Shabbir vs S. Razak Saheb

B. Siva Sankara Rao, J.—The appeal is preferred by the injured claimant, who was minor at the time of accident (age 12 years) since major, having been aggrieved by the Order/A ward of the Motor Accidents Claims Tribunal-cum-I Additional District Judge at Chittoor (for short, ''Tribunal'') in M.V.O.P. No. 216 of 1999 dated 09.03.2005, impugning the quantum of compensation awarded by the Tribunal of Rs. 80,000/- against the original claim of Rs. 1,50,000/- and subsequently amended to Rs. 3,00,000/- against respondents 1 and 2 viz., the owner and insurer of the crime vehicle (lorry bearing No. AP 03 T 3677) for enhancement of compensation as prayed for in the appeal to allow the claim filed u/s 166 of the Motor Vehicles Act, 1988 (for short, ''the Act''). Heard learned counsel for the appellant and learned counsel for 2nd respondent. The appeal claim against 1st respondent was even dismissed for default, the appeal is maintainable against the insurer of the crime vehicle vide decision in Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma and others, , thus the appeal is taken up for hearing. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

2(a). The contentions in the grounds of appeal in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case; that despite there is evidence on record showing PW2 issued Ex.A1 permanent disability certificate. PW.6 is working as lecturer in the Department of Orthopaedics in CMC Area Hospital, Palamaneru, who spoke about the inpatient treatment at Vellore covered by Ex.A5 and Ex.A7 wound certificates issued by Area Hospital, Palamaner which also speak about the petitioner sustained permanent disability of 40% and he was earning Rs. 30/- per day as proved. The Tribunal did not take by went wrong any permanent disability in awarding compensation apart from medical expenses, pain and sufferance, attendant charges, loss of earnings, transport charges awarded very meagerly thereby to enhance the claim from Rs. 80,000/- to Rs. 3,00,000/-as prayed for.

2(b). Whereas it is the contention of the insurer that the amount awarded by the Tribunal, to the child of 12 years boy taking into consideration of the injuries sustained by him and from the so called disability certificate issued by Medical Board but not a private Doctor and the PW2 and PW6 examined are not doctors who treated him. Even came to a right conclusion in awarding compensation under different heads and thereby for this Court while sitting in the appeal there is nothing to interfere to enhance the compensation of Rs. 80,000/- but for if at all the rate of interest is reduced from 9% to 7 1/2% as per the settled expression of the Apex Court in D.D.A. and Others Vs. Joginder S. Monga and Others, due to steep fall of bank rate of interest

Now the points that arise for consideration in the appeal are:

Whether the compensation awarded by the Tribunal is not just and requires interference by this Court while sitting in appeal against the award and if so with what enhancement to arrive a just compensation and with what rate of interest?

To what result?

POINT-1

The facts of the case as proved before the Tribunal and not in dispute in this appeal are that, on 07.05.1999 at about 4.00 pm the minor petitioner boy was going on cycle, left side of the road, when he was proceeding near Srinivasa Silk Centre, Javali Street, Palamaner, the lorry bearing No. AP 03 T 3677 belonging to 1st respondent was driven by its driver at high speed from Kamasala Street and dashed against the petitioner, due to which the petitioner sustained multiple injuries all over his body, Palamaner Police registered a case against the driver of the 1st respondent''s lorry in Cr. No. 48 of 1999 u/s 337 IPC which occurrence is proved from Ex.A3 FIR, EX.A4 charge sheet.

Before coming to decide, what is just compensation in the factual matrix of (sic) case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James 1965(1) All. E.R 563, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly 1963 (2) AI1.E.R. 432 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver 1969 (1) All.E.R. 555 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of the circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.

From the above legal preposition coming to the factual matrix of the case, the fact that the accident was the result of the rash and negligent driving of the driver of the crime lorry (bearing No. AP 03 T 3677) of the 1st respondent insured with 2nd respondent proved by Ex.B1 policy. From the evidence of PWs.1 and 3 coupled with Ex.A3 FIR, Ex.A4 charge sheet, Ex.A6 calender and judgment in CC No. 91 of 1999 on admission of guilt by the driver, the Tribunal came to right conclusion in its finding on issue No. 1 at para 17 page 8 of the judgment.

Now coming to the quantum of compensation awarded by the Tribunal is low and what is just compensation concerned. The fact that the claimant is a minor boy hardly 12 years at the time of accident and met with the ghasty incident with all panic besides proved from the lorry run over shows he sustained injury as per Ex.A5 & Ex.A7 wound certificates issued by CMC Hospital, Vellore though PW.6 is not a doctor who treated him at vellore hospital stated that:

(i) Laceration on left lower limb;

(ii) left foot drop;

(iii) laceration on the dorsal surface of foot, exposing tendons, crushed bones and muscles;

(iv) fracture 1st, 2nd and 3rd metatarsal bones;

(v) public symphysis diastasis and

(vi) fracture of right superior and inferior pubic rami.

From the records he deposed by the senior and a treatment of the claimant as mentioned besides PW.5, the doctor who examined the petitioner in Government Area Hospital, palamaner, given first aid and private treatment and referred to Govt. hospital, Madanapalli. PW.2, Medical Superintendent deposed about his treatment also of the injured claimant boy and he issued Ex.A1 disability certificate by assessing the disability at 40% and same factor covered by Ex.A2 photo shows all the injuries and unhealed control and the dequantum and disability there from which are 3 in number to a naked eye but not only show there is a requirement of plastic surgery needs and PW.6 is not a Doctor he treated him at Vellore. The tribunal from said evidence on record and as per its discussion at para 24, 30 and 31 observed he is entitled to compensation of Rs. 10,000/- each 4 fractures, Rs. 5,000/-each for the three injuries, in all it comes to Rs. 55,000 and Rs. 20,000/- towards medical expenses and treatment from Ex.A 8 and A9 bills besides Rs. 540/- towards loss of 18 days earnings at 30/- per day as claimed, an amount of Rs. 900/- towards attendant charges at 50/- per day for 18 days, an amount of Rs. 2,000/- for extra nourishment and an amount of Rs. 1200/- for transport charges.

In fact on perusal of the said injuries shows there is disability of permanent and naturally suffered by the claimant boy which he has to suffer through out his life and the tribunal ought to have taken atleast (sic) permanent disability if not 40% as stated in Ex.A1 and deposition of PW.5 atleast from the perusal of said evidence with reference to other evidence of PWs.6, 7 and Ex.A2 photos and Ex.A5 and Ex.A7 wound Certificates. Even taken from the earnings of the boy as prospective earning Rs. 30/- per day as on the date of accident it comes to Rs. 900/- per month and the persons whose age below 15 years as per schedule of the Act, the multiplier to be taken as 15 and in Sarla Verma''s case there is no separate multiplier given to adopt even taking 14 multiplier for consideration in the case. From the earnings Rs. 900/- per month comes to Rs. 10,800/- X 14 = Rs. 1,51,200/- besides that an amount of Rs. 20,000/- as awarded by the tribunal from Ex.A8 and Ex.A9 bills after medical expenses already incurred. The future medical requirement in additional of Rs. 14,000/- including for any skin grafting or plastic surgery and Rs. 10,000/- in all for pain and sufferance, transport charges and attendant charges of Rs. 10,000/- for other injuries, it all comes to Rs. 2,05,000/- is the just compensation to award. However, by reducing the rate of interest from 9% to 7 1/2% due to steep fall in bank rate of interest from the Apex Court''s expression in Rajesh''s case and Sarla Verma''s case. POINT-2:

In the result, the appeal is partly allowed by modifying the Award of the Tribunal on quantum of compensation by enhancing the same from Rs. 80,000/-(Rupees eighty thousand only) to) to Rs. 2,05,000/- (Rupewes two lakhs and five thousand only) with interest at 7 1/2% per annum from the date of petition (MVOP) till realization/deposit with notice. Respondent Nos. 1 and 2, who are jointly and severally liable to pay the compensation, area directed to deposit the said amount with interest within one month from today, failing which the claimant can execute and recover. On such deposit or execution and recovery, the claimant is permitted to withdraw the same. There is no order as to costs in the appeal. Miscellaneous petitions, pending if any, in this MACMA shall stand closed.