Smt. Mala Parkal vs Shaik Haider and Another

B.K. Somasekhara, J.—The appellant is the claimant in O.P. No. 230 of 1989 under Sec. 110-A of the Motor Vehicles Act, 1939 (for short ''the Act'') in a personal injury claim case claiming compensation at Rs. 1,00,000/- which was resisted by the 1st respondent, the owner of the lorry APT 9987, and the 2nd respondent-the insurer and after an enquiry, the claim conceded to the extent of Rs. 61,600/- and aggrieved by that an inadequate, this appeal is filed.

It is found by the Tribunal that the claimant, a lady aged 32 years at the relevant time, a teacher by profession, was involved in a motor vehicle accident while she was travelling as a pillion rider on a scooter, which was hit by lorry AP 9987 from behind the scooter and that it was due to rash and negligent driving of the lorry by the driver. It was also found that the claimant had sustained serious injuries leaving a disability at 45 per cent, lost the marital life and opportunity of pregnancy and was unable to perform her duties temporarily but continuing as a teacher, and therefore, the Tribunal awarded the compensation as follows:-

Loss of salary : Rs. 2,150-00 Transportation charges : Rs. 500-00 Extra nourishment : Rs. 1,000-00 Loss of clothing : Rs. 250-00 Medical expenses : Rs. 8,000-00 Medical attendant charges : Rs. 2,200-00 Pain and suffering : Rs. 7,500-00 Permanent disability : Rs. 40,000-00 ------------- Total : Rs. 61,600-00 -------------

It is contended on behalf of the claimant that with the evidence on record regarding the injuries suffered by the claimant leading to disability as above and the medical and other expenses and the loss of income, there was no reason to reduce the compensation so claimed from Rs. 1,00,000/- to Rs. 61,600/-. On behalf of the 2nd respondent-insurer it is contended that judging the award in any manner the amount so awarded cannot be said to be inadequate and at any rate it cannot be termed as unjust.

The items of compensation awarded by the Tribunal may not be scientific or proper. However, that can be tested with the materials on record with reference to the distinct and specific items of compensation which can be awarded in a personal injury claim case viz.,

(1) Shock, pain and loss of amenities of life;

(2) Injury and disability, etc.;

(3) Loss of prospects of marriage including the opportunity of pregnancy;

(4) Loss of appointment or job;

(5) Medical and incidental expenses; -

(6) Loss of present and future income; and

(7) Any other loss depending upon the facts and circumstances of each case.

The positive medical evidence in the case through the testimony of P.W.2 and the documents disclosed that the claimant sustained the following injuries:-

Fracture of pelvis with displacement of inferior pubic ramur and multiple bruises on the left arm, right palm, left upper arm, shoulder and left cheek and also on left leg and ankle.

There was a permanent disability upto 45 degrees,

There was malunion of pelvic bone depriving her of marital life for about six months on account of the above disability.

The period of treatment extended upto more than four months viz., till April, 1989, whereas the date of accident is 31-1-1989. It was also testified by P.W.2 that the appellant was not able to move about independently and she requires assistance of an attendant. Therefore, for shock, pain and loss of amenities of life in such a case, it cannot be less than Rs. 10,000/-.

For the injury of the pelvis leading to such a disability, the comparable cases have awarded between Rs. 15,000/- to Rs. 1,00,000/- by way of general damages depending upon the facts and circumstances of each case (Seth Pribhidas v. B.N. Renuka 1983 ACJ 483, U.P.S.R.T.C. v. Usha Rani Chopra 1983 ACJ 692. and Pepsu Road Transport Corporation v. Satinder Sharma 1984 ACJ 316. Even for a fracture of any major bone with permanent disability as such, the minimum compensation would range between Rs. 20,000/- and more depending upon the nature of the accident and the disability. Since the comparable cases dealt with the accidents of pre-1980s and post 1970s, the amount should be atleast doubled and therefore, in this case for injury and the permanent disability as above, the compensation should be Rs. 40,000/-.

Positively it was established that the medical expenses were Rs. 8,000/- and to add incidental expenses, it ought to have been Rs. 10,000/-.

The deprivation of the opportunity to have pregnancy of a married lady like the claimant should be one of the major items of compensation. Procreation was said to be the main object of the marriage institution, which till recently was the sacrament but of late inclined towards contract. In a literary emotional style, it is said that marriage without child will not complete the life of a lady and to fructify into a true womanhood. Bearing that in mind, the amount to be awarded for such deprivation should be at least Rs. 10,000/-, and in this case it should be Rs. 15,000/-.

The Tribunal has rightly held that the claimant/appellant has not lost the job as such. Even assuming that she lost it, she should mitigate it by seeking any other employment which is permissible to her in the circumstances. A teacher like the claimant can continue the profession by sitting or moving with some assistance, and there is nothing to indicate in the medical evidence that the appellant cannot perform any function so as to engage herself in some avocation. The loss of salary for four moths at Rs. 4,000/- is justifiably drawn. But with the disability at 45 per cent, the functional and performable avocative participation of the claimant to the satisfaction of the master or her self-satisfaction is so much diminished, and in the absence of any positive material to assess such a thing, as a whole the loss of salary can be fixed at Rs. 10,000/- including Rs. 4,000/- above. As a whole, the total compensation in this case at any rate cannot be Rs. 1,00,000/-. Since the whole matter has gone on mere approximations for want of definite materials, the amount should be scaled down to Rs. 80,000/- and since the difference between the amount awarded and one assessed as above exceeds Rs. 10,000/-, the award requires to be modified to that extent.

The claimant/appellant shall be entitled to recover Rs. 80,000/- with costs throughout and interest at the rate of 12 per cent per annum from the date of petition till the date of payment, the liability of the respondents being joint and several. This shall be subject to depositing the amount as per the directions of the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, . If any amount is already paid, that shall be deducted. The CMA is disposed of as above.