Andhra Pradesh High Court - Amravati
S.R. Sravani M. Sreevani R/O Kolar Dist, ... vs The A.P.S.R.T.C., Rep. By Md., ... on 20 December, 2022
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATHI
****
M.A.C.M.A.No.316 of 2006
Between:
S.R.Sravani @ M.Sreevani,
D/o. S.K.Sreehari,
Aged about 10 years, Minor,
By next friend guardian father S.R.Sreehari,
S/o. S.K.Ramakrishna Bhagavata Shilpi,
38 years, Residing at Gownipalle Village,
Sreenivaspur Taluk, Kolar District,
Karnataka State. ... Appellant
And
The A.P. State Road Transport Corporation,
Represented by its Managing Director,
Musheerabad, Hyderabad. ... Respondent
DATE OF JUDGMENT PRONOUNCED: 20.12.2022
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes
3. Whether His Lordship wish to
see the fair copy of the Judgment? Yes
DUPPALA VENKATA RAMANA, J
2
* THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
+ M.A.C.M.A.No.316 of 2006
% 20.12.2022
Between:
S.R.Sravani @ M.Sreevani,
D/o. S.K.Sreehari,
Aged about 10 years, Minor,
By next friend guardian father S.R.Sreehari,
S/o. S.K.Ramakrishna Bhagavata Shilpi,
38 years, Residing at Gownipalle Village,
Sreenivaspur Taluk, Kolar District,
Karnataka State.
... Appellant
And
The A.P. State Road Transport Corporation,
Represented by its Managing Director,
Musheerabad, Hyderabad.
... Respondent
! Counsel for Appellant : Sri D.Kodanda Rami Reddy
^ Counsel for Respondent : Sri K.Viswanatham/APSRTC
< Gist:
> Head Note:
? Cases referred:
2020 ACJ 1042
2010 ACJ 2867 (SC)
2009 ACJ 1298 (SC)
2017 ACJ 2700 (SC)
(1965) 1 All ER 563
2012 ACJ 2694 (SC)
2022 ACJ 995 (SC)
2011 ACJ 1 (SC)
2013 SCJ 2445 (SC)
(2003) 2 SCC 274
This Court made the following:
3
HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
M.A.C.M.A.No.316 of 2006
JUDGMENT:
This appeal under Section 173 (1) of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") has been preferred by the claimant being a minor represented by her next friend and guardian-cum-father, against the Award dated 11.11.2005, passed by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Madanapalle, Chittoor District, (hereinafter referred to as "the Tribunal") in O.P.No.141 of 2004, seeking enhancement of the amount of compensation.
2. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal.
3. (a) The facts leading to prefer this appeal, briefly stated, are that, S.R.Sravani was a bright young girl and was leading a normal life like any other child. Unfortunately on 10.05.2003 at about 10.00 a.m., when the petitioner/claimant was about to cross the road in front of the shop of Rajamma in Gownipalli Village on Madanapalle - B.Kothakota road, the RTC bus bearing No.AP 10 Z 2390 being driven by its driver in a rash and negligent manner, dashed the claimant and as a result of the said accident, the petitioner/claimant sustained crush injury to 4 her both the legs. Immediately, the petitioner/claimant was shifted to the Government Hospital, Madanapalle, and from there to S.V.R.R.Government General Hospital, Tirupati for treatment. The matter was reported to the Police alleging that the accident took place as a result of the rash and negligent driving of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390, by its driver and based on the F.I.R lodged by G.Chennappa, who is a third party and eyewitness to the accident and resident of Kummarapalle Village, B.Kothakota Police registered a case in Crime No.45 of 2003 under Section 338 IPC. After investigation of the case, a charge sheet was submitted against the accused driver for having committed the offences punishable under Section 338 IPC and Section 134(A & B) read with 187 of the Motor Vehicles Act.
b) The petitioner/claimant thereupon filed a claim petition through her next friend, guardian-cum-father S.R.Srihari under Section 166(1) of the Act, claiming compensation of Rs.4,00,000/- and it was also pleaded that the guardian had spent a huge amount of Rs.1,50,000/- towards her medical expenses and other expenses for the injuries caused to the minor child. It was also pleaded that the petitioner/claimant is unable to carry on with the work as before, and the injured 5 could not gain normal health and ultimately she sustained permanent disability affecting her future prospects. It was also pleaded that the accident had taken place on account of the rash and negligent driving of the driver of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390 and claimed compensation on account of the crush injuries to her both the legs in the said road accident and she sustained permanent physical disability of 80%. She being a minor, through her father, filed a claim petition seeking compensation against the respondent.
c) The respondent-APSRTC appeared through its counsel and filed a written statement contending inter alia in which the mode and manner of the accident were denied. It was pleaded that the accident did not happen due to the rashness and negligence on the part of the driver of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390, and in fact, the accident occurred only due to the negligence on the part of the petitioner/injured, as she made an attempt to cross the road suddenly at the relevant time. It was also stated that the compensation claimed by the claimant is highly excessive, speculative, and exorbitant. Therefore, the petition is liable to be dismissed.
d) Based on the above pleadings, the Claims Tribunal framed the following issues:
6
1) Whether the accident occurred due to rash and negligent driving of the offending APSRTC bus bearing No. AP 10 Z 2390 involved resulting in injuries to the petitioner S.R.Sravani @ Sreevani ?
2) Whether the respondent is liable to pay compensation? If so, to what amount ?
3) To what relief? e) In order to establish the claim of the petitioner/claimant,
at the time of enquiry before the Tribunal, the father of the injured/minor girl viz., S.R.Srihari was examined as P.W.1, G.Sreenivasulu, who is a third party and eyewitness to the accident was examined as P.W.2, and the Doctor M.Sanjeevarayudu was examined as P.W.3 and Exs.A.1 to A.13 were got marked on behalf of the petitioner and S.K.Reddy, who is the driver of the offending vehicle was examined as R.W.1 and no documentary evidence was adduced on behalf of the respondent.
f) The Tribunal, after analyzing the entire evidence of P.Ws.1 to 3, and placing the reliance on Exs.A.1 to A.13, was of the view that the accident in the instant case was due to the rash and negligent driving of the driver of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390 and on consideration of the above documentary evidence, the learned Tribunal awarded compensation of Rs.1,62,500/- with interest @ 7.5% per annum 7 from the date of the petition till realization, and the respondent was directed to deposit the decretal amount within two months from the date of the award.
g) Being dissatisfied with the quantum of compensation awarded by the learned Tribunal, dated 11.11.2005 in O.P.No.141 of 2004, the appellant/claimant has preferred the instant appeal seeking enhancement of the compensation.
4. Learned counsel for the appellant-claimant would submit that, considering the evidence on record, the Tribunal ought to have awarded higher compensation. He would further submit that the compensation under various conventional heads was also not granted resulting in prejudice to the case of the appellant. It was further argued that, since the appellant- claimant has sustained crush injuries on both the legs and permanent disability was assessed @ 80%, a multiplier has to be adopted for determining the compensation. But the learned Tribunal committed an error in awarding meager compensation without applying the multiplier. It is further submitted, it is unfortunate that the learned Tribunal has not properly appreciated the medical evidence available in this case. The age of the child, and the deformities on her both the legs resulting in disability, were not duly taken note of by the Tribunal. It is 8 further submitted that, though it is difficult to have an accurate assessment of compensation in the case of a child suffering from disability on account of motor vehicle accidents, having regard to the relevant factors, precedents, and the approach of various High Courts, an appropriate compensation on all other heads in addition to the actual expenditure towards the treatment, attendant charges etc., should be awarded. It is further submitted that the compensation awarded by the Tribunal is meager and inadequate, and the same needs to be enhanced.
5. Learned counsel for the Respondent-APSRTC would submit that the compensation awarded by the Tribunal was arrived at, by taking the relevant factors into consideration and that the amount awarded is just and reasonable. He would submit that the accident occurred due to the negligence on the part of the injured while she was crossing the road. He would submit that the accident did not happen due to the rashness and negligence on the part of the driver of the RTC bus. It is further submitted that the judgment and award passed by the Tribunal do not suffer from any illegality or infirmity and warrant no interference.
6. In the light of the above rival arguments, the points for determination in this appeal are:
9
"1. Whether the compensation awarded by the Tribunal is just and reasonable or warrants interference?"
2. Whether the appellant/claimant has made out a case for enhancement of the amount of compensation and the award of the learned Tribunal is in accordance with the principles of law?"
7. POINT NOs.1 & 2: The accident, involvement of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390 and the multiple grievous injuries sustained by the appellant-claimant in the accident, are not in dispute. A perusal of the impugned judgment would show that the Tribunal had framed Issue No.1 as to whether the accident had occurred due to the rash and negligent driving of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390 by its driver, to which the Tribunal after considering the evidence of P.Ws.1 and 2 coupled with the documentary evidence, at Para No.7 of the judgment, had observed that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390, and as a result, the claimant sustained multiple injuries. Therefore, I see no reason to interfere with the findings of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle (RTC bus) bearing No.AP 10 Z 2390. 10
8. In so far as the quantum of compensation is concerned, in the case of Kajal Vs. Jagdish and others1, the Hon'ble Supreme Court of India held that the principles with regard to the determination of just compensation contemplated under the Act are well settled. Injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as (i) loss of earnings; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. Damages can be pecuniary as well as non-pecuniary, but all have to be assessed in Rupees and Paise.
9. It was further held, it is impossible to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the Courts to do. The Court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very 1 2020 ACJ 1042 11 conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages.
10. In the light of the above principles, to award compensation, it is the duty of the Court to ensure that the petitioner/claimant is paid compensation that is just. No amount of money can compensate the child for the injuries suffered by her. The injured can never be put back in the same position, however, the compensation has to be determined in terms of the provisions of the Motor Vehicles Act, 1988. The Act requires the determination of payment of just compensation to the injured.
11. The record indicates that the claimant has suffered 80% permanent physical disability in a road accident. For the purpose of understanding the nature of the injuries and their 12 extent, the evidence of P.W.3-Doctor, M.Sanjeevarayudu, who issued Ex.A.5/Disability Certificate, would show that he examined the injured-S.R.Sravani and issued Ex.A.5/Physical Disability Certificate. The petitioner sustained crush injuries on both the lower limbs in a bus accident. She was treated at SVRR Government General Hospital, Tirupati. He further stated, the injured sustained 90% fixed flexion deformity of the right knee joint and Equinus deformity of the right ankle. The skin was replaced by a partial thickness skin graft. There was no useful function in the right lower limb. There was an Equinus deformity of the ankle joint of both. The extent of permanent physical disability is about 80%. Ex.A.5 is the permanent physical disability certificate issued by him. He further stated that the petitioner/injured cannot walk. There are chances only to walk properly if the surgeries are conducted for such deformity. Such surgeries would cost about Rs.70,000/- to Rs.80,000/-. He further stated that the injured required attendant all the time during her lifetime on account of crush injuries sustained by her. Nothing could be elicited during the cross-examination of P.W.3 except giving a suggestion that the percentage of disability as assessed by him under Ex.A.5 is excessive. 13
12. By taking the evidence into consideration, the learned counsel for the appellant urged that, since the appellant has sustained permanent physical disability @ 80%, the multiplier method has to be adopted for determining the compensation. This Court finds some force in the submission of the learned counsel for the appellant. In Arvind Kumar Misra Vs. New India Insurance Company Ltd.,2 the Hon'ble Supreme Court held that the functional disability to be 70%, the loss of earning capacity was computed according to the multiplier method. It is also relevant to observe that in the judgments of Sarla Verma Vs. Delhi Transport Corporation,3 and National Insurance Company Limited Vs. Pranay Sethi,4 while replacing the Schedule of Motor Vehicles Act, it is not made clear what multiplier would be applied below the age of '15'. In the case of Kajal (supra), the injured was 10 years of age at the time of the accident, however, the multiplier '18' has been applied. Therefore, by taking the guidance from the judgment of Kajal's case (supra) for the determination of compensation in the present case, the multiplier '18' shall be applicable. 2 2010 ACJ 2867 (SC) 3 2009 ACJ 1298 (SC) 4 2017 ACJ 2700 (SC) 14
13. On perusal of the record, under the pecuniary heads, the learned Tribunal has not awarded any amount for future loss of earnings even though the petitioner/claimant sustained 80% permanent physical disability. The disablement suffered by the claimant is for the whole life and in the said fact, in my considered view, the future loss of earnings has to be calculated by applying the multiplier as stated above.
14. Lord Denning while speaking for the Court of Appeal in the case of Ward v. James5, laid down the following three basic principles to be followed in such like cases:
"Firstly, accessibility: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good."5
(1965) 1 All ER 563 15
15. By applying the above principle, the Tribunal should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that she had amply atoned for her misadventure" while emphasizing the damages must be full and adequate. However, the Courts must consider to award sums that may be reasonable. Simultaneously, uniformity in the general method of approach is also required to award just compensation.
16. In a decision reported in K.Suresh v. New India Assurance Company Ltd.,6 the Hon'ble Supreme Court of India held as follows:
"2.....There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity 'the Act') stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
17. In the case of Abhimanyu Pratap Singh Vs. Namita Sekhon and another,7 the Hon'ble Supreme Court followed the 6 2012 ACJ 2694 (SC) 7 2022 ACJ 995 (SC) 16 judgment mentioned below while awarding compensation to the injured/victim.
12. In the perspective of Indian law, in the case of R.D. Hattangadi vs. Pest Control (India) (P) Ltd. - (1995) 1 SCC 551, this Court has specified that while determining the compensation for physical injuries, the heads on which the amount of compensation is to be determined, may be of two types, one is of pecuniary damages and another is of non- pecuniary damages. Pecuniary damages include the loss of earning, medical attendance, transport charges and other material loss. The non-pecuniary damages include the expenses for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future, loss of amenities of life, loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life which has been followed in the case of Raj Kumar vs. Ajay Kumar and another - (2011) 1 SCC
343.
18. In the facts and circumstances of the present case, this Court feels that the claimant is entitled to the following amounts under various heads by applying the principles in the case of Raj Kumar Vs. Ajay Kumar,8.
"In Raj Kumar (supra), the Supreme Court has held that award of compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This would include compensation for his inability to lead a full life, enjoy those normal amenities which he would have enjoyed but for the injuries, as also his inability to earn as much as he 8 2011 ACJ 1 (SC).17
used to earn or could have earned. The WP(C) No.7856/2010 Page 5 Supreme Court further laid down the heads under which the compensation is to be awarded in personal injury cases as under:
"(5) The heads under which the compensation is awarded in personal injury cases are the following: Pecuniary Damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses. Non-pecuniary damages (General damages):
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and / or loss of prospects of marriage)
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and
(iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads Iii) (b), (iii), (v) and
(vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and / or loss of prospects of marriage), and loss of expectation of life."
19. Applying the aforesaid principles, this Court proceeds to assess the compensation, in the instant case.
20. In the view of the said legal positions referred supra, the compensation can be assessed under pecuniary heads i.e., loss 18 of future earnings, medical expenses including future medical expenses, attendant charges, and also on the head of transportation including future transportation. Under non- pecuniary heads, the compensation can be computed for mental and physical pain and suffering for the present and in the future, loss of amenities of life including the loss of marital bliss, loss of expectancy in life, and inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life.
21. On perusal of the record, under the pecuniary heads, the learned Tribunal has not awarded any amount for future loss of earnings, even though the injured has suffered 80% permanent physical disability as per Ex.A.5/Disability Certificate issued by the Doctor-M.Sanjeevarayudu. The learned Tribunal awarded Rs.80,000/- without applying the multiplier towards permanent disability, which is meager. In Kajal's case (supra), while assessing the loss of earnings in Para-20, observed that the Courts below have held that since the girl was a young child of 12 years only, the notional income of Rs.15,000/- per annum can be taken into consideration. Such notional income is not the proper way of assessing future loss of income. This young girl after studies, could have worked and would have earned much more than Rs.15,000/- per annum. Each case has to be decided 19 on its own evidence but taking notional income to be Rs.15,000/- per annum is not at all justified.
22. In the present case, at the time of the accident, the injured was 10 years old. But, there is no evidence on record to show that she is prosecuting studies or she is doing any skilled or unskilled work. Now, she is aged about 29 years approximately. There is no evidence to show that the injured/claimant is drawing minimum wages. Due to the injuries sustained by her, she may not attend either skilled or unskilled work since she sustained crush injury on both the lower limbs and there is 90% fixed flexion deformity of the right knee joint and Equinus deformity of the right ankle. The skin is replaced by a partial thickness skin graft. There is no useful function in the right lower limb. There is Equinus deformity of the ankle joint of both legs and the permanent physical disability is about 80%. Therefore, by following the judgments of Kajal's and Arvind Kumar Mishra's cases (supra), this Court is of the considered view that, since the girl was a young child of 10 years at the time of the accident, the notional income of Rs.15,000/- per annum can be taken into consideration, is justified to assess the future loss of income.
20
23. Therefore, by taking a notional income of Rs.15,000/- per annum i.e., a monthly income of Rs.1,250/- and after adding 40% for the future prospects, it works out to Rs.1,750/- per month. Therefore, by taking the guidelines from the judgments of Kajal and Abhimanyu Pratap Singh (supra), for determination of compensation in the present case, multiplier '18' shall be applicable. By applying multiplier '18', it works out to Rs.3,78,000/- (Rs.1,750 x 12 x 18) under the conventional head of loss of future earnings. Therefore, under this head, this Court is of the view to award Rs.3,78,000/-.
Expenses relating to the treatment, hospitalization, medicines, and transportation etc., are as follows:
24. The learned Tribunal has committed an error in awarding a meager amount of Rs.20,000/- under the heads of medical expenses, extra nourishment, and other charges. There is no dispute with regard to the long period of treatment and hospitalization of this young girl immediately after the accident on 10.05.2003 and she was admitted to the hospital at Madanapalle and from there she was shifted to SVRRGG Hospital, Tirupati for taking better treatment. Thereafter, again she was admitted to Government Hospital on 06.12.2003 and was discharged on 02.02.2004. She was inpatient for 58 days 21 as per Ex.A.9. She was advised to attend the plastic surgery department and diagnosed with crush injury in both the legs. Again the injured/child was admitted to M.S.Ramaiah Hospital, Bangalore, on 14.03.2005 and was discharged on 05.04.2005. She was an inpatient in the said hospital for 22 days. As per Exs.A.9 and A.10, she was in the hospital for 80 days. The petitioner/claimant produced Ex.A10-medical bills relating to her treatment and an amount of Rs.19,485/- was spent towards medical expenses. The parents of the child are labourers, they are not supposed to be that much meticulous so as to maintain the bills for any future use. However, P.W.1, the father of the injured/child, deposed that he spent nearly Rs.1,00,000/- to purchase the medicines. The award of Rs.20,000/- by the learned Tribunal towards medical expenses would not be reasonable. In view of the nature of crush injuries sustained by the petitioner/claimant, moving around several hospitals as stated above, definitely they might have spent more amount for the injuries sustained by her. Therefore, the amount of Rs.2,00,000/- needs to be awarded to the petitioner/injured under the head of medical expenses.
25. The petitioner/injured has remained in hospitals on two occasions for a period of more than 80 days as stated supra, 22 and must have spent more amount for transportation from one hospital to the other in Andhra Pradesh and Bangalore. As such, an amount of Rs.1,00,000/- has to be awarded under the head of transportation.
26. When the petitioner/injured sustained crush injuries on both the legs and 80% permanent physical disability and 90% deformity, she cannot walk as stated by the Doctor- Sanjeevarayudu, who was examined as P.W.3. Therefore, extra nourishment needs to be provided to the petitioner/injured for a speedy recovery. As such, an amount of Rs.1,00,000/- needs to be awarded under the head of extra-nourishment.
27. The petitioner/injured was in the hospital for 80 days and she cannot move from the bed. Looking into the nature of injuries and disability, the claimant requires two attendants with her for her necessities. Hence, this Court is of the view that the basic amount for determining attendant charges is very much needed. The Tribunal has not awarded any amount towards attendant charges. The petitioner/injured requires attendants, who though may not be medically trained, but must be capable of handling the child and she requires two attendants which works out atleast Rs.250/- per day each when she was in the hospital for 80 days as stated supra and it comes 23 to Rs.500 x 80 = Rs.40,000/-. Therefore, an amount of Rs.40,000/- is awarded under the head of attendant charges. Pain & Suffering and Loss of amenities:
28. Coming to the non-pecuniary damages, under the heads of pain and suffering and loss of amenities, the learned Tribunal has awarded a meager amount of Rs.50,000/-. In the case of Mallikarjun Vs. Divisional Manager, National Insurance Company Limited,9 the Hon'ble Apex Court, while dealing with the issue of the award under this head, held that it should be at least Rs.6,00,000/- if the disability is more than 90%. As far as the present case is concerned, the physical disability is 80% due to which, the young girl might have suffered from severe pain and suffering. There was no useful function in the right lower limb and her both the ankle joints were deformed due to the accident and that the injured/girl cannot walk due to such deformity. This is a case where the departure has to be made from the normal rule and the pain and suffering suffered by this child, is such that no amount of compensation can compensate. While assessing the compensation in a case like the present one, the claim can be awarded only once. The claimant cannot come 9 2013 ACJ 2445 (SC) 24 back to Court for enhancement of the award at a later stage praying that something extra has been spent.
29. Therefore, the Courts or the Tribunals while assessing the compensation in a case of 80% physical disability, especially where there is a mental disability also, should take a liberal view of the matter when awarding compensation. While awarding the amount, the Court should not only take the physical disability but also the mental disability and various other factors, into consideration. Since this girl missed out playing with her friends, she cannot enjoy the pleasures of the life and she will miss out the fun of childhood, and the excitement of youth. Therefore, in the particular facts and circumstances of the case, even after taking a very conservative view of the matter, the amount payable for the pain and suffering and loss of amenities of this child should be enhanced. Therefore, this Court is of the view to award a sum of Rs.3,00,000/- under this head. Loss of marriage prospects:
30. The Tribunal has not at all looked into awarding marriage prospects and committed an error in not awarding the amount under this head. Therefore, in view of the physical disability sustained by the petitioner-injured, an amount of 25 Rs.2,00,000/- is awarded to the petitioner/injured under this head.
Future medical expenses:
31. In the future as this girl grows, she may face many other medical issues because of the injuries suffered in the accident. The Tribunal has not awarded any amount under this head. Keeping in view of the nature of injuries, the child is bound to suffer a lot of medical problems. P.W.3-Doctor deposed in his evidence that there are chances to walk properly, if surgeries are conducted for such deformity, and it would cost about Rs.70,000/- to Rs.80,000/-. By taking into consideration the above evidence, it requires to award compensation for future medical expenses and it would be just to award an amount of Rs.1,50,000/- under the head of future medical expenses.
32. In Para-33 of Kajal's case (supra), the Hon'ble Supreme Court of India, observed as follows:
"We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in motor accident claim petitions, the Court must award just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor."
33. In view of the aforesaid discussion, the appellant is entitled to the compensation under various heads, as under. 26
S.No Heads Amount
(i) Expenses relating to treatment, Rs. 2,00,000
Hospitalization, medicines
(ii) Extranourishment Rs. 1,00,000
(iii) Transportation Rs. 1,00,000
(iv) Loss of future earnings Rs. 3,78,000
(v) Attendant charges Rs. 40,000
(vi) Pain & suffering, loss of amenities Rs. 3,00,000
(vii) Loss of Marriage prospects Rs. 2,00,000
(viii) Future medical treatment Rs. 1,50,000
-------------------
Total Rs.14,68,000
(-) Compensation already awarded by the
Tribunal Rs. 1,62,500
-------------------
Enhanced Amount of Compensation Rs. 13,05,500
-------------------
This amount shall carry interest @ 7.5% per annum from the date of filing of the claim petition till the realization of the amount.
34. As per the decision of the Hon'ble Supreme Court of India in the case of Nagappa Vs. Gurudayal Singh and others10, under the provisions of the Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only upto the amount claimed by the claimant. In an appropriate 10 (2003) 2 SCC 274 27 case where from the evidence brought on record, if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such an award. There is no embargo to award compensation more than that claimed by the claimant. Rather it is obligatory for the Tribunal and Court to award "just compensation", even if it is in the excess of the amount claimed. The Tribunals are expected to make an award by determining the amount of compensation that should appear to be just and proper. The compensation as awarded by the Claims Tribunal, against the background of the facts and circumstances of the case, is not just and reasonable, and the claimant is entitled to more compensation, as stated supra, though she might not have claimed the same at the time of filing of the claim petition.
35. Therefore, this Court is of the opinion that the award passed by the Tribunal warrants interference by enhancing the compensation from Rs.1,62,500/- to Rs.14,68,000/-.
36. In the result, the appeal is allowed, enhancing the compensation from a sum of Rs.1,62,500/- to Rs.14,68,000/- with interest @ 7.5% per annum and with costs from the date of the petition till the date of realization against the respondent (APSRTC).
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The respondent (APSRTC) is directed to deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against the respondent (APSRTC).
The appellant/claimant shall pay the requisite Court-fee in respect of the enhanced amount awarded over and above the compensation claimed.
The appellant/claimant is directed to file an appropriate petition before the Claims Tribunal to declare her as major and after declaring her as major and after discharging her father from guardianship, the appellant is permitted to withdraw the entire compensation amount with accrued interest.
The impugned award of the learned Tribunal stands modified to the aforesaid extent and in the terms and directions as above.
As a sequel, interlocutory applications pending for consideration, if any, shall stand closed.
JUSTICE DUPPALA VENKATA RAMANA Date: 20.12.2022 L.R.Copy to be marked.
Dinesh 29 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA M.A.C.M.A.No.316 OF 2006 20.12.2022 L.R.Copy to be marked.
Dinesh