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Judgment
P.D. Waingankar, J.—1. Both these appeals are arising out of the judgment and award dated 17.04.2008 in MVC No. 8287/2005 on the file of the MACT and XIX Addl. Judge, Court of Small Causes, Bangalore.
On 05.05.2004 one Kum. Vydehi, Master Siddarth Bharath and Master Goutham Bharath were returning from Ooty towards Bangalore in a Mercedes Benz car bearing registration No. KA-01-MA-1305. At about 11.00 a.m. when the car reached near ITI College, Gundlupet, there was head on collision between a car and private bus bearing registration No. KA-03-C-4050 proceeding towards Ooty. As a result of head on collision between the two vehicles Kum. Vydehi and driver of the Mercedes Benz car died on the spot. Whereas Master Siddarth Bharath and Master Goutham Bharath sustained grievous injuries. On account of death of Kum. Vydehi, her parents filed a claim petition under Section 166 of the M.V. Act in MVC No. 4487/2005, Master Siddarth Bharath filed a claim petition in MVC No. 8286/2005 on account of injury sustained by him in the accident and Master Goutham Bharath who was severely injured in the accident filed claim petition in MVC No. 8287/2005 claiming compensation from the owner and insurer of both the vehicles involved in the accident. All the claim petitions were clubbed together and disposed of by common judgment and award dated 17.04.2008.
Aggrieved by the quantum of compensation of Rs. 21,03,000/- awarded by the Tribunal in MVC No. 8287/2005, the claimant-Master Goutham Bharath preferred MFA No. 8735/2008 and insurer of the car preferred MFA No. 8988/2008.
We have heard the learned counsel for the claimant and the insurer-United India Insurance Company Ltd.,.
Learned counsel for the claimant would submit that the compensation awarded by the Tribunal on all heads is on the lower side and it requires to be enhanced substantially. Learned counsel would further submit that the claimant-Goutham Bharath was intelligent, a scholar in all the fields, inspite of best treatment, he suffered both permanent physical and mental disability, the Tribunal without taking into consideration 100% functional disability suffered by the claimant has awarded a meager compensation ignoring the medical evidence and hence the learned counsel sought to award just and reasonable compensation.
On the other hand, learned counsel appearing for the insurance company would submit that the compensation awarded by the Tribunal under all the heads is exorbitant and not based on any accepted norms, it requires to be reduced to a considerable extent by modifying the award.
Having heard the submission made by both the learned counsel for the claimant and insurance company and on perusal of the entire material on record, the only point that would arise for our determination is as under:--
"Whether the compensation awarded by the Tribunal is just and reasonable?"
At the outset, it has to be stated that the Tribunal upon going through the oral and documentary evidence placed on record by both the parties has recorded a finding that the accident and resultant injuries sustained by the claimant were due to the contributory negligence on the part of the driver of the Mercedes Benz Car and the private bus in equal proportion and accordingly the Tribunal ordered the owner and the insurer of the Mercedes Benz Car to pay 50% of the compensation awarded, and the owner and the insurer of the bus to pay remaining 50% of the compensation awarded. This finding of the Tribunal has been set aside by this Court by judgment dated 28.10.2014 in M.F.A. No. 9416/2008 c/w M.F.A. No. 9417/2008 and M.F.A. No. 9415/2008, the appeals filed by the Oriental Insurance Company Ltd., insurer of the Bus involved in the accident. This Court held that the accident occurred due to rash and negligent driving of the car No. KA-01-MA-1305 by its driver insured by United India insurance company ltd. Consequently, the liability fastened on Oriental Insurance Company Ltd., has been set aside by dismissing the claim petitions as against Oriental Insurance Company Ltd., As such, the owner and insurer of the car are jointly and severally liable to pay the entire compensation awarded to the claimant.
Coming to the determination of the compensation, the Tribunal awarded the compensation under various heads as under:--
In order to find out whether the compensation awarded by the Tribunal under all the heads is just and reasonable, it is necessary to go through the oral and documentary evidence placed on record on behalf of the claimant and the insurance company. Admittedly, this claimant-Goutham Bharath is not examined. He was aged about 13 years studying in 9th standard at the time of the accident. The reason for non-examination as could be seen from the records is that he was mentally derailed on account of severe head injury suffered by him. However, his father has been examined as PW.3. Counselor of Mallya Aditi International School is examined as PW.4, Dr. Sree Hamsa, Assistant Surgeon, Bangalore Hospital as PW.6, Dr. Jamuna, Assistant Professor, NIMHANS as PW.7, Dr. Maheshwarappa, Senior Assistant, NIMHANS as PW.8 and Job Consultant as PW.9.
Ex. P7 is the Cartoon Workshop Participation Certificate of the claimant, Exs.P30 to P36 are the certificates having participated in quiz competition. Ex. P38 is the Certificate of Debate Competition, Ex. P39 is the Tabala Excellency Certificate, Ex. P40 is the Experimental Learning Certificate, Ex. P41 is the Drama workshop Certificate, Ex. P43 is the Certificate of Participation in Star Wars Cup, Exs.P44, P45, P47 and P52 are the Certificates issued by International School. Ex. P57 is the Discharge Summary issued by Bangalore Hospital and Ex. P58 is the Discharge Summary issued by NIMHANS. Exs.P67 to 70 are OPD Slips, ECG and 8 X-ray films.
Immediately after the accident, the claimant was taken to Gundlupet Government Hospital. From there he was shifted to Basappa Memorial Hospital, Mysore, where he was treated as inpatient from 05.05.2004 to 02.06.2004. From 02.06.2004 to 01.07.2004 he was treated in Bangalore Hospital. From 15.07.2004 to 01.10.2004 he was treated in NIMHANS. From the Discharge Summaries and evidence of the Doctors, it is seen that the claimant had following injuries:--
"i) Fracture upper 1/3rd of left femur with posterior dislocation of left hip joint;
ii) Fracture ramous of right mandimal;
iii) Head injury i.e., hypoxic brain damage resulting in loss of memory."
PW.6-Dr. Sree Hamsa, Assistant Surgeon Bangalore Hospital opined that the claimant suffered 30% disability of left lower limb. PW.8-Dr. Maheshwarappa, Senior Assistant Surgeon, NIMHANS, Bangalore has opined that the claimant is left with 47% permanent physical disability of the whole body as seen from Ex. P59. The evidence placed on record reveals that the claimant was a brilliant student in his studies, sports, games and other extracurricular activities. He was also a Tabala artist and musician. Because of the accidental injury particularly head injury he was compelled to discontinue his studies. He was admitted to National Institute of Open Schooling. The Tribunal by taking the permanent functional disability as 50% and the income as Rs. 10,000/- per month having regard to his intelligent and performance though he was hardly aged 13 to 14 years and a non-earning person, has awarded a total sum of Rs. 9,00,000/- towards loss of future earnings on account of disability applying the multiplier as ''15''.
During the pendency of MFA No. 8735/2008, by order dated 29.04.2015, the Director, NIMHANS, Bangalore was directed to evaluate the mental conditions and anatomy of claimant by referring the matter to the Medical Board and submit a report as expeditiously as possible. The claimant and his mother were directed to appear before the Director, NIMHANS on 02.05.2015 for medical examination. Accordingly, the Director produced the medical report in compliance of the order passed by this Court. He submitted the Medical Board proceedings dated 12.05.2015. As per the report presently the claimant has:
"a) Cognitive impairment i.e., impairment in memory, attention, concentration
b) Neurologically, he has involvement of bilateral pyramidal tract. He is independent for all activities of daily living including walking
c) He has 2 cms shortening of left lower limb as a consequence of previous polytrauma."
Since the report did not speak about percentage of cognitive disability and percentage of whole body disability, the Director NIMHANS was further directed to place the Medical Board Proceedings dated 12.05.2015 before the Board and submit report regarding percentage of functional and permanent disability to the whole body and percentage of cognitive disability within a period of ten days. By order dated 17.08.2015, the Director NIMHANS was impleaded as respondent No. 5 at the instance of the appellant/claimant.
The records would further disclose that Dr. Jamuna, Professor of Neuro Psychology NIMHANS, Bangalore was again examined before this Court on 17.04.2015 as witness No. 1 on behalf of the claimant. Through her the Medical Board Report was marked as Ex. A1, the proceedings as Ex. A2. In the cross-examination, she has admitted that she is Ph.D Holder in Clinical Psychology. She has admitted in the cross-examination that there is no mention in any of the Medical records that appellant/claimant requires rehabilitation for a long time. The Medical Board proceedings disclose that the percentage of cognitive disability is 28.33%. Thus, from the closer scrutiny of medical evidence placed on record, it is rather difficult to come to a conclusion that the appellant/claimant has suffered 100% functional disability of the whole body as submitted by the learned counsel for the appellant/claimant. But the fact remains that on account of head injury he is left with about 50% cognitive disability. He has also suffered 30% of the disability of left lower limb. If both these disabilities are put together, the appellant/claimant has suffered permanent disability of the whole body to the extent of 65% as against 50% taken by the Tribunal.
The learned counsel for the claimant-appellant has relied upon the following decisions in support of his argument.
"1. , 2015 (1) SCC 539 (Kumari Kiran v. Sajan)
2013 (2) TN MAC 146 (United India Insurance Company Ltd., v. V. Ginprakash)"
We have taken note of both the above decisions while awarding compensation under different Heads.
The appellant/claimant was hardly aged about 13 years as on the date of the accident. He was studying in 9th standard. He was a non-earning member. The Tribunal having regard to his academic career, extra curricular activities, taken his income as Rs. 10,000/- per month, the permanent disability of the whole body as 50%, multiplier as 15 and determined the compensation payable towards loss of future income at Rs. 9,00,000/-. Since, we have determined the permanent disability as 65% of the whole body, his income as Rs. 10,000/- per month, and multiplier as 15, the appellant has been awarded a sum of Rs. 11,70,000/- (Rs. 10,000/- x 12 x 65% x 15) towards ''loss of future income'' and against Rs. 9,00,000/- awarded by the Tribunal.
Having regard to gravity of injuries, the young age of the claimant, the percentage of permanent disability, we are inclined to award Rs. 2,00,000/- towards injuries, pain and sufferings as against Rs. 1,00,000/- awarded by the Tribunal, Rs. 2,50,000/- towards future medical expenses as against Rs. 1,00,000/- awarded by the Tribunal, Rs. 3,00,000/- towards loss of amenities, mental shock and agony as against Rs. 1,30,000/- awarded by the Tribunal, while confirming the amount awarded by the Tribunal under other Heads.
Thus, the claimant has been awarded compensation under various Heads as under:
Accordingly, we pass the following-
"1. M.F.A. No. 8988/2008 filed by the United Insurance Company Ltd., is dismissed.
M.F.A. No. 8735/2008 filed by the appellant -claimant is allowed-in-part. The judgment and award dated 17.04.2008 in M.V.C. No. 8287/2005 on the file of MACT and XIX Add. Judge, Small Causes Court, Bangalore, stands modified awarding a total compensation of Rs. 27,93,000/- as against Rs. 21,03,000/- awarded by the Tribunal together with 9% interest thereon from the date of petition till the date of realization from the respondent Nos. 3 and 4 the owner and insurer of the car jointly and severally.
The respondent No. 4-United India Insurance Company Ltd., is directed to deposit the entire compensation awarded to the claimant with 9% interest thereon from the petition till the date of realization within a period of one month from the date of receipt of copy of the judgment.
In the event of deposit, the entire compensation shall be released to the appellant/claimant on attaining the age of majority if an application for discharge of the next friend of the claimant is filed."
Office to draw the award accordingly.