Kum. Kavita D/o Sidramappa vs Yamunarappa S/o Fakeerappa, & Ors.

Though the appeal is listed for admission, with the consent of the learned counsel on both the sides, it is heard finally.

The appellant/claimant is before this Court seeking enhancement of the compensation by assailing the Judgment and award passed in MVC 452/2015 dated: 14-09-2016 by the Prl. District Judge Judge and MACT Raichur.

For the sake of convenience, the parties shall be referred to, in terms of their status before the Tribunal.

The appellant/claimant filed the claim petition U/Sec.166 of M.V Act 1988 claiming compensation for the injuries sustained by Kumari Savita. The said Kumari Savita and another were proceeding as a pillion on the motor bike bearing Reg. No.KA-36/EF-3666 which was driven by their father Siddramappa, while so going, when they came infront of KEB station, Sripuram Junction, the respondent No.1 being the driver of the Mini Lorry bearing Reg. No.KA-37/A-3882 came in a rash and negligent manner with great speed and dashed to the motor cycle, as a result of the same, the rider and the pillion fell down and sustained the injuries. The claimant/appellant filed the claim petition for compensation.

On service of notice, respondents 1 to 3 appeared. Respondent No.2 on behalf of the Insurance Company filed his written statement by denying the contents made in the claim petition. He further contended that the compensation claimed is on the higher side and the accident in question has occurred due to the rash and negligent driving of the rider of the motor cycle. It is further contended that the driver of the lorry was not having any effective and valid driving license. On these grounds he prayed for dismissal of the petition.

Since these two cases were clubbed petitioner claimant examined as PW.1 and the petitioner/claimant in MVC No.353/2015 came to be examined as PW.2 and Doctor was came to be examined as PW.3 and they also got marked thirty-six documents which were marked as Ex.P.1 to Ex.P.36. Respondent has not led any evidence. But however got marked Ex.R.1 to Ex.R.3. On the basis of the above evidence Issues were framed and Issue No.1 was answered in the affirmative and issue No.2 in the negative and while answering the issue No.3 awarded compensation of Rs.1,78,376/-. The claimant /appellant being not satisfied with the award has preferred this appeal.

The main grounds urged by the learned counsel for the appellant is that the compensation awarded on various heads is on the lower side and even the Tribunal has not considered the disability and has not awarded proper compensation for loss of future earnings.

Per contra, the learned counsel for the Insurance Company by supporting the Judgment and award of the Tribunal further contended that the award of the compensation is just and reasonable and the claimants are not entitled to any enhancement.

For having heard the learned counsel for the parties and on perusal of the record the only point which arises for my consideration is , as to whether, the appellant is entitled to an additional compensation as prayed.

As could be seen from the award and records the claimant/appellant sustained fracture to her right leg and she took treatment for five days as inpatient. It also further discloses that, she has sustained open fracture shaft of right femur with cut lacerated wound. Claimant/appellant has also got examined PW.3 Doctor he has deposed that the claimant/appellant has got permanent disability to the extent of 20% to the whole body but Tribunal by considering the fact that petitioner is a minor girl aged about 11 years did not accept the permanent disability and has awarded Rs.30,000/- towards pain and suffering, Rs.61,376/- towards medical expenses and an amount of Rs.6,000/- on attendant charges and Rs.6,000/- towards special diet and nutrition but has not awarded any amount for the permanent disability. It has also awarded Rs.25,000/- towards the future medical expenses. The view of the Tribunal is considered to be wrong for having not granted any compensation for loss of future income only because the claimant/appellant is a minor girl. It is held in the case of Mallikarjun V/s Divisional Manager National Insurance Company Ltd and another reported in (2014) Part 14 SCC 396 that while considering the claim by a victim child a child cannot be equated as a non earning person the compensation is to be worked out under the non pecuniary heads in addition to the actual amount incurred for other expenses. For the purpose of brevity I extract para No.8 of the said decision which reads as under:

Para 8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non earning person. Therefore, the compensation is to be worked out under the non pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation or ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to enquire something or to develop a lifestyle, which will offset to some extent the inconvenience or discomfort arising out of the disability. 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 the claim for the actual expenditure for treatment, attendant, transportation etc.

By going through the ratio laid down in the above decision, in case of non earning child, the notional income of Rs.15,000/- per year has to be adopted and on the basis of the same the compensation has to be assessed. If that were to be adopted then under such circumstances the claimant/appellant is entitled to an amount of Rs.54,000/- towards the future loss income (Rs.15,000/- minus 20% = Rs.3,000/- X 18 = Rs.54,000/-). The above calculation has been made as the claimant/appellant has produced Ex.P.3 and has also examined Doctor as PW.3 and he has specifically deposed that the claimant has suffered permanent disability of 20%. By going through the award the amount of compensation awarded for pain and suffering also appears to be on the lower side and as such an amount of Rs.40,000/- has been awarded on the said head. Since the claimant has sustained the fracture and she was under the treatment for the said treatment, a attendant might have attended on her for a period of three months, since the accident in question has taken place on 10-04-2015 at that time even the daily wager use to get an amount of Rs.7,500/- to Rs.8,000/- per month, in that light if an attendant has attended on the minor injured there will be a loss of Rs.21,000/- as such the same is awarded on attendant charges. So far as the amount awarded for medical expenses and on future medical expenses appears to be just and proper, the same is not disturbed. Keeping in view the above said aspects the claimant/appellant is entitled to an additional compensation of Rs.69,000/- with 6% interest per annum. For the reasons stated above the appeal is allowed in part in the aforesaid terms and accordingly the same is modified.

The Insurance Company is directed to deposit the enhanced compensation with interest within a period of six weeks from the date of receipt of the certified copy of this Judgment.