documents filed with DAR? (Clause 4)
11. Whether there was any delay or deficiency on Yes. IO has filed the part of the Investigating Officer? If so, application for time whether any action / direction warranted. extension of DAR
12. Date of appointment of the Designated Officer Without insurance by the Insurance Company. (Clause19)
13. Name, address and contact number of the Without insurance Designated Officer of the Insurance Company. (Clause 19)
14. Whether the Designated Officer of the Without insurance Insurance Company submitted his report within 30 days of the DAR? (Clause 21)
15. Whether the Insurance Company admitted Without insurance the liability?, if so, whether the Designated Officer of the Insurance Company fairly computed the compensation in accordance with law (Clause 92).
16. Whether, there was any delay or deficiency Without insurance on the part of the Designated Officer of the Insurance Company? If so, whether any action / direction warranted?
17. Date of response of the petitioner to the offer Without insurance of the Insurance Company. (Clause 23)
18. Date of award. 21.08.2019
19. Whether the award was passed with the No consent of the parties? (Clause 22) MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 16 of 18
20. Whether the petitioner (s) were directed to Yes open savings bank account (s) near their place of residence? (Clause18)
21. Date of order by which petitioner (s) were 03.10.2018 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 to issue any cheque book / debit card to the petitioner (s) and make an endorsement to this effect on the passbook
(s) (Clause18 ).
22. Date on which the petitioner (s) produced the 16.02.2019 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 R/o B886, petitioner (s)? (Clause 27) Transit Camp, Govindpuri, New Delhi Also at H. no. S 181/41, Janta Jeewan Camp Okhla, Phase II, New Delhi.
24. Details of saving bank account (s) of the A/c no. 36600030287 petitioner (s) and the address of the bank with IFSC : SBIN0014461 IFS Code. (Clause 27) State Bank of India, Okhla Phase1 Branch.
25. Whether the petitioner (s) saving bank Yes account (s) is near her place of residence? (Clause 27)
26. Whether the petitioner (s) were examined at Yes the time of passing of the award to ascertain her / their financial condition? (Clause 27) MACT no. 3430/16 Baby Muskan Vs. Prem Nath & Anr. Page No. 17 of 18
27. Account Number, MICR Number, IFS Code, State Bank of India, Name and Branch of the Bank of the Claims Saket Court Tribunal in which the award amount is to be A/C No. 35195787436 deposited/transferred. IFS CodeSBIN0014244 MICR No.110002342
29. Copy of this award be given to the parties free of cost. The copy of award be sent to the DLSA and Ld. Metropolitan Magistrate.
Digitally
signed by DR
HARDEEP
DR KAUR
30. List on 23.09.2019 for compliance. HARDEEP Date:
KAUR 2019.08.22
17:09:40
Typed to the dictation directly, +0530
corrected and pronounced in open
Court on 21.08.2019 (DR. HARDEEP KAUR)
POMACT (SouthEast)
Saket Court/ New Delhi
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