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Judgment
K. Ramanna, J.—These two appeals are filed against the Judgment and Award dated 7/11/2003 passed by the Motor Accident Claims Tribunal, Bangalore (SCCH-2) in M.V.C. No. 2622/2000, whereby'' the Tribunal has awarded compensation of Rs. 2,35,525/- with interest at 7% p.a. on account of the injuries sustained by the appellant-claiment.
The B.M.T.C. has filed appeal No. 2363/2004 challenging the Judgment and Award on the ground that the amount awarded by the Tribunal is excessive.
whereas the appellant in M.F.A. No. 2309/04 being the victim, of road transport accident came up with M.F.A. No. 2309/04 on the ground that the Tribunal has not properly quantified the compensation and meager compensation has been awarded. Hence this appeal.
Since both the appeals arise out of one and the same Judgment and Award passed in M.V.C. No. 2622/2000, the parties in both the appeals are one and the same, therefore, they are being taken up together fox the sake of convenience and in order to avoid repetition of facts and Law.
The appellant in M.F.A. no. 2363/2004, the Managing Director of B.M.T.C. contended that the Judgment and Award under appeal is erroneous in Law and. opposed to the facts and probabilities of the The Land Tribunal has erred in not considering the written statement filed by the appellant who is respondent before the M.A.C.R., Bangalore. The evidence of R.W.1-driver of the Appellant Bus who has stated in his evidence that he was proceeding slowly and cautiously in order to stop the bus at Shivajinagar Bus stand, the respondent-claimant hurriedly tried to board the appellant-bus at front door and due to huge crowd of passengers the respondent-claimant suddenly fell down. Therefore, the respondent-claimant was solely responsible for her negligent act in boarding the bus and the evidence of R.W.1-driver of the BMTC bus has not been challenged by the respondent-claiment. The M.A.C.T., Bangalore has not considered the contention taken in the Written Statement as well as the evidence of R.W. 1. Therefore, the Judgment and Award passed by the H.A.C.T. Bangalore is liable to be set aside and the compensation awarded on various heads is excessive, exorbitant and without any basis. Hence, this appeal.
The appellant in M.F.A. No. 2309/04 being the victim of the road transport accident has taken a contention that the amount quantified by the M.A.C.T., Bangalore under the various heads is very low and meager. As par the evidence of P.W. 2 Dr. Srikanth A.V.S. who assessed the disability at 30% of the whole body but the functional disability ia nearly 100%, therefore, the compensation awarded is inadequate and requires to be enhanced suitably. There is no award under the head loots of earning capacity merely because the appellant has continued her service even after injury. Having regard to the previous conditions of service, the loss of future earning capacity is to be considered. Therefore, prays to allow the appeal by enhancing compensation to Rs. 5, 00,000/-.
Heard the arguments of learned Senior counsel Sri S.P. Shankar and Sri. M.H. Motigi, learned Counsel for the appellant and respondent"
It is argued by Sri M.H. Motigi learned Counsel for the appellant in M.F.A. 2363/04 that though the appellant fitted Written Statement in M.V.C. No. 2622/2000 contending that the accident if any occurred was on account of the negligence of the respondent-claimant. The driver of the appellant-bus was proceeding slowly and cautiously in order to stop the bus at Shivajinagar bus stand, at that point of time the respondent-claimant hurriedly tried to board the BMTC bus at front door and due to huge crowd of passengers the claimant-respondent suddenly fell down and came in contact with front wheel of the bus. She herself exposed to the bus by trying to board the bus carelessly and negligently and in fact hurriedly overlooking the crowd of the passengers to board the bus, for which the appellant or its driver was not responsible for the accident. The Tribunal has not taken into consideration this fact. The evidence of R.W. 1-driver of the BMTC bus has not been challanged by the respondent-claimant. The claims Tribunal without considering all these aspects including the contents of the sketch Ex.P-3, wrongly held that R.W. 1 was rash, and negligent in driving the vehicle is not correct, which is opposed to the documentary evidence. It is argued that since the respondent-claimant continued in service therefore there is no loss of future earning capacity. Hence, she is not entitled fox loss of future earnings and the amount awarded under other heads is excessive. Therefore, prays for dismissal of the appeal.
Whereas, learned senior counsel Sri S.P. Shankar, appearing for the appellant-claimant in M.F.A. No. 2309/2004 argued that as per the evidence of claimant-appellant as well as P.W. 2 Dr. Srikanth A.V.S. the appellant has sustained extensive deglazing injury of soft tissue for the entire length of the left-leg. She had undergone several wound debridement operation, blood transfusion and skin grafting. It is argued that Ex. P-10 photographs clearly show the nature of injuries sustained by appellant-claiment, extensive degloving injury extending from the left groin to the left ankle and there was loss of skin. The petitioner was inpatient from 7/5/2000 to 12/7/2000 for 61 days again from 28/2/2001 to 12/3/2001 for 12 days, totally she has undergone treatment as an in-patent for 73 days. Hex evidence has been corroborated by P.W. 2 Dr. Sriknath A.V.S. According to him there was loss of skin and therefore she was admitted to ICU, Where she was given multiple blood transfusions. She was operated for reconstruction of the soft tissue and repeated wound dethronements were done and she has undergone two operations. Knee flexion is only 30 degrees whereas the normal is 130 degrees. It is further argued that some antibiotic injections should be taken throughout her life. Therefore, P.W. 2 has assessed 30% permanent physical disability of the left lower limb and 15% to the whole body but the functional disability is around 100% Therefore, the Tribunal ought to have been compensated for 100% of disability, taking the monthly salary of Rs. 5635/- for laid up period of 15 months. The Tribunal fails to award compensation under the head future loss of earnings at least 15% for her disebility. While, arguing the case learned Counsel for the appellant draw the attention of this Court to the definition of debridement. As per the Medical Dictionary written by Butterworth II Edition, likewise skin degloving injury''. Further in this regard he has argued that as per Medical Dictionary for lawyers written by Bernard S. Malon III Edition, wherein it has been stated debridement skin grafting. So awarding of compensation of Rs. 20,000/- under the head loss of amenities is too low. In support of this contention learned senior counsel for the appellant-claimant relied on a Division Bench decision of this Court in the case of K. Narasimha Murthy Vs. The Manager, Oriental Insurance Company Limited and Another, , wherein this Court in paragraph 54 held that:
The permanent disability sustained by the appellant, undeniably, would come in the way of the appellant enjoying his normal and full life. Appellant has become very much dependent upon others even for maintaining his physical mobility.
It is further held in Head Note-A.
Section 173-Personal injury cases-Duty of Courts and Tribunals while considering deprivation-HELD-They should have due regard to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial, it should not be merely token damages.
Head Note-B reads thus:
Motor Vehicles Act, 1988 (59/88) - Section 173 - Personal injury causes - Deprivation - Three consequences are (a) loss of earning and earning capacity (b) expenses to pay others for what otherwise he would do for himself (c) loss or diminution in full pleasures and joys of living- There should be serious and honest attempt to award damages as far as many can compensate loss. Loss of curing and. earning should also be adequately compensated.
Heard note ''C'' reads thus:
Motor Vehicles Act, 1988 -Section 173 - Personal inquiry cases - Compensation - The injured has to be compensated (1) for pain and suffering (2) for loss of amenities (3) shortened expectation of life if any (4) loss of earnings or loss of earning capacity or in some cases for both and (5) Medical treatment and other special damages.
Therefore, he prays for enhancement of compensation to the tune of Rs. 5,00,000/- from Rs. 2,35,525/- with interest at 12% p.a.
Having heard the arguments of learned Counsel for both the parties in the aforesaid two appeals, the points that arise for consideration and decision are:
(i) Whether the accident occurred due to rash and negligent driving of BMTC bus toy its driver R.W. 1 or whether the appellant-respondent BMTC proves that the accident if any caused was due to negligent act of the claimant who hurriedly trying to board the bus when it was slowly moving to stop at Shivajinagar bus station?
(ii) Whether the appellant-claimant proves that the amount awarded by the Tribunal on various head is not properly quantified and the amount awarded is very meager?
(iii) what order?
It is an undisputed fact that the appellant in M.F.A. No. 2309/2004 was the victim of road traffic accident. According to the appellant-claimant, on 6/3/2000 at about 6.45 p.m. when she was going to Shivajinager Bus station to catch Frazer town bus along with her sister cane from Jayanagar. When she was moving around to catch the Frazer town bus all of a sudden a BMTC bus bearing Registration No. KA-01-F-1215 route No. 252-A came behind and dashed against her as a result of which she fell down and sustained grievous injuries. Then immediately she was taken to Bowring hospital for treatment and again to Manipal hospital on 7/2/2000. Whereas the respondent BMTC has taken the contention in its Written Statement filed before the claims Tribunal, contending that there was no rashness and negligence on the part of the driver of the BMTC bus and that he drove the bus very slowly and cautiously; when the said bus was on its schedule trip from Peenya II Stage to Shivajinagar bus stand and while it was so proceeding slowly and cautiously, in order to stop the bus at Shivajinagar bus stand, at that point of time, the appellant-claimant who hurriedly tried to board the BMTC bus at front door and due to negligence in boarding the bus, she fell down and came in contact with the front wheel of the said bus. therefore, she herself exposed to the accident by trying to board the bus carelessly and negligently and in a great hurry overlooking the crowd of passengers to board the bus.
During the course of evidence P.W. 1 Smt. R. Vijaya deposes before the claims Tribunal on oath that on that day around 6.45 p.m. when she was standing in Shivajinagar bus stand, a bus bearing registration No. KA-01-F-1215 of route number 252-A i.e., Peenya bus while taking into bus stand, came and hit hex from behind resulting sustenance of personal injuries on her abdomen, left hand and left leg. The wheel of the bus ran owner on her left leg resulting in muscle exposure. But her evidence is little bit varies with the pleadings. Paragraph 22 of the claim petition discloses that when the petitioner harried to catch Frazer town bus all of a sudden BMTC bus route No. 252-A came from behind and dashed. Her evidence has not been corroborated by any independent eye-witness. Whether she was standing to board the BMTC bus to go to Frezer town or she was moving around in that Shivajinagar bus stand to catch Frezer town bus? According to R.W. 1-driver of the BMTC bus on that day he was the driver of the bus involved in this accident but his schedule trip was from Peenya II stage to Shivajinagar. At about 6.45 p.m. on 6/5/2000 while he was proceeding a lowly and cautiously in order to stop the bus at Shivajinagar bus stand as there was a huge crowd, the petitioner hurriedly tried to board the BMTC hue at front door and due to huge crowd pushing the passengers, the petitioner suddenly fell down and came in contact with front wheel of the bus. The evidence of P.H. 1 and R.H. 1 is oath against the oath. Of course strict rules of Evidence Act will not he applied in a case arising out of motor vehicle accident. Therefore, it could he said that the driver of the appellant bus i.e. BMTC bus bearing registration No. XA.-C1-F-1215 while taking the bus in reverse condition in Shivajinagar bus stand, route No. 330 and 331 near the flat form took it reverse from south to north negligently with speed and dashed against the appellant-claimant while she was going towards East to West to catch the bus of Frezer town. On perusal of Ex.P-3 the sketch goes to show that the bus in question was moving in reverse condition to stop the bus, whereas the appellant-claimant was proceeding from east to west to go to 330 and 331 flat form, the hind portion of the bus hit the appellant-claimant. Consequently she fell down and sustained grievous injuries as mentioned in the wound certificate Ex.P-6 issued by Dr. A.V. 5. Srikanth, Medical Officer in Manipal hospital, Bangalore which shows that extensive degloving injury extending from Left Groin to Ankle etc. Therefore, it could be said that neither party failed to examine any independent witnesses to prove their contention taken in the claim petition and written statement. Man may lie but not the documente. Taking into consideration the contents of Ex.P-3 sketch prepared by the I.O., coupled with the evidence of P.W. 1 the Motor Accident Claims Tribunal has rightly come to the conclusion that the accident was occurred due to rash and negligent driving of the B.M.T.C. by its driver R.W. 1. The appellant-BMTC ought to have examined the conductor of the bus who is expected to give signal to the driver of the bus while the bus was being taken to reverse condition to stop the bus at particular plat form to enable the passengers to board the bus. No such attempt has been made to examine the conductor of the BMTC bus. Hence, the Tribunal is right in recording its finding in affirmative by holding that the driver of the BMTC bus was rash and negligent in driving the bus.
(ii) As far as quantum of compensation is concerned, the appellant-claimant has sustained extensive degloving injury extending from left Groin to Ankle with extensive involvement of left tissues loss of skin present.
So, according to P.W. 2 A.V. 5. Srikanth, Medical officer attached to Manipal hospital, Bangalore, deposed before the Court that he examined her on 6/5/2000 and noticed the above said injury caused in the road traffic accident that occurred on 6/5/2000. Wound Debridement and reconstruction of soft tissue of left lower limb was done. She was admitted to the ICU where she was given multiple blood transfusions. Before the reconstruction of the soft tissue done she underwent repeated wound debridements. Subsequently she has attained the fallow up treatment and again got admitted on 28/2/2001 as she had developed contractor over the left knee posteriorly and surgery was performed on 1/3/2001. She was discharged from the hospital on 12/3/2001 with an advice to take fallow up treatment and medicines. During fallow up treatment, F.W. 2 noticed that she had developed post injury fibromyalgia and got treated accordingly in a conservative manner. Recently she was examined on 19/10/2002 by P.W. 2 and Dr. Anaantheshwar - a Plastic surgeon for assessment of disability. According to him left knee suffered from extension and flexion of only 30 degrees is possible, where as normal is 130 degrees. The donor sites of graft has treated well. She is advised to wear pressure garment through out and take antibiotic injection i.e., long acting penicillin once a month for a long period. Because of the above problems she suffers from a disability of 30% to the left lower limb and 15% to the whole body.
According to Butterworths Medical Dictionary, Second edition- Editor-in-Chief Macdonald Critchley. Degloving:-(de''gluring). The tearing off, by injury, of the skin of the forearm and hand, or the leg and foot in a manner comparable to that of taking off a glove".
As per medical dictionary and lawyers by Beenaid S. Meloy
Debridement: (de ''breed'' mahn)
(1) Literally, to make an incision to relieve tension.
(2) Excision from a wound of dead tissue or tissue the blood supply of which has been sO seriously interfered with that it is likely to die, or in order to remove a pabulum on which organisms can grow. Chemical Debridement: Removal of dead tissue from a wound by chemical, usually enzymatic, action. Lever debridement: Removal of dead tissue flora a wound by digestion by maggots.
Skin: The outer covering of the body. Skin is from one fifteenth to one twelth of an inch in thickness. It is thickest upon the nape, back, shoulders and the palms and soles.
Grafting: a piece of skin grafted on a part where some of the skin has been lost.
While awarding the compensation the Tribunal is expected to award compensation under personal injury case i.e.,
(1) Pain and Sufferings
(2) Loss of Amenities
(3) Shorten Expectation of life if any
(4) Loss of earning or Loss of earning capacity or in some cases for both and
(5) Medical treatment and other special damages.
Whereas in the instant case the appellant has under gone treatment as an inpatient fox nearly 78 days both in the Bowring hospital as well as in Manipal hospital as stated by P.W. 2 Dr. Srikanth. Ex.P-6 is the wound certificate issued by the Manipal hospital, Bangalore. The inpatient records (discharge summary) Ex.P-7 discloses the nature of the treatment under gone by her on number of days. Ex.P-9, the medical bills disclose the amount spent by her towards hospital charges. Ex.P-10, the photographs disclose the nature of the injury caused to her left leg. There was a contraction over left lag. Ex.P-11 issued by the Postal Authority discloses that appellant-claimant has applied 451 days of various types of leave i.e., E.L., half pay leave and etc., to the extent of 15 months. The salary certificate Ex.P-8 discloses, in the month of April 2000 she has drawn salary of Rs. 5, 635/-. Taking into consideration that the appellant is a married woman working in Postal Department suffered grievous injuries like delousing injury, she has suffered whole body disability of 15% through her life. Even though she has sustained injuries, future loss of income cannot be taken into consideration as she has continued her job in the Postal Authority. Considering the fact that the appellant has sustained grievous injury, the Tribunal ought to have awarded reasonable compensation under the head pain and sufferings. Therefore, compensation awarded under the head pain and sufferings requires enhancement from Rs. 40,000/- to Rs. 60,000/-. The appellant has spent a sum of Rs. 83,307/- towards medical expenses while under going treatment in both the hospitals. The Tribunal has awarded RS.85,000/- but no amount has been awarded under the head food, nourishment, conveyance and attendance charges. Taking into consideration the treatment undergone by her for 78 days as inpatient and also she has taken treatment and rest for another 13 1/2 months, it is just and proper to award a sum of RS. 20,000/- as against Rs. 6,000/- awarded by the Tribunal under the head food, nourishment, conveyance and attendance charges. Taking into consideration that on account of injuries sustained by her in motor accident she was forced to apply leave for 15 months. Therefore the compensation of Rs. 84, 525/- awarded by the Tribunal fox loss of earnings while undergoing treatment both as inpatient and out patient and rest is reasonable and does not require any enhancement or reduction. As far as loss of amenities is concerned, the Tribunal has awarded a sum of RS. 20, 000/- as on the date of the accident she was aged about 46 years working in a Postal Department as DSP and getting salary of Rs. 5, 635/- p.a. Considering her age and the average livability of the Indian, she has to suffer another for 25 years with her 15% disability. Therefore it is just and proper to enhance the compensation under the head loss of amenities in life from Rs. 20, 000/ - to Rs. 50, 000/-. The interest awarded by the Tribunal appears to be reasonable and does not require any further enhancement or reduction. Accordingly, the interest awarded at the rate of 7% is undisturbed. In all the appellant is entitled for enhanced compensation of RS. 64,000/- and the total condensation would be RS. 2,99,525/-ie., 2,35, 525 + 64, 000=2, 99, 525.
Accordingly, the appeal M.F.A. No. 2309/04 filed by the victim of the road transport accident is partly allowed. The compensation awarded by the Tribunal is enhanced by another sum of Rs. 164,000/- and the same shall carry interest at the rate of 6% p.a. from the date of petition till the date of realisation. The appeal filed by the B.M.T.C. i.e., M.F.A. 2363/2004 is hereby dismissed.