BVLNC, J MACMA No.47 of 2016
Page 1 of 15 dt.13.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.47 OF 2016
JUDGMENT:
This appeal is preferred by the claimant, challenging the award dated 29.02.2012 passed in M.V.O.P.No.109 of 2010, on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Madanapalle, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs.2,49,500/- with interest @ 9% p.a., from the date of petition, till the date of realisation to the minor petitioner, for the injuries sustained by her in the motor vehicle accident.
2. For the sake of convenience, the parties are arrayed as referred to in the lower Court.
3. As seen from the record, originally the petitioner filed an application U/s 166 of Motor Vehicles Act, 1988 (for brevity "the Act") claiming compensation of Rs.4,00,000/- on account of the injuries sustained by the petitioner in a motor vehicle accident occurred on 08.01.2009 while the petitioner along with her grandmother was going to her house after school hours, by the offending bus bearing No.KA 20A 4578 belonging to the 1st respondent, which met with an accident at Kokanti cross on Kadiri - Madanapalle main road, under the BVLNC, J MACMA No.47 of 2016 Page 2 of 15 dt.13.10.2022 jurisdiction of Tanakallu Police Station. The father of the petitioner spent nearly a sum of Rs.1,00,000/- towards medical treatment.
4. The facts of the case show that on 08.01.2009 at about 04.00 p.m., while the petitioner along with her grandmother was proceeding to her house after school hours, on the left side of the road, at that time the offending Bus bearing No.KA 20A 4578, which was coming from Kadiri, driven by its driver, came in a rash and negligent manner and hit the petitioner, due to which the petitioner fell down and sustained injuries to her legs, head and spinal cord. Immediately after the accident, she was taken to Area Hospital, Madanapalle, and from there she was shifted to C.M.C. Hospital, Vellore, for better treatment and she was treated there as inpatient and inspite of best treatment provided to her, she developed paralysis due to head injury. The petitioner was hale and healthy prior to the date of accident and she was studying L.K.G. in Little Flower English Medium School, Kokanti cross. Tanakallu Police registered a case against the driver of the offending bus, who was under the employment of 1 st respondent at the time of accident. Hence, the 1st respondent is vicariously liable and the 2nd respondent being the insurer of the offending bus is contractually liable to compensate the petitioner to a tune of Rs.4,00,000/-.
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5. Before the Tribunal, the 2nd respondent/Insurance Company, filed written statement resisting while traversing the material averments with regard to manner of accident, rash and negligence on the part of the driver of the crime bus, nature of injuries, period of treatment, medical expenditure, alleged permanent disability and liability to pay compensation and contended that at present the petitioner is attending all her duties normally, the injuries sustained by the petitioner did not constitute any partial or permanent disability. The petitioner furnished incorrect particulars to have wrongful gain. The accident was occurred due to the act of the petitioner and her grandmother. The 1st respondent violated the terms and conditions of the policy in handing over the offending bus to its driver and the liability of the 2nd respondent is strictly governed by the terms and conditions stipulated in the policy. The offending bus was plying without having valid route permit at the time of accident, as such, insured violated the terms and conditions of the policy and the 2nd respondent is not liable to pay any compensation to the petitioner. The 1st respondent/driver remained exparte.
6. On the strength of the pleadings of both parties, the Tribunal framed the following issues:
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1. Whether the accident occurred due to rash and negligent driving of the driver of bus bearing No.KA 20A 4578 involved resulting in the injuries to the petitioner by name Y.Renuka?
2. Whether the petitioner is entitled for compensation? If so, by whom and to what amount?
3. To what relief?
7. To substantiate her claim, the petitioner examined P.Ws-1 to 3 and got marked Exs.A1 to A5 and Ex.X1. On behalf of the 2nd respondent, R.W-1 was examined and Ex.B1 was marked.
8. The Tribunal, taking into consideration the evidence of P.Ws.1 to 3, coupled with Exs.A1 to A5 and Ex.X1, held that the accident took place due to rash and negligent driving of the driver of the offending bus, and awarded a compensation of Rs.2,49,500/- with interest @ 9% p.a., from the date of petition till the date of realisation.
9. The plea of the 2nd respondent/Insurance Company is that the petitioner and her grandmother were responsible for the cause of accident, the insured violated the terms and conditions of policy in handing over the offending vehicle to the unqualified driver and that the bus was plying without having any valid route permit and that the BVLNC, J MACMA No.47 of 2016 Page 5 of 15 dt.13.10.2022 alleged injuries sustained by the petitioner did not cause any partial or permanent disability.
10. The Tribunal considered the evidence on record, and based on the contentions of both parties, held that the accident occurred due to the rash and negligent driving of the 1st respondent driver and that the petitioner sustained injuries due to the said accident.
11. The contention of the Appellant is that the order of the Tribunal is erroneous, contrary to law and facts and the same is liable to be modified so far as rejecting the claim and that the Tribunal failed to consider that multiplication is not properly applied while passing the order.
12. The case of the Appellant is that on 08.01.2009 at about 04.00 p.m., the Appellant along with her grandmother were proceeding on left side of the road, in order to go to house after school hours, and the came from Kadiri side in a rash and negligent manner and dashed the Appellant, and therefore, the Appellant fell down and sustained injuries on the head, legs and spinal card and Appellant was shifted to Area Hospital, Madanapalle and thereafter for better management, shifted to C.M.C.Hospital, Vellore, and her father spent a sum of Rs.1,00,000/- for treatment. Inspite of best treatment, the Appellant BVLNC, J MACMA No.47 of 2016 Page 6 of 15 dt.13.10.2022 developed paralysis due to head injury. On the day of accident, the Appellant was studying L.K.G. and police registered a case against the driver of the bus for rash and negligent driving and the 2nd respondent is the insurer of the bus. The Appellant claimed Rs.4,00,000/- towards special damages and for general damages.
13. The Tribunal upon consideration of the evidence on record, held that the accident occurred due to rash and negligent driving of the bus driver. The Tribunal considering the policy and other record available in the case, held that the bus was insured with the 2nd respondent and policy was subsisting by the date of accident. The Tribunal further held that the 2nd respondent/Insurance Company is jointly and severally liable to pay compensation to the petitioner.
14. When coming to the quantum of compensation, the Tribunal upon considering the evidence of P.W-1, who was the father of the Appellant, P.W-2 and P.W-3 doctors and Ex.A-2, Ex.A-4 and Ex.A-5 produced for the Appellant, found that the Appellant sustained severe head injury and multiple injuries and assessed disability suffered by the Appellant and awarded a sum of Rs.1,00,000/- towards medical expenditure incurred for the treatment of the Appellant. The Tribunal awarded Rs.20,0000/- each for the three grievous injuries sustained by the Appellant. The Tribunal also awarded Rs.20,000/- towards BVLNC, J MACMA No.47 of 2016 Page 7 of 15 dt.13.10.2022 transportation, extra nourishment, diet and attendant charges. The Tribunal awarded Rs.1,000/- each for pain and suffering of two simple injuries.
15. The Tribunal also awarded a sum of Rs.67,500/- towards loss of earnings considering the functional disability suffered by the Appellant as 30% by fixing the income @ Rs.15,000/- per annum, as the Appellant was a minor, applied multiplier 15 as per II Schedule of M.V.Act, 1988. The total compensation amount awarded by the Tribunal is Rs.2,49,500/- against the claim of Rs.4,00,000/- by the Appellant.
16. The contention of the Appellant is that the Appellant suffered grievous injuries in the accident, due to which, she suffering from post traumatic headache, post traumatic memory defective, learning disability due to brain injury, difficulty in walking due to injury to left foot and difficulty in breathing due to left lung injury, and therefore, the disability was assessed at 45% by the medical authorities and reducing the same to 30% functional disability by the Tribunal is not valid and the Tribunal would have consider the disability percentage at 45% instead of 30% and would have awarded compensation accordingly.
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17. The Appellant was a minor, aged about 5 years at the time of accident. The claim petition was initially filed by the Appellant represented by her father. Later her mother was substituted in the place of father, as father died. On behalf of the Appellant, her father was examined as P.W-1, when he was alive. In his evidence Ex.A-4 discharge summary issued by the Nuero Surgeon of C.M.C. Hospital, Vellore, and Ex.A-6 permanent disability certificate were marked. To, prove the said documents, on behalf of the Appellant, Dr.A.Sudhakara Reddy and Dr. Tony Vargheese Panicker were examined as P.W-2 and P.W-3 respectively.
18. Doctor A.Sudhakara Reddy (P.W-2) deposed that he has been working as Neuro Surgeon in SVRRGGGH Hospital, Tirupathi, and the Appellant sustained head injury and multiple injuries over fore head, and lacerated injury over left foot, left abdomen, and fracture of left clavicle, and the Appellant was initially treated in C.M.C. Hospital, Vellore from 09.01.2009 to 14.01.2009, and X-ray shows fracture of left clavicle, and upper lobo collapse, and ultra sonography showed rupture of spleen, and bleeding within spleen, and C.T.Scan of brain was also done, and it showed right frontal lose contrusion, and left basi frontal contrusion, and also comminuted fracture of right frontal bone, and bilateral roof orbit fracture, and she was on ventilation for BVLNC, J MACMA No.47 of 2016 Page 9 of 15 dt.13.10.2022 48 hours, and the spinic injury was treated conservatively, and collapse of upper lung, upper rob has improved, and after discharge from C.M.C. Hospital, Vellore, the Appellant was brought to him for follow up treatment periodically, and since the accident, the Appellant has been suffering from headache, difficulty memory learning disability, and difficulty in walking, and he found permanent disabilities of post traumatic headache, post traumatic memory defective, learning disability due to brain injury, difficulty in walking due to injury to left foot, difficulty in breathing due to left lung injury, and fracture of left clavicle, and basing on the above permanent disabilities, percentage of permanent disability was assessed as 45%.
19. In the cross-examination, he deposed that the injuries sustained by the Appellant are partly healed, but not totally and he has been giving periodical treatment to the Appellant and before issuing Ex.A-5, he has gone through the details given in the discharge summary issued by C.M.C. Hospital, Vellore, and he has given disability certificate basing on all the disabilities, but not individually. Nothing was elicited in the cross-examination to say that the injuries sustained by the Appellant, as deposed by this doctor (P.W-2) were not sustained by the Appellant, and that these injuries will not cause any permanent BVLNC, J MACMA No.47 of 2016 Page 10 of 15 dt.13.10.2022 disability, as deposed by the doctor, and that the percentage of the total disability arrived as 45% by the doctor cannot be relied upon.
20. P.W-3 Dr.Tony Vargheese Panicker deposed that the Appellant was admitted in C.M.C. Hospital, Vellore, on 09.01.2009 and was discharged on 14.01.2009 and total expenditure incurred for the medical expenses was around Rs.1,00,000/-, which includes rehabilitation like physiotherapy, occupational therapy, speech rehabilitation therapy, clinical psychologist evaluation, and there is residnal weakness in the right upper limb and lower limb of the Appellant and there is also brain injury, which include mild imperment in cognition and speech abilities, and Ex.C-1 is the original discharge summary issued by C.Ṃ.C. Hospital, Vellore.
21. Therefore, the evidence of both doctors show that the Appellant, who is a girl, aged 5 years sustained severe injuries on the head and all over the body due to the accident, and as a result, she has been suffering with permanent disability which includes post traumatic headache, post traumatic memory defective, learning disability due to brain injury, difficulty in walking due to injury to left foot, difficulty in breathing due to left lung injury, and fracture of left clavicle, and disability certificate issued by P.W-3 shows that the disability is assessed as 45%.
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22. The Tribunal in its order mentioned that having regard to the nature of the injuries sustained and more particularly, the evidence of P.W-2, who stated that even after treatment, the Appellant has been suffering with post traumatic headache, post traumatic memory defective, learning disability due to brain injury, difficulty in walking due to injury to left foot, difficulty in breathing due to left lung injury, and fracture of left clavicle, considered the functional disability as 30%. The Tribunal did not give any reasons as to how functional disability was assessed as 30% against the physical disability assessed as 45% by the doctor, and no reasons are assigned for reducing the physical disability from 45% to functional disability as 30%. The evidence of P.W-2 is very clear as to how he assessed the physical disability as 45%. The evidence of doctor shows that the Appellant, who is aged only 5 years, is suffering from post traumatic headache, post traumatic memory defective, learning disability due to brain injury, difficulty in walking due to injury to left foot, difficulty in breathing due to left lung injury, and fracture of left clavicle. It appears that the Tribunal assessed the functional disability as 30%, as the father of the Appellant, who was examined as P.W-1, in the cross- examination deposed that all the injuries sustained by his daughter are healed and his daughter is studying L.K.G. at present.
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23. The injuries might have been healed, but the evidence of P.W-2 and P.W-3 doctors show that the Appellant is suffering from permanent disability, which was assessed as 45% on account of the injuries sustained by the Appellant to the brain, lungs, and also to the leg. Therefore, the Appellant has to undergo expenditure for future treatment, keeping in view of the nature of the injuries, and the fact that the Appellant would have to take treatment for the remaining life, it would necessarily include fees of the doctor, medicines, transportation etc., and further, on account of the injuries suffered in the accident, the Appellant had to face difficulties in her studies due to post traumatic headache, post traumatic memory defective, learning disability due to brain injury, difficulty in walking due to injury to left foot, difficulty in breathing due to left lung injury, and fracture of left clavicle, and therefore, fixing the functional disability as 30%, in my considered opinion is not proper and correct, and it would have been assessed as 45%, considering the permanent disability and the consequences which followed were extremely grave in as much, the Appellant has to face difficulties for making the career in future.
24. Therefore, the loss of earnings has to be recalculated by fixing the functional disability as 45%. As the notional income of the petitioner is Rs.15,000/- per annum, the multiplier applicable is 15, as BVLNC, J MACMA No.47 of 2016 Page 13 of 15 dt.13.10.2022 per II Schedule of M.V.Act, 1988. Then, the loss of earnings will be Rs.15,000 x 15 x 45/100 = Rs.1,01,250/-. So far as awarding compensation under the other heads, I do not find any reason to modify the same, as fixed by the Tribunal.
25. In the light of above discussion, awarding a sum of Rs.101,250/- towards loss of earnings, in addition to Rs.1,82,000/- awarded towards compensation under other heads by the Tribunal, would be just and proper, by modifying the award of the Tribunal.
26. In the result, the appeal is partly allowed, by modifying the award of the Tribunal, awarding a sum of Rs.101,250/- towards loss of earnings, in addition to Rs.1,82,000/- awarded towards compensation under other heads by the Tribunal. Therefore, the compensation awarded in total is Rs.2,83,250/-, with interest @ 9% p.a. from the date of petition, till the date of realisation. The 2nd respondent/Insurance Company is directed to deposit the compensation amount of Rs.2,83,250/- with accrued interest thereon, within one month from the date of judgment. On such deposit, the Appellant/petitioner is permitted to withdraw the entire compensation amount of Rs.2,83,250/- with accrued interest thereon. There shall be no order as to costs.
BVLNC, J MACMA No.47 of 2016 Page 14 of 15 dt.13.10.2022
As a sequel, miscellaneous applications pending, if any, shall stand closed.
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B.V.L.N.CHAKRAVARTHI, J
13.10.2022
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BVLNC, J MACMA No.47 of 2016
Page 15 of 15 dt.13.10.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.47 OF 2016
13th October, 2022
psk