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Judgment
Hon''ble Dr. Justice K. Bhakthavatsala
The appellant/claimant in MVC No. 2328/2007 on the file of MACT at Bangalore, is before this Court, praying for enhancement of compensation.
Inspite of service of notice on respondent No. 1, there is no representation.
Learned Counsel for the appellant/claimant submits that the claimant sustained head injury and other grievous injuries and in spite of treating him in NIMHANS and other Hospitals, it has resulted in permanent disablement to the extent of 100% of the whole body, but the Tribunal has taken permanent disablement at 30%. He prays for enhancement of compensation.
Perused the LCR.
It is the case of the claimant that he was 35 years old, working as Operator for Srirama Engineering Works, Rajajinagar, Bangalore, and earning Rs. 6,500/- to 7,500/- per month and he sustained grievous injuries in the motor accident that occurred on 21.1.2007 when he was a pedestrian on Magadi Road near Karthik Bar, BMTC bus bearing registration No. KA-01-F-3227 came in a rash and negligent manner and dashed against him and as a result of which he sustained head injury and other injuries. The claimant was admitted to Gayathri Hospital, from there he was shifted to NIMHANS Hospital and from there to Abhaya Hospital, and he was in-patient from 21.1.2007 till 1.3.2007. In spite of the treatment taken, the claimant has not recovered from the effects of the injuries. The claimant has filed a claim petition u/s 166 of the Motor Vehicles Act, 1988, seeking compensation of 15,00,000/-. In support of the case of the claimant, he has got himself examined as P.W1 besides examining Dr. Sharan Srinivasan as P.W2 and got marked Exs.P1 to P18. The Tribunal has answered issue No. 1 on the point of negligence in the affirmative and awarded compensation in all amounting to Rs. 4,89,200/- with costs and interest at the rate of 6% per annum. The appellant is before this Court contending that the compensation awarded by the Tribunal is in-adequate.
The claimant has filed affidavit evidence stating that he sustained severe head injury and injury to right thigh exposing skin, de-gloving injury of sole, exposing calcaneum bone and devastated muscle. He was treated in Gayathri Hospital, Nimhans Hospital and Abhaya Hospital and treated as in-patient from 21.1.2007 to 1.3.2007 and underwent surgeries. He has deposed that he has spent a sum of Rs. 5,00,000/- towards medical, conveyance, nourishment and attendant charges. In para-3 of his affidavit evidence, it is stated that he was working as a Planning Operator in Srirama Engineering Works at Rajajinagar, Bangalore, and getting wages between Rs. 6,500/- and Rs. 7000/- per month and after the accident, he is unable to do his routine work and resulted in total permanent disablement. In the cross-examination of PW1 by the Counsel for road Transport Corporation, he denied the suggestion that his earning capacity is not reduced on account of the injuries sustained by him in the motor accident, He further denied that on account of injury sustained by him, there is no impediment for him to lead his marital life. P.W1 has denied the suggestion that medical bills produced by him are concocted for the sake of case and in the medical bills, the advance amount paid has been included. P.W1 has emphatically denied the suggestion that Ex.P13 is concocted. The Tribunal has noted (vide the evidence of P.W1) that the claimant came to the Court with walker and deposed by sitting in a chair. P.W2/Dr. Sharan Srinivasan has deposed that he was working as Consultant Neurosurgeon at Abhaya Hospital, Bangalore. It is in his evidence that the claimant was unconscious and remained so and he noticed bleeding from the left ear; crush injury to both leg ankles and fracture of clavicle bone and lacerated wounds and the claimant was taken to NIMHANS, where he was found to be comatose with a coma score of 7/15 but with breathing and gasping. He was incubated and hand assisted ambubag ventilation. C T brain scan revealed (1) evidence of ACF base fracture of skull base; (2) Multiple speeks of pnenumoccphalus (air within the brain); (3) right frontal bone comminuted fracture (in pieces) and (4) multiple speeks of frontal/temporal contusion (blood dots within the brain). He was diagnosed of severe diffuse brain injury. He was referred to multi speciality hospital for further management. He has further deposed that gradually the claimant improved in neurological status and ventilator was removed. The peel wounds were managed by Ortho plastic Surgeons. Serial scan showed gradual resolution of the clots-cdcma but the hypodensity persisted and he developed multiple infection, drug reaction and nutritional problems that were managed. He has further deposed that trachostomy was done and remained in the Hospital for more than 40 days and discharged on 1.3.2007. When the claimant was discharged, he was dull, conscious, recognising some relatives, not oriented and obeying verbal commands, He required total support for all ADL (Activities of Daily Living) and the claimant came for periodical check up It is in his evidence that he examined the claimant on 20.3.2008 and noticed deficiency in attention, mental speed, fluency, working memory, average planning, verbal learning memory, visual learning memory and disturbed visuo spatial organisation. Therefore, P.W2 has opined that the claimant has got permanent disablement to the extent of 61% with reference to neurological, psychological and cognitive deficit. He has further deposed that in view of the deficits and feet injuries and he required support for all daily activities, permanent disablement is 100% irrespective of avocation. P.W2 has produced in-patient ICU record, 7 CT scan reports, 13 X-rays and Neuropsychological assessment reports. They have been marked as Exs.P15 to 18. The suggestion made to P.W2 by the Counsel for the respondents that he concocted the document to suit the case of the claimant was denied. P.W2 has deposed in his cross-examination that the claimant was unconscious for 13 days. P.W2 has denied the suggestion that the permanent disablement is only 15%. P.W2 has denied the suggestion that his opinion that the claimant has got permanent disablement to the extent of 100% is false. It is submitted that since right hand is inactive, he is unable to sign and therefore he has subscribed his LTM to the claim petition as well as affidavit evidence. At Ex.P10, the claimant had produced in all four photographs showing the condition of his lower limbs Since the claimant has sustained grievous injuries to both the legs, there is deformity in both the foots and right thigh. At Ex.P11 series, the claimant has produced admissible medical bills in all amounting to Rs. 2,95,538/-. The entire medical report as maintained by the Abhaya Hospital has been produced. The CT scan report is also available in the case file. The claimant has not examined his employer to prove that he was working as a Planning Operator for Srirama Engineering Works and earning Rs. 6,500/- to Rs. 7,500/- per month. The claimant has not produced any record to show that he has any technical qualification. Under such circumstances, the evidence of P.W1/claimant that he was earning between Rs. 6,500/- and Rs. 7,500/-per month cannot be accepted and acted upon. The claimant is resident of Bangalore. As on the date of accident, he was 35 years old. In the medical reports at Ex.P15, the age of the claimant is stated as 42 years. The claimant has not produced any record to show that he was 34 years old at the time of accident. All the medical reports show that his age was 42 years. In the event of awarding compensation towards loss of future earning, as per Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , multiplier ''14'' can be applied for the age group of persons between 41 and 45. As per the evidence of P W2, the claimant has got 100% disablement. Disfigurement is more in the right foot and right ankle joint apart from disfigurement in the right thigh. Since the claimant is a resident of Bangalore and 42 years old at the time of accident and the accident occurred in the year 2007, even if he had worked as a Coolie, he would have earned Rs. 3,750/- per month, but the Tribunal has fixed income at Rs. 3,000/- per month. The Tribunal has fixed permanent disablement at 30% and awarded compensation in favour of the claimant as under:
(i) Pain and suffering
(in Rs. )
70,000-00
(ii) Medical expenses
2,00,000-00
(iii) Incidental expenses
25,000-00
(iv) Loss of income during the period of treatment and rest ( Rs. 3,000/-x6 months)
18,000-00
(v) Loss of future earning ( Rs. 3,000/-x12x14x30%)
1,51,200-00
(vi) Loss of amenities
25,000-00
Total
4,89,200-00
The Tribunal, while considering the compensation under the head medical and incidental expenses, has stated that there are 224 medical bills and 190 medical prescriptions at Exs.P11 and P12. The claimant has produced inpatient bill for Rs. 1,50,0007- issued by Abhaya Hospital. The Tribunal erred in not awarding compensation of Rs. 2,98,945/- towards medical bills. It is a case of total permanent disablement. Hence, question of awarding compensation towards loss of earning during the period of treatment and rest does not arise.
In my view, the appellant/claimant is entitled for compensation as under:
(i) Pain and suffering
(in Rs. )
60,000-00
(ii) Medical expenses
2,98,945-00
(iii) Attendant, conveyance, special diet and future medical expenses
1,00,000-00
(iv) Loss of future earning ( Rs. 3,750/-x12x14)
6,30,000-00
(v) Disfigurement and loss of amenities
1,00,000-00
Total
11,88,945-00
Less: Compensation awarded by the Tribunal
4,89,200-00
Additional compensation
6,99,745-00
Thus, the claimant is entitled for additional compensation of Rs. 6,99,745-00.
In the result, the Appeal is partly allowed, holding that, the appellant/claimant is entitled for additional compensation of Rs. 6,99,745-00 along with costs and interest at 6% per annum from the date of Petition till realisation. Accordingly, the impugned judgment and award are modified.
Respondent No. 2/lnsurance Company is directed to deposit the additional compensation amount along with costs and interest with the Tribunal within 3 months from today.