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2010 DIGILAW 1107 (KAR)

Kum. Deepti Jamadagni D/o. Late Subbakrishna v. Oriental Insurance Co. Ltd.

2010-10-25

H.S.KEMPANNA, N.K.PATIL

body2010
JUDGMENT N.K. Patil, J.— This appeal by the Appellant is arising out of the impugned judgment and award dated 23/12/2004 passed in MVC No. 309/2000 on the file of the IX Additional Judge. Court of Small Causes and Member, Motor Accident Claims Tribunal-VII, Bangalore (SCCH-7), (hereinafter referred to as 'Tribunal' for short). 2. By its judgment and award, the Tribunal has awarded a sum of Rs. 1,55,000/- with interest at 6% p.a., from the date of petition till the date of payment as against the claim made by the Appellant for a sum of Rs. Rs. 75,00,000/-, on account of the injuries sustained by her in the road traffic accident. 3. In brief, the facts of the case are: The Appellant claims to be aged about 13 years, studying in 8th standard, CBSC syllabus and intending to take up Modeling in future. She was hale and healthy prior to the accident. That at about 6.30 a.m., on 16.10.1999 the Appellant along with others was proceedings in Tata Sumo bearing No. MP.07.H.6759 from Gwalior to Jaipur to see the Historical places and when the vehicle reached near Bhojpur village, NH 11, at that time, the driver of the said vehicle drove the same with high speed in a rash and negligent manner, lost control over it, due to which, the vehicle turtle and rolled on the road to several yards and then fell into the road side ditch. As a result of which, Appellant sustained fracture of avulsion, fracture of frontal bone, third nerve palsy, abdomen injury, head injury, fracture of ankle, fracture of multiple ribs, fracture of right clavicle, upper lip deep cuts, chipping of front incisors and other injuries all over the body. Immediately she was taken to hospital at Jaipur, wherein she was treated as an inpatient for 17 days, including 08 days in ICU and spent reasonable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the Appellant in the said accident, she has suffered permanent disability at 40% to the whole body as assessed by an Orthopedic Ian and at 70% loss of vision from both eyes as assessed by an Ophthalmologist and they are permanent in nature. Therefore, Appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, through her natural guardian, claiming compensation against the Respondents. Therefore, Appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, through her natural guardian, claiming compensation against the Respondents. The said claim petition had come up for consideration before the Tribunal. The Tribunal after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 1,55,000/- as compensation under different heads with interest at 6% p.a., from the date of petition till payment. Being aggrieved by the quantum of compensation awarded by the Tribunal, the Appellant has presented this appeal, seeking enhancement of compensation. 4. We have heard the learned Counsel appearing for Appellant and learned Counsel appearing for Insurer. 5. The learned Counsel for the Appellant, at the outset submitted that, the Tribunal has erred in not awarding reasonable compensation under all the heads and therefore, it needs to be enhanced by modifying the impugned judgment and award passed by the Tribunal. 6. As against this, learned Counsel for the Insurer, inter-alia. supported the judgment and award passed by the Tribunal. Further, he submitted that, the Tribunal after considering the oral and documentary evidence available on record, has awarded the compensation under all the heads, the same is just and reasonable and therefore, it does not call for interference. 7. After careful consideration of the submissions made by learned Counsel for both the parties, after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is: Whether the compensation awarded by the Tribunal is just and reasonable? 8. The occurrence of the accident and the injuries sustained by the Appellant in the said accident are not in dispute. It is also not in dispute that the Appellant was aged about 13 years, studying in 8th Standard CBSC syllabus and intending to become a Model. But unfortunately, she has sustained severe injuries in the accident. The Tribunal after assessing oral and documentary evidence available on file and also taking into consideration the nature of injuries sustained, the nature and duration of the treatment taken by the Appellant, has awarded a sum of Rs. 40,000/- towards injury, pain and sufferings, Rs. 15,000/- towards medical expenses, conveyance, nourishing food and attendant charges, Rs. 10,000/- towards loss of education during the treatment period, Rs. 40,000/- towards injury, pain and sufferings, Rs. 15,000/- towards medical expenses, conveyance, nourishing food and attendant charges, Rs. 10,000/- towards loss of education during the treatment period, Rs. 25,000/- towards loss of marriage prospects, Rs. 15,000/- towards loss of amenities and Rs. 50,000/- towards disability. The said compensation awarded by the Tribunal is inadequate and it requires to be enhanced. Further, the Tribunal has erred in not awarding any compensation towards loss of future income and therefore, it requires to be awarded. It is not in dispute that, on account of the injuries sustained by the Appellant, she has taken treatment as inpatient for 17 days, thereafter, follow up treatment, during the said period she might have undergone pain and agony, spent considerable amount towards medical expenses, conveyance and other incidental charges and lost her education for one academic year. In view of the injuries sustained, she has suffered permanent disability at 40% to the whole body as assessed by an Orthopedic Ian and at 70% of loss of vision from both eyes as assessed by an Ophthalmologist and they are permanent in nature, there is permanent surgical hasty scar on stomach, disfiguration of face and it has lost symmetry and she has to suffer this disability through out her life and it would affect her marriage prospects. Having regard to the nature of injuries sustained, percentage of disability suffered by the Appellant, we assess the disability at 50% to the whole body. Since the Appellant was a student, we assess her notional income at Rs. 15,000/- per annum and the appropriate multiplier applicable is 15'. But all these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation under these heads. Taking all these factors into consideration, we award a sum of Rs. 1,20,000/- towards injury, pain and sufferings, Rs. 20,000/- towards medical expenses, conveyance, nourishing food and attendant charges, Rs. 20,000/- towards loss of education for one academic year, Rs. 1,12,500/- (15,000/- x 15 x 50/100) towards loss of future income, Rs. 1,75,000/- towards loss of amenities of life, discomforts and unhappiness, Rs. 50,000/- towards loss of marriage prospects. 9. For the foregoing reasons, the impugned judgment and award passed by the Tribunal is liable to be modified. The total compensation payable comes to Rs. 4,97,500/- and the break- up is as follows: Towards pain and sufferings Rs. 1,75,000/- towards loss of amenities of life, discomforts and unhappiness, Rs. 50,000/- towards loss of marriage prospects. 9. For the foregoing reasons, the impugned judgment and award passed by the Tribunal is liable to be modified. The total compensation payable comes to Rs. 4,97,500/- and the break- up is as follows: Towards pain and sufferings Rs. 1,20,000/- Towards medical expenses, conveyance, nourishing food and attendant charges Rs. 20,000/- Towards loss of education for one academic year Rs. 20,000/- Towards loss of amenities of life Rs. 1,75,000/- Towards loss of future income Rs. 1,12,500/- Towards loss of marriage prospects Rs. 50,000/- Total Rs. 4,97,500/- 10. Accordingly, the appeal is allowed in part and the impugned judgment and award passed by the Tribunal in MVC No. 309/2000 stands modified, awarding compensation of Rs. 4,97,500/- instead of Rs. 1,55,000/-. The enhanced compensation comes to Rs. 3,42,500/- with interest at 6% p.a., from the date of petition till the date of realisation. 11. The Insurer is directed to deposit the enhanced compensation with interest, within four weeks from the date of receipt of a copy of this judgment and award. 12. Out of the enhanced compensation, 50% with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the Appellant for a period of five years and renewable for another five years, with liberty to her to withdraw the interest accrued on it, periodically. 13. The remaining 50% with proportionate interest shall be released in favour of the Appellant, immediately, on deposit by the Insurer. 14. Draw the award, accordingly.