Megha alias Vidhya vs Ibrahim Katil and Others

Mrs. S. Sujatha, J. - This appeal is directed against the Judgment and Award passed by the Motor Accident Claims Tribunal, Gulbarga.

Briefly stated, the facts are:

That on 9.2.2009 at about 12 noon when the claimant was crossing the road near Government General Hospital, Hunasagi, along with her grandfather, it is alleged that the driver of the jeep bearing registration No. KA-28-P-2162 drove the vehicle in a rash and negligent manner and dashed against the claimant. It is contended that on account of the said accident, the claimant sustained grievous injuries to the various parts of the body and she was admitted to the Government Hospital, Hunsagi and subsequently shifted to the B.L.O. Hospital, Bijapur and later she was shifted to the Basaveshwara Hospital, Solapur for medical treatment. On the claim petition filed by the claimant aged four seeking claimant aged four seeking compensation of Rs. 10 lakhs, the Tribunal analysing the evidence on record, awarded the compensation of Rs. 1,27,022/- along with interest at 6% per annum. Being dissatisfied by the said Award, the claimant is before this Court.

Learned Counsel for the Appellant would contend that the Doctor who had issued the disability certificate after examining the claimant and other medical records, had deposed that the permanent disability of the claimant to the upper limb would be assessed at 38% and also to the whole body at 38%. The Tribunal after considering the nature of injuries sustained by the claimant ignoring the evidence of the Doctor assessed the disability of the claimant to the whole body at 10% which is totally contrary to the evidence of the Doctor not controverted by the Insurer.

Learned Counsel placing reliance on the Judgment of the Apex Court in the case of �Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and others�, reported in AIR 2014 SC 736 and also the Judgment of the Apex Court in the case of �Kumari Kiran through her father Harinarayan v. Sajjan Singh and others�, reported in [2015] 1 SCC 539, contends that even assuming permanent disability of the claimant with respect to the upper limb assessed by PW.2-Doctor is at 38%, the disability of the claimant with respect to the whole body would have been assessed at 13%. Applying the law enunciated by the Apex Court in the judgments referred to above, the compensation ought to have been awarded at Rs. 3,00,000/-on different heads, namely, pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc. and loss of amenities in life on account of permanent disability and further compensation is required to be awarded under the head future medical expenses as enumerated in Master Mallikarjun�s case [supra] and also adequate compensation under the head marriage prospects considering the age of the injured girl who is put to a number of tribulations and inconvenience to the rest of her life.

Learned counsel for the Appellant also placed reliance on Judgment of this Court in the case of �Syed Peer Valli v. Pavithra� disposed of on 7-12-2015 in MFA No. 10917/2011 wherein this Court has categorically observed that the claimant was entitled to Rs. 3,30,000/- with interest at 6% per annum following the Judgment in Master Mallikarjun�s case : (AIR 2014 SC 736) [supra]. However, in view of the fact that the Cross Objection filed by the claimant having been dismissed, the Court has confirmed the award passed by the Tribunal.

Per contra, learned Counsel for the Respondent-insurer supporting the judgment and award passed by the Tribunal contends that the Tribunal after extensively considering the evidence on record, has assessed the disability at 10% which cannot be found fault with. Accordingly, he contends that Master Mallikarjun�s case : (AIR 2014 SC 736) [supra] is not applicable to the facts of the present case.

Heard the rival submission of the learned Counsel for the parties and perused the material on record.

It is an admitted fact that the injured was aged four at the time of occurrence of the accident and she was hospitalized for about 30 days and has undergone two surgeries. The PW.2 - Doctor has assessed the permanent disability to the whole body at 38% though the disability of the claimant with respect to her upper limb is also assessed at 38%. There being no controverting evidence placed on record by the Injured, considering the permanent disability of the upper limb at 38% as assessed by the Doctor, coupled with the wound certificate the permanent disability to the whole body would be safely assessed at 13%.

At this juncture, it is apposite to extract the passage of Master Mallikarjun�s case : (AIR 2014 SC 736) [supra],

"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs. 3 lakh; up to 60% Rs. 4 lakhs; up to 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability up to 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take a different yardstick.��

In the light of the said judgment, the claimant is entitled to Rs. 3,00,000/- under the head pain and suffering and loss of amenities.

The claimant is also entitled towards her future medical expenses as is evident from the evidence placed on record. That the claimant being a young girl had suffered grievous injuries with multiple fractures clue to the accident and her chest and face is disfigured. It has come on record that her chest looks very ugly because of the bent elbow and that the Doctors have advised her to undergo another surgery after she attaining the age of 14-15. Even in the wound certificate and the disability certificate, clinical disfiguration of her face and left elbow is noticed. In the given circumstances, I am of the considered view that the claimant deserves compensation under the head future medical expenses for correction of her left elbow and incidental expenses for such treatment. Hence, it would be appropriate to award compensation of Rs. 25,000/- under the head future medical expenses.

The disfigurement of the face and chest would adversely affect her marriage prospects also. In view of the inconvenience and discomfort which she has to suffer to the rest of her life, it would be appropriate to award compensation of Rs. 25,000/- under the head marriage prospects.

Accordingly, the compensation awarded by the Tribunal is modified and enhanced to Rs. 3,50,000/-. The enhanced amount shall carry interest at 6% per annum from the date of the petition till the date of realization.

Accordingly, the appeal is allowed to extent indicated above.