Fathima Kausar Zahur Ahmed Momin vs Afzak Sharif and Others

P.D. Waingankar, J.—Both these appeals are arising out of the common judgment and award dated 24.08.2010 in MVC Nos. 137/2006 and 138/2006 on the file of the Additional M.A.C.T., Sirsi.

Brief facts which gave rise to these appeals are stated as under:

"The appellants/claimants in both the appeals Faizan and Thuba along with their mother Fathima were travelling in an auto-rickshaw bearing registration No. KA-47-627 towards Jail road in Bhatkal on 21.05.2006. On account of rash and negligent driving of the auto-rickshaw, it dashed against Maruthi Omni coming from opposite direction. As a result of the impact, auto rickshaw capsized and thereby the claimants/inmates of the auto-rickshaw sustained grievous injuries for which they were initially treated in Government Hospital, Bhatkal followed by Orthocare Centre Hospital at Kundapur. The parents of both minor claimants spent substantial amount for treatment. Despite the specialized treatment, both the claimants suffered disability. As such, claiming compensation on account of injuries sustained by them claim petitions were filed under Section 166 of M.V. Act in MVC Nos. 137/2006 and 138/2006."

Both the claim petitions were contested by the insurer of auto-rickshaw. They came up for consideration before the Tribunal. The Tribunal on appreciation of evidence recorded a finding that the accident and the injuries sustained by both the claimants were due to the negligence of the driver of the auto-rickshaw and thereby the Tribunal awarded a total compensation of Rs. 1,30,000/- and Rs. 75,000/- respectively.

Dissatisfied with the quantum of compensation awarded in both the claim petitions, these appeals are preferred.

I have heard the learned counsel for the claimants and the learned counsel for the insurance company. Perused the records and the judgment and award passed by the Tribunal.

Upon hearing the learned counsel for both the parties and on perusal of the material on record, the only point that would arise for my determination is:

"Whether the compensation awarded by the Tribunal in both the claim petitions is just and reasonable?"

On behalf of the minor claimants, their mother Fatima Kausar Zahur Ahmed has been examined as P.W. 1 apart from one Basavaraj Siddappa Kanaka Reddi as P.W. 2. 132 documents in MVC No. 137/2006 and 53 documents in MVC No. 138/2006 were marked.

Ex. P3 is the wound certificate of the claimant in MVC No. 137/2006. It discloses the following injuries:

"i) Type I open both bone fracture lower 1/3 of left leg

ii) Abrasion over lateral malleolus

iii) Cut lacerated wound measuring 3x2 cm over left parietal bone

iv) Abrasion over right F homle

v) Haemartharesis right ankle

vi) Cut lacerated wound measuring 3x2 cm over right little fingers."

He was admitted in Vijayashree accident orthocare and general hospital, Kundapur, for a period of 45 days. Even after the best treatment he is left with 20% disability. After taking note of the injury sustained by the claimant, the Tribunal has awarded a sum of Rs. 35,000/- under the head injury pain and suffering which appears to be on the lower side. Having regard to the nature of injuries, number of injuries, the period of hospitalisation a sum of Rs. 50,000/- would be just compensation under the head injury pain and sufferings.

So far as medical expenses are concerned, the Tribunal has not awarded separate amount as such. It has awarded a sum of Rs. 60,000/- towards medical expenses, attendant charges, nourishment and other incidental charges. The inpatient bill itself comes to Rs. 45,000/-. Apart from the hospital charges, the claimant must have spent some amount towards purchase of medicine. Taking note of the same, I deem it just and proper on my part to award a sum of Rs. 75,000/- towards medical expenses and other incidental charges as against Rs. 60,000/- awarded by the Tribunal.

The amount of Rs. 5,000/- awarded by the Tribunal towards loss of academic year seems to be reasonable and no interference is called for.

Further, the Tribunal has awarded a sum of Rs. 30,000/- towards loss of amenities. It is borne out from the records that left leg of the claimant is shortened by 11/2 inch, there is also mal union of fracture, ankle movements are also restricted. Therefore, it goes without saying that it would cause lot of inconvenience in his future life. As such, it would be in the ends of justice to award a sum of Rs. 40,000/- towards loss of amenities as against Rs. 30,000/- awarded by the Tribunal.

Further, the Tribunal has not awarded any amount under the head disability though the doctor has spoken that claimant is suffering from 20% disability and that his left leg is shortened by 1 1/2 inch and there is also mal-union of the fracture. So, I am inclined to take disability of the whole body as 10%. In that case, the loss of future income on account of disability would come to Rs. 45,000/-. So an amount of Rs. 45,000/- is awarded under the head loss of future income'' on account of disability. The Evidence of the Doctor who has been examined as P.W. 2 would go to show that the claimant Fiazan has to got shortening of the leg in future for which he has to undergo surgery in future. The Doctor has not spoken about the amount to be spent for such surgery. Though the Doctor has not spoken about the cost of the surgery, ends of justice will be met, if an amount of Rs. 15,000/- towards future medical treatment.

Thus, the claimant Fiazan in MVC No. 137/2006 has been held to be entitled for compensation under the various heads as under:

The claimant in MVC No. 137/2006 is held to be entitled for compensation of Rs. 2,30,000/- as against Rs. 1,30,000/- awarded by the Tribunal. There shall be enhancement of compensation of Rs. 1,00,000/-

Coming to the determination of the compensation in MVC No. 138/2006, the claim petition arising out of the injuries sustained by a minor girl Thuba, the Tribunal has awarded a total compensation of Rs. 75,000/-. The wound certificate discloses that the claimant Thuba sustained the following injuries:

"1. Hemoperitoneum secondary to a tear in the inforsic surface of lines.

Abrasion over right fresh."

The Tribunal has awarded a sum of Rs. 20,000/- under the head ''injury, pain and suffering'' which appears to be on the lower side. As such, I am inclined to award a sum of Rs. 40,000/- under the head pain and suffering.

Further, the Tribunal has awarded a sum of Rs. 35,000/- under the head ''medical expenses and other incidental charges'' like conveyance, special diet, attendant charges etc., which appears to be on the lower side. Since she was treated as inpatient for more than 30 days, a sum of Rs. 50,000/- is awarded as against Rs. 35,000/- under the head ''medical expenses''. The amount awarded by the Tribunal towards loss of academic year appears to be reasonable and no interference is called for. The Tribunal has awarded a sum of Rs. 10,000/- towards loss of amenities. Since the claimant a girl child had blunt injury on abdomen with rupture of liver, a sum of Rs. 25,000/- would be the just compensation under the head loss of amenities'' as against Rs. 10,000/- awarded by the Tribunal.

Further, the Tribunal has awarded Rs. 10,000/- towards loss of marriage prospects which is also on the lower side. So an amount of Rs. 20,000/- is awarded towards loss of marriage prospects.

Thus, the claimant in MVC No. 138/2006 is held to be entitled for the compensation under various heads as under:

In all, the appellant/claimant is held to be entitled for a total compensation of Rs. 1,40,000/- as against Rs. 75,000/- awarded by the Tribunal. There shall be an enhancement of Rs. 65,000/-. Accordingly, I proceed to pass the following:

"ORDER

i) The appeals are partly allowed. The common judgment and award dated 24.10.2008 passed in M.V.C. Nos. 137/2006 and 138/2006 on the file of the Addl. MACT., Sirsi, stands modified.

ii) The appellant/claimant in MVC No. 137/2006 has been awarded enhanced compensation of Rs. 1,00,000/- over and above the compensation awarded by the Tribunal together with interest at the rate of 6% per annum from the date of claim petition till realisation.

iii) The claimant in MVC No. 138/2006 has been awarded enhanced compensation of Rs. 65,000/- over and above the compensation awarded by the Tribunal together with interest at the rate of 6% per annum (excluding the period of two years) from the date of claim petition till realisation.

iv) The respondent-Insurance Company is directed to deposit the enhanced compensation amount in both the appeal, within two months from date of receipt of a copy of the order.

v) In the event of deposit, 70% of the enhanced compensation amount with proportionate interest shall be invested in the name of respective claimants in the Fixed Deposit in any Nationalized Bank of the choice of their mother for a period of 5 years and the remaining amount shall be released to the mother of the claimant-Smt. Fathima."