A. Yesudas and Others vs Mithuna and Others

P.S. Dinesh Kumar, J—These two appeals are preferred by the claimant and the Insurer in MVC No. 7222/2012 on the file of II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru (''Tribunal'' for short) assailing the legality and correctness of the common order dated 19.8.2014 with regard to the quantum of compensation awarded by the Tribunal.

MFA No. 8169/2014 is filed by the claimant and MFA No. 7384/2014 by the Insurer.

For the sake of convenience, parties shall be referred as per their status in the claim petition.

Facts discernable from the pleadings are, on 1.11.2012 at about 11.30 p.m. claimant was traveling in a Car bearing No. KA 03 MQ 7766 along with his friends on Bengaluru - Kolar National Highway and it rammed into a Truck bearing No. AP-02-U-3569. Due to the impact, claimant suffered serious injuries which included contusion from C4 - C5 to C7 - T1 level, bone contusion in C6, C7, D1 & D2 vertebral bodies, rupture of posterior ligaments etc. He was treated as an inpatient from 1.11.2012 to 25.11.2012. The claimant at the time of accident was hale and healthy. He was 33 years old and a graduate in BBM. He was self employed in real estate business and earning Rs. 25,000/- per month. Accident had rendered the claimant completely immobile. He cannot attend to his day to day activities and wholly dependant on others.

With the above averments, claimant presented a petition for compensation.

During the trial, three witnesses were examined on behalf of the claimant and 23 documents marked. On behalf of the respondent, Insurer and two witnesses were examined and three documents marked. On consideration of the material on record, the Tribunal awarded a sum of Rs. 28,77,639/-.

Both Insurer as well as claimant are aggrieved by the impugned judgment and award. Hence, these appeals.

We have heard Sri A.N. Krishnaswamy, learned Counsel for the Insurer-M/s. Sriram General Insurance Company Limited; Sri B. Pradeep, learned Counsel for the Insurer-M/s. Iffco Tokio General Insurance Company Limited and Sri Girish, learned Counsel for the claimant.

Learned Counsel for the Insurer has urged following contentions:-

(i) that the Tribunal erred in taking the income of the claimant as Rs. 6,000/- per month without any documentary evidence;

(ii) that the claimant was not entitled for compensation under the head future prospects as this is a case of injury;

(iii) that the quantification of compensation is incorrect because the Tribunal has failed to notice that the multiplier system would take care of all contingencies including that of future prospects;

(iv) that in view of the fact, compensation was awarded by reckoning disability at 100%, the Tribunal was not correct in awarding compensation for loss of income during the period of treatment;

(v) that the quantum is far in excess and requires to be scaled out.

Per contra, learned Counsel for the claimant submits that the claimant has suffered 100% disability. He has become quadriplegic and dependant on his attendants for all his personal needs. Accident has completely wrecked the claimant. On these among other grounds, the learned Counsel prays that the compensation awarded is grossly inadequate and prays for enhancement.

We have given our anxious consideration to the submissions made by the learned Counsel for the Insurer and the claimant and examined the material papers including trial Court records.

The Tribunal framed the following points for its consideration:-

"1. Whether the petitioners prove that on 1.11.2012 at about 11.30p.m., when he was traveling in a car bearing No. KA 03 MQ 7766 near Medahalli Flyover, Bidarahalli Hobli, Bengaluru-Kolara NH.4 Road, Bengaluru at that time, the driver of truck bearing No. AP 02 U 3569 came at high speed and in a rash or negligent manner so as to endanger human life and dashed against the car and due to which he had sustained grievous injuries?

Whether the petitioners are entitled for compensation as claimed? If so, to what amount and from whom?

What order or award?

Ex.P11 is the discharge summary issued by Axon Speciality Hospital, Indiranagar, Bengaluru. Bill dated 25.11.2012 discloses that the claimant was admitted on 1.11.2012 and discharged on 25.11.2012. For treatment during this period, the hospital has charged Rs. 4,73,120/-.

PW.3, Dr. Aniruddh T.J., in his Examination-in-chief, has stated that he is a Consultant Neurosurgeon at Axon Speciality Hospital and attended on the claimant when he was brought to the emergency with the history of road traffic accident on 1.11.2012 at 11.45 p.m. His analysis of x-rays, MRI and CT Scan had revealed evidence of grievous Spinal Cord injury, which reads as follows:-

"1. Fracture C 6 with cord injury

Quadriparasis with weakness in both limbs &

Multiple abrasions over left shoulder, face and left thigh

AS PER MRI SCAN

- Cord contusion from C4-C5 to C7 - T1 level

- Bone contusion in C6, C7 D1 & D2 Vertebral bodies,

- Rupture of posterior ligamentous complex at C4-C5 & C5-C6 Levels,

- Posterior Bulge With Left Paracentral Hernination Of C5-6 disc indenting the Thecal Sac,

- Minimally impinging of left C6 nerve root & on cord,

- Posterior bulge with central herniation of C-4-D disc indenting the thecal sac,

- Central herniation with superior extrusion of C3-4 disc indenting thecal sac,

- Posterior bulge of C6-7 disc indenting the thecal sac & minimally impinging on cord."

The claimant was treated as an inpatient between 1.11.2012 and 25.11.2012 and underwent following procedures:-

- Under GA C6 Corpectomy,

- C5-C7 fusion with left iliac crest graft plate with screws fixation done on 16/11/2012

- Underwent Supra public Catheterization under GA on 17/11/2012"

Record of Doctor''s examination on 4.3.2014 reads as follows:-

"- He has developed bed sores,

- He has no strength in lower limb and upper limb [Paraplegia]

- He has never walked after the accident till date

- He has no sensation in lower and upper limb

- He has also has severe bilateral hand weakness grade - 2/5, Hand grip 10%

- he is bed bound and requires support for all his activities of daily life and severely, functionally disabled"

Doctor has assessed the whole body disability of claimant at 100% as per the guidelines of DGHS, WHO and AIIMS. He has fairly withstood the cross examination and categorically asserted that in the course of treatment, bone grafting was done for cervical spine by taking hip bone and fixing it with plates and screws. He has further stated that there was no improvement in claimant''s condition and there were no chances of any further recovery in future. He has further stated that the claimant has a neurological disability of 100%.

In the light of above factual matrix, grounds urged on behalf of the Insurer and the claimant respectively, the following points arise for our consideration:-

(1) Whether the Tribunal was right in assessing the earning capacity of the claimant at Rs. 6,000/- and awarding compensation under the head ''future prospects''?

(2) Whether the application of multiplier system would take care of all contingencies and awarding future prospects in the instant case is contrary to ''Davies method''?

Re-Point No. (1):

Admittedly, the date of accident is 1.11.2012 and the injured is aged 33 years at the time of accident. The Tribunal has taken the earning capacity of the claimant as Rs. 6,000/- per month. While assessing the compensation in the case of a victim of road traffic accident, the Hon''ble Supreme Court in the case of Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) ACJ 2436 : AIR 2011 SC 2951 : (2011) 8 JT 628 : (2011) 4 RCR(Civil) 107 : (2011) 8 SCALE 399 : (2011) 13 SCC 236 : (2011) 9 SCR 922 : (2011) 4 TAC 1 : (2011) AIRSCW 4787 : (2011) 5 Supreme 536 has taken the earning capacity of a victim of a road traffic accident which occurred in the year 2004 as Rs. 4,500/-. In the instant case, the accident has taken place on 1.11.2012. Further, Doctor''s evidence clearly demonstrates that the claimant had developed bed sores; that he had no strength in lower and upper limbs; and he has never walked after the date of accident and bound to bed and required support for all his activities. The Doctor has further stated that the claimant required lifetime treatment and changing of waterbed. Taking into consideration the opinion of the Doctor, we deem it appropriate to augment the claimant with sufficient quantum of compensation under the head of future medical and attendant charges. In the circumstances, we are persuaded to accept the earning capacity of the claimant at Rs. 8,000/- per month at the material point of time. We accordingly, answer point No. 1.

Re-Point No. (2):

Adverting to the contention advanced on behalf of the Insurer that the Tribunal erred in considering the future prospects in the instant case when the compensation was computed on the multiplier system, we notice that the Insurer has categorically stated in the grounds urged in the memorandum of appeal that in view of conflicting views on the issue with regard to the future prospects, the matter has been referred to a larger bench of the Hon''ble Supreme Court in SLP No. 8058/2014 (National Insurance Company Limited v. Pushpa & Others). As this issue is said to be pending adjudication before the larger bench of Hon''ble Apex Court, we deem it appropriate to assess the compensation without reference to the future prospects. This is a case in which the victim has suffered 100% disability. Doctors'' evidence is categorical to the effect that he cannot move about and the prognosis is extremely discouraging and the Doctor has opined that there are no chances of recovery in future.

In the circumstances, in our considered view, ends of justice will be met by awarding compensation in the following manner:-

In the result, we pass the following:-

ORDER

(i) MFA No. 8169/2015 - Claimant''s appeal is allowed in part;

(ii) MFA No. 7384/2014 - Insurer''s appeal is dismissed;

(iii) The claimant shall be entitled for an enhanced compensation of Rs. 1,88,000/- with 9% interest per annum from the date of filing of the petition;

(iv) Out of the enhanced compensation, Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant/claimant for a period of ten years and renewable for another five years, with liberty to withdraw the periodical interest accrued thereon;

(v) The remaining amount of Rs. 88,000/- with proportionate interest shall be released in favour of the appellant immediately, on deposit by the Insurer;

(vi) The sum of Rs. 28,77,639/- awarded by the Tribunal shall be disbursed as per the directions contained in the award;

(vii) It is made clear that the claimant shall not be entitled for interest on Rs. 3,50,000/- which is awarded towards ''future medical and attendant charges''.

Registry is directed to transmit the amount in deposit and the lower court records to the jurisdictional Tribunal, forthwith.

Ordered accordingly.

No costs.