Orissa High Court
Rangachari Laxmi Narasimham vs Prakash Chandra Sahoo And Anr. on 21 November, 1986
Equivalent citations: I(1987)ACC197
JUDGMENT S.C. Muhapatra, J.
1. Claimant is the appellant under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act') for enhancement of the compensation awarded.
2. Claimant was aged six years at the time of accident. While he was travelling on 16-10-198O in a bus (ORG 7171) with his father, the bus faced with an accident causing multiple injuries for which he had to be hospitalised where stiches were made on his face. On account of the injuries sustained, the claimant claimed Rs. 75,000/- as compensation. Both the owner and the insurer contested their liability and the owner contested the amount of compensation claimed.
3. On consideration of the evidence on record, the Tribunal found negligence in driving the vehicle which resulted in the accident causing multiple injuries on the claimant. On account of expenses for medical treatment, the Tribunal awarded Rs. 2,000/- as compensation and directed the insurer to pay the same.
4. Insurer and the owner not having preferred any appeal, negligence in driving and the liability of the owner stands affirmed. The quantum awarded towards medical treatment is also reasonable although Mr. Yusuf vehemently urged that the nature of the injuries is such that a reasonable guess work should be made to bring the compensation to a higher amount.
5. Mr. Yusuf, the learned Counsel for the appellant next submitted that the result of the injuries for loss of memory and development of fits has not been taken into consideration which diseases are likely to affect the entire career of the boy for which compensation ought to have been awarded. I am not impressed with such argument. In the absence of cogent material regarding the real effect of the injuries, there is no scope for a reasonable guess work that the development of fits and loss of memory were on account of the injuries sustained in the accident. I am not impressed by the submission of Mr. Yusuf. However, with the modern development of science, marks on the face can be eradicated by plastic surgery which is not a luxury in the circumstances. A plastic surgery of the face ordinarily would cost nearly twelve to fifteen thousand rupees. Therefore, the Tribunal ought to have awarded some amount for future treatment of the claimant by plastic surgery. 1 assess the compensation on that account at Rs. 13,000/-. Thus, the claimant is entitled to Rs. 2,000/- towards expenses incurred for medical treatment and Rs. 13,000/- towards expenses to be incurred for treatment in all Rs. 15,000/-.
6. There is clear acceptable material that there were several stiches on the face. Stiches disfigure the face which remain permanent. A person with such marks is bound to have the inferiority complex of his beauty which would affect his personality. In the group of friends, he is also likely to be the object of teasing. This would cause mental agony perpetually. The claimant would have been entitled to compensation on that account.
7. Mr. P. Roy, the learned Counsel for the insurer submitted that the liability of the insurer would be only to the extent of Rs. 5,000/-, since the claimant was a passenger of a bus, as provided under Section 95(2)(d)(4) of the Act. He has brought to my notice the policy which has been filed in ibis case marked Ext. B. On examination of the policy, I find that only a part of it has been filed. A copy of the entire policy would be in possession of the insurer. No steps have been taken to produce the complete policy. Thus, legitimately adverse inference can be drawn against the insurer that in case the complete policy would have been filed the entire liability would have been on the insurer. Although Mr. Roy submitted that the policy which is produced would indicate that the liability is limited to the extent indicated under Section 95 of the act, there is controversy on that score. There is no use of delving into the controversy in absence of the complete policy which would be in the realm of surmise only.
8. In the result, the appeal is allowed in part. The insurer is directed to pay Rs. 15,000/-to the claimant within two months from today with interest at the rate of 9% from the date of application till the date of payment failing which interest at the rate of 12-1/2 % shall be paid on the entire amount from the date of application till the date of payment. No costs.