THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CMA No. 2646 of 2000 ORDER : This is an appeal preferred by the claimant aggrieved by the order and judgment rendered by the 4th Addl. District Judge-cum-Motor Accidents Claims Tribunal, Kurnool in MVOP No. 311 of 1999. The 1st respondent is the owner of the truck which was involved in the accident and the 2nd respondent is the insurer of the said vehicle. The claimant is a tender aged child of 14 months. While she was sleeping on a cot in front of their wayside house on 16.4.1998 at about 8.30 PM, a truck bearing Regn. No.AP21U 4865 which was passing by, all because of height of the load carried by it, came in contact with electricity service wire and dragged them for a short distance. The intensity was so much that an electricity pole which is located by the side of the house of the petitioner came crashing down causing grevious head injury to the claimant. The claimant has been shifted to a nearby hospital for treatment and because of the emergency situation she has been referred to the Government General Hospital at Kurnool where she was admitted on 17.4.1998 at about 4 AM only to be discharged on 6.5.1998 AN. The claimants have lodged claim seeking compensation in a sum of Rs. 4 lakhs. The mother of the minor claimant was examined as PW1 while the Neuro Surgeon of the Government General Hospital, Kurnool has been examined as PW2. Exs.A1 to A6 have been got marked. On behalf of the 2nd respondent – insurance company, the insurance policy has been got marked as Ex.B1. PW1, the mother narrated as to how the accident had occasioned. Ex.A1 is the copy of the FIR lodged by the police. Ex.A2 is the charge sheet filed by the police after investigation into the crime against the driver of the offending truck. Ex.A3 is the certified copy of the order in CC No. 74 of 1998 compounding the offence committed by the truck driver. Ex.A4 is the certified copy of the injury certificate. Ex.A5 is a set of two OP chits issued by the Government General Hospital at Kurnool, vouching for the examination of the claimant on two different occasions, one at the time of her admission in the hospital for treatment of the head injury caused due to the accident and second time, the subsequent follow up. Ex.A6 is a bunch of medical bills vouching for the medicines purchased for the treatment of the claimant. Ex.A7 is the case sheet maintained by the Government General Hospital, Kurnool. Ex.A8, A9 and A10 are the CT Scan reports of the claimant. Upon a careful analysis of the evidence available on record, the Tribunal had come to the conclusion that the accident had occasioned wholly due to negligence of the truck driver who has loaded the freight in his truck vertically, unmindful of the prospects of their coming in contact with the overhead electric lines enroute. In view of the locomotion of the truck, the electricity pole nearby the house of the claimants had been uprooted. In that process, the claimant had sustained grevious head injury. Particularly in the absence of any contra evidence, the finding arrived at by the Tribunal is reasonable and correct. Hence commends for it’s acceptance. PW2 is a Neuro-surgeon attached to the Government General Hospital at Kurnool. He has deposed about the injury sustained and though the claimant had recovered to a considerable extent from the injury, but nonetheless, according to PW2, the claimant had suffered a permanent disability. PW2 has deposed that the claimant had not gained speech and her cerebrak activities have become dead slow and her growth by the normal process was arrested and that her intellectual capacity is not at the normal level of intelligence of a child of her age. Hence, PW2 has deposed that the claimant had suffered a permanent disability. In this context, it will be worth to notice the nature of injuries sustained by the claimant as noted by the Government General Hospital at the time of her admission, based upon CT Scan report. 1. Brain contusions with perilesional edema in both frontal regions. 2. Extradural collection in left frontal temporal region. 3. Subdural hematoma in left temporo parietal region. 4. Fracture left temporal, parietal and both frontal bones. PW2 who has treated her has specifically observed that that inspite of the fracture of the skull uniting, the injury suffered by the claimant has resulted in slowing down her natural growth and also left her with permanent disabilities. By the time the claimant has been re- examined by PW2, he could also find that the claimant had not developed speech ability. In the assessment of the Neuro-surgeon, it could be a permanent impairment. In his assessment, the normal growth of the claimant had become slowed down. Though PW2 has been cross- examined, nothing worthwhile has been extracted, expect the statement made by PW2; to the following effect : “… I cannot say whether after attaining the age of 20 years she can attend agricultural coolie work or not with the present disorder.” Based upon the above statement whether that the claimant would be able to attend to agricultural work, even with the kind of disorder noticed now, the Tribunal concluded the issue in the following manner : “…Therefore, it is very difficult to conclude that the petitioner sustained permanent disability….” This finding of the Tribunal is wholly unjustified. The assessment of permanent disability is a clinical assessment made based upon the material available with the doctor. It is a matter of assessment, by objective standards and parameters. If the intellectual growth has been assessed to have become slowed down considerably, being an expert, PW2 could have easily and accurately assessed the loss or impairment as a permanent impairment. What would be the position down the line after 20 years of life is an absolutely speculative aspect. It is not liable to be taken into account or consideration at all. The prospects of the patient’s recovering from such cerebral deformities could be a rarity under normal circumstances, but in exceptional circumstances, the patient may could not be ruled from making a reasonable recovery. Such situation could be an exceptional one. Therefore, they cannot be taken as a normal standard of assessment cerebral impairment. Hence, the finding recorded by the Tribunal that it is difficult to conclude that the claimant suffered permanent disability is a finding not supported by the evidence on record. Courts are ill equipped to substitute an expert’s opinion with theirs. In fact, the evidence clearly leads to one conclusion i.e., that the claimant had suffered a permanent disability, while the tribunal reached exactly the opposite of it. Therefore, the finding recorded on issue No.2 by the Tribunal is liable to be reversed and the claimant is liable to be held to have suffered permanent disability. Based upon an erroneous finding and also upon consideration of an improper factor viz., that the parents of the claimant are agricultural coolies, the Tribunal went about making an assessment of compensation which is payable. It is no doubt true that the standards of living and the social background of victims are bound to be taken into consideration and account while making assessments of the quantum of compensation, which is liable to be awarded for mitigating the damage. However, it is not proper for courts to use the expressions, which are particularly found in the judgment under appeal, such as: “admittedly, the petitioner belongs to labour class”. Expressions of this nature should be avoided from being made part of the judgments, for, they tend to convey an improper impression about the perception of the social order by courts. Assuming that the parents of the claimant are agricultural coolies, it cannot be a factor for denying payment of just compensation to a victim. If the claimant has suffered a permanent disability and consequently he is unable to develop into a wholesome individual, she is liable to be compensated on an appropriate scale. The Tribunal should not have lost sight of the fact that the claimant was only a 14 month old child and with her growth being nearly arrested, the rest of her life has been rendered a difficult exercise not only for herself but even for those who have to take care of her. Therefore, an appropriate quantum of compensation should have been awarded instead of awarding a sum of Rs.15,000/-. There is no justification for awarding so low a sum of money. The medical evidence discloses that the claimant had sustained a fracture of her front parietal bone leading to cerebral injury. That itself is a grevious injury which left a permanent disability for the claimant. In these set of circumstances, therefore the compensation that should have been awarded should be reasonable which would ensure that the claimant will be in a position to fend for herself entirely on her own. A sum of Rs.1,50,000/- could have been awarded as compensation so that when it is confined to a fixed deposit the said sum can be expected to fetch a reasonable return of Rs.10,000/- to Rs.15,000/- annually. It would be a fair and reasonable amount for one to sustain. Therefore, I consider it appropriate to modify the award passed by the Tribunal by directing the payment of compensation of Rs.1,50,000/- by the respondents. The said amount shall be confined to an interest bearing fixed deposit till such time attains the age of majority. Till then, either of the parents of the claimant may be allowed to draw interest accrued thereon monthly. CMA is allowed. No costs. ------------------------------------------ -- NOOTY RAMAMOHANA RAO,J Knk 24.12.2009