Syed Peer Valli vs Pavithra

Ram Mohan Reddy, J.—The owner of the offending motor vehicle aggrieved by the quantum of compensation determined in the judgment and award dated 10th August 2011, in MVC 6248/2008 of the Motor Accident Claims Tribunal, ACCH No. 6, for short ''MACT'', has presented this appeal.

Facts briefly stated are:

The claimant, a girl aged 12, while returning from school on Idagur Kundihalli Road near cattle shed of one Suryanarayanappa, the tempo bearing certificate of registration AP-02-T-287 driven at a high speed and in a rash and negligent manner dashed against the claimant resulting in injuries to her forehead and left leg and at the instance of the General Hospital, Gowribindanur was thereafter wards shifted to NIMHANS hospital, Bengaluru for treatment.

In the claim petition, registered as MVC 6248/2008, the injured sought compensation of Rs. 10,00,000/-, which was opposed by filing written statement inter alia alleging that it was the claimant who dashed against the vehicle having come from the hind side although the vehicle had halted at the signal light, hence, the injury was not due to the negligence of the driver of the motor vehicle. The claimant examined Gangadevamma her mother, an eyewitness by name Rajanna, one Dr. Jagath Lal G and yet another Dr. N. Jamuna, as P.Ws. 1 to 4, and marked 15 documents, Exs. P1 to P15, while for the respondent-Insurance Company and the owner of the vehicle, none were examined nor documents marked.

The MACT after framing issues, by the judgment impugned, answered in the affirmative attributing actionable negligence to the driver of the tempo vehicle and awarded compensation under the following heads:

While it is the case of the owner appellant of the offending vehicle that the compensation is exorbitant and on the higher side, the claimant/respondent states that the compensation determined is on the lower side.

Learned counsel for the parties having addressed arguments, learned counsel for the respondent/claimant points to the oral testimony of P.W. 4 Doctor Jamuna, the Associate Professor of Neuro Psychology, Department of Clinical Psychology, NIMHANS opining that the injured suffered cognitive disability of 40% and therefore, cannot carry on her day to day activities, independently, and needs to undergo cognitive retraining to improver her cognitive functions, which testimony remained uncontroverted.

Learned counsel places reliance upon the decision in Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited and Another, , to submit that in the absence of accurate assessment of compensation in the case of children suffering disability in a motor vehicle accident, having regard to relevant factors, precedents and the approach of various High Courts, the Apex Court, opined that 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 upto 30% to the whole body Rs. 3 lakhs; upto 60% Rs. 4 lakhs; in addition to inconvenience and loss of earning to the parents and therefore, is entitled to compensation of Rs. 3,00,000/- towards pain and suffering etc. on account of permanent disability; discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization would be Rs. 25,000/-, medical and incidental expenses at Rs. 25,000/- having regard to medical expenses incurred and in all Rs. 3,75,000/- in the place of Rs. 63,500/- awarded by the MACT.

Learned counsel for the Appellant owner of the offending vehicle, would however oppose such submission to submit that Dr. Jamuna, P.W. 4, an expert in Neuro Psychology is not a medical doctor and her evidence is not in the direction of establishing permanent disability; that the child aged 12 suffered injuries; the MACT was not justified in reckoning 18 as the multiplier to award compensation under future loss of earning for optical permanent disability and also reckoning 40% as the permanent disability, to award Rs. 1,08,000/-. In addition, it is submitted that award of compensation under head of loss of amenities; loss of permanent disability and loss of marriage prospectus was unnecessary.

It is no-doubt true that it is difficult to make accurate assessment of compensation in case of child aged 12 years having suffered a head injury in a motor vehicle accident. However, it will be useful to refer to the testimony of P.W. 3, Dr. Jayat Lal, whose operation notes maintained by the Institute of Mental Health and Neuro Science, Bengaluru, recording findings that tiny fragments were removed by way of wound debridement in an operation for fracture of frontal bone while no dural tears were found in the fracture and the elevated fracture was replaced after nibbling the edges., in an operation that was performed on 19.9.2007 at 11 A.M.. In other words, the testimony of P.W. 3 is in the direction of what is recorded in the discharge summary of NIMHANS, more appropriately, over the front elevated fracture suffered by the child in an accident that occurred on 18.9.2007. The testimony of Dr. Jamuna P.W. 4 discloses that the injured was put to head injury battery test and opined that she suffered cognitive disability of 40%.

In the light of evidence, both oral and documentary, more appropriately, in the absence of any challenge to the evidence of the doctors as well as medical records maintained by NIMHANS, there can be no-more doubt that the injured suffered fracture of skull in the accident that had occurred in the year 2007, was treated at NIMHANS where operation was conducted on debridement of fracture of bones and thereafter in the year 2010 was assessed to a Neuropsychological test, which revealed cognitive impairment of 40%.

The answer to the question as to what permanent disability the child had suffered is not forthcoming from the documentary evidence of M/s. NIMHANS. However, a perusal of the report, which is part of the medical records signed by Dr. Jamuna, P.W. 4 on 25.10.2010 and assessed by one Isabella Shadep of Neuropsychology unit, the impairment is largely found in design fluency, selective, focused attention, planning, working memory and visuo-constructive ability which indicate bilateral prefrontal and right parental dysfunction. It is in the notes of the Doctor that she requires reassigning to improve cognitive functions. In other words, it is not that 40% ought to be taken as permanent disablement of full body disablement.

In the circumstances, it was appropriate for the MACT to assess whole body disability at 10% and if so done and applying the formula as set out in Master Mallikarjun''s case supra, the claimant was entitled to Rs. 3,00,000/- under pain and suffering 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; Rs. 10,000/- towards loss of earning to the parents who are agriculturists having small extent of land in Gowribidanur; Rs. 10,000/- towards medical and incidental expenses during the period of hospitalization for two days at NIMHANS and subsequent visitations; Rs. 10,000/- towards future retraining to improve the injured cognitive functions as indicated by Dr. Jamuna before Court. In all, the injured was entitled to Rs. 3,30,000/- with interest at 6% p.a. Since this appeal is preferred by the owner of the offending Motor Vehicle and the cross objections 68/2014 of the claimant was dismissed for non-prosecution on 18.03.2015, the question of interfering with the judgment and award impugned does not arise.

In the result, the judgment and award impugned though requires modification entitling the claimant/injured to Rs. 3,30,000/- with 6% from the date of petition as against Rs. 1,84,500/- awarded by the MACT nevertheless is unavailable in the light of dismissal of MFA CROB. 68/2014, the appeal preferred by the owner of the motor vehicle is dismissed.

The amount in deposit in appeal along with records is directed to be transmitted to the concerned MACT forthwith.