The Managing Director vs .Basi Sindu,
2023 Latest Caselaw 4887 AP

      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: -

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

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.

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/-

Dr. VRKS, J MACMA.No.392 of 2022

4. Damages towards transportation Rs. 10,000/-

-----------------------

5. Total compensation Rs.3,92,000/-

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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.

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.

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

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

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

(2014) 14 SCC 396

(2015) 1 SCC 539

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

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

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