Karnataka High Court
Kum. N. Pavithra vs H.M. Vijayakumar And Anr. on 25 September, 2007
Equivalent citations: 2008ACJ1297, ILR2007KAR4770, 2007 (6) AIR KAR R 471, 2008 A I H C 534, (2008) 2 ACJ 1297, (2008) 3 TAC 124
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT Ram Mohan Reddy, J.
1. The claimant-injured dissatisfied with the award of Rs. 30,000/- as global compensation for personal injuries by common Judgment and award dt. 29.12.2005 in MVC 732/04, on the file of the Civil Judge (Sr.Dn) and JMFC -cum- Member, MACT-VI, Hospet, for short the 'MACT', has presented this appeal for enhancement of compensation.
2. Before the MACT, the appellant laid evidence both oral and documentary and examined one Dr. Vishwaprasad, Surgeon, as PW-3, who testified to the fact that the appellant suffered three simple and one grievous injury, viz., disc prolapse and hip disc between C-3 and C-4 vertebra, diagnosed as compression fracture of clavicle spine and discprolapse of C-3 and C-4, which even after treatment was found to be malunited. The opinion of PW-3 was that the appellant suffered 15-20% total partial permanent disability. The MACT disbelieved the medical bills issued at Hospet, since prescriptions were issued by the Medical Officer, M.M. Halli. The MACT, on the basis of the medical evidence, held that the petitioner has sustained simple fracture and awarded compensation as follows:
i) Pain & suffering - Rs. 15,000/-
ii) Medical Expenses - 5,000/-
iii) Loss of income during
treatment period - 5,000/-
iv) Attendant charges - 5,000/-
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Total - Rs. 30,000/-
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3. Learned counsel for the appellant assailing the findings of the MACT contends that the award of global compensation of Rs. 30,000/- is meagre having regard to the fact that the appellant sustained a grievous injury to the vertebral column, C-3 and C-4, which due to mal-union resulted in 15-20% permanent partial disability to the whole body. According to the learned counsel the award of Rs. 15,000/- towards pain and suffering and Rs. 5,000/- each towards medical expenses, loss of income during treatment and rest and attendant charges are conservative. In addition it is contended that the lower side. While the MACT was not justified in declining to award compensation towards loss of marriage prospectus; loss of amenities in life and loss of future income due to disability.
4. Sri. M.U. Poonacha, learned counsel for the 2nd respondent Insurance Company, per contra, while seeking to sustain the impugned judgment and award, would, very fairly contend that compensation awarded is on the lower side and calls for interference only to enhance the award marginally.
5. Having heard the learned counsel for the parties, the only question that arises for decision making is: Whether Rs. 30,000/- awarded by the MACT as global compensation, in the facts and circumstances of the case and evidence on record, could be regarded as just and reasonable and if not, what should be the just and reasonable compensation that the claimant is entitled to?
6. The principles and norms governing the determination of compensation in bodily injury cases was considered by a Division Bench of this Court in the case of kum. Sridevi v. Ramesh S. Bhag 2004(2) KLR 202 and in the case of Fakirappa v. Smt. Yellawwa and Ors. 2004 (1) KCCR 637 wherein RMRJ was the companion Judge, having referred to the various authoritative pronouncements of the House of Lords, observed that courts should be well advised to remember that the measures of damages in all these cases "should be such as to enable even a tort feasor to say that he had amply atoned for his misadventure." The observations of Lord Delvin, extracted reads thus:
That the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrong doer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing' is quite apposite.
7. Keeping in mind the observations of the Division Bench in the aforesaid cases recording well settled principles and norms governing payment of compensation under various heads, I proceed to examine the claim in this case.
8. An unmarried budding female stage artist, aged 27 years, due to the injuries sustained in the accident involving the motor vehicle in question, was hospitalised on 4.5.2004. The grievous injury sustained are compression fracture of the clavicle spine and disc prolapse of C-3 and C-4. Medical evidence adduced before the MACT disclosed mal-union of the fracture. According to PW-3, the appellant sustained 15-20% total partial permanent disability. It is trite that appellant, on account of the disability would be frustrated and the impairment would undoubtedly diminish her expectation of life, marriage prospects and deny her the joys and happiness of life which a normal human being enjoys.
9. It can hardly be disputed that in bodily injury cases, it is always said and reiterated that the compensation to be awarded by the MACT in comparison to compensation paid to the dependents of the deceased would be on the higher scale, obviously, because the compensation would go to the injured and not to the dependents. It is by now well settled that no quantum of compensation would in the real sense restore a person who has suffered injury, particularly grievous injury resulting in disability to her pre-injury status. This Court is bound to decide and award just and adequate compensation applying the principles and norms and permissible emperical formulae.
10. The MACT, in the instant case practiced conservatism to the core by awarding global compensation of Rs. 30,000/-.
11. The finding of the MACT that the injury and fracture to the clavicle spine and disc prolapse, though mal-united are "simple fracture" is perverse. The nature of injuries and the treatment discloses that the fracture was not simple. The medical evidence discloses mal-union of the fracture which is grievous. It may be that the appellant when admitted to M.M. Hospital at M.M. Halli, was issued with prescriptions and purchased the medicines at a Pharmacy at Hospet which issued bills totalling to Rs. 5,379/-. The MACT fell in error in rejecting the bills merely on the premise that the bills were from a pharmacy at Hospet. It is probable that the appellant could have spent additional amounts, towards treatment, purchase of medicines, conveyance, attendant charges, food and nutrition, for which bills may not be forthcoming. Nevertheless Government hospitals in villages are known to be ill equipped requiring patients to purchase the medicines for treatment. The opinion of the MACT that the disability to the Vertebral column will not occasion inconvenience and difficulty for the appellant to carry on her occupation as a stage artist is wholly perverse. A stage artist is required to be articulate and cannot have a rigid frame of body. The permanent partial disablement suffered by the appellant due to the injuries to the Vertebral Column, it is needless to state will have to be endured through the rest of her life and occasion loss of future income, which requires to be adequately compensated. Reckoning the monthly earning of the appellant at Rs. 2,500/- as was done by the MACT and applying multiplier '17' for age 27 years of the appellant disability could be taken as 10%, although the Doctor PW-3 opined 15-20% disability, leaving room for exaggeration, as rightly observed by the MACT.
12. In the circumstances, it is appropriate to award compensation as follows:
i) Pain and suffering - Rs. 40,000/-
ii) Medical expenses - 25,000/-
iii) Loss of income during
period of treatment
and rest - 5,000/-
iv) Attendant charges, special
diet, etc. - 5,000/-
v) Loss of marriage prospects - 30,000/-
vi) Loss of amenities of life - 50,000/-
v) Loss of future income due
to disability
(Rs. 2,500 x 12 x 17 x 10/100) - 51,000/-
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Total: Rs. 2,06,000/-
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13. In the result and for the foregoing reasons, the appeal is allowed in part with costs in substitution of the award, Rs. 2,06,000/- is awarded as compensation with interest at 6% p.a. from the date of petition till its payment.
Advocate's fee is fixed at Rs. 2,000/-.