KUM.MEGHANA D/O ANANTHA vs SRI MUNIRAJU.N, & ANR.

This claimant''s appeal arises out of the judgment and award in MVC No.7689/2007 passed by the MACT-XVI, Bangalore. The first respondent is the owner and the second respondent is the insurer of the vehicle involved in the accident.

The claimant, aged 13 years, was studying in YVSNHP School. On 22.8.2007 at about 9.50 am, when she was proceeding to her school on Uttarahalli Main Road, Bangalore, Scorpio Car bearing No.KA-05-ME-1733 hit her and caused the accident. The claimant, who was minor, through her mother filed MVC No.7689/2007 contending that the accident occurred due to rash and negligent driving of the driver of the car, causing her grievous injuries and permanent disability. Thus she claimed compensation of Rs.20,00,000/-.

The respondents contested the petition denying the negligence on the part of the car driver, the injuries allegedly suffered by the victim, her hospitalization, the disability and her claim for compensation, etc. The parties adduced evidence. On behalf of the petitioner - claimant, PWs.1 to 3 are examined and Exhibits P.1 to P.19 are marked. The respondents did not adduce any oral evidence and got marked Exhibit R.1, driving licence and Exhibit R.2, copy of the Insurance Policy.

The Tribunal, on hearing both parties, awarded compensation of Rs.2,33,000/- on the following different heads:-

Loss of income Rs.72,000.00

Medical expenses Rs.71,000.00

Attendant charges, food and nourishment and conveyance charges Rs.30,000.00

Pain and suffering Rs.20,000.00

Loss of shortened expectation of life and mental life Rs.20,000.00

Loss of amenities in life Rs.20,000.00

TOTAL Rs.2,33,000.00

Shri Vasanthappa, learned Counsel appearing for the claimant-appellant contends that the victim has suffered 57.66% disability to the whole body as per PW.2, and the Tribunal is not justified in overlooking that evidence and assessing the disability at 30%. He further contends that the income of the claimant taken by the tribunal is on the lower side and the compensation awarded on other heads is grossly inadequate. He relies on a judgment of the Supreme Court in Mekala vs. M.Malathi and another, (2014)11 SCC 178.

The question that arises for consideration is whether the compensation awarded is just and proper?

The records show that at the time of the accident the claimant was 13 years old and on occurrence of the accident she was shifted to Mallige Hospital in the offending vehicle itself. As rightly pointed out by the Tribunal, the claimant did not examine the doctors who treated her in Mallige Hospital, NIMHANS Hospital and Victoria Hospital. PW.2 and 3 are not the doctors who treated her in the hospitals referred above.

The accident occurred on 22.8.2007. PW.2 claims to have examined the claimant for the first time on 31.12.2008 in Abhaya Hospital, Bengaluru and PW.3 who claims to have examined the claimant for the first time on 08.08.2009 in Victoria Hospital. PW.2 says that he referred the claimant for Neuropsychological assessment and she turned up to him with reports Exhibits.P.19 & P.17 on 28.01.2009. First of all there is no material to show P.W.2 examined the claimant on 31.12.2008 in Abhaya Hospital. No reference letters of PW.2 are produced to show that he had referred the claimant for the Neuropsychology or speech evaluation. The authors of Exhibits.P.16 and 17 are not examined.

PW.2 says that his evidence is based on Exhibit P.7, Discharge Summary issued by the Mallige, NIMHANS and Victoria Hospitals. In the discharge summary of Mallige Hospital where she was treated first the following injuries are recorded:

Lacerated wound behind right ear 5 X 1 cm.

Abrasion over right and left medial malleolus

Abrasion over right hand.

Fracture right humerus.

When PW.2 speaks to a host of physical disabilities in all amounting to 57.66%, none of the three discharge summaries speak of such major physical disability. There is no explanation for non-examination of the doctors who treated claimant in Mallige, NIMHANS, Victoria Hospitals. When all those documents show that the claimant was treated conservatively, PW.3 imputes a host of injuries and disabilities to the claimant. The Tribunal which had the opportunity to observe the victim, in its judgment, at Paragraph 17, has held as follows:-

"the petitioner''s behaviour is not so abnormal."

Since PW.2''s evidence is apparently unworthy of credence, the Tribunal has rightly rejected the same and based on the other evidence on record and rightly assessed the disability at 30%.

As per Exhibit P.7, three discharge summaries, the claimant was treated as inpatient in three hospitals as follows:-

Sl. No. Name of the Hospital Date of Admission Date of Discharge No. of Days

Mallige hospital 22.8.2007 20.9.2007 30

NIMHANS 21.9.2007 27.9.2007 07

Victoria Hospital 28.9.2007 6.10.2007 09

TOTAL 46

The above records go to show that the victim was treated, in all, for 46 days as indoor patient for her Concussive head injury.

In Mekala''s case referred to supra, the victim was a first rank student in the 10th Standard and she had suffered mal-united bone fractures in both of her lower limbs resulting into 70% disability. The said judgement is not applicable to the facts of this case.

RE. LOSS OF INCOME

Having regard to the Second Schedule to the Motor Vehicles Act, 1988, the Tribunal has taken the annual income at Rs.15,000/- and assessed the loss of income at Rs.4,500/- per month(30% of Rs.15000). The Tribunal ought to have added 50% to her income towards future prospects, as per the ratio laid down by Supreme Court in Rajesh and Others vs. Rajbir Singh and Others, (2013)9 SCC 54. The Tribunal has applied ''16'' multiplier. As per the judgment of the Supreme Court in R.K.Malik and another vs. Kiran and Pal and others, (2009)14 SCC 1, in such cases the multiplier of ''15'' applies. Calculated at that rate, the loss of income comes to (15,000 + 7,500 x 30% x 15) Rs.1,01,250/-.

RE. PAIN AND SUFFERING

Exhibit P.7 shows that the claimant was treated as indoor patient for 46 days. She was intubated for 34 days. Due to prolonged intubation, Tracheostomy was conducted on her. She has suffered immeasurable pain due to injuries suffered in the accident at that tender age. She also lost her father a short time after the accident. She is depending on her mother, a single parent. Having regard to these facts, compensation of Rs.20,000/- awarded on the head of pain and suffering is not just and proper and that has to be as follows:-

Fracture Rs.40,000/-

Head Injury and resultant suffering Rs.50,000/-

Other three simple injuries Rs. 6,000/-

TOTAL Rs. 96000/-

RE. ATTENDANT AND CONVEYANCE CHARGES:

The record shows that the victim had prolonged treatment though it was conservative and there were several complications like bedsore, intubation, tracheostomy etc. The compensation of Rs.30,000/- awarded under the said head is on the lower side. At the rate of Rs.1,000/- per day, during the period of stay in the Hospital, she is entitled to receive a sum of Rs.46,000/-. RE: LOSS OF EXPECTATION OF LIFE AND FUTURE AMENITIES

Though the Tribunal has awarded Rs.20,000/- towards loss of expectation of life, there is no decisive medical evidence to establish the same. However, there is evidence to show that the claimant has lost her education for the year of accident. There is nothing to show that she has further pursued her education. Due to the disability, some compensation has to be awarded towards loss of marriage prospects. Therefore, on the head of loss of future amenities and expectations in life, a global compensation of Rs.1,00,000/- is just and proper.

The medical expenses is awarded based on the evidence. Therefore, there is no need to interfere with that. In all, the compensation payable to the appellant has to be re-assessed as follows:-

Sl.No. Description AMOUNT (In Rs.)

Loss of future earning capacity 1,01,250

2 Medical Expenses 71,000

3 Attendant charges, food and nourishment and conveyance charges 46,000

4 Pain and suffering 96,000

5 Loss of future amenities and expectations in life 1,00,000

TOTAL 4,14,250

On deducting the compensation awarded by the Tribunal, the claimant is entitled to enhancement of (Rs.4,14,250 - 2,33,000) Rs.1,81,250/- with interest at 9% per annum from the date of petition till the date of its realization.

The appeal is allowed in part accordingly.

The second respondent - Insurance Company shall deposit the aforesaid amount within four weeks from the date of this order. The statutory deposit, if any, made before this court shall be transmitted to the Tribunal forthwith.