Sahana K.S. vs Rangaswamy and Others

B. Veerappa, J.—Though the matter is listed for admission, with the consent of the learned Counsel for the parties, the same is taken for final disposal.

The appellant/claimant, who is a minor represented by her natural guardian - father has filed the above appeal for enhancement of compensation against the judgment and decree dated 3.8.2012 passed in MVC No. 20/2007 by the Senior Civil Judge and JMFC, MACT., K.R. Nagar,

The brief facts of the case are:

"It is the case of the claimant that on 3.3.2010 at about 5.00 p.m. at Vinayaka Extension in K.R. Nagar Town when the minor appellant was in front of her house, the first respondent being the driver of the police jeep bearing No. KA-55-G-203 drove the same in a rash and negligent manner and dashed against her, as a result of which she has sustained grievous injuries on her left leg and she was taken to K.R. Nagar Government Hospital for treatment and was then shifted to Vikram Jeev Hospital, Mysore where she was treated as inpatient for 2 days and a portion of her left foot including great toe had been amputated. She was studying in 3rd standard, she was not able to attend the school and the extra curricular activities were also stopped due to the permanent disability and also spent an amount of Rs. 1,00,000/- for treatment and hence, filed a claim petition before the Tribunal claiming compensation."

Before the Tribunal, the 1st respondent/driver of the jeep filed objections denying the case of the claimant and the manner in which the accident occurred and on that day, he had parked the jeep near the house of the claimant watching for accused, on information, he moved the jeep to chase the accused and during that time, the back wheel of the jeep ran over the left toe of the claimant, who was standing there without notice. Then he took her to the hospital for treatment and as such, there is no fault on his part and therefore, prayed for dismissal of the claim petition.

The 3rd respondent filed objections adopting the objections filed by the 2nd respondent and denied the manner in which the accident occurred and contended that as on the date of the accident, the policy was in force and also denied the that accident occurred due to rash and negligent act of the 1st respondent in driving the vehicle, etc., and prayed for dismissal of the claim petition.

Based on the pleadings, the Tribunal framed the following issues:

"i) Whether the petitioner proves that on 3.3.2010 at 5.00 p.m. at Vinayaka Extension of K.R. Nagar, in front of the house of the petitioner, the first respondent being the driver of police jeep bearing No. KA-55-G-203, drove the same in a rash and negligent manner and dashed against the left leg of his daughter and caused grievous injury to the toe of her left leg and also caused injuries all over the body of his daughter?

ii) Whether the minor petitioner is entitled for compensation? If so, to what extent and from whom?

iii) What award?"

In order to establish the claim the of minor child, her father is examined as P.W. 1 and the doctor as P.W.2 and the documents Ex. P.1 to P. 17 were marked. The 1st respondent/driver was examined as R.W.1 and no document was marked. Respondent Nos. 2 and 3 have neither adduced any evidence nor produced any documents.

On the basis of the entire material on record, the Tribunal awarded a compensation of Rs. 1,00,943/- with interest at 6% p.a. from the date of petition till realisation against which the present appeal is preferred for enhancement.

I have heard the learned Counsel for the parties to the lis.

Sri T.I. Abdulla, learned Counsel for the appellant has contended that the compensation awarded by Tribunal is disproportionate to the injuries suffered by the claimant and that the Tribunal failed to notice that the accident has occurred to a minor school going child who had involved in extra-curricular activities like sports, dance etc., and due to the disability sustained in the accident, she will have to suffer throughout her life by limping as per Ex. P. 15 which discloses the permanent disability and therefore, the amount of compensation awarded under various heads are on the lower side and therefore, he sought for enhancement.

Sri H.K. Kenchegowda, learned Counsel for respondent Nos. 1 and Sri R.B. Sathyanarayan Singh, learned HCGP., for respondent Nos. 2 and 3 sought to justify the impugned judgment and award passed by the Tribunal.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is an admitted fact that the accident occurred due to the rash and negligence on the part of the driver of the jeep bearing registration No. KA-55-G-203 which has resulted in minor girl sustaining grievous injuries and a portion of her left foot including great toe has been amputated and she is also having permanent disability in respect of the great toe. The Tribunal considering the entire material on record has stated that the minor claimant aged about 9 years who was going to school has sustained injury in the accident i.e., crush injury of the left foot with total amputation to the great toe as per the wound certificate Ex. P.6 and the said injury is grievous in nature. The doctor - P.W.2 who examined the minor girl has stated that the minor claimant has sustained injury and on account of the said injury she has total permanent disability to an extent of 12% and the suggestion for the disability shown in Ex. P. 15 does not affect the daily activities has been denied by him. He has also denied the suggestion that the minor claimant is able to do work as she was doing before.

Ex. P. 15 the Disability Certificate reads as under:

"DISABILITY CERTIFICATE

Ms. Sahana, MRD No. 1210279, aged about 9 years, was admitted to Vikram Hospital on 3rd March 2010 with alleged RTA and with the following diagnosis:

� Crush injury left foot with near total amputation of the great toe.

Taking into account of the injury, clinical findings and my experience of 13 years, I am of the view that in relation to the left lower limb she has the following disabilities:

Total 12 percent permanent disability (Twelve percent)

This assessment is based on guidelines issued by the Ministry of Social Justice and Empowerment, New Delhi, MDS (1) 143: 2002-03.

The disability is permanent."

The accident has occurred to a female minor child aged about 9 years who will have to suffer through out her life not only affecting the marriage prospects but also her active participation either in sports or day to day activities and it will be a scar on her body through out her life causing mental agony to her and her parents and the documents and evidence clearly indicate that the accident has occurred due to the rash and negligent driving on the part of the driver of the jeep. She has also lost the amenities, pleasure of life and her inability to attend the social functions in future and in view of the accident, great toe of the left leg has been amputated as a result of which she has been rendered a cripple, some times she requires the help of crutches even for walking. The amputation of the great toe of left leg has rendered her unfit for any kind of manual work, economic and cultural activities, etc and there is disfigurement on her body because of which she will have to suffer throughout her life and it will be a set back to her for involvement of her social activities and her marriage prospects and she will be hesitating to involve any social functions and in view of the accident, there will be permanent discomfort throughout her life, mental agony and the amputation is dangerous to a dangerous deceased for which she will have to suffer throughout her life, till her death. Under these circumstances, the Hon''ble Supreme Court in the case of Rekha Jain Vs. National Insurance Company Ltd. and Others, while considering the disability of deformity of a film and TV artist, aged about 24 years has awarded a sum of Rs. 9,00,000/- for disfigurement of the face and other bodily injuries and a total compensation of Rs. 79,65,726/- along with interest at 6% p.a. from the date of application till the date of deposit has been ordered which reads as under:

"60. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, TV. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs. 5,00,000/-. 50% of which is Rs. 2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr., which amounts to Rs. 42,50,000/-. Hence, we award Rs. 42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs. 2,00,000/- which is enhanced to Rs. 42,50,000/- under the said head.

The Tribunal awarded compensation of Rs. 2,00,000/- for the loss of amenities, pleasure of life and her inability to attend social functions in future, which is inadequate, therefore, it should be enhanced to Rs. 10,00,000/-.

Towards the pain and suffering, the Tribunal awarded Rs. 1,00,000/-. It should be proper to award another Rs. 9,00,000/- as she has undergone ordeal for the period of 4 years continuously taking treatment in Odisha and Kerala States and the damages for mental and physical shock, pain and suffering, disfigurement of the face and other bodily injuries she already suffered continuously or likely to suffer.

The Tribunal awarded Rs. 17,15,726/- towards the medical expenses based on the legal evidence and, therefore we affirm the compensation awarded by the Tribunal.

Thus, the total compensation amounting to Rs. 79,65,726/- which is rounded of to Rs. 79,66,000/- along with interest at the rate of 6% per annum is awarded from the date of application till the date of deposit of the amount. The aforesaid enhancement of compensation under different heads referred to supra, in our considered view would be just and reasonable compensation in this case."

Under the provisions of the Clause (6) of Second Schedule to Section 163A of the Motor Vehicles Act, 1988 the notional income for compensation to those who had no income prior to accident states: who had fatal and disability in non-fatal accidents: (a) Non-earning persons - the notional income for compensation should be taken as Rs. 15,000/- p.a.

Admittedly in the present case, the claimant is a minor girl aged 9 years and she would be a non earning person. Therefore, the notional income should be taken as Rs. 15,000/- per annum. Taking into consideration, the facts and circumstances of the present case especially the minor girl whose a portion of her left foot including great toe has been amputated for which she has to suffer throughout her life and marriage prospects is also reduced and therefore, in the facts and circumstances of the present case, another sum of Rs. 5,000/- has to be increased in the notional income in view of the dictum of the Apex Court in the case of Sapna Vs. United India Insurance Co. Ltd. and Another, wherein it has held as under:

"10. The principle that is to be applied in a case of this nature that the amount of compensation should be just and fair is not in dispute. What would, however, be just and fair amount of compensation is required to be determined having regard to the facts and circumstances of the case involved. In given cases, the courts may deviate from the structured formula. In terms of the Second Schedule, where the deceased or injured were not having any income, the statute presumes an income of or about Rs. 15,000 per month If having regard to the age of the appellant, the multiplier of 15 is applied, a sum of Rs. 2,25,000 would be payable. Besides the said sum, not only some amount of compensation should be awarded under the heading of mental agony but also some provision should be made for future treatment.

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What would be the genuine and reasonable expenditure likely to be incurred by the appellant towards her future treatment is not borne out from the records. It would require serious consideration for the purpose of award of damages. When a person becomes completely incapable to do any work and virtually has no enjoyment for life, the same form relevant factors and, thus, requires consideration for the purpose of determining a fair and reasonable amount of compensation."

Taking into consideration the date of the accident i.e., on 3.3.2010 and the enactment so made in view of the insertion of the provisions of Section 163A by Act 54 of 1994 with effect from 14.11.1994 and in the special circumstances of the present case and in view of the declaration made by the Apex Court stated above, it would be appropriate to take the notional income of the claimant at Rs. 20,000/- p.a. (Rs. 20,000 x 15 x 10%) and the disability would come to Rs. 30,000/-.

Taking into consideration the evidence of P.Ws. 1 and 2 and R.W.1 and Exs.P.1 to 17, I am of the considered opinion, that the compensation awarded by the Tribunal is inadequate and the same requires further enhancement.

In view of the above, on re-appreciating the entire material on record, I am of the considered opinion that the impugned judgment and award passed by the Tribunal awarding compensation of Rs. 1,00,943/- is too meager and requires enhancement. Accordingly, the compensation awarded by the Tribunal is reassessed as follows under different heads:

In all the claimant would be entitled to total compensation comes to Rs. 2,68,943/- and the enhancement comes to Rs. 1,68,000/- with interest at 7% p.a. from the date of petition till realization. Accordingly, the impugned judgment and award passed by the Tribunal is modified.

Out of the enhanced compensation of Rs. 1,68,000/-, a sum of Rs. 1 lakhs with proportionate interest shall be invested in fixed deposit in any Nationalised/Scheduled Bank in the name of the minor child represented by her natural guardian - father till she attains majority with liberty to her father to withdraw the periodical interest as and when it accrues for the educational purpose of the minor child and the remaining sum of Rs. 68,000/- with proportionate interest shall be disbursed to the minor girl represented by her natural guardian-father.

Respondent Nos. 2 and 3 are jointly and severally liable to deposit the enhanced compensation with interest at 7% p.a. from the date of petition till realization within a period of 10 weeks from the date of receipt of a copy of this judgment.

Accordingly, the appeal is allowed in part in terms of the above.

Office to draw the award accordingly.