THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
MACMA No.392 of 2022
JUDGMENT:
This appeal under Section 173 of Motor Vehicles Act, 1988 APSRTC calls in question the correctness of the amount of compensation awarded to a five years old girl child by the learned Chairman, Motor Accident Claims Tribunal - Cum - V Additional District Judge, Rayachoty by an order dated 01.04.2022 in M.V.O.P.No.84 of 2018.
2. 1st respondent is the injured girl child represented by her natural guardian. 2nd respondent is the driver of the offending APSRTC bus.
3. Despite notices being served to 1st respondent, none entered appearance. 2nd respondent is stated to be not a necessary party for this appeal.
4. Sri K.Viswanatham, the leaned Standing Counsel for APSRTC/appellant submitted arguments.
5. The facts leading to the present appeal require a brief narration: -
2
Dr. VRKS, J MACMA.No.392 of 2022 On 17.02.2018 at about 4.30 p.m. at Palannagaripalli Bus stop along Kadapa to Chittoor main road, Kumari B.Sindhu aged five years in the company of her guardian having travelled in auto rickshaw got down from the auto rickshaw and at that time APSRTC bus bearing No.AP04Z 0193 was driven by 2nd respondent at high speed and rashly or negligently came from behind and hit the left arm of the girl child and caused serious injuries to her. The incident was registered by police as Cr.No.35 of 2018. The girl child was treated at Government Hospital, Rayachoty and thereafter at Ramadevi Multi Super Specialty Hospital, Tirupati and thereafter at Balaji Institute of Surgery Research and Rehabilitation for disabled at Tirupathi.
Nearly two months after the incident she was finally discharged from the last-mentioned hospital on 16.04.2018. Attributing rashness or negligence on part of the driver of APSRTC and making the APSRTC as vicariously liable, the father of the victim girl filed M.V.O.P.No.84 of 2018 under Section 166 of Motor Vehicles Act, 1988 seeking compensation of Rs.5,00,000/- under various heads. Before the claims tribunal the driver as well as APSRTC filed their written statements whereunder they denied the incident that was narrated in the petition and contended that the incident did not happen because of rash or 3 Dr. VRKS, J MACMA.No.392 of 2022 negligent driving on part of the driver of APSRTC bus and the girl fell down on her own or in the alternative after she got down from the auto rickshaw she started crossing the road without minding the traffic and suffered injuries and that the compensation claimed was excessive.
6. On the rival pleadings, the claims tribunal settled the following issues for its consideration: - Issues:-
1. Whether the accident occurred due to rash and negligent driving of the driver of APSRTC bus bearing No.AP04 Z 0193 of Kadapa depot, belonged to the 2nd respondent, at Palannagaripalli bus stop on Kadapa to Chittor main road, which resulted in causing injuries to the petitioner on 17.02.2018 at about 4.30 p.m?
2. Whether the claimant is entitled to compensation, if so, to what amount and from which of the respondents?
3. To what relief?
7. During the trial, the father of the victim girl who happened to be the eyewitness to the incident testified as PW.1 and the Doctor and head of the department of Government General Hospital, Kadapa who was chairing the district medical board, Kadapa testified as PW.2. Exs.A1 to A13 were marked. 4
Dr. VRKS, J MACMA.No.392 of 2022 For respondents none testified, and no documents were exhibited.
8. After considering the evidence on record and the arguments on both sides, the claims tribunal gave a finding that the cause of injuries for the girl child was an automobile accident that occurred because of rash or negligent driving of the driver of the APSRTC bus. Based on the evidence available on record and the fractures suffered by the girl child and the surgeries that were affected on her and considering the fact that post discharge from the hospital she has been experiencing painful restricted movements of her left elbow and she was finding it difficult to do works with left upper limb and on considering the medical evidence and the disability certificate in Ex.A4, 20% disability for the left upper limb was recorded as proved. It considered the aspects concerning actual medical expenses and the expenses for transportation to hospital. Finally, it granted the compensation under the following heads:
1. Damages towards future income Rs.2,52,000/-
2. Damages towards Medical expenses Rs.1,00,000/-
3. Damages towards pain and suffering Rs. 30,000/- 5
Dr. VRKS, J MACMA.No.392 of 2022
4. Damages towards transportation Rs. 10,000/-
-----------------------
5. Total compensation Rs.3,92,000/-
-----------------------
It granted 7.5% interest over the said amount from the date of petition. Time for deposit was 30 days. It further stipulated that in the event of failure to deposit within the time, the amounts awarded would carry 9% interest per annum thereafter. It held 1st and 2nd respondents before it were jointly and severally liable. The direction for deposit was made as against 2nd respondent/APSRTC represented by its managing director.
9. In this appeal, APSRTC contends in its grounds of appeal that the claims tribunal committed an error in attributing negligence on the part of the driver of APSRTC bus and without proper evidence on record it granted various amounts towards compensation. During arguments, the learned counsel for appellant contends that the approach of the claims tribunal in considering the notional income of the child at Rs.7,000/- per month and applying the multiplier "15" to it and granting Rs.2,52,000/- as compensation towards loss of future income is incorrect and excessive.
6
Dr. VRKS, J MACMA.No.392 of 2022
10. The point that falls for consideration is "Whether the Motor Accident Claims Tribunal failed to adopt the principles of law governing computation of compensation for injuries sustained by a five-year-old girl child requiring interference?"
POINT:-
The oral evidence of PW.1/the eyewitness indicated that his daughter was standing by the side of the auto rickshaw and then came from behind the offending APSRTC bus at high speed and came negligently and caused injuries to the left upper limb of the girl child. His cross-examination did not yield anything to shatter his credibility and did not elicit any fact which could lead to a different conclusion. In fact Ex.A3 which was a copy of the charge sheet filed by the state police before the learned magistrate concerning this incident also indicated that the incident was out of negligent driving of the APSRTC bus by its driver. No serious challenge has been raised in this regard in this appeal by the appellant. On these aspects, in this appeal on an independent assessment of the evidence on record, this Court finds that the claims tribunal is right in its finding that the cause of accident and injuries to the girl child was out of rash or negligent driving of offending bus by its driver. 7
Dr. VRKS, J MACMA.No.392 of 2022
11. The medical evidence available before the claims tribunal and the evidence of PW.2 would go to show that she suffered compound fracture of left elbow and humorous and post surgery they left big scar over the elbow and despite all the treatments the girl child still experiences painful restricted movements of the left elbow and finds it difficult to engage herself in any work with left upper limb. No contrary medical evidence was brought on record by this appellant. It was found by the claims tribunal that she was inpatient for some time and outpatient for some time and she was treated at three hospitals one after another and her disability to use her left hand fingers. These facts are all apparent from the record. On these aspects, the findings of the claims tribunal cannot be disturbed. The observations of the claims tribunal that this girl has acquired 20% disability for her left upper limb is based on evidence and nothing contrary is brought to the notice of this court by the appellant. Therefore, that finding stands affirmed. Ex.A5 to A13 are medical bills, diagnostic reports, discharge summaries. They would go to show the money expended by this father towards the treatment of his loving minor daughter. The fact that the patient was to be taken to various hospitals utilising transportation is also based on evidence. In such 8 Dr. VRKS, J MACMA.No.392 of 2022 circumstances, the claims tribunal granted Rs.1,00,000/- towards actual medical expenses and Rs.10,000/- towards transportation expenses stands confirmed in this appeal.
12. The controversy raised in this appeal concerns mainly the amount of compensation awarded by the claims tribunal to a tune of Rs.2,52,000/- towards loss of future income and Rs.30,000/- towards pain and suffering. Para No.15 of the impugned award of the claims tribunal is relevant for consideration and therefore the same is extracted here.
"The petitioner also claimed damages under both the heads for Rs.5,00,000/-, it is the evidence of P.W.1 that, prior to the accident his minor daughter was aged about 5 years, hale and healthy and studying first class and her notional income of Rs.15.000/- per month. Due to the accident, the petitioner sustained grievous injuries and got marked Ex.A.2 attested copy of wound certificate and also got examined P.W.2 medical officer, who issued Ex.A4 disability certificate showing 20% disability, but the doctor specifically mentioned in his evidence that Ex.A4 issued by him under District Medical Board, Kadapa to the petitioner, as per Sarala Verma's case a notional income of Rs.7,000/- per month and the same can be taken into consideration and since petitioner is aged about 5 years, a multiplier of 15 is taken. Hence, this tribunal is taking multiplier as '15' to the claimant. It is therefore, the petitioner is entitled for loss of future earnings: Rs.7,000 X 12 = Rs.84,000 X 15 (multiplier) X 20/100 = Rs.2,52,000/- which he is entitled under this head."
From the above it is seen that the learned claims tribunal reached its assessment holding that the notional income for the five year girl child was Rs.7,000/- per month and to that 9 Dr. VRKS, J MACMA.No.392 of 2022 multiplier was applied and amounts were calculated and were arrived at. That approach is not in consonance with law as could be seen from the instructive and binding ratios of the Hon'ble Supreme Court of India in Mallikarjun V. Divisional Manager National Insurance Company Ltd1 and Kumari kiran V. Sajjansingh2. Their Lordships held that while considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the second schedule of the Motor Vehicles Act, 1988. The main stress in the said formula is on pecuniary damages. For children there is no income. The only indication in the second schedule is for nonearning persons to whom notional income as Rs.15,000/- per year is fixed. A child cannot be equated to such a non earning person. Therefore, compensation to be worked out under the non pecuniary heads in addition to the actual amounts incurred for treatment, transportation, assistance of attendant etc. The main element of damages in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to 1 (2014) 14 SCC 396 2 (2015) 1 SCC 539 10 Dr. VRKS, J MACMA.No.392 of 2022 acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Loss of earning of the parents because of their diverted attention to their injured child is required to be taken note of. The appropriate compensation for disability should take care of all the non pecuniary damages. In other words, apart from this head, there shall only be a claim for the actual expenditure for treatment, attendant, transportation etc. If the disability is for the whole body and if it is above 10% and up to 30% the lump sum of Rs.3,00,000/- could be granted to victim child.
13. In view of the above principles of law, the approach of the learned claims tribunal in following the structured formula and using the notional income and multiplier are incorrect and are liable to be set aside and thus set aside. On application of the principles laid down by the Hon'ble Supreme Court of India and referred in the earlier paragraphs, this Court considers compensation for this five year old girl child towards her partial disability, pain suffered already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts and loss of amenities in life because of the disability and loss of income for parents because of injuries to child is 11 Dr. VRKS, J MACMA.No.392 of 2022 assessed at Rs.2,82,000/-. This is equal to Rs.2,52,000/- granted by the claims tribunal towards future loss of income and Rs.30,000/- granted towards pain and suffering. Thus, the two components of compensation are substituted by what is awarded by this court. In this view of the matter, the amount of compensation figures finally arrived at by the claims tribunal does not require interference though the heads of compensation and the method of granting compensation stood changed. In this view of the matter the point is answered against the appellant and this court finds no merit in this appeal.
14. In the result, this appeal is dismissed. The appellant is directed to deposit the amount of compensation awarded by the claims tribunal and affirmed by this court within 30 days from the date of this order after giving due credit to deposits if any made already. Since respondent did not put up any contest, there shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.10.2023 DVS 12 Dr. VRKS, J MACMA.No.392 of 2022 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR MACMA No.392 of 2022 Date: 11.10.2023 DVS