/ . M- HI6H COURT OF WHATTIS6ACW AT BIUiSPUR M^ A. N0. 876 W 2005 Ku. Dipti Sahu Versus Kumbha La! Sahu & others Claimant RESPON&ENTS Driver POST FOR JU&6MENT ON 20rt June. 2007 ie 1 of 2^ m; ^--. N0. 876 GF 200! APPELLANT Ciaimant Versus Driver Ku. &ipti Sahu, D/o Shri Purshottam Lal Sahu, aged about 4 years, being minor through her father Shri Purshottam Lcl Sahu, R/o Village Paneka, Police Station Basontpur, Distt. Rajriandgaon, Chhattisgarh. l.Kumbha Lnl Sahu,, 5/o Pitombar Sohu, aged about S2 years, R/o Vitloge Bankal, P.S. Sasanlpur, Distf. Rejnandgaon, Chharrisgarh. 2. Shridhar AAudl'yar, 5/o V.T. Pcnduran Mudiiyer, aged about 45 years, R/o Stadium Road, Rajncuidgaon, Distt. Rajnandgaon (C.&) 3. The United India Insurcmce Co. Ltd. through Bronch Manager, Kamthi Lins, Rajnand9aon, Distt'. Rajnandgaon (C.6.) Present: Mr. Anond Shukla, Advocate for the appeilant. None for respondents No.l <& 2. Mr. Sanjay Shyam Agarwal, Advocate for respondent No.3. JU DeM ENT Tnis appea! under Section 173 of the AAotor Vehicles Act, 19i (hereinafter referred to as 'the Act') is directed agamst the awar< dsted 8th April, 2005 passed in Claim Co.se. No.83/04 by the 1st Additiona! Motor Accident Claims Tribuna!, Rgjnandgaon (C.6.) whereby a sum of Rs.55,837/- wi1+i interest @ 6% from the date of fiiing of application has been awarded to the ciaimant/appsllant 2< e 2 of 8 herein as compensation towards injuries sustained by her in a motor accident dated 2.4.2004. 2) On 2.4.2004 at about 1.30 p.m. when Ku. Dipti, a gir! aged 4 years, was piaying before her house, respondent No.l drivi"9 rashiy & riegtlgently the truck benring registra+ion number C608-ZC-0803, owned by respondent No.2 &. insured by respondent No.3 for the relevant period, dashed with Ku. Dipti as a result of which she sustained grievous injuries over her right leg ond also bn her private parts and anus. She was immediately rushed to District Hospital, Rajnandgaon where doctors considering the seriousness of injuries referred her to Chandulal Chandrakar Memorial Hospital, Bhilai. She remained hospitalized up to 30.4.2004 and during that period her private parts were operated upon and grafting of skin was also done over her right !eg. Howeyer, she has sustained perfflanent deformity over her private part, cnus i& opening of ovary. 3} Appellant claimed compensation of Rs.70,000/- towcrds expenditure in treatment, Rs.50,000/- towards fu+ure treatment, Rs.7,000/- towards incidental expenditure on nutritious diet etc.; Rs.1,00,000/- towards mentai & physicai agony suffered by the appeilcnt and her family members: Rs.10,000/- as compensation towards attendant who accompcmied theappellant; Rs.2,000/- towards future expenses in this reggrd <& Rs.5,000/- towards perfflanent disabih'ty and thus a total sum of Rs.3,07,000/- was claimed. 4) Respondent No.l herein was proceeded ex-parte. Respondent No.2 in his reply denied that the accident occurred because the vehjcte was be'ng driven rashly <& negligently by re^sondent No.l. Pleadings regarding injuries and expenditure in treatment of cppellant have also been denied and it was pleaded that +he vehicle wcs insured by respondent No.3 for the relevant period and therefore, liability of compensation, if aiy, could be of respondent No.3. ^.. 26 Page 3 of )) Respondent No.3 has a!so denied in its reply the pleadings of applicant regarding negligence in driving of respondent No.l and 1+ie averments that wheeis of truck ran over the thigh of Deepti resulting in serious injuries. Pleadings about cfaims towards expenditure on treatmentand other heads have also been denied. 6) TTis tribunal, after appraisa! of the evidence avai!ab!e on record, has held that respondent No.l rashly & negligentty driving the truck had caused the accident as a resuit of which Deepti sustained injuries. The tribunal has further assessed that Deept! is entitted for a compensation of Rs.10.000/- towards physica! & menta! agony suffered by her due to injuries, Rs.5,000/- as expendi+ure towards other heads and Rs.40,837/- towards ac+ya! expenditure incurred by the c!aim<Bi+ in her treatment and thus awarded a to+al sum of Rs.55,837/- as compensation. 7) The so!e question roised on behalf of the appe!!ant is that fne compensation awarded by the tribunal is wholly inadequate. It was contended by the appellant that ths gir! aged 4 years has sustained deformity of permanent nature over her mus, priyate part and opening of ovary. 5he had a\so sustained grievous injuries over yarious part's of body. 4-5 minor operations and two major operations were conducted over her body. She was hospitalized^ for a month. Doctor had opined that because of injuries cypellnnt will face problems during intercourse oind delivery in future. However, iearned claims tribunal has not taken into considerci+ion the above aspects while dssessing the compensation for which the claimantwas entitled. i) The ctaimont has filed and proved the cash receipts (Ex.P-1, admission & discharge ticket (Ex.P-2). bed head ticket of Chcinduh! Chandrakar AAemorial Hospitai, Bhilai (Ex.P-3), certificate issued by hospita! (Ex.P-4) and cash receipts (Ex.P-5 to Ex.P-47). •"s^• •s •^•^^ Q^ t.- 9) Dr. 5. Dutta, Senior Surgical Specialist, Chcmdutal Chandrakar Memorial 1-lospitnl, Bhilai has been examined as AW-1, who has s+ated that beepti was admi+ted by her fa+her on 2.4.2004, she remained hospitatized up to 30.4.2004. Oeepti had suffered crushed injuries over her right lower limb including 9roin, vulva and perinea! area. Butt'ock bones 0'nd bones of right leg were also crushed, the nature of injuries sustained by Deepti was grievous. 4-5 minor operations & two major operations were conducted over her person. The wounds have recovered, however, there is deformity in urinary orifice, anus and opening of ovary uid on remaining place minor deformities. He has further sta+ed that because of injuries over the priyate parts, she is likely to ^face problem during intercourse and delivery in future. As per certificate of Ex.P-4, which has been issued on 25.1.2005, intensive treatment followed by plastic surgery has be.an adyised. Fur+her corrective surgery in later ife oyer vulya and perinea! area has also been advised. It has been further stated that muscular weakness due to crush excised muscles is tikely to remain life iong. Patient (Ctaimant) has been recommended high protein diet as per Ex.P-7. 10) Purshott'am Lal, father of Deepti, has been examined as AW-2, who has stated that because of injuries his daugh+er limps while wdlking and she complains difficulty & pain in passing stoo! arfd urine. f-fe has further stated that because of deformity in her private parts difficulty may arise in bearing child and they moy face difficu!ties in marrying her. 11) The SSivisien Bench of Aliahabad High Court in the matl'er of Sushila Pandey Vs. New India Assurance Co. Ltd. reported in AIR 1983 A!!ahabad 69 after considering the various English & Indian judgments he!d that "in bodily injury cases where the injured survives and is disabled, compensation awarded is higher than in cases of death because compensation is to be given to a living victiin who is rendered disabied and is not able to lead norma! life or liilniairniai Page 5 of 8 20 carry on his avocation or enjoy amenities of life. In casas where the injured incurs any disabiiity on account of which the ctaimant cannot waik or ride a bicycie or attend to his persona! needs or if he has to be constantly under medical care, he is entitied to compensation in respect of each of those items in addition to his economic loss. Damages which are awarded in the form of compensation to a claimCTit are of two kinds; Pecuniary, which are a!so known as speciat damages, and non-pecuniary, which are ciassified as gener-a! damages. Pecuniary damages are generalty designed to make good the pecuniary' ioss which is capabie of being calcuiated in terms of money. Non-pecuniary damages are those which are incapable of being assessed by arithmetica! caiculation. 'Pecunigry damages ^eneral include four sub-heads, (i) expenses incurred by tiie claimant in respect of injur/ which may include medica! expenses, special diet, cost of nursing or ati'endant: (ii) ioss of earning or profit up to the date of trial; (iii) loss of eaming capacity' which mny inctude inccpabih'ty to earn in future years and aiso incapabi!i+)' in the iabour market, loss of earning on account of termination of service or discontinuance of nny trade, business or profession, and (iv) other material loss which may require any speciat treatment or aid to the injured or claimant for the rest of !ife. Non-pecuniary loss (genera! damages) inciude a number of elements. iSenerally these include four sub-heads; (i) damages for mental and physica! shock, pain, suffering, already suffered by the claimant or likely to suffer in future: (ii) damages to compensate for the loss of amenities of life which may include a variety of matters e.g. on account of injury^the claimant may not be abie to walk, run sit or loss of marnage prospects, sexual intercourse and loss o-f o+her amenit'es in life; (ii) damages for the toss of expectation of life e.g. on account of injury the norma! longevity of the person concerned is shortened; and (iv) inconvenience, hardship, discomfiture, disappointment, frustration Page 6 of 8 ^ 1'ble Apex Court in Para of R. &. Hottcngadi Vs. others reported in A and mentat stress in !ife. The heads and sub-heads as mentioned above are not exhaustive in nature." 12) Simiiar-view has been expressed by the 9 of the judgment deliverec! in the matter rt/s Pest Control CIndi'a) Pvt. Ltd. and 1995 Supreme Court- 755, which rsads as "while fixing an amount of compensation payab!e to a victim of an accident, the damages have to be assessed separately cs pecuniary damages and specia! damages. Pecuniary damages are those which the victim hais actuatly incurred and which is capabte of being caicutated in terms of money; whereas non-pecuniaryi damages are those which are incapable of being assessed by arithmeticaf caiculations. In order to appreciate two concepts pecuniary damages may inciude (i) medical attendance; (ii) loss of eaming of profit up to the date of trial; (iii) other profit up to the date of trial; (iii) other materiai loss. So far non-pecuniary damages are concerned, they may include: (i) cfamages for menta! and physical shock, pain suffering, already suffered or likely to be suffered in future: (ii) dcimages to compensate for the ioss of amenities of life which may include a var'wty of matters, i.e. on account of injury the claimai'it moy not be able to walk, run or sit; (iii) damages for the toss of expectatjon of life, i.e. on account of injury the norma! longevity of the person concerned is shor-tened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mentat stress in !ife." 13) From the evidence availabte on record, which has been referred in detnil in foregoing paragraphs, tiiis Court has already observed that a girl aged 4 years has suffered deformity of permanent nature oVer her priyate part, oinus and opening of ovary ond there is an opinion of 3^ the doctor that she may face probiems at the time of intercourse and delivery' in future. She underwent 4-5 minor operations and two major operations during the period of her hospitalization about a mon+h. Evidence is also available on record that skin groiftina over her right ieg was done after excising from fne left leg. Thus,from the evidence available on record, a poor girt has already suffered lot of trauma and pain during her treatment and +he doctor has also opined that she may require corrective surgery and plastic surgery in future and that weakness of her muscles is to remain throughout her life. 14) In view of the medica! opinion of &r. 5. &ufta (AW-1), wh'ch is based on documents avaitable on record, the apprehension of Purshoti'am Sahu, father of appellcnt, that because of permnnent deformity Deepti may face probiems in gett'ing married as also in bearing child ond she will have to live with the discomfiture throughout her life, cannot be considered unfounded. The tribunal ignoring medica! evidence available on record, which is also supported by treatment papers and certificate, has allowed Rs.40,837/- towards medica! expenses, Rs.10,000/- towards physica! &. menta! suffering, Rs.5,000'- towards other expendi+ure which is grossly inadequate. N'o compensation has been awarded for furi-her trea+ment and loss of amenities of life on the ground +hat permanent a'isabiiit)' has not 15) Thus, on the principle of law !aid down in the matters of Sushila Pandey (Supra) A R.D. Hatl-angi (Supra), which has been reproduced herein above, and taking into consideration the nature of injuries suffered by the <ippe!lant, who is a girl aged 4 years, and further considering the treatment received by her so far and the treatment which she may require to undergo in future, I am of the considered opinion that in addition to the amount already awarded to the appeilant, the amount under foilowing heads should also be awarded:- Page 8 of 8 ^ 1. Future treatment expenses ; ihan/- Rs.50,000/. Rs.50,000/. ikefy to suffer in !s !oss of amenities claimont future of !ife 16) In the result, the appeal is allowed ond the award of the tribunal is hereby modified, as above. The appefant is entitled to recoyer additional sum of Rs.1,00,000/- (Rupees One Lac on!y) as compensation fr-om the responden+s. The Insuraice Company shal deposit the additiona] amount of compensation bsfore the claims tribunal within a period of one month from today. On such deposit being made, the M.A.C.T. shall deposit Rs.75,000/- in a fixed deposit scheme of a nationatized bank for the perlod tiit the appellant attains the majority. A&-6- 'Y