M G Annapoorna vs Managing Director

,,,

Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.",,,

This appeal is preferred by the appellant/claimant seeking enhancement of compensation awarded by the MACT, Bangalore vide judgment and",,,

award dated 18.01.2013 in MVC No.5311/2011.,,,

The factual matrix of the appeal is as under:,,,

It is stated in the claim petition that on 20.07.2011 at about 8.50 a.m., the claimant namely M.G.Annapoorna, after alighting from BMTC bus",,,

bearing Regn.No.KA-01/F-4483, opposite to Komarla group, on Krishna Rao Road, V.V.Puram, Bangalore, and when she was proceeding, the driver",,,

of the bus all of a suddenly moved the bus in rash and negligent manner and dashed against her. Due to the said impact, claimant fell down and the",,,

rear side of the bus ran over the right leg of the claimant and thereby, she sustained grievous injuries. Therefore, she filed the claim petition before the",,,

Tribunal seeking compensation, by urging various grounds.",,,

In pursuance to issuance of notice, respondent No.1 remained absent and was placed exparte. Respondent No.2 entered appearance and filed",,,

written statement denying petition averments.,,,

On the basis of pleadings, the Tribunal framed issues. In order to substantiate the case, the guardian of minor claimant was examined as PW.1 and",,,

three witnesses were examined as PW.2 to PW.4 and Exs.P1 to Ex.P33 were got marked. On behalf of respondents, the driver of bus was examined",,,

as RW.1 and another witness was examined as RW.2 and Exs.R1 to R.3(iii) were marked. The Tribunal after hearing arguments of learned counsel,,,

for the parties and on appreciation of oral and documentary evidence on record, passed the impugned judgment, awarding compensation of",,,

Rs.3,50,000/- with interest @ 6% p.a. from the date of petition till date of deposit. Being not satisfied with the quantum of compensation awarded by",,,

the Tribunal, the claimant has preferred the present appeal, by urging various grounds.",,,

Learned counsel for the appellant contends that the Tribunal has not properly appreciated the facts and evidence on record while passing the,,,

impugned judgment and the same has to be modified. Further, he contends that the appellant has sustained degloving injury to her lower limb and she",,,

was compelled to get hospitalized for long time on three occasions. She underwent surgeries and several procedures have been done in order to cure,,,

the injured part. Despite effective and continuous treatment, the appellant could not recuperate from the injuries, and due to the effect of grievous",,,

injuries, it has left its remarks on the entire lower limb with several restrictions functionally. The claimant being a girl has to bear the disability as well",,,

as the scar in the entire area of the legs. The medical evidence reveals that there is disability of 18% to whole body. The Tribunal without appreciating,,,

the entirety of case in a proper perspective has passed the impugned judgment and the same requires interference of this Court.,,,

Further, the Tribunal has not taken note of the marriage prospects of the appellant and the Tribunal is not justified in lesser compensation for loss of",,,

amenities in life. Further, the Tribunal has not considered the compensation properly for the medical expenses incurred by the parents. The appellant",,,

has lead the evidence of PW.4 to demonstrate the expenses incurred to get physiotherapy. Merely on technical grounds, the Tribunal is not justified in",,,

discarding the evidence and not awarding any compensation under this head also needs to be modified suitably. Further, the Tribunal has erred in not",,,

considering the loss of future earning capacity in view of the 18% disability to the whole body. Hence, the same needs to be considered by this Court.",,,

On all these grounds, learned counsel for the appellant seeks intervention of this Court and prays for allowing the appeal by enhancing the",,,

compensation awarded by the Tribunal.,,,

Per contra, learned counsel for the respondent â€" insurance company submits the insured has violated the policy conditions and there is a delay of",,,

two days in filing the FIR and the father of the claimant has entered into a compromise with the driver of the offending vehicle by receiving money,,,

incurred towards treatment of the claimant. The accident occurred mainly due to the negligence on the part of the claimant and as per the wound,,,

certificate the claimant has suffered only simple injuries and hence, they are not entitled for any enhancement. Further, it is contended that there is no",,,

negligence on the part of the driver of BMTC bus bearing Regn.No.KA-01/F-4483 and he has not caused the accident but some other vehicle has,,,

caused the accident. He contends that the Tribunal, on appreciation of oral and documentary evidence on record has rightly awarded just and fair",,,

compensation, which does not call for interference of this Court and accordingly, prays for dismissal of the appeal.",,,

In this context of the contentions taken by the learned counsel for the appellant and so also, learned counsel for respondent â€" insurance company,",,,

it is relevant to go through the evidence of PW.1 â€" mother of minor-claimant who has stated that the accident has occurred only due to the,,,

actionable negligence on the part of the driver of the bus and due to the said accident, the claimant sustained grievous injuries. In order to substantiate",,,

her oral evidence, she has produced documents as such as Ex.P1-FIR with complaint, Ex.P2 â€" Mahazar, Ex.P3 â€" IMV report, Ex.P4 â€" wound",,,

certificate, Ex.P5 â€" sketch, Ex.P6 â€" charge sheet.",,,

PW.2, the eye witness to the incident has stated that on the date of accident, she was also traveling in the BMTC bus from Veerabhadranagar to",,,

Shivajinagar, Bangalore. In the said bus, a school girl aged about 15 years, i.e., the claimant was also traveling and alighted near V.V.Puram and when",,,

she was walking ahead, the driver of the said bus started to move the vehicle in a rash and negligent manner and dashed against the claimant from the",,,

left side of the bus, as a result, claimant fell down and the left back wheel of the BMTC bus ran over the right leg of the claimant. Considering the oral",,,

and documentary evidence, the Tribunal held that due to the actionable negligence on the part of the bus driver, the accident had occurred and the",,,

claimant sustained grievous injuries which has led to physical impairment.,,,

Ex.P4 is the wound certificate. It reveals that the claimant has sustained degloving injury on right leg from the lower third thigh to ankle on the,,,

right lower limb, with soft tissue exposed. Exs.P29 to 31 are the case sheets. Ex.P7 (a) to (c) are the discharge summaries. PW.3 â€" Orthopaedic",,,

surgeon, KIMS hospital has also stated in detail about treatment undergone by the claimant in the hospital. He has opined that the injury is simple in",,,

nature. Further, the claimant has took treatment as inpatient thrice for total period of 83 days. Keeping this in view, the Tribunal has awarded",,,

Rs.75,000/- towards pain and suffering. However, it is relevant to note that the claimant is a school girl aged about 15 years at the time of accident",,,

and was studying in SSLC. Considering her age and the nature of injuries and the duration of treatment undergone by her, the compensation awarded",,,

by the Tribunal in a sum of Rs.75,000/- appears to be on lower side and therefore, another sum of Rs.60,000/- is awarded under this head.",,,

The Tribunal while considering the compensation towards loss of academic year of injured claimant, has awarded a sum of Rs.25,000/-. It is",,,

relevant to note that claimant is a student of SSLC and due to accident has lost one academic year. Ex.P12 and 13 are the school certificate and study,,,

certificate which were issued in the months of January 2012 and September 2011 respectively. According to the medical records, the claimant was",,,

under treatment till February 2012. Due to the accident, the claimant might not have concentrated on her education. At the time of accident, the",,,

claimant was in SSLC and definitely it is a turning point in the career of a student and due to the accident, she was not able to take her exams and has",,,

lost precious one year of her academic career. In that view of the matter, it would be just and proper, if another sum of Rs.75,000/- is awarded",,,

towards loss of academic year.,,,

Compensation

awarded under the

heads","By

MACT","By this

court","Amount

Enhanced

Pain and agony,"75,000","1,35,000","60,000

Medical expenses,"1,75,000","1,75,000",-

Loss of academic

year","25,000","1,00,000","75,000

Permanent

disability, loss of

unhappiness and

amenities","50,000","1,00,000","50,000

,"25,000","1,00,000","75,000

Total,"3,50,000","6,10,000","2,60,000