JUDGMENT
N.K. Mody, J.
1. Being aggrieved by the inadequacy of the amount awarded vide award dated 2nd December, 2003, passed by XIIMACT, Indore in Claim Case No. 35/2002, whereby a sum of Rs. 1,90,000, has been awarded along with interest @ 9% p.a., the present appeal has been filed.
2. Short facts of the case are that on 20th July, 2001, at about 12.00 noon appellant who was aged 19 years, was going on her Scooty bearing registration No. MP 09 JM 8051, from Phooti Kothi Road to Chandan Nagar. At that time Truck bearing registration No. MP 09 KB 7181, which was being driven by respondent No. 2 rashly and negligently came from backside and hit the Scooty of the appellant with the result appellant fell down and sustained grievous injuries. A claim petition was filed in which it was alleged that the accident occurred because of rash and negligent driving of respondent No. 2. It was also alleged that at the relevant time, respondent No. 2 was the owner of the offending truck and the same was insured with respondent No. 3. Claim petition was contested by respondent No. 3. On the basis of the pleadings of the parties learned Tribunal framed the issues, recorded the evidence and awarded a sum of Rs. 1,90,000, break-up of which is as under:
Towards medical expenses Rs. 75,000 Towards special diet Rs. 15,000 Towards expenses incurred on attenders Rs. 10,000 Towards permanent disability Rs. 50,000 Towards pains and sufferings Rs. 40,000 3. Learned Counsel for the appellant submits that the amount awarded is on lower side. It is submitted that appellant sustained four fractures i.e. in right clavicle bone, left femur bone, inferior pubic rami pelvis and right mandible.
4. It is submitted that the appellant completed her Secondary Examination in April, 2001, in which the appellant secured 80% marks. It is submitted that in Physics, Chemistry and Biology appellant was having distinction. At the time of accident appellant was preparing for appearance in PMT Examination, as appellant was ambitious to complete MBBS Courses.
5. Learned Counsel further submits that appellant was admitted to Unique Hospital, immediately after accident on 20th July, 2001, where she remained till 22nd August, 2001. It is submitted that appellant has submitted medical bills of Rs. 1,99,204, out of which Rs. 75,000 has been awarded. It is submitted that Ext. P-123 of P-129 are the receipts whereby Rs. 70,000 were deposited as advance. Learned Tribunal has observed that the appellant has claimed this amount in double. It is submitted that this observation of learned Tribunal is not correct, as the appellant has submitted the receipts of advance payment, but not calculated the amount in Rs. 1,99,204.35. It is submitted that appellant has submitted that bills and cash memos, which are Exts. P-21 to P-122 and aggregate of which is Rs. 1,99,204.35 while receipts of Rs. 70,000 deposited in advance are Exts. P-123 to 129.
6. Apart from this learned Counsel for the appellant submits that learned Tribunal has rejected a sum of Rs. 37,300 paid to the Physiotherapist. It is submitted that appellant was under treatment of Physiotherapist from 8th August 2001 to 14th August 2002, which is more than a year. It is submitted that Rs. 100 per day cannot be said to be on higher side paid to the Physiotherapist, who was visiting the house of the appellant regularly. It is also submitted that the learned Tribunal has rejected the bill of Rs. 18,000 which is paid by the appellant vide Ext. P-98 to Dr. B.M. Shrivastava, who has charged for operation fee and post-operation visits/dressings. It is submitted that a receipt has been issued by M/s. Jaws Institute and Research Centre for Cranio Maxillo Facial Surgery, Indore. It is also submitted that the bills of Rs. 11,865 were submitted, whereby appellant purchased Ayurvedic medicines for which cash memos are Exhibits P-92 to P-95. It is submitted that there was no justification for rejecting cash memos of Ayurvedic medicines. Learned Counsel further submits that on account of permanent disability only Rs. 50,000 has been awarded by learned Tribunal while permanent disability has been assessed as 42%. It is submitted that there was shortening of leg by half inch and there was a restriction of movement in left patella. It is submitted that looking to the injuries and the permanent disability the amount awarded is on lower side. It is also submitted that on account of accident the appellant could not appear in PMT Examination in the year 2001 and was compelled to take drop. It is submitted that ultimately appellant got admission after a year in BDS Courses, that too against payment seat. Earned Counsel for the appellant submits that appellant is entitled for compensation towards loss of her studies for a period of one year and also the amount spent by appellant in taking admission in BDS Courses against payment seat, while appellant was a meritorious candidate. It is also submitted that since there is shortening of leg, therefore, it will also affect the marriage prospects of the appellant, for which no amount is awarded by the learned Tribunal.
7. Mr. G.K. Neema, learned Counsel for the appellant placed reliance on a decision of this Court in the matter of Dikcha v. Jamaluddin II (2004) ACC 366 (DB) : 2004 (1) T.A.C. 245, wherein a Divisional Bench of this Court has observed that “In a case of compound fracture in Tibia and Fibula of both legs, lost their natural shape and the injured became bow-legged, a sum of Rs. 5,00,000, were awarded by this Court.
8. Learned Counsel for respondent No. 3 submits that amount awarded is just and proper and no further enhancement can be made.
9. After taking into consideration all the facts and circumstances of the case and the injuries sustained by the appellant it is evident that in the accident which took place on 20th July, 2001, appellant sustained grievous injuries. Appellant was hospitalised, there were multiple fractures and traction was given to appellant on both the legs, left leg was operated, bone grafting took place, screws were fitted, there was shortening of leg, therefore, in the facts and circumstances of the case there is no doubt that on account of accident appellant had suffered a lot. It is also proved that appellant was meritorious candidate as she secured 80% marks and distinction in three subjects in her Secondary Examination.
10. From perusal of the record it is evident that the learned Tribunal has deducted the following amount towards medical expenses:
Towards medical expenses, for which evidence is produced as Exts. P-23 to Ext. P-122 Rs. 70,000 Towards cash memos of Ayurvedic medicines Exts. P-92 to P-95 Rs. 11,865 Towards operation fee paid to Dr. B.M. Shrivastav, Exhibit P-98 Rs. 18,000 Towards amounts paid to Physiotherapist Rs. 37,300
11. Looking to the documents and also looking to the injuries, it appears that the learned Tribunal committed error in rejecting the amount spent by appellant in her medical treatment. Treatment is being taken according to financial status of the patient. It appears that the appellant belongs to a family which can be categorised as higher income group, therefore, it appears that the best possible treatment was given to the appellant. Appellant is further entitled for a sum of Rs. 1,37,165 towards medical expenses.
12. So far as permanent disability and loss of education for a period of 1 year and also towards marriage prospect being a girl of marriageable age, it appears that amount awarded is on lower side. If there is a shortening of leg, then, the claim cannot be rejected or reduced on the ground that the appellant can wear high heel sandals. Appellant has to do something to remove the shortcoming, while moving in the society, but it does not mean that appellant is not entitled for compensation on that account. It appears that an amount of Rs. 1,00,000, in addition to what was awarded by the learned Tribunal shall be the appropriate amount of compensation on account of permanent disability, marriage prospects and loss of education for one year. Thus appellant is further entitled for a sum of Rs. 2,37,165. Total amount of award comes to Rs. 4,27,165. The enhanced amount shall carry interest @ 6% p.a. from the date of application.
13. With aforesaid modifications the appeal stands disposed of. No order as to costs.