Master Naveen Kumar vs The Managing Director K.S.R.T.C., Central Office, K.H. Road, Shanthinagar, Bangalore - 560027

A.N. Venugopala Gowda

The claimant has filed this appeal, dissatisfied with the compensation of ` 2,97,500/- with interest awarded by the MACT. In a petition filed under S. 166 of the Motor Vehicles Act, 1988 against the respondent for grievous injuries sustained in a road traffic accident on account of rash and negligent driving of the bus bearing registration No. KA-01-F-7669 by its driver, owned by the respondent, the Tribunal having held that the accident in question was caused on account of rash and negligent driving of the bus by its driver and there being actionable negligence, the respondent, owner of the bus was held liable to pay compensation to the claimant. Taking into consideration the pecuniary and non-pecuniary loss suffered by the claimant/appellant, the Tribunal passed the award, noticed supra. Respondent has not questioned the award passed by the MACT, either by filing an appeal or cross objection. Thus, the findings recorded by the MACT against the respondent and the liability of the respondent to pay the assessed compensation, has attained finality. Sri R. Chandrashekhar, learned counsel for the appellant, firstly, contended that the Tribunal has committed an error in not holding that there is 100% functional disability and not awarding just and reasonable compensation under the heads, loss of future earnings and loss of amenities of life, including loss of marriage prospects. Learned counsel submitted that there is no just and reasonable compensation passed by the MACT and hence, the impugned award may be modified and the respondent may be directed to pay just and reasonable compensation to the appellant. Learned counsel placed reliance on the decision in the case of Asraf Alli Vs. M/s Naveen Hotel Ltd., & Another (2009 AIR SCW 1325).

Sri G.A.K. Gowda, learned counsel for the respondent, on the other hand, argued that the appellant has not made out a case for enhancement of compensation and sought dismissal of the appeal.

Perused the record. Rival contentions have received my consideration.

There being no challenge to the impugned Judgment and award by the respondent, the only point for consideration is, whether the Tribunal has awarded just and reasonable compensation in favour of the claimant/appellant?

An accident victim who survives and suffers physical disablement, suffers on many counts. The sufferings of the disabled person is endless. Hence, the compensation which is to be awarded has to be just and reasonable.

It is trite that the Tribunal or the Court is required to fix the amount of compensation in accident cases sometimes on hypothetical consideration and by resorting to guess work keeping in view the nature of disability suffered which has to be viewed with objective standards. While awarding compensation, the whole idea is to put the person in the same position as he was, insofar as money can. The compensation assessed and ordered to be paid need not only be with reference to the physical injury sustained, but also for the loss which the person suffers as a result of such injury.

In the case of Raj Kumar Vs. Ajay Kumar (2011 ACJ 1 (SC)), Apex Court has considered in great detail the correlation between the physical disability suffered in the accident and loss of future earning capacity resulting from it. In the light of the well settled principles of law, the case on hand, when examined, it is clear that the Tribunal has not awarded just and reasonable compensation to the claimant/appellant under the relevant heads.

Ex. P8 is the wound certificate. Claimant was taken from the accident scene to Hi-tech hospital, Bangalore, where he was given first-aid treatment. He was shifted to Victoria hospital, where from, he was referred to NIMHANS for head injury and again was shifted back to Victoria hospital, wherein, he was an inpatient from 19.10.2008 to 19.11.2008. Guillitone amputation at upper 1/3rd of left arm was performed on 25.10.2008 and the claimant was discharged on 19.11.2008.

Claimant has taken treatment at Punasru hospital. He was an in-patient therein from 6.12.2008 to 14.12.2008. Discharge summary is at Ex. P9. Ex. P12 is the case sheet.

Dr. S.U. Shivaprakash has deposed as PW.2. From his evidence, it is clear that in the road traffic accident the claimant/appellant had sustained the following injuries:

(i) Degloving injury of left upper limb with type III compound fracture to left humerus;

(ii) Head injury.

PW.2 has examined the patient on 27.8.2009 for the purpose of assessment of disability. The claimant complained of loss of left upper limb. PW.2 on clinical and radiological examination has noticed the following:

(i) Loss of upper limb at above elbow with 5 cms. from the shoulder joint;

(ii) Not able to use the limb for any work.

The x-ray has confirmed the existing length of humerus from the shoulder joint. PW.2 has assessed the permanent disability at 85% in relation to the left limb and 45% in relation to the whole body.

Claimant/appellant was aged about 12 years at the time of accident and was a student of VII standard. He was studying in Government Model Primary School, Nayandanahalli, Bangalore and was a non-earning person, on account of which, the Tribunal has rightly taken the income at Rs. 15,000/- p.a.

The Tribunal on account of loss of left upper limb, despite the physical disability having been found to be 45%, has taken the functional disability suffered at 90% and has applied the multiplier of 15 to assess the future loss of future earnings. It has passed an award for Rs. 2,97,500/- under the following heads:

1.

Pain and agony

Rs. 50,000/-

2.

Loss of future earnings

Rs. 2,02,500/-

3.

Loss of happiness and loss of Future amenities

Rs. 5,000/-

4.

Medical and incidental expenses

Rs. 30,000/-

4.

Loss of marriage prospectus and shortening of life

Rs. 10,000/-

Total

Rs. 2,97,500/-

Ex. P7 is the photo with negative of the claimant. Ex. P16 is the study certificate. For the injuries sustained in the accident, claimant/appellant has taken treatment at the hospitals, noticed supra, despite which, there is amputation at upper 1/3rd of left arm. The claimant has incurred expenditure for obtaining of treatment. The medical bills produced account for Rs. 26,436/-. He must have been taken care of by his parents round the clock, atleast for 4 to 5 months and as a result, incurred expenditure towards conveyance, nourished diet and attendant charges. The Tribunal has not awarded just and reasonable compensation under the head, incidental expenses. The sum awarded under the head, loss of amenities of life including marriage prospects is too inadequate. However, the assessment of loss of future earnings by the Tribunal is just. On account of amputation of left upper arm, the appellant will suffer from handicap and social stigma throughout his life. His marriage prospects is affected. He will have to suffer trauma of not able to do normal work and enjoy his future life. In the above background, the just and reasonable compensation which the respondent has to pay to the appellant is as follows:

1

Towards pain end suffering :

Rs. 50,000/-

2.

Towards medical expenses as per bills:

Rs. 26,436/-

3.

Incidental expenses:

Rs. 20,000/-

4.

Loss of future earnings:

Rs. 2,02,500/-

5.

Loss of loss of amenities of life including marriage prospects :

Rs. 1,00,000/-

6.

For the loss of one academic year:

Rs. 10,000/-

Total

Rs. 4,08,936/-

In the result, the appeal is allowed in part and the impugned judgment and award is modified. It is declared that the respondent shall pay the compensation of Rs. 4,08,936/-, which is rounded of to Rs. 4,10,000/-, along with interest at 6% p.a. from the date of filing of claim petition till the date of deposit.

Two months time is allowed for depositing the balance amount in the MACT, which shall pass orders regarding deposit etc.

No order as to cost.