R.Y. Pradeep vs Shivananda and Others

B.S. Patil, J—This appeal is filed by the injured - claimant seeking enhancement of compensation. Motor Accident Claims Tribunal, Belur, has awarded total compensation in a sum of Rs. 5,84,418/- (rounded of to Rs. 5,84,500/-) along with interest at 6% p.a. vide judgment and award dated 03.10.2008 passed in M.V.C. No. 16/2008 for the personal injuries and the permanent disability suffered by the claimant.

On 03.10.2004, on Tumkur - Bengaluru Road, when the claimant along with his friend was proceeding on a motorbike, a BMTC bus driven in a rash and negligent manner with high speed dashed against the motorbike. As a result the rider of the motorbike died on the spot. The claimant, who was a pillion rider suffered grievous injuries over his forehead, left hand, left leg, right hip, chest and other parts of the body. He was shifted to Victoria Hospital and as per the advice of the Doctor, he was taken to City Hospital (Shekar Hospital), Bengaluru. According to the claimant, he was unconscious for 15 days. He claimed compensation in a sum of Rs. 10,00,000/- from the respondents.

Respondent No. 2 - Managing Director of the BMTC resisted the claim denying negligence attributed to the driver of the bus and also the quantum of compensation prayed for. The claimant examined himself as P.W.1. Dr. Muralidharan, Assistant Professor of Psychiatry of NIMHANS, Bengaluru was examined as P.W.2. Dr. Roshan Kumar B.N., Orthopaedician of Shekhar Hospital, Bengaluru, was examined as P.W.3. Exs.P1 to P315 were produced and marked. No witnesses were examined on behalf of the respondents and no documents were produced and marked.

The Tribunal, on consideration of evidence on record, has found that the accident was caused due to rash and negligent driving of the BMTC bus by its driver. As regards nature of injuries suffered and quantum of compensation, the Tribunal, by considering the Wound Certificate - Ex.P7 and evidence of P.W.3 Dr. Roshan Kumar B.N. has held that claimant suffered fracture of both bones of right forearm, concussive head injury and blunt injury to the right ankle. By considering the evidence of Dr. Muralidharan, Assistant Professor of Psychiatry, NIMHANS, Bengaluru, the Tribunal has found that the neuro psychological assessment report disclosed that there was personality change in the claimant as a result of serious head injury suffered by him in terms of his behaviour, inasmuch as there were perceptible behaviour changes regarding irritability, assertiveness, impulsivity, suggesting bilateral fronto-temporal involvement, etc. P.W.2 - Doctor has stated that the claimant had features of organic personality change and the neuropsychological deficit pointed out were as follows:

"Deficit in motor in mental speed, sustained attention, category fluency, planning, concept formation, set shifting, response inhibitions verbal learning and memory and visual memory."

Doctor has assessed the permanent disability suffered in the following manner:

''In respect of fracture of both bones of right forearm as per the assessment made by P.W.3, permanent disability was in the order of 40% to the particular limb and 20% to the whole body. In respect of head injury, as per the opinion of P.W.2, on account of the grievous injury caused to the brain, permanent disability was in the order of 50% to 60% compared to the whole body.''

The Tribunal having referred to the evidence of the doctor, has taken functional disability in respect of the grievous injury to the right hand at 8% and permanent disability in respect of head injury to be at 30% and total disability suffered to be 38%. As regards the income of the injured, the Tribunal has taken monthly income at Rs. 3,500/-. Taking the disability at 38% and based on the annual income arrived at Rs. 42,000/- future earnings of the claimant has been arrived at Rs. 7,56,000/- and 38% of the same has been worked out at Rs. 2,87,280/-. The compensation has been quantified under different heads in the following manner:

The main contentions urged by the learned Counsel for the appellant are,

(i) that the Tribunal has seriously erred in discarding Ex.P-9 certificate showing that the injured was drawing Rs. 8,500/- per month as salary;

(ii) that even otherwise, the Tribunal has committed a serious error in taking the notional income at Rs. 3,500/- per month;

(iii) the evidence of the doctor has been ignored by the Tribunal in assessing the permanent disability at 38% instead of 60%;

(iv) that the Tribunal has under compensated the claimant towards loss of marriage prospects by awarding only Rs. 25,000/- and towards future unhappiness and loss of amenities by awarding only Rs. 10,000/-.

He has further contended that against all other heads also, the claimant has been under compensated. Drawing the attention of the Court to the evidence of the doctor regarding the continuous future medical treatment that the claimant is required to undergo, learned Counsel contends that the award made by the Tribunal in a sum of Rs. 75,600/- towards future medical expenses is on the lower side. He has also contended that interest awarded at 6% is also on the lower side. He has placed reliance on the judgment in the case of Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, (2014) 1 ACC 206 : AIR 2014 SC 1052 : (2014) AIRSCW 724 : (2014) 1 JT 569 : (2014) 1 RCR(Civil) 766 : (2014) 1 SCALE 377 : (2014) 2 SCC 735 , to contend that in similar circumstances wages at Rs. 6,500/- has been taken and 50% of the income has been added keeping in mind the age of the injured there.

Learned Counsel for the respondent-Corporation strongly refutes the contentions of the appellant. He supports the findings recorded by the Tribunal and submits that award of future medical expenses in a sum of Rs. 75,600/- and for future medial surgery in a sum of Rs. 35,000/- is on the higher side and at any rate, the said amount which has not been shown to have been spent should not be computed for awarding interest. It is also his further submission that evidence of the doctor does not inspire confidence as PW-2 was not the doctor who treated the patient.

He has also contended that Ex.P-9 has not been proved by examining the author of the said document, and therefore, it has been rightly discarded.

Having heard the learned Counsel for both parties, the only point that arises for consideration is,

"whether the quantum of compensation awarded by the Tribunal deserves interference for enhancement?"

I have carefully examined the evidence of the doctor PWs-2 & 3. PW-2 is Assistant Professor of Psychiatry in NIMHANS, Bengaluru, and PW-3 is an Orthopedic Surgeon in Shekar Hospital, Bengaluru. The cause for concern was with regard to head injury suffered by the claimant. Evidence of PW-2 clearly discloses that neurosurgery team had referred the patient to neuropsychological assessment on 30.08.2007, wherein defects were pointed out by the doctor in mental speed, sustained attention, category fluency, planning concept formation, set shifting, response inhibitions, verbal learning and memory and visual memory. He has also noticed and pointed out that there were personality changes following head injury in terms of irritability, assertiveness, impulsivity, suggesting bilateral fronto-temporal involvement. He has, however, volunteered to state in the examination-in-chief itself that he would like to get a disability assessment to give more accurate assessment of disability. He has also pointed out that there could be problems in discharging marital responsibility, though he could not say definitely about the same at that point of time. Nothing worthwhile is elicited in the cross-examination.

Now the question is whether the Tribunal is justified in brushing aside the assessment of disability made by PW-2 and recording a finding that permanent disability was only in the order of 38%. Though PW-2 has assessed the disability at 50 to 60%, he has himself stated that for accurate assessment of disability, he has to take another call and make an assessment. Therefore, the assessment made by PW-2 is also approximate estimate.

So far as PW-3 is concerned, he has assessed the disability in the upper limb at 40% compared to the whole body. If 1/4th of it is taken, it will come to 10%. The Tribunal has taken it as 8%. Therefore, what emerges is, the Tribunal while assessing permanent disability and loss of future earnings, has not kept in mind the nature of disability suffered. Even assuming that the doctor was not very specific when he assessed the permanent disability at 50 to 60%, the Tribunal ought to have taken the disability at 40% along with disability in the upper limb at 10%. If the evidence of the two experts are examined, keeping in mind the nature of injuries and the functional disability suffered, it can be justifiably said that permanent disability suffered by the claimant was 50%.

In so far as the income of the injured claimant is concerned, the Tribunal has rightly rejected Ex.P-9 because the author of this document is not examined and no other material is produced to show that he was engaged as electrical contractor either independently or under Shine Electricals. Therefore, in the absence of any other evidence, the Tribunal was right and justified in taking the notional income at Rs. 3,500/- per month. The accident has taken place in the year 2004. Therefore, the amount taken as monthly income in the absence of any other evidence cannot be interfered with.

Therefore, if the compensation is worked out by taking 50% of the future earnings and monthly income at Rs. 3,500/-, the compensation under the head loss of future earning capacity would come to Rs. 3,78,000/- and the same is accordingly awarded.

As regards the other heads of compensation, in respect of loss of marriage prospects which is bound to happen in a case like this, having regard to the injuries to the brain and the resultant disability, the Tribunal ought to have reasonably and fairly compensated the claimant. Another sum of Rs. 25,000/- deserves to be added to the amount already awarded at Rs. 25,000/-.

Towards loss of future happenings and loss of amenities, the Tribunal has awarded only Rs. 10,000/-. Keeping in mind the functional disability suffered, the claimant deserves an additional sum of Rs. 20,000/- under this head.

In all other respects, the compensation awarded does not require interference. The Tribunal has kept in mind future medical expenses required and that is why a sum of Rs. 75,600/- has been awarded towards medical expenses to be incurred in future. Even for future medical surgery, a sum of Rs. 35,000/- has been awarded. Therefore, this amount awarded, in my view, is just and reasonable.

Interest at 6% has been awarded, which also does not require any interference, particularly keeping in mind the fact that accident has occurred in the year 2004. Reliance placed by the claimant on the decision in the case of Syed Sadiq''s case referred to supra with regard to wages to be taken at Rs. 6,500/- cannot be made applicable to the present case because the accident in the said case had arisen in the year 2008 and based on the probabilities of the case, the Apex Court has taken monthly wages at Rs. 6,500/-.

In the result and for the foregoing, this appeal is allowed in part. The judgment and award of the Tribunal are modified. Total compensation to which the claimant is entitled is fixed at Rs. 7,20,138/- and the same is awarded along with interest at 6% per annum from the date of petition till payment.