K.V. Yohannan vs Arun T.K. and Others

P.V. Asha, J—The appellant is the injured in a motor vehicle accident. The accident occurred on 20.1.2003. A motor cycle bearing registration No. KL-7/AK-3294 knocked him down while he was walking through Vyttila-Arur Bypass road. He sustained very severe injuries. He was immediately taken to the Medical Trust Hospital, Ernakulam. In the wound certificate, the injury sustained by him are recorded as follows:

"In hemorrhagic shock contused abrasion of right bypochundrium lateral aspect and (R) iliac fossa. Abdominal figidity. Blunt injury. Abdomen profusely bleeding type III C open comminuted fracture both bones of right leg with vascular injury. Fracture shaft of (L) femur distal 1/3rd. Dislocation of left shoulder."

In the treatment certificate Ext. A10, the injuries were described as : "type III C open comminuted fracture both bones right leg with vascular injury, fracture shaft of left femur distal 1/3 left shoulder dislocation. Diaphragmatic tear with lever tear with haeothorax(R)." Treatment given was stated as : "reduction of left shoulder, postero-lateral thorcotomy, repair of diaphragmatci and liver, debridement of wound in the right leg, application of external fixator, vascular repair and gastroenemius muscle flap cover."

Appellant underwent treatment as inpatient initially from 20.1.2003 to 13.5.2003. He was again admitted on 4.6.2003 and was discharged on 6.6.2003. The next spell was from 2.7.2003 to 16.7.2003 and thereafter from 23.10.2003 to 13.11.2003. During this period he underwent bone grafting of right tibia and fixator readjustment, removal of proximal ilizarov ring wires fixed. Again from 12.5.2006 to 15.5.2006 he was treated as inpatient for tenderness swelling and increase of local temperature. He was again admitted in the hospital on 7.6.2006 and was discharged on 12.6.2006. The records relating to the injuries suffered, treatment undergone and disability incurred were all produced before the Tribunal as Ext A1 to A22 and explained by the Tribunal in its award. The doctor who treated the appellant was examined as P.W. 1. The medical bills were produced and marked before the Tribunal as Ext. A20 series. The disability was certified as 32% by the Medical Board as per Ext. A21 certificate.

Appellant filed claim petition seeking compensation to the tune of Rs. 9,52,500/-. The Tribunal awarded a sum of Rs. 5,58,999/-. Tribunal found that the negligence of appellant contributed to the accident and attributed 25% negligence on his part. Accordingly, 25% of the amount was deducted from the amount found admissible.

Learned counsel for the appellant argued that the finding of the Tribunal on contributory negligence on the part of appellant is baseless and runs contrary to the evidence on record and established principles. He also pointed out that the compensation awarded under various heads are thoroughly inadequate. It is submitted that the appellant continues to undergo treatment even now and he has been unable to undertake any work on account of the injuries sustained, ever since in the accident.

We heard the learned Counsel for the Insurance Company, who supported the award and submitted that no enhancement is required.

We find that the finding on contributory negligence is arrived at merely on the basis of scene mahazar Ext A2. On examination of the same, it is seen the place of occurrence is stated to be 70 cm west of the eastern tar end of Vytilla-Arur bye pass road where width is 8.5 metres. The place of occurrence was found to have clear vision for 200 metres to either side. Accepting the contention raised on behalf of the Insurance Company, Tribunal found that being a pedestrian, the appellant ought to have confined to the mud road and ought not have stepped 70 cms into tarred portion in a road with heavy traffic, when it was not a pedestrian crossing. Tribunal found force with the contention of the respondent that the accident would not have occurred if the appellant was careful and being pedestrian, he could step have stepped into the tarred portion only in a pedestrian crossing despite the fact that the scene of accident was stated to have clear vision from either side. It also drew adverse inference against him for not entering the witness box and explaining the incident. Tribunal concluded that on consideration of evidence adduced, the negligence of appellant contributed to the accident and attributed 25% negligence on him. But we do not find any such evidence said to be adduced by the respondent Company or on any evidence on record and any circumstance for the Tribunal for drawing adverse inference and that too for not entering into the witness box. On the other hand we find that there is no evidence on record to arrive at a finding of negligence on the appellant. The material as to the occurrence of accident are the documents Ext A1 to A4-the FIR, scene mahazar, the AMVIs report and judgment in the criminal case against the driver of the offending vehicle. In all these documents the driver of the offending vehicle is found negligent. From the scene mahazar, what we find is that the accident occurred in a spot where there was clear vision and therefore the rider of the motor vehicle could have avoided the accident. We do not find any statement in the scene mahazar, against the appellant or which will indicate his negligence. Even assuming that there is something adverse against him in it, in the absence of any independent evidence on record, the Tribunal ought not have entered into findings on contributory negligence, as held in Jiju Kuruvila and Others Vs. Kunjujamma Mohan and Others, (2013) 3 ACC 49 : (2013) ACJ 2141 : (2013) 7 AD 484 : AIR 2013 SC 2293 : (2013) 4 CTC 252 : (2013) 13 JT 417 : (2013) 3 RCR(Civil) 817 : (2013) 8 SCALE 722 : (2013) 9 SCC 166 : (2013) AIRSCW 3881 : (2013) 4 Supreme 709 , that the scene of occurrence recorded in the scene mahazar alone cannot lead to any conclusion on contributory negligence and it has to be brought out by independent evidence. That was a case where 2 motor vehicles were involved. In this case, there is absolutely no evidence adduced by the respondent company in order to prove contributory negligence on the part of the appellant. Moreover there is no provision of law which makes a pedestrian negligent if he steps into the tarred portion of road or cross the road or attempts to cross the road otherwise than through pedestrian crossing. Therefore we do not find any basis for the conclusion of the Tribunal in attributing contributory negligence on the part of appellant and hence we vacate those findings.

Now we have to examine the adequacy of quantum of compensation awarded. We find that the appellant was subjected to medical examination by the District Medical Board, Ernakulam, on 31-12-2013, on the basis of direction of this Court in I.A. 3242/13. The Superintendent, General Hospital, Ernakulam as per letter No. C2-8820/2013 dated 22.1.2014 has furnished the result of the same in the form of medical certificate issued by the Medical Board. We accept the same in evidence and mark it as Ext X1. After recording the injury sustained by the appellant, his present condition is stated therein as follows:

"1. Discharging sinus (R) leg suggesting chronic Osteomyelitis right tibia.

Ugly scar (R) leg.

Severe stiffness right ankle with jog of movements.

Stiffness right knee with range of movement 0.90�.

Apprehension test positive for left shoulder suggesting recurrent dislocation of left shoulder".

The Medical Board further found that the appellant is experiencing difficulty in walking at fast pace, running or jogging. He is unable to sit cross legged or squat, as before. He is having weakness and instability of left shoulder. Therefore, they certified 100% loss of earning capacity as manual labourer, though his permanent physical disability due to above problems as per MC Bride''s Scale was assessed as 40%.

From the above assessment, it can be seen that the accident has resulted in 100% functional disability and permanent loss of earning capacity on the appellant, who was working as construction worker. He is permanently incapacitated to continue any avocation it is evident that appellant continues to suffer from the injuries ever since the date of accident i.e. 20.01.2003 despite the treatment being undergone since then. In support of the contention that appellant has been under continuous treatment, several documents are produced before this court also. Annexure 1 produced along with I.A. No. 3293/2012 is the discharge summary issued from the Medical Trust Hospital on 6.12.2010, which shows that appellant was admitted on 4-12-2010 due to pain, swelling and discharging wound on leg. It was diagnosed as chronic osteomyelitis on tibia. Ann II therein is the discharge summary issued from KIMS hospital after treatment there from 7.06.2011 to 10.06.2011 for multiple sinuses and fluctuant swelling over right leg. He underwent incision and drainage, pus culture. He was advised to have full weight bearing walking and cleaning and dressing at local hospital and to undertake review after 2 weeks. Ann III therein is the certificate issued from KIMS hospital on 19-12-2011, to the effect that he developed chronic osteomyelitis in right tibia which requires saucerisation followed by muscle transfer which will cost a sum of Rs. 1 lakh.

Another I.A. 2279/2012 was filed on 21.08.2013 was filed producing another discharge summary from KIMS Hospital after follow up treatment from 13.04.2013 to 16.04.2013, with advice to have the next review after 2 weeks. Ann II along with this is the in-patient bill for Rs. 8442/- issued in his name for the said period. Several bills are also produced along with I.A. No. 3619/2014. From these records as well as Ext X1 certificate furnished before this court by the medical Board will show that the appellant continue to suffer on account of the injuries and requires further lifelong treatment.

Appellant claimed that he was earning a sum of Rs. 4,000/- per month. He was aged 38 years at the time of the accident. The Tribunal fixed the monthly income at the rate of Rs. 2,000/-. Towards loss of earnings, the Tribunal awarded a sum of Rs. 30,000/- for a period of 15 months. Having regard to the wage structure prevailing in the State for the construction workers and in the light of the judgment of the apex court in 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 , where the monthly income of a daily labourer was reckoned as Rs. 4500/-, we refix the income of the appellant at the rate of Rs. 4,000/- per month. Therefore, the appellant will be entitled to a sum of Rs. 60,000/- towards loss of earnings for 15 months. Towards transportation, the Tribunal has awarded only a sum of Rs. 6775/-. We have seen from the documents produced before the Tribunal as well as this court including Ext X1, that appellant has been undergoing treatment right from 2003 in various hospitals for which he had to undertake recurrent visits. Therefore, we award a sum of Rs. 15,000/- towards transportation. Towards damage to clothing the Tribunal has awarded a sum of Rs. 500/-. Towards medical expenses, the tribunal has awarded a sum of Rs. 3,34,024/-. But no amount is granted towards future treatment. We have already found that appellant continues to be under treatment and he requires lifelong treatment for the osteomyelitis. Going by the evidence on record relating to the treatment undergone by the appellant, with reference to the documents produced before the Tribunal as well as those produced before this Court and the disability certificate furnished from the Medical Board, we find it just to award a sum of Rs. 75,000/- towards future treatment. The Tribunal found that a sum of Rs. 30,000/- would have been admissible towards pain and suffering and limited it on account of the contributory negligence. In view of the grievous nature of the injuries sustained, disability incurred by the appellant, the prolonged & continuous treatment since the year 2003 being undertaken by him, which he has to suffer indefinitely we enhance the compensation under this head to Rs. 75,000/-. Towards bystander expenses, the Tribunal has awarded a sum of Rs. 20,000/- for a period of 159 days. We find that the amount awarded under this head is liable to be refixed at the rate of Rs. 250/- per day; i.e. Rs. 23,550/-. We fix a sum of Rs. 5000/- towards extra nourishment. Compensation towards permanent disability and loss of earning power, is refixed reckoning his income at the rate of Rs. 4,000/- and adopting the multiplier as 15, since the appellant was aged 38 years at the relevant time. We are adopting the disability factor as 100% as the medical board has assessed his loss of earning capacity as 100%, in the Ext X1 medical certificate furnished to this Court. Thus he will be entitled to a sum of Rs. 7,20,000/- (4000 x 12 x 15) under this head. We find that the appellant has become permanently incapacitated from normal enjoyment and from having the normal amenities of life and he has to suffer all these inconveniences all throughout his life, apart from the fact that he has incurred disfiguration also. Therefore, we find it just to award a sum of Rs. 35,000/- towards loss of enjoyment and amenities of life. Thus the appellant will be entitled to a total compensation of Rs. 13,43,074/-. The award passed by the Tribunal is modified accordingly.

Appellant will therefore be entitled to a total compensation of Rs. 1343374/- along with interest at the rate of 9% p.a from the date of petition. The Insurance Company is directed to deposit the entire compensation less the amount already deposited within a period of three months.

The appeal is allowed as above.