Kumari Pooja vs Allabaksha and Others

B. Manohar, J.—The appellant is the claimant in M.V.C. No. 1518/2010 on the file of the Prl. Senior Civil Judge and Additional Motor Accident Claims Tribunal, Gokak (hereinafter referred to as the ''Tribunal'' for short). Being not satisfied with the quantum of compensation awarded by the Tribunal by its judgment and award dated 09.04.2012 passed in the aforesaid claim petition, the appellant has filed this appeal seeking enhancement of the compensation.

The appellant/claimant, who is minor and represented by her father, filed the claim petition contending that on 12.04.2010 at about 6.00 p.m., while she was playing by the side of the road near Riddi-Siddhi factory near Gokak Falls, a motor cycle bearing registration No. KA-49/E-2733 driven by its rider in a rash and negligent manner dashed against her. Due to the said accident, she sustained grievous injuries. She was shifted to the Government Hospital, Belgaum, for the first-aid treatment and on the advice of the doctor, she was shifted to KLE Hospital, Belgaum, for better treatment. She underwent operations and took treatment as an inpatient for more than two months. She spent more than Rs. 2,50,000/- for the treatment and has to undergo one more operation. As on the date of the accident, she was aged about 8 years. Due to the accident, the claimant has become permanently disabled and she is not able to move around without the help of others, she cannot speak or understand the things. Therefore, sought for compensation with interest at 18%.

Pursuant to the notice issued by the Tribunal, the owner and insurer of the offending vehicle entered appearance. The owner of the offending vehicle filed statement of objections denying the entire averments made in the claim petition and also the rash and negligent riding of the motor bike. Since the vehicle was covered by insurance policy, the insurer as to compensate the claimant and therefore, sought for dismissal of the claim petition. The 2nd respondent-insurance company filed its statement of objections denying rash and negligent riding of the motor bike and that due to the negligence of the claimant herself the accident had occurred. It was contended that the compensation claimed was exorbitant; that no material had been produced before the Tribunal to show that a sum of Rs. 2,50,000/- was spent towards treatment. Further, rider of the motor bike was not having a valid and effective licence and there was violation of conditions of the insurance policy. Hence, the insurer sought for dismissal of the claim petition.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues. In order to prove her case, father of the claimant was examined as P.W. 1, one Satish Babali as P.W. 2 and Dr. Rajesh Y. Shenoy as P.W. 3 and got marked the documents as Exs. P.1 to P.216. No oral evidence was let in on behalf of the respondents. However, copy of insurance policy came to be marked as Ex. R1.

On the basis of the oral and documentary evidence let in by the parties and taking into consideration the MVI report, spot panchanama and FIR and that the police have registered a case against the rider of the motor bike, the Tribunal held that due to rash and negligent riding of the motor bike the accident had occurred and hence, the claimant was entitled for the compensation. With regard to the quantum of compensation, in the accident, the claimant sustained fracture of tibia and fibula, fracture of mandible, abrasion on the frontal side of the chest, fracture of inferior pubic rami and head injury. Dr. Rajesh Y. Shenoy, who treated the claimant, assessed the permanent disability to an extent of 100%. The wound certificate was marked as Ex. P.5. Due to the accident, the claimant has become bed-ridden; not in a position to understand, speak and maintain herself, eat or drink; even for natural call, she has to depend on others; she has to consume only liquid food. Though the respondents cross-examined the doctor nothing was elicited from him. The Tribunal taking into consideration the notional income of Rs. 15,000/- per month, applying multiplier ''15'' awarded a sum of Rs. 2,25,000/- towards loss of future prospects, Rs. 1,00,000/- towards pain and suffering; Rs. 1,50,000/- towards medical expenses; Rs. 50,000/- towards future medical expenses; Rs. 1,50,000/- towards attendant charges; Rs. 20,000/- towards conveyance, nutrition and other incidental expenses; and Rs. 30,000/- towards loss of amenities. In all, a sum of Rs. 7,25,000/- with interest at 6% p.a. was awarded as compensation. Being not satisfied with the quantum of compensation, the claimant has preferred this appeal.

Shri. Shivaraj P. Mudhol, learned counsel appearing for the appellant, contended that in the road traffic accident that occurred on 12.04.2010, the claimant suffered disability to an extent of 100%. The evidence of Dr. Rajesh Y. Shenoy, who treated the claimant, and the disability certificate issued by him clearly discloses that because of the injuries sustained by the claimant to her head, she suffered disability to an extent of 100%, the claimant is bed-ridden, she is not in a position to understand and speak and maintain herself, she is not in a position to eat anything except liquid food and somebody has to feed her. The Tribunal has seen the claimant in person. The notional income of Rs. 15,000/- taken for awarding compensation towards loss of future income is contrary to the judgment of the Hon''ble Supreme Court in the case of Kishan Gopal and Another Vs. Lala and Others, (2013) 3 ACC 878 : (2013) ACJ 2594 : (2013) 9 AD 193 : (2013) 5 CTC 212 : (2013) 11 JT 563 : (2014) 1 PLR 276 : (2013) 4 RCR(Civil) 276 : (2013) 10 SCALE 580 : (2014) 1 SCC 244 and also in the case of R.K. Malik and Another Vs. Kiran Pal and Others, (2009) ACJ 1924 : AIR 2009 SC 2506 : (2009) CLT 1370 : (2009) 8 JT 461 : (2009) 8 SCALE 451 : (2009) 14 SCC 1 : (2009) 10 SCR 87 : (2009) 6 UJ 2963 : (2009) AIRSCW 4381 , wherein the notional income of Rs. 30,000/- has been taken. Further, the compensation awarded towards amenities of life is also contrary to law. In the instant case, she has lost everything, she has to be under the mercy of other persons. Hence, sought for enhancement of the compensation.

On the other hand, Shri. Laxman B. Mannoddar, learned counsel appearing for respondent No. 2-insurance company argued in support of the impugned judgment and award passed by the Tribunal and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the advocate appearing for the parties and perused the judgment and award and oral and documentary evidence.

The records disclose that, in the road traffic accident that occurred on 12.04.2010, the claimant sustained injuries. Initially, she took treatment in the Government Hospital and thereafter in KLE Hospital, Belgaum, wherein she took treatment as an inpatient for more than 2 months and underwent more than three operations. In the instant case, she has sustained fracture of tibia and fibula, fracture of mandible, abrasion in the frontal side and chest, fracture of inferior pubic rami and head injury. The MRI brain scan was taken. After the accident, the claimant is not in a position to understand and speak. She cannot take solid food. She has to be under the mercy of her parents. The doctor who has treated the claimant has assessed the disability to an extent of 100%. The Tribunal also saw the claimant in person. The notional income of Rs. 15,000/- per annum taken by the Tribunal is on the lower side. In the judgments of the Hon''ble Supreme Court referred to above, notional income of Rs. 30,000/- per annum has been taken for 9 years school going boy. The compensation awarded towards loss of amenities in a sum of Rs. 30,000/- is also on the lower side. Taking into consideration the notional income of the claimant as Rs. 30,000/- per annum, applying multiplier ''15'', the claimant is entitled to a sum of 4,50,000/- as against Rs. 2,25,000/- awarded by the Tribunal towards loss of future prospects. Further, in view of 100% disability suffered by the claimant and that she has to live with the said disability through out her life, she is entitled for another sum of Rs. 50,000/- towards loss of amenities. Hence, the claimant is entitled for the enhanced compensation of Rs. 2,75,000/-, apart from Rs. 7,25,000/- awarded by the Tribunal. The compensation awarded by the Tribunal under other heads is just and reasonable. Accordingly, I pass the following Order:

"Appeal is allowed in part. The appellant/claimant is entitled to enhanced compensation of Rs. 2,75,000/- apart from Rs. 7,25,000/- awarded by the Tribunal, with interest at 6% per annum. Out of the enhanced compensation, 50% of the amount be deposited in any nationalised bank in the name of the appellant/claimant till she attains the age of majority. The remaining 50% of the amount be released in favour of father of the appellant/claimant."