B.V. Nagarathna, J.
1. This appeal is filed by injured claimant who is a Bharathnatyam Dancer seeking enhancement of compensation by being aggrieved by the judgment and award passed in MVC No. 877/1998 dated 12.6.2003 by MACT, Bangalore Rural District, Bangalore.
2. Relevant facts of the case are that on 05.03.1998 at about 10.00 p.m. the claimant along with the others was travelling in a Tata Sumo bearing Registration No. KA-09 M 4967 from Bangalore towards Mysore near Sangabasavanadoddi Cross when a Lorry bearing registration No. CAA 6727 came from the rear side driven in a rash and negligent manner and dashed against the Tata Sumo. As a result of the impact, the claimant and others sustained grievous injuries. She was shifted to Basappa Memorial Hospital, Mysore where she was admitted as an in-patient on account of fractures to the right ribs and her cheek and injury on right eye, amongst other grievous injuries. She was discharged from the hospital on 29.03.1998 and there after took further treatment. Contending that she had suffered permanent disability as a result of the injuries sustained in the accident, she filed a claim petition seeking compensation on various heads.
3. On receipt of notice from the Tribunal, the second respondent Insurance Company appeared and filed its written statement denying the allegations made in the claim petition and contending that the Driver of the Tata Sumo bearing No. KA-09 M 4967 had contributed to the negligence and therefore, the insurance company was not liable to satisfy the award and accordingly prayed for the dismissal of the claim petition.
4. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that the accident happened due to rash and negligent driving of the Tanker lorry No. CAA 6727?
2. Whether the petitioner is entitled for compensation? If so, for how much amount and which of the respondents are liable to pay the compensation?
3. What order?
5. In respect of her claim, the claimant examined herself as P.W-1 and one Dr. Pundalika Herale as P.W-2 and got marked Ex.P1 to Ex.P200, while the respondent did not let in any evidence. On the basis of the above material on record, the Tribunal awarded compensation of Rs. 4,42,500/- with interest at the rate of 6% per annum from the date of petition till the date of realization. Not being satisfied with the judgment and award, the claimant has preferred this appeal.
6. We have heard the learned Counsel appearing for the appellant and the learned Counsel for the respondent Insurance Company.
7. It is submitted on behalf of the appellant that the appellant is a B.Com Graduate from Mysore University and has obtained Masters degree from the same university and that she being a proficient Classical Bharathnatyam Dancer who had given performances at various places in India and abroad and had also performed on Television, but on account of the injuries sustained by her in the accident, she has become permanently disabled and thereby jeopardizing her career as a dancer and as a dance teacher and further on account of the permanent disability her career in the field of her specialization has also been affected. Moreover, the Tribunal has failed to appreciate that she had spent considerable amount on medical expenditure and that the award of compensation on various other heads are meagre. She further requests this Court to re-assess the compensation and enhance the same.
8. Per contra, it is submitted on behalf of the Insurance Company that the Tribunal has awarded a just compensation of Rs. 4,42,500/- which does not call for any enhancement in this appeal, inasmuch as, the Tribunal has awarded compensation on eight different heads keeping in mind the evidence on record, and therefore requests this Court to dismiss the appeal.
9. After taking note of the rival submissions, the only point that arises for our consideration is as to whether the appellant is entitled to enhanced compensation.
10. Ex.P3 is a copy of the wound certificate issued by the Basappa Memorial Hospital Mysore dated 07.04.1998. Ex.P6 to Ex.P14 are the medical records produced by the appellant and Ex.P15 to Ex.P22 are the documents to corroborate the fact that the appellant is a dance performer and Exs.P23 to P147 are the medical bills and prescriptions as also Exs.P152 to P157. Ex.P158 to 176 are the documents in support of the fact that the appellant was working as a dance teacher at Vasundara Art Centre. Exs.P177 to P196 are photocopies of certificates and reviews of the appellant's dance performances in various newspapers. Ex.P197 is the salary certificate issued by the Vasundara Art Centre. Exs.P197 to P200 are also medical records.
11. A perusal of these documents makes it apparent that the appellant had sustained the following injuries which are stated at Ex.P11 which is the case summary discharge report issued by Basappa Memorial Hospital, Mysore.
1. Lacerated wound over the right side of the face.
2. Zygoma right side with the muscles exposed.
3. Lacerated wound + over the upper part of the right forearm and deep contusion over the right nape of the neck & right shoulder.
X-Ray: Right shoulder - No fracture or dislocation,
Skull- No fracture, PNS-Fracture right zygomatic and maxillary bone.
4. X-Ray Chest fracture of I & II Ribs (R) side,
5. Avulsion injury right molar cheek along with lower eyelid.
6. Brachial plexus injury (R) side.
12. Ex.P 13 is the CT scan report and Ex.P14 is the Doctor's report issued through Manipal Hospital, Bangalore. Ex.P6 is a certificate issued by One Dr. L. Yoganarasimhachar (MS Ortho), Professor of Orthopedic Medical College, Mysore stating that the appellant is permanently disabled to carry out any normal work in the right hand to an extent of 45% and Ex.P7 is another certificate stating that the appellant is disabled to an extent of 55% on account of injuries to Bronchial plexus to the right side. In support of these documents, P.W 2 Dr.Pundalika Herale who was working as Plastic Surgeon in B.M.S. Hospital has stated that the facial and arm injuries were operated upon and repaired on 06.03.1998. For Bronchial plexus injury, the appellant was treated conservatively and that the appellant has scares over the face and ectropian of eyelid which require repetitive surgery and that the disability assessed to the right upper limb is 100% and that she requires further surgery. He has further deposed that on account of the disability suffered by her, the appellant cannot perform Bharathnatyam dance and that she could perform her day to day activities with difficulty, that she could use her left hand only in future and that he had advised surgery of the face.
13. The appellant in support of her case has deposed that she was conducting private coaching classes for Bharathnatyam students and that after the accident, she was not running the said classes and that she was also giving public performances in support of which she had produced certificates as well as reviews published in various newspapers, that on account of the accident, she had lost one academic year in her masters degree programme and that on account of the permanent disability she had not only lost her Dance career but also sustained financial loss as a dance teacher.
14. Ex.P15 is a invitation for Rangapravesha of the appellant which took place on 16th October 1987 at Mysore. It is noted that the appellant is a disciple of Dr. Vasundara Doraiswamy, a well known exponent of Bharathnatyam dance and a dance teacher. Ex.P16 is an invitation to a dance recital held on 27.06.1993 by the appellant. Ex.P17 is an invitation of the 10th Yuva Sangeet Nrutya Mahotsava 1996 held under the auspices of the South Central Zone Cultural Centre between 9th to 12th September 1996. Ex.P18 is produced to show that the appellant had performed in the Mysore Dasara festivities in the year 1997. Ex.P19 is a letter written by the programme Coordinator India International Rural Cultural Center to Dr. Vasundara Doraiswamy, the Dance teacher of the appellant stating that the appellant, as one of her disciples was nominated to visit China for dance performances along with others in the year 1997. Ex.P20 is a letter written to the appellant proposing to include her to a Group Study Exchange Programme From Rotary district 3180 to visit Rotary district 1570 Gouda at Holand. Ex.P21 which is a letter written by the District Bhavana of Rotary International District 3180 to the appellant records that the appellant had sustained the accident. Ex.P22 is an interim order of this Court in W.P. No. 16501/98 filed by the appellant herein seeking permission to appear at the 4th semester examination which was scheduled to commence on 9th June 1998. Ex.P179-196 are reviews with regard to the various dance performances of the appellant published in various English and Kannada newspapers from the year 1987 onwards. It would be of relevance to quote some of the reviews in various newspapers for the purpose of considering the appellant's case for enhancement of compensation. In the newspaper entitled Samachar dated 04.10.1989 it is stated as follows:
Kumari Varija Nalagi started with lighting Nritya, and pleasing 'Abhinaya ' made the audience spell bound. The entire programme synchronised with a blend of perfection. The vocal support by Smt. P. Rama and Natuvangam by Guru Dr. Vasundhara Doreswamy added colour to the performance.
15. Another daily newspaper of Mysore on 01.07.1993 in its review of the dance performance of the appellant held on 27.06.1993 has titled the review as 'Varija Nalagi: a flawless performance'. The appellant has also produced reviews of her performance along with another noted dancer Sanjay Shantharam who is also one of the disciples of Dr. Vasundara Doraiswamy. It is also apparent that in most of the performances of the appellant, her guru has been on the stage as aNatuvangam. Vasundara Performing Art Centre at Mysore under whose auspices appellant was trained was also involved in organizing Seminars in Classical Music and dance adopted to Modern Times as is evident from a review of the same published in Deccan Herald a daily newspaper dated 9.10.1994.
16. Ex.P 197 is a certificate issued by Vasundara Performing Art Centre and signed by Smt. Vasundara Doraiswamy stating that the appellant was assisting as a teacher and was receiving a honorarium of Rs. 3,000/- per month during the year 1997-98 and that after the accident she discontinued her services from March 1998 and again resumed her services from January 2001 onwards.
17. The appellant has also deposed that just prior to the date of the accident, she had received several offers under Cultural Exchange programme to visit various countries. But after the accident on account of the permanent disability she is not able to move her right hand and cannot work as a dance teacher and that on account of the facial disfiguration her marriage prospects have been adversely affected. She has also stated that after the accident she has not been conducting private coaching classes for Bharathnatyam students and that prior to the accident, she was giving 2 to 3 public performances every month which she is not able to do on account of the injuries sustained in the accident.
18. On appreciation of the evidence on record, it is clear to us that the appellant on account of the various injuries sustained in the unfortunate accident, is not in a position to pursue her dance career in the manner she would have but for the said accident. It is also not in dispute that on account of the injuries sustained by the appellant she was an in-patient both in Basappa Memorial Hospital at Mysore and at Manipal Hosptial. P.W-2, the doctor who was examined before the Tribunal has stated that the disability to the right upper limb is 100% and the Tribunal has assessed whole body disability at 25% and accordingly has awarded compensation to an extent of Rs. 4,42,500 on the following heads:
(1) pain and suffering - Rs. 52,000(2) Medical expenses - Rs. 1,25,000/-(3) Loss of dance career - Rs. 1,12,000/-(4) Future loss of earningcapacity - Rs. 50,000/- .(5) Loss of marriageprospects - Rs. 50,000/-(6) Loss of future amenities - Rs. 25,000/-(7) loss of income duringthe period of treatment - Rs. 80,000/-(8) Future medical expenses - Rs. 20,000/-
19. Taking into consideration the fact that the appellant had a great potential to be a successful dancer and to pursue career in dancing and also the fact that she could have pursued her other career in accordance with her educational qualification and also the fact that she was only aged 25 years at the time of the accident which has also affected her marriage prospects on account of there being permanent disability, which is assessed at 50%, we propose to re-assess the compensation Taking into consideration the income of the appellant to be Rs. 5,000/- p.m and the disability to be 50% and by applying the multiplier of 17 keeping in mind the age of the appellant as 25 years, a sum of Rs. 5,10,000/- is awarded towards loss of future income. We thus, award a sum of Rs. 8.90,000/- instead of Rs. 4,42,500/- awarded by the Tribunal on the following terms:
Pain & Suffering Rs. 50,000/-Medical expenses Rs. 1,25,000/-Loss of amenities of life Rs. 75,000/-Loss of future earnings Rs. 5,10,000/-Loss of earning during treatment period Rs. 1,00,000/-Future medical expenses Rs. 30,000/-----------------------------------------------------------------Total Rs. 8,90,000/-----------------------------------------------------------------
20. The said compensation shall carry interest at the rate of 6% p.a from the date of claim petition till realisation. Out of the enhanced compensation a sum of Rs. 4,00,000/- with proportionate interest shall be deposited in any Nationalized Bank for an initial period of five years and appellant shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to the appellant.
The appeal is allowed in part in the aforesaid terms.