Nithirithil Sherly vs Mrs. C.M. Chandramathi and Others

T.L. Viswanatha Iyer, J.—Appellant was the claimant in an application u/s 110-A of the Motor Vehicles Act, 1939 in respect of an accident which took place on 31.5.1981 while she was traveling as a passenger in the bus KRV 3155 belonging to the first respondent and driven by the third respondent and insured with the second respondent. This bus had a brush with a luxury coach KRT 1297 in which the appellant who was then aged 13 years and a school going girl lost the tip of her index finger on the right hand. She filed the claim for Rs. 75,000/-, claiming Rs. 15,000/- for pain and suffering, Rs. 25,000/- for permanent disability, Rs. 30,000/- for loss of earnings due to loss of studies and Rs. 5000/- for transportation and bystander and others. The other vehicle KRT 1297 was owned by the 4th respondent, driven by the 5th respondent and insured with the 6th respondent. The Tribunal awarded a total compensation of Rs. 2,425/- with interest thereon at 6% per annum from the date of the petition, made up of Rs. 1000/- for pain and suffering, Rs. 1000/- for permanent disability and Rs. 425/- for transportation and attendant. Being aggrieved by this award the claimant has come up with this appeal claiming the entire amount claimed.

We heard Counsel for the appellant so also Counsel for respondents 1 to 3 and 6, respondents 4 and 5 being exparte. Having heard Counsel we feel that the compensation awarded by the Tribunal is inadequate and that it has got to be enhanced in the manner indicated below. The Tribunal awarded an amount of Rs. 1000/- by way of compensation for the pain and suffering suffered by the claimant. Ext. Al is the wound certificate and it shows that the injury suffered by her was the cutting off of the tip of the first phalanx of the index finger on the right hand, with the cut edge of the bone projecting. She had also another injury on the left hand. She was in the hospital from 31.5.1981 to 14.6.1981 for a period 15 days, after which she was discharged stated to be cured. In view of the fact that she was in the hospital for nearly two weeks and the injury suffered by her was of a painful nature, we are of the view that the award of Rs. 1000/- made by the Tribunal is inadequate. We feel that the interests of justice in this case require that it should be enhanced to Rs. 2500/-.

The Tribunal did not award any amount for loss of earnings due to loss of studies. We are not satisfied that this part of the Tribunal''s award requires any enhancement though Mr. Sethumadhavan, Counsel for the appellant prays for such enhancement. It is not clear as to how the appellant was disabled from attending her further studies, assuming that she had discontinued her studies, so that we are not inclined to accept the plea that the appellant had suffered any loss of earnings because of the alleged inability to continue her studies. This part of the claim is rejected in concurrence with the finding of the Tribunal.

We do not also find any reason to interfere with the compensation awarded by the Tribunal for transport charges and attendant charges. The amount of Rs. 425/- is just on the evidence in the case and it does not call for any interference.

The next head of claim was Rs. 25,000/- for permanent disability suffered by the appellant, of which the Tribunal awarded only Rs. 1000/-. Ext. A1 is the wound certificate. The evidence of the appellant as P.W. 1 and the evidence of the doctor who attended her as P.W. 5 show that the tip of the first phalanx of the right index finger has been cut off. P.W. 5 the doctor has spoken that the injury was permanent. Appellant was a girl aged 13 years with the entire future before her. Necessarily the cutting off of the tip of the right index finger will result in some disability for her though not to the extent alleged by Counsel for the appellant and also some disfigurement which may cause incidental problems in future. We are therefore of the view that the award of Rs. 1000/- is inadequate. At the same time the injury is not of such a magnitude as attempted to be made out justifying the claim forRs.25,000/- also.Wefeelthattheinterestsofjusticewill besubserved by fixing the compensation for permanent disability at Rs. 7,500/- as against Rs. 1,000/- fixed by the Tribunal.

The result of the above discussion is that the total amount of compensation payable to the appellant will be Rs. 10,425/- as against Rs. 2,425/- awarded by the Tribunal.

Counsel for the second respondent insurer of the vehicle K.RV 3155 in which the appellant was traveling had a contention that the appellant being a passenger in the bus, the liability of the second respondent under the policy of insurance was limited to Rs. 5000/- u/s 95(2) of the Motor Vehicles Act, 1939. But the policy of insurance has not been produced. Not is there any plea of this limitation in liability by any of the parties as contended by Counsel for the second respondent. In such a case when the policy is not produced and the limitation of liability is also not proved the rule laid down by the Supreme Court in National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore and Others, , must apply and the limit of the second respondent''s liability must be held to be unlimited. The respondents are, therefore, liable to pay the amount of compensation awarded as per this judgment. There will be a direction accordingly.

We find that the lower Court has awarded interest only at 6% per annum. Having regard to the recent decisions of the Supreme Court and of this Court, interest has to be enhanced from 6% to 12% per annum from the date of the petition.

The appeal is, therefore, allowed in part. The appellant is awarded a further amount of Rs. 8,000/- by way of compensation in addition to the amount of Rs. 2,425/- awarded to her by the Tribunal, aggregating a sum of Rs. 10,425/-, which will bear interest at the rate of 12% per annum from the date of the petition. The liability to make paymen tof this amount will be that of respondents 1 to 6 jointly and severally, but the primary liability will be that of respondents 2 and 6, the insurers of the two vehicles KRV 3155 and KRT 1297. There will be no order as to costs in this appeal.