Kumari Kusuma v. Mratyunjay Appayya Salimath R/o Anantpur
2020-09-25
P.S.DINESH KUMAR, S.VISHWAJITH SHETTY
body2020
DigiLaw.ai
JUDGMENT S. Vishwajith Shetty, J. - This appeal is filed by the injured minor claimant through her father and natural guardian seeking enhancement of compensation awarded by the Prl. Senior Civil Judge and Addl. M.A.C.T., Athani, vide judgment and award dated 28.11.2013 in M.V.C.No.93/2012. 2. We have heard learned counsel for appellant and learned counsel appearing for the insurer. 3. Brief facts of the case are, on 15.12.2011, claimant and her mother Shobha were walking on the left side of Athani-Anathapura road on their way to purchase grocery items. When they were so proceeding, a Tavera Car bearing registration No.KA-23/M-9534 driven by its driver in a rash and negligent manner dashed against the claimant causing grievous injuries to her. Immediately she was shifted to Government Hospital, Athani and thereafterwards on advice, she was taken to Chandrapattan's Hospital at Miraj for further treatment. In the accident, claimant had suffered crush injury on lower limb and foot bones were crushed. Though an attempt was made in Chandrapattan's Hospital to save claimant's leg, having found it impossible, her left leg was amputed below the knee. Claimant was aged about 5 years at the time of accident. 4. Claimant has filed the instant petition claiming compensation of Rs.20,00,000/- with costs and interest. The Tribunal, in all, has awarded a compensation of Rs.3,45,000/- with interest at 6% p.a. from the date of petition till realization and directed the second respondent insurer to deposit the award amount. 5. Learned counsel appearing for the claimant submitted that the claimant who is a girl aged about 5 years has lost her left leg in the accident which has seriously affected her childhood, academic career and future prospects. He relied upon a judgment of the Hon'ble Apex Court in V. Mekala vs. M. Malathi and another, (2014) ACJ 1441 and contended that the Tribunal ought to have considered the notional income at Rs.10,000/- p.m. and 50% of the income should have been added to the income towards future prospects. He further submitted that the Tribunal has erred in awarding only sum of Rs.1,50,000/- towards loss of future earnings. He also submitted that the compensation awarded by the Tribunal on various other heads is also on the lower side and seeks enhancement of the same. 6.
He further submitted that the Tribunal has erred in awarding only sum of Rs.1,50,000/- towards loss of future earnings. He also submitted that the compensation awarded by the Tribunal on various other heads is also on the lower side and seeks enhancement of the same. 6. On the other hand, learned counsel for the insurer has argued in support of the impugned judgment and award and prayed to dismiss the appeal. 7. We have carefully considered the rival contentions urged by the parties and also perused the material evidence available on record. 8. Admittedly, claimant who is a minor girl aged about 5 years, has lost her left leg in the accident in question. In the case of V. Mekala (supra), claimant therein was aged about 16 years and had secured first rank in 10th standard and both her legs were rendered dysfunctional and the Hon'ble Apex Court considered the notional income of the claimant in the said case at Rs.10,000/- p.m. However, in the case on hand, claimant is aged about 5 years and Ex.P-12 shows that she was studying in Anganawadi. Therefore, the notional income in the present case cannot be assessed on the basis of V. Mekala's case. 9. In the case of Kishan Gopal and another Vs. Lala and others, (2014) 1 SCC 244 , the Honb'ble Apex Court has taken the notional income of the claimant at Rs.30,000/- p.a. In the said case, claimant was a boy aged 10 years. Though the claimant in the present case is aged 5 years, considering the passage of time and cost of living, we deem it just and appropriate to consider the notional income of the claimant at Rs.30,000/- p.a. and 40% of the said income is added towards future prospects following the judgment of Hon'ble Apex Court in Erudhaya Priya Vs. State Express Transport Corporation Ltd. (Civil Appeal Nos.2811-2812/2020 dated 27.07.2020) . As per the second schedule, proper multiplier applicable would be 15. The doctor PW-3 who has treated the claimant had issued disability certificate and assessed the permanent physical disability suffered by the claimant at 50%. Therefore, towards loss of future earning, claimant is entitled for a sum of Rs.3,15,000/-. 10. For pain and suffering undergone by the minor girl, we deem it proper to award a sum of Rs.1,50,000/-. 11.
The doctor PW-3 who has treated the claimant had issued disability certificate and assessed the permanent physical disability suffered by the claimant at 50%. Therefore, towards loss of future earning, claimant is entitled for a sum of Rs.3,15,000/-. 10. For pain and suffering undergone by the minor girl, we deem it proper to award a sum of Rs.1,50,000/-. 11. The total medical bills submitted by the claimant is available at Ex.P-13 and the same amounts to Rs.62,150/-. The said amount is awarded towards medical expenses. 12. Claimant has lost her left leg below the knee at a very tender age which would definitely affect her childhood. She would not be in a position to walk, play and enjoy like any other children. Therefore, towards loss of amenities, we award a sum of Rs.1,50,000/-. 13. The marriage prospects of the claimant who is a girl would be definitely diminished. Therefore, under the said head, we deem it appropriate to award a sum of Rs.2,00,000/- to the claimant. 14. The claimant who has lost her left leg below the knee, is required to use an artificial limb. Ex.P-16 is a letter issued by the proprietor of Endolite India Ltd., which goes to show that the cost of artificial limb is Rs.34,700/-. The representative of the said company is examined as PW-2. The doctor has also stated that artificial limb is required to be used by the claimant and the fact remains that the claimant is required to change the artificial limb periodically as she grows. Therefore, under the said head, we award a sum of Rs.1,50,000/- to the claimant. 15. Claimant was admitted in the hospital as inpatient for a period of 53 days. Therefore, a sum of Rs.30,000/- is awarded to the claimant towards incidental expenses and another sum of Rs.30,000/- is awarded towards loss of income of the parents during treatment period. On re-assessment, the claimant would be entitled for compensation as follows: Sl. No. Heads Amount 1. Towards pain and suffering Rs.1,50,000/- 2. Towards medical bills Rs.62,150/- 3. Towards loss of future earning capacity Rs.3,15,000/- 4. Towards loss of amenities Rs.1,50,000/- 5. Towards loss of marriage prospects Rs.2,00,000/- 6. Towards artificial limb Rs.1,50,000/- 7. Towards incidental expenses Rs.30,000/- 8. Towards loss of income of parents Rs.30,000/- Total Rs.10,87,150/- Less: compensation awarded by the Tribunal Rs.3,45,000/- Enhanced compensation Rs.7,42,150/- 16.
Towards medical bills Rs.62,150/- 3. Towards loss of future earning capacity Rs.3,15,000/- 4. Towards loss of amenities Rs.1,50,000/- 5. Towards loss of marriage prospects Rs.2,00,000/- 6. Towards artificial limb Rs.1,50,000/- 7. Towards incidental expenses Rs.30,000/- 8. Towards loss of income of parents Rs.30,000/- Total Rs.10,87,150/- Less: compensation awarded by the Tribunal Rs.3,45,000/- Enhanced compensation Rs.7,42,150/- 16. Hence, the following: ORDER (i) The appeal is allowed in part holding that the claimant is entitled for enhanced compensation of Rs.7,42,150/-; (ii) The insurer shall deposit the enhanced compensation amount with interest at 6% p.a. from the date of petition till the date of deposit, within two months from the date of receipt of a copy of this judgment. (iii) Terms with regard to deposit, disbursement etc. would be as per the order of the Tribunal. No costs.