Raghunath vs Seby Joseph and Others

T.R. Ramachandran Nair, J—This appeal is filed by the injured who, because of the injuries suffered, is now leading a life of vegetable. The accident has resulted in total paraplegia.

We heard learned counsel for the appellant and learned counsel for the insurance company.

The accident occurred on 10.9.2008 at 5 p.m. He was travelling as a pillion rider in a motor cycle bearing registration No. KL-17/C 7883, through N.H. 47 in Chalakudy - Angamaly sector, along with another who was the petitioner in the connected case, viz. O.P.(MV) No. 1451/2008. The offending vehicle is a car bearing registration No. KL-07/AZ 9923, which knocked down the motor cycle, causing injuries to both riders.

The Tribunal has passed a common award and the claimant herein adduced documentary evidence and has also examined P.W.4, his employer as well as P.W.6, the doctor. The appellant was examined as P.W.2 also.

Learned counsel for the appellant submitted that the appellant was working as an electrician and was aged 40 years at the time of accident. The monthly income claimed is at Rs. 6,000/-. Ext. A13 is the salary certificate produced and the employer was examined also to support the case. The disability certificate, Ext. A15, issued by the Taluk Level Medical Board shows that the permanent whole body disability is 82.2%. Apart from Ext. A15, Ext. A23 was also produced. The Tribunal therefore accepted 82.2% disability.

Going by the evidence of the employer, P.W.4, the appellant was being paid Rs. 6,000/- per month. But in the cross examination, he admitted that it was not a permanent job and the appellant was being paid Rs. 500/- on the day of employment. On the basis of the said evidence, the Tribunal found that there was no continuous employment and therefore a notional income alone can be taken.

Ext. A3 wound certificate and Ext. A12 discharge summary will show that the appellant had sustained lacerated wound over (L) elbow, unstable fracture dislocation, D11 with complete paraplegia. He was treated in St. James Hospital, Chalakudy from 10.9.2008 to 2.11.2008 and thereafter the treatment continued. Ext. A18 is the scan report with impression of old fracture D11 body with metal implant at D10, D12 levels causing artifacts. It shows Grade I spondylolisthesis of 1.5 on S1. Tractography shows normal fibre tracts till D6 level. The Medical Board has issued Ext. A23 certificate. We record below the essential details of the said certificate which have a bearing on the issues raised in this case:

"The patient gives a h/o road traffic accident on 10.9.08 following which he was admitted at St. James hospital, Chalakudy with unstable fracture-dislocation D11 with complete paraplegia and lacerated wound (L) elbow. He was treated by operative stabilisation of the fracture with Steffee posterior instrumentation system along with other supportive measures and discharged on 2.11.08. The treatment and investigation report (dt.26.10.10) also show the complete paraplegia was persisted even after the operation. The implants over the spine are still remaining in situ which require another operation for removal.

On examination the patient has the following problems:

Patient is totalluy incapacitated as far as the bodily functions below the waist are concerned

Patient cannot stand erect as both the lower limbs are in a state of paralysis

Patient is persistently dependent on indwelling Foley''s catheter

Bowel movements are involuntary

Surgical scar over the midline posteriorly on the dorsolumbar spine

Grade 1 power in the muscles of the (r) lower limb below L1myotome

Grade 1+ power in the muscles of the (L) limb below L1 myotome

Range of flexion and extension of the dorsolumbar spine decreased (tested in the lying and sitting position)

Sensory blunting on both sides below D12 dematome

Radiologically, old compression fracture D11 with steffee pedicle screws and plates in situ. MRI scan shows the spinal cord injury.

The whole body permanent disability for fracture D11vertebra with complete paraplegia has been calculated using Mcbride scale as follows:

% for fracture D11 vertebra with cord damage, recovery upto 50% with regard to pain, paraspinal spasm = 25%

% for essentially complete motor and sensory paralysis of both the sciatic nerves affecting the upper half of thigh = 30%

% for essentially complete motor and sensory paralysis of both the sciatic nerves affecting the lower half of thigh = 30%

% for essentially complete motor and sensory paralysis of both the external popiteal nerves affecting the limbs below the knee = 15%

% for essentially complete motor and sensory paralysis of the anterior and posterior tibial nerves in both the limbs = 12%

Combining the values using Kessler''s formula, total % of disability = 25 + (30 + 20) x 0.8 + 15 x 0.7 + 12 x 0.6= 82.2%

Conclusion

Sri. Reghunath has got 82 (eighty-two)% of permanent disability (whole body) with respect to his injuries sustained in the accident."

There is complete paraplegia, going by the said certificate. Therefore, the occupational disability will be 100%.

Learned counsel for the appellant submitted that Ext. A14 will show that his bladder and bowel functions are really affected and the same is involuntary. It necessarily implies that below the waist part there is no sensation. Therefore, he is leading a vegetable life except that he is occasionally lifted up in the bed or by support he may be taken in a wheel chair. In that view of the matter, we will have to assess compensation on the ground that there is 100% loss of earning power.

The compensation awarded by the Tribunal is clear from the table provided in paragraph 15 which we reproduce below:

The monthly income taken is Rs. 3,500/- and the multiplier adopted is 16. Since the appellant was working as an electrician, we will have to fix a reasonable amount towards monthly income on the basis that he was a skilled worker. Of course, the Tribunal refused to accept the oral evidence of P.W.4 to the effect that he was earning Rs. 6,000/- per month. The evidence of P.W.4 is that he was not having a permanent job, but on daily basis he was being paid at Rs. 500/- whenever there is work for him. Therefore, as rightly pointed out by the learned counsel for the insurance company, we cannot take it as a continuous job but at the same time an average income will have to be assessed for the purpose of granting compensation. The accident is of the year 2008. Even if he was getting on an average of 15 days work per month, necessarily he will be earning above Rs. 5,000/- per month. Therefore, we adopt Rs. 5,000/- as the monthly income. For loss of earning power for one year, as granted by the Tribunal, the amount will be Rs. 60,000/-.

Towards medical expenses, the Tribunal has granted Rs. 2,55,530/- which is the expenditure actually incurred during the period of treatment. Learned counsel for the appellant submitted that the appellant had claimed Rs. 1 Lakh towards future medical expenses. As far as the above factor is concerned, since he is laid up practically, common health problems will recur which may require medical attention from time to time to manage the body. In that view of the matter, we will be justified in providing a reasonable amount for future medical expenses also and as against Rs. 1 Lakh we award a sum of Rs. 50,000/- for the same. As far as bystander''s expenses is concerned, the Tribunal has granted Rs. 7,950/- for 53 days during which period he was treated as inpatient.. The total claim under this head for expenses of bystander continuously is Rs. 1 Lakh. This is a case where, for life long he will have to be attended by a helper. The Tribunal has taken the view that the evidence of P.W.3, the wife of the appellant, is that she has been attending the day today affairs of the appellant and therefore there is no evidence that the appellant needs the help of a bystander. As far as the above aspect is concerned, the help and the care that is being extended by the wife cannot be understood as that of a bystander. In the light of the physical condition of the appellant it is clear that he will require the assistance of a bystander during his entire life period. Learned counsel for the appellant relied upon the decision of the Apex Court in Kavita Vs. Deepak and Others, (2012) ACJ 2161 : AIR 2012 SC 2893 : (2012) 7 JT 595 : (2013) 169 PLR 140 : (2012) 4 RCR(Civil) 273 : (2012) 7 SCALE 500 : (2012) 8 SCC 604 : (2012) AIRSCW 4771 : (2012) 6 Supreme 261 wherein the appellant had sustained serious injuries and was not in a position to look after herself and had become vegetable. The Apex Court had granted attendant charges in total at Rs. 6 Lakhs, taking the monthly expenditure at Rs. 2,000/- for a period of 24 years.

As far as the said claim is concerned, we will be justified in granting a reasonable sum, of course it cannot be so exorbitant also. Therefore, we grant a sum of Rs. 1 Lakh as claimed by the appellant towards bystander''s expenses incurred from time to time.

The next item is pain and suffering for which Rs. 50,000/- has been granted by the Tribunal. Herein, what we find is the fact that the appellant was afflicted by the serious injuries and has already undergone much sufferings and hence, he will be entitled for a reasonable amount. Even though the appellant has claimed only Rs. 50000/-, in the light of the fact that the total compensation claimed is Rs. 20 Lakhs, we award an amount of Rs. 75,000/- towards compensation for pain and suffering. For loss of earning power due to the permanent disability, taking the multiplier as 15 in the light of the decision of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 , he will be entitled for a sum of Rs. 9,00,000/- (Rs. 5000/- x 12 x 15).

The next item is the amount that can be awarded towards loss of enjoyment and amenities in life. Herein, in the light of the present state of health of the appellant, he will not be able to enjoy any pleasures of life. He is unable to move about; can carry on his normal functions and day today affairs only with the help of others; his bladder and bowel functions are absent; he will have to depend upon others for even taking bath, food, etc. and he has totally become immobilized and will have to lead a wheelchair life at the most. These aspects loom large as far as the physical condition of the appellant is concerned. He will not be able to indulge in any activity for earning livelihood also, for which of course, we will have to grant amount towards loss of earning power separately. Going by the principles stated by the Apex Court in K. Suresh Vs. New India Assurance Company Ltd. and Another, (2012) ACJ 2694 : (2012) 10 JT 484 : (2013) 169 PLR 337 : (2013) 1 RCR(Civil) 312 : (2012) 10 SCALE 516 : (2012) 12 SCC 274 also, we will have to consider all these aspects for granting due compensation towards loss of enjoyment and amenities and shortened expectation of life. Even though the appellant claimed only Rs. 50,000/-, we find that the resultant denial of enjoyments, and pleasures of life and other facets of like requires to be compensated. We think it appropriate to award an amount of Rs. 2 Lakhs under these heads together. Therefore, the total compensation will be as follows:

(Rupees sixteen lakhs fifty-one thousand four hundred and eighty only)"

The appellant is entitled to interest at the rate of 9% per annum for the enhanced amount of compensation. The insurance company is directed to deposit the entire amount of compensation less the amount already deposited before the Tribunal, within a period of three months.

The appeal is allowed as above. No costs.