Ram Mohan Reddy, J.
1. The claimant-injured, a minor girl aged 4 years represented by her natural guardian father, has preferred this appeal under Section 173(1) of the Motor Vehicles Act, 1988 (for short 'the Act'), being aggrieved of the judgment and award dated 7.2.2002 passed in M.V.C. No. 1609 of 1998 on the file of the Court of the Addl. M.A.C.T. and C.J. (Sr. Dn.) and Asstt. Sessions Judge, Athani (for short 'the M.A.C.T.').
2. The fact that the claimant sustained grievous injuries in an accident which occurred on 14.4.1998 involving a motor vehicle belonging to the respondent No. 1, insured with the respondent No. 2 and driven by the respondent No. 3, is not in dispute. The finding of the M.A.C.T. that the motor vehicle involved in the accident was driven at a high speed and in a rash and negligent manner by the respondent No. 3 had caused the accident resulting in injuries to the claimant is not in controversy and, therefore,, there is no need for this Court to review the said finding. The appeal is restricted to the quantum of compensation awarded by the M.A.C.T. as inadequate, unjust and not within the contemplation of the Act.
3. Ms. Mithuna, the learned Counsel for the appellant while assailing the finding of the M.A.C.T. sought to contend that award of compensation of Rs. 79,924 was meagre having regard to the fact that both legs of the child were grievously injured resulting in 60 per cent disability to the left leg and 30 per cent disability to the right leg; was an inpatient for a period of 2 months during the period of treatment; operated upon twice; lost amenities of life, lost education; prospects of marriage and prospects of being maintained by her husband and the housekeeping ability. The learned Counsel further contends that the award of compensation towards pain and suffering, medical expenses, attendant charges and grievous injuries, were inadequate.
4. Mr. R. Rajagopalan, learned Counsel for the respondent No. 2, per contra while seeking to sustain the impugned judgment and award, would contend that the compensation awarded is on the higher side and does not call for interference at the hands of this Court.
5. Having heard the learned Counsel for the parties, the only question that arises for decision-making is whether the sum of Rs. 79,924 awarded by the M.A.C.T. as compensation in the facts and circumstances of the case and evidence on record could be regarded as just and reasonable and if not, what shall be the just and reasonable compensation that the claimant-appellant is entitled to?
6. Before proceeding to answer the said question, keeping in mind the principles and norms governing determination of compensation in Bodily injury cases, in addition, help may be sought from judicial principles relevant for the purpose.
In Thomas v. British Railways Board 1977 ACJ 222 (CA, England), Scarman, L.J., observed:.the greatest element of damage in a case such as this is the pain, the suffering and the loss of the ordinary pleasures and convenience associated with healthy and mobile limbs. All that the Court can do is to award such a sum as will enable the plaintiff to acquire some material possessions or to develop a lifestyle which will offset to some extent her terrible disability.
In Birkett v. Hayes 1983 ACJ 697 (CA, England), the decision has been cited:
There is nothing to guide us but the feeling of what is fair...the Judge has to award compensation for the past and also for the future pain, suffering and loss of amenities. The future that lies ahead, beyond the date of trial, is often of more consequence than the past. The Judge awards a lump sum on the date of trial to cover all.
In the words of Lord Morris in H. West and Son Ltd. v. Shephard 1958-65 ACJ 504 (HL, England):
Money cannot renew a physical frame that has been battered and shattered. All that the Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation.
As Prof. Flemmings James Jr., Cornel Law Quarterly, Vol. 4,1956, p. 582 at 605, has stated 'If a long period had lapsed between the accident and the trial and a material change in living cost has occurred during that time, necessary adjustments have to be made.
The words 'loss of amenities' have been explained in a vivid manner in the oft quoted unreported case of Manly v. Rug By Portland Cement Co. Ltd., C.A. No. 286 of 1952 referred to in Kemp and Kemp 1982 para 3.001 p. 3001 by Burkitt, L.J. as follows:
There is a head of damage which is sometimes called loss of amenities, the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never go upon his walking excursions-things of that kind-loss of amenities.
Supreme Court in General Manager, Kerala State Road Trans. Coporation v. Susamma Thomas I (1994) ACC 346 (SC) : 1994 ACJ 1 (SC) observed thus:
Much of the calculation necessarily remains in the realm of hypothesis and in that region, arithmetic is a good servant but a bad master since there are so often many imponderables. In every case 'it is the overall picture that matters' and the Court must try to assess as best as it can the loss suffered. 'The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales'.
7. In the present case, it is not in dispute that the female child sustained grievous injuries to both her feet and is permanently disabled, as is evident from the wound certificates Exhs. P-5 and P-68 M.A.C.T. having rendered a conclusive finding on the injuries sustained by claimant resulting in permanent disability, has strangely awarded a sum of Rs. 47,000 towards three grievous injuries and failed to award any compensation towards permanent disability. The fact that the claimant underwent surgeries while he was an inpatient in the KLE Hospital, Belgaum from 19.4.1998 to 28.5.1998, is established by the certificate dated 31.5.1998 at Exh. P-6. The permanent physical disability, despite the treatment, is to an extent of 68 per cent to the left lower limb and 30 per cent to the right lower limb, which is also established by Exh. P-62 The doctor is examined as PW 3 who has testified to the injuries and disabilities. PW 1 father of the appellant and PW 2 the paternal grandfather have in their evidence deposed that the appellant cannot either sit or walk and requires an attendant to walk her back and forth to school. It is beyond cavil of doubt that the child will be frustrated, dejected and disappointed, in such a fact situation. The appellant being a female child would undoubtedly reduce her prospects of marriage and also cause impairment of housekeeping ability. It is well settled law that in serious injury cases, the injured, unless unconscious will be entitled to higher compensation in comparison with compensation to the deceased which would invariably go to the legal heirs. As has been oft quoted that no amount of money can renew the physical frame that has been battered and shattered, in the present case, the appellant will have to lead the rest of her life with the impairments. Quite curiously, the M.A.C.T. has not awarded any sum of money as compensation towards loss of amenities. We are of the considered view that a sum of Rs. 1,00,000 towards loss of amenities would be appropriate and we accordingly, award the same.
8. PW 1 and PW 2 have categorically stated that with the disability incurred by the appellant, there can be no possibility of prospects of marriage. The loss of prospects of marriage may also lead to loss of prospects of being maintained by a husband. The feet of the appellant have been disfigured which again adds to the loss of marriage prospects which therefore, needs to be compensated. Appellant has lost her chance to a proper education which perhaps would have secured her in a career. Of course, the condition in our country has not been changed and for most women, a career of a housewife is common. We are of the considered view that award of a sum of Rs. 75,000 towards loss of prospects of marriage, disfigurement and education would meet the ends of justice.
9. The M.A.C.T. has awarded a meagre sum of Rs. 3,000 towards attendant charges. It is in evidence that the child was hospitalised from 19.4.1998 to 20.5.1998 at KLE Hospital, Belgaum. The parents of the child, residents of Shirahatti village of Athani taluk, away from Belgaum were required to take boarding and lodging at Belgaum in the vicinity of KLE Hospital, in order to take turns to attend to the child. It is in the evidence of PWs 1 and 2 that they along with the mother of child had to stay in the lodge at Belgaum and for which they had to spend huge monies. Though the claimant has not produced any bills for having stayed at the lodge and in view of the fact that the evidence of PWs 1 and 2 is not discredited or impeached in the cross-examination, the facts having stood established, they must have stayed at the lodge during the relevant period. Having regard to the length of treatment, surgeries undergone by the child, medical expenses, special food and nutrition, etc., we award a sum of Rs. 25,000 for medical expenses, special food and nutrition and another sum of Rs. 15,000 towards attendant charges including boarding and lodging charges.
10. We find sufficient force in the contention of learned Counsel for the appellant that the M.A.C.T. has committed a grave irregularity in not awarding any sum of money towards permanent disability. Having concluded that appellant had suffered permanent disability, the M.A.C.T. was bound to award compensation. Keeping in mind the nature of injuries, the period of treatment and the fact that the permanent disability has caused impairment to the mobility of the child at her tender age which she has to live with throughout her life-time, we consider it just and proper to award a sum of Rs. 1,00,000 as compensation towards permanent disability.
11. The M.A.C.T. has not awarded compensation towards loss of expectation of life. We could reasonably accept that on account of the impairment to both feet and the body frame, the appellant deserves to be compensated. Therefore, we award a sum of Rs. 25,000 towards loss of expectation of life. The M.A.C.T. while awarding a sum of Rs. 10,000 towards pain and suffering has also awarded Rs. 47,000 towards grievous injuries and simple injuries. Having regard to the grievous injuries to both the legs of the child, the period of treatment and also the surgeries undergone and the fact that the disability persists, we are of the considered opinion that a sum of Rs. 60,000 towards pain and suffering would be a just compensation within the contemplation of the Act and we accordingly, award the said sum.
12. In the result and for the foregoing reasons, the appeal is allowed in part together with costs and in substitution of the impugned judgment and award, the appellant is entitled to a total compensation of Rs. 4,00,000 under the following heads:
(1) Loss of amenities Rs. 1,00,000(2) Loss of prospects of marriage, disfigurement and education Rs. 75,000(3) Medical expenses, special food and nutrition Rs. 25,000(4) Attendant charges and conveyance Rs. 15,000(5) Permanent disability Rs. 1,00,000(6) Loss of expectation of life Rs. 25,000(7) Pain and suffering Rs. 60,000------------Total Rs. 4,00,000
together with interest at 9 per cent per annum from the date of petition till realization.
We direct that a sum equivalent to 50 per cent of the amount awarded as compensation be kept in a term deposit, in the name of the minor appellant, in any nationalised bank until she attains majority and the natural guardian representing the appellant shall be entitled to withdraw the interest every six months for the welfare of the child.
The Advocate's fee is fixed at Rs. 1,500.