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PETITIONER: A. ROBERT

       Vs.

RESPONDENT: THE UNITED INSURANCE CO. LTD.

DATE OF JUDGMENT:       27/08/1999

BENCH: S.B.Majumdar, D.P.Mohapatro

JUDGMENT:

S.B. Majmudar,  J: Leave granted. L.....I.........T.......T.......T.......T.......T.......T..J

     We    have    heard    learned    counsel   for    the claimant-appellant as well as learned counsel for Respondent No.1-  Insurance  Company  in  this  appeal.   The  name  of Respondent  No.2, who was the insured of the motor  vehicle, has stood deleted and the SLP against him has been dismissed by order dated 14.9.1998 on account of absence of service to him.   Hence,  the  question of statutory liability  of  the Insurance Company survives for our consideration.

     The  appellant  at  the  age of 15 years  met  with  a serious  motor  vehicle accident caused by the  motor  lorry belonging to the insured, the original respondent No.2 which dashed  against the appellant at Shivaji Nagar in  Bangalore city  on 17.6.1984.  He suffered from various injuries which were detected as under :

     i)  Fracture of left humerus;  ii) Lacerated wound  on the  middle  aspect of the left knee 3" wide  and  suspected fracture  of  pelvis;  and iii) cut wound over  the  lateral aspect of right knee 1/2" X 1/8".

     After  the  first aid, the appellant was  referred  to Orthopaedic  wing of Bowring Hospital.  One Dr.  Hafeezullah treated  the  appellant  and confirmed  that  the  appellant suffered  fracture  of left humerus.  The said fracture  was reduced  on  conservative lines.  The appellant’s left  hand was put under plaster cast for six weeks.  On account of the various  injuries suffered by him due to the aforesaid motor accident, the appellant filed a claim petition under Section 110-A  of  the  Motor  Vehicles Act, 1939.   The  claim  for compensation  was  for  Rs.2,83,000/- against  the  insured, driver  of  the  motor  vehicle as  well  as  the  Insurance Company, the remaining sole respondent in the present case.

     The  Tribunal  on  diverse  heads  after  hearing  the parties, granted compensation of Rs.99,000/- taking the view that  the  accident  was caused due to  rash  and  negligent driving  of  the insured lorry.  The appellant in search  of higher  compensation filed an appeal in the High Court.  The Insurance    Company-   the     respondent   herein    filed cross-objections.   The  High Court substantially  confirmed the  award of the Tribunal but by correcting an arithmetical

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error  reduced  it to Rs.96,500/-.  The appellant-  claimant has   filed  the  present  appeal   for  grant   of   higher compensation  in the light of the injuries suffered by  him. Even  apart from the question whether the Insurance  Company could have filed cross-objections challenging the quantum of compensation  as  granted by the Tribunal, we find that  for the  accidental  injuries  caused in the present  case,  the Insurance  Company’s statutory liability under the 1939  Act would  be Rs.1,50,000/- at the highest as the insured is now not  a party respondent before us.  The only question  which survives for our consideration is whether the said statutory liability  of the Insurance Company is required to be  fully foisted on the respondent.

     In  order to decide this question, we have to look  at the  injuries  suffered by the victim of the accident.   The question of negligence of the lorry driver is no longer open for  consideration  in this appeal by the claimant  and  the Insurance  Company also cannot have anything to say on  this aspect.   Therefore,  proceeding  on   the  basis  that  the accident  was  caused by rash and negligent driving  of  the driver  of  the offending motor lorry we have to see  as  to what  is the appropriate compensation which could be awarded to  the appellant.  The Tribunal has noted, amongst  others, the  appellant  suffered from the following injuries  :   1. Fracture   of  pelvis.   2.    Bladder  was  distended.   3. Fracture of left humerus.

     It  has  been  further observed in the  light  of  the evidence  of P.W.1 that on 18.6.1984 he did the  supra-pubic systostomy  emergently.   He  inserted   catheter  over  the urethra  for the purpose of discharge of urine.  On 8.2.1985 under  general anaesthesia urethro-plasty was done by P.W.1. The  claimant was then examined by him as he was complaining burning   sensation   while  passing   urine   with   little difficulty.   Subsequent X-rays taken showed that there  was evidence   of   pyelonephritis  on   the  right  side   i.e. inflammation  in  the right kidney.  It was also found  that there  was  stricture at the bulbo membranous  region.   The witness  deposed that on 8.2.1986 dilatation was done  under general  anaesthesia.  Because of the strictures referred to earlier  the  claimant had to undergo  repeated  dilatations throughout  his  life.   On account of  the  stricture  over urethra  inflammation  would  be caused  whenever  there  is blockage  of  urine.   It has been further observed  by  the Tribunal  that  the  claimant  will  have  difficulty  while passing  urine  throughout  his  life.  If  the  urethra  is affected,  sexual life of the claimant will also be affected in  future.   It  was  also pointed out by  P.W.1  that  the claimant  had  to undergo dilatation once in a  month.   All these  evidence  has  stood well sustained on  record.   The evidence  of  P.W.1  revealed that because of  the  injuries suffered by the claimant, a boy of 15 years, his future life is  seriously affected including his sexual life.  These are serious  injuries which required appropriate compensation to be  awarded  on the head of pain, shock and suffering.   The Tribunal  granted  on  this head only Rs.44,000/-.   In  our view,  looking at the injuries which are permanent in nature suffered  by  the claimant and which have permanent  adverse effect  on his future healthy life including sexual life, an additional amount of at least Rs.56,000/- was required to be granted  to  the  claimant on the head of  pain,  shock  and suffering so as to make it Rs.1 lakh instead of Rs.44,000/-. The  High Court unfortunately has not considered the gravity of  the injuries suffered by the claimant as established  on

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record   and,   therefore,  has   confirmed  the  award   of Rs.44,000/-  on the head of pain, shock and suffering.  Once it  is increased to Rs.1 lakh, the total amount awardable to the  claimant  would work upto Rs.1,52,500/-.  However,  the respondent  -  Insurance  Company’s statutory  liability  is confined to Rs.1,50,000/-.  We, therefore, confine the award to  Rs.1,50,000/-  only  which   will  include  compensation already  allowed  on all remaining items of  expenditure  on nourishment,  medical treatment, travelling expenses and for actual injuries and disablement suffered by the claimant.

     The  appeal  is accordingly allowed to  the  aforesaid limited  extent by increasing the award of the Tribunal  and as  confirmed  by  the  High  Court to  a  total  amount  of Rs.1,50,000/-  instead of Rs.96,500/- as awarded by the High Court  by  the  impugned  order.    The  awarded  amount  of Rs.1,50,000/-  will bear 6 per cent interest per annum  from the  date  of  the claim petition  till  payment.   Whatever amount  the Insurance Company may have paid pursuant to  the impugned  award, will naturally have to be adjusted  towards the  awarded  amount and the respondent-  Insurance  Company will  have to pay the balance amount with requisite interest at  6  per  cent thereon from the date of  application  till actual  payment to the claimant.  The respondent-  Insurance Company  is directed to deposit in the Tribunal the  balance amount  payable  pursuant to the present order within  eight weeks  from  today.  Deposited amount shall be paid  to  the appellant on due identification by the Tribunal.  There will be no order as to costs.