Khushird Bee vs Ravindra Singh and Others

S.R. Waghmare, J.—This is the claimant''s appeal filed u/S.173(1) of the Motor Vehicles Act against award dated 30/09/2013 passed by V Additional Member, Motor Accident Claims Tribunal, Indore in Claim Case No. 145/12 awarding a sum of Rs.6,12,295/- to the applicant. Counsel for the appellant urged that the amount awarded is on the lower side and needs to be enhanced and hence the present appeal.

In view of the short controversy involved in the appeal, it is really not necessary to take note of the facts in detail except those which are necessary. It is also for the reason that findings in relation to nature of accident, how it occurred, who was responsible for causing injury, liability etc. are decided in favour of appellant by the Tribunal. In the absence of any challenge to these findings by the respondents, by not filing any cross appeal or cross objection, these findings have become final. When the appellant Khushird Bee was returning home from an engagement ceremony from Dhar to Ujjain in bus bearing registration No. HMP-13C-5159, the driver driving the bus rashly and negligently over turned the same and as a result of the accident the appellant Khushrid Bee received fracture in the Hip Socket and both the buttocks and there was mal-union and, therefore, due to dis balance the other parts of the body were also severally affected. She was referred to the District Hospital at Ujjain and CHL Medical College, Ujjain, thereafter at Gokuldas Hospital, Indore, Anand Hospital, Ujjain Charitable Trust, M.Y. Hospital, Indore and even private treatment was taken by the appellant. Prior to the accident, the appellant was working as a tailor and earned about Rs.6000/- per month. Due to the resulting disability, she is unable to work properly. Police report was filed at Police Station Hingoriya, Ujjain and hence she claimed compensation of Rs.20,00,000/-. As a result of the accident, Khushird Bee was grievously injured in the Hip due to the hip socket fracture and its mal- union she took treatment in various hospitals. She was examined by Dr. Surendra Bapat, PW.10, who was a general surgeon, reported about the disabilities occurred to her in the accident. The right Acetabulum was fractured and the coxis bone in the hip was also fractured. He also admitted that she was taking treatment in various hospitals to get the hip joint fracture and dislocation properly treated and she suffered 40% of disability in the right inferior pubic ramus and in the right buttock 21 x 40 cms. injury was there and there has been a tremendous muscle loss. Similarly in the left inguinal region there was a disability on 80% Anal and prohibiting the anus activity and she was unable to perform her natural functions of the intestine as it was blocked. She could not answer her daily nature''s call and could not sit for long time. Moreover, it is agreed that she took treatment in several hospitals and that she needs an attendant to help her to do her daily chores. Counsel vehemently urged that the amount awarded is very much meager under the circumstances nothing has been paid towards compensation charges. Meager amount has been paid towards hospitalization and her income is also not properly assessed. There was 66 days of hospitalization and even then she could not keep an attendant. Rs.4,35,295/- was paid towards medical facilities and nothing paid towards special diet or conveyance. Medical multiplier of 15 has been used for assessment as she was in the age of 40 years at the time of accident for future damages an amount of Rs.54,000/- has been paid. Whereas, she claimed Rs.6000/- as her earning per month, only Rs.3,600/- has been calculated by the Tribunal. Towards medical expenses Rs.64,000/- has been paid, whereas she was hospitalized for more than 3 months for the treatment and Rs.25,000/- was awarded for the sufferings, disabilities and body pain, Rs.5,000/- for conveyance charges from home to hospital, Rs.3,000/- only for special diet and for any money spent on attendant or companion an amount Rs.5,000/- was awarded. Since a separate stool bag is attached to her body and a special way had been made in the body for removal of the excreta, undoubtedly, Rs.1,00,000/- to have been paid. But the Counsel for the appellant urged that she was under treatment even today and only Rs.50,000/- have been awarded towards future expenses and the sum of Rs.6,12,295/- was meager and required to be enhanced.

Counsel for the respondent No. 3/insurance company submitted that more than adequate amount has been paid by the Accident Tribunal and the disabilities has been correctly counted at 40% and hence Rs.4,35,295/- were awarded in this head. Counsel submitted that the appeal was without merit.

At this juncture, Counsel for the appellant relied on G. Ravindranath vs. E.Srinivas and another [2013 ACJ 213 ] wherein, under similarly placed injured having injury to the Pelvis and Urethra and there was a total rupture of urethra resulting in impotence. The injured suffered severe pain, could not pass urine through normal course, requiring catheterisation and suffered from erectile dysfunction. The injured was only at the age of 19 years remained under treatment for quite long time and had under gone multiple surgery and had become impotent. He had to even discontinue his studies and declared unfit for marital life. An award of Rs.4,35,000/- was enhanced to Rs.20,20,000/-. Whereas, in the present case even the appellant has proved the above disabilities and Counsel prayed for proper enhancement in the award. He also placed reliance on Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. and Another, (2011) 111 CLT 285 : (2010) 10 JT 254 : (2011) 161 PLR 740 : (2010) 10 SCALE 298 : (2010) 10 SCC 254 : (2010) AIRSCW 6085 : (2010) 6 Supreme 844 injury was to the brain, eye, hand and leg, the amputation of right hand and fracture of left tibia and the appellant was in coma for two months but was a brilliant student of mechanical engineering final year in a reputed college and suffered 70 per cent permanent disablement. Tribunal awarded Rs.1,50,000/- towards medical expenses and Rs.1,00,000/- towards non-pecuniary damages, High court allowed Rs.2,00,000/- as non-pecuniary damages instead of Rs.1,00,000/-. Apex Court assessed future income at Rs.60,000/- per annum and loss of earning capacity at Rs.42,000/- per annum and adopted multiplier of 18 and allowed Rs.7,56,000/- plus Rs.1,50,000/- as medical expenses and the award was enhanced to almost 9,06,000/-. Counsel prayed for the same benefit.

On considering the above submissions and having seen the appellant in the Court, I find that the damages were not properly assessed by taking into consideration 40% disability, however, the respondent No. 3 / Insurance Company did not accept the bills, EXP 160 to EXP 225 and held they were not proved in accordance with the law and having examined bills to the tune of Rs.3,58,955/- had arrived at Rs.4,35,295/- as the loss of income and other expenses; however, considering the physical status, I find that she is permanently disabled and likely to receive treatment till the end of her life and hence the amount awarded in this head needs to be enhanced by a further sum of Rs.75,000/-; Rs.1,00,000/- be paid towards companion charges and for special diet Rs.25,000/- and towards future medical expenses another one lakh (Rs.1,00,000/-) is awarded. Therefore, a further sum total of Rs.3,00,000/- is awarded. Thus the total amount awarded comes to Rs.9,12,295/- i.e. Rs.6,12,295/- + Rs.3,00,000/-.

However there is no static formula provided for determining the compensation and hence the amount is enhanced as indicated above since the compensation awarded must be just reasonable and proper looking to the facts and circumstances of each case and taking into account the law laid down by the Supreme Court in these types of cases.

In view of the above, the appeal succeeds and is allowed in part. The impugned award is modified to the extent indicated above. The enhanced sum will carry interest at the rate of 6% per annum from the date of the application till realization. All other findings are upheld being not under challenge.

Counsel fees Rs.1,500/-, if certified.