THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY
M..A.C.M.A.No.1404 OF 2009
JUDGMENT:
This appeal is directed against the order, dated 10.11.2004, in M.V.O.P.No.243 of 2004 (original O.P.No.877 of 2003), on the file of the learned Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Nalgonda, wherein the claim of the appellant for compensation, was allowed awarding Rs.1,19,000/- with interest @ 9% p.a. from the date of the petition.
2. Heard both sides. Perused the record.
3. Claimant herein filed the claim application under Section 166 of the Motor Vehicles Act, 1988 (for brevity, 'the Act'), seeking compensation of Rs.4,00,000/- on account of the injury sustained by her in a motor vehicle accident that occurred on 18.06.2003, which resulted in the amputation of her right leg. According to the claimant, on that day, while she was proceeding to school on a cycle, a lorry bearing No.AP-11-T-9339 came from Huzurnagar side in a rash and negligent manner and dashed against her as a result of which she sustained crush injury on the right leg. She was taken to Mother Theresa hospital, Kodad and from there shifted to Vijaya Health Care, Secunderabad for treatment. A case was registered in Cr.No.88 of 2003 by the police, Kodad (Town) police station against the driver of the lorry. 1st respondent-owner of the vehicle remained ex parte. 2nd respondent-insurer filed a counter opposing the claim and denying the liability.
4. During the enquiry, P.W.1 was examined and Exs.A1 to A9 were marked on behalf of the claimant. No oral evidence was adduced by the insurer. Ex.B1-copy of the policy was marked.
5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. The Tribunal awarded Rs.5000/- towards pain and suffering; Rs.29,000/- towards medical expenses and extra nourishment; Rs.75,000/- towards permanent disability of 50% and Rs.10,000/- for the grievous injuries, making up a total amount of Rs.1,19,000/-. Not satisfied with the same, the present appeal is filed.
6. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver has become final as no appeal is filed by the 2nd respondent-insurer.
7. Learned counsel for the 2nd respondent vehemently contends that the Tribunal ought not to have taken into consideration Ex.A5-disability certificate as the doctor, who examined the claimant and issued the said certificate, has not been examined.
8. The above said contention cannot be appreciated in the present appeal, which is filed by the claimant seeking enhancement, and since no appeal has been filed by the insurer, challenging the award on the question of liability or on the question of quantum, the medical evidence on record in the shape of wound certificate; discharge summary-Ex.A4 and disability certificate-Ex.A5, which have been accepted by the Tribunal, have therefore remained unchallenged. The said medical evidence on record clearly shows that the claimant has suffered a crush injury over the right leg and the same resulted in amputation of the right leg. Ex.A4-discharge summary of Vijaya Health Care shows that the girl was taken to the hospital on 18.06.2003 and operation was conducted on the same day and again on 23.06.2003 and she was discharged on 07.07.2003. Ex.A4 also shows that at the time of admission, the girl was found to be having crush injury of right leg and lower 1/3rd of the left foot as a result of which amputation of right leg was done on 18.06.2003 and after amputation some other surgery was done on 23.06.2003 with skin grafting. Ex.A5-disability certificate issued by the Medical Board, Gandhi hospital, Secunderabad, shows that on account of the amputation of the right leg the girl is suffering from physical disability of 50%. The medical evidence, therefore, shows that the girl was in the hospital for a period of nearly two weeks.
9. Though the Tribunal awarded Rs.29,000/- towards medical expenses, based on Ex.A9-bunch of medical bills, the Tribunal appeared to be quite insensitive to the trauma suffered by the girl on account of the nature of the injury sustained, resulting in amputation of the right leg. While estimating the compensation payable to her, the approach of the Tribunal that since Rs.1,50,000/- was awarded in case of death in a cited decision, however awarding Rs.75,000/- towards compensation in case of amputation would be sufficient, is improper. The case of death cannot be taken as a standard while making assessment of reasonable compensation payable to a girl of 12 years, who suffered crush injury resulting in amputation of right leg leading to permanent disability with which she has to survive through out the rest of her life. The educational prospects, career prospects and matrimonial prospects of the girl, have all been permanently shattered on account of the accident. The victim girl is stated to be a student and is therefore unemployed. Hence, it is considered appropriate to take the notional income of Rs.15,000/- per annum, prescribed in the II Schedule of the Act, in case of a non-earning person, which can be taken as a guide. The appropriate multiplier suitable to the age of the victim girl who is aged 12 years is '15' as per the II Schedule. Applying the said multiplier, the loss of earning capacity works out to Rs.2,25,000/-. 50% thereof would come to Rs.1,12,500/-. An award of Rs.75,000/- by the Tribunal towards permanent disability in a lumpsum, without making effort to assess the loss of earning capacity by adopting a multiplier method, is totally unjustified.
10. The victim girl is said to have suffered two grievous injuries, one on the right leg and the other on the left leg and therefore she is entitled for compensation of Rs.5000/- each for the two injuries towards pain and suffering. The award of Rs.29,000/- towards medical expenses, which is based on the medical bills-Ex.A9, is held sustainable. On account of the amputation of the right leg the victim girl is permanently disabled and she has to necessarily depend on others through out her life and it is therefore considered that a sum of Rs.50,000/- can be awarded towards loss of amenities in life. The evidence on record shows that the victim girl was in hospital for a period of about three weeks. Having regard to the nature of the injuries sustained and also the nature of treatment and the length of hospitalization, it is considered that she can be awarded a sum of Rs.10,000/- towards extra nourishment; Rs.10,000/- towards attendant charges and a sum of Rs.10,000/- towards transport charges as the evidence on record shows that she was initially shifted to hospital at Kodad and from there she was shifted to Secunderabad. The amount of Rs.10,000/- awarded by the Tribunal for the said reason can be adjusted towards compensation for the extra nourishment. The claimant is therefore entitled for a total compensation of Rs.2,31,500/-. She is also entitled for interest @ 9% per annum from the date of the petition on the original amount awarded by the Tribunal and @ 6% per annum on the enhanced amount from the date of filing of the appeal. The impugned order is modified accordingly.
11. In the result, appeal is allowed as stated above.
_______________________ G.V.SEETHAPATHY, J 18th August, 2011 Tsy