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Judgment
B. Sreenivas Gowda, J.—1. MFA 3662/2014 is filed by the insurer of the offending vehicle challenging the judgment and award passed by the Tribunal, both on the ground of negligence and quantum whereas MFA 4169/2014 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal.
As these two appeals are arising out of a common judgment and award of the Tribunal, with the consent of learned counsel appearing for the parties, both the appeals were heard together and disposed of finally by this common judgment.
For the sake of convenience, parties are referred to as they are referred to in the claim petition before the Tribunal.
Learned counsel for the insurer, after arguing the matter for sometime, has restricted his argument only with regard to quantum.
As there is no dispute regarding certain injuries sustained by the claimant in the road traffic accident that occurred on 27.10.2010 due to the rash and negligent riding of a Pulsar motorbike bearing registration No. KA 05 HK 2187 by its rider and liability of the insurer of the said vehicle, the only point which remains for our consideration is-
Whether the compensation of Rs. 55,28,248/- with interest at 6% p.a. awarded by the Tribunal. is just and reasonable or does it call for reduction or enhancement.
After hearing learned counsel for the parties and perusing the judgment and award of the Tribunal, we are of the view that the compensation awarded by the Tribunal is not just and reasonable, it is slightly on the higher side and therefore, requires to be reduced.
As per Ex.P3 - Wound Certificate dated 3.11.2010 issued by Dr. Malathi Manipal Hospital, Jayanagar, claimant had sustained severe head injury with facial injuries, was unconscious and primary resuscitation was done. In the opinion column, it is stated that "shifted to MHB for further intervention".
As per Ex.P10 - Discharge Summary dated 10.1.2011 issued by the Department of Physical Medicine and Rehabilitation, Manipal Hospital, immediately after the accident, claimant was taken to Malathi Manipal Hospital where he was evaluated and found to have GCS of EIVM5, he was hemodynamically stable and saturation was 60%. His airway was secured in view of low GCS. A NCCT head was done which showed left FTP SDH with midline shift and multiple facial bone fractures. Whole body scan was done which was normal. No injury of spine, thorax, abdomen or limbs was present. He was referred to Manipal Hospital, Bangalore for neurosurgical intervention.
In Ex.P11 - medical certificate dated 13.7.2012 issued by BGS Global Hospitals, Bangalore, it is mentioned that claimant is a known patient of Traumatic Brain Injury and underwent treatment in their hospital. He revisited as an inpatient on 18.6.2012, at present he is in a state of altered sensorium. He does not open eyes, does not verbalize, but tends to follow a few simple commands. He has spasticity in all four limbs. He is currently unable to attend any court proceedings in person."
In Ex.P12, another medical certificate of BGS Global Hospital dated 20.8.2011, it is certified that claimant is a known patient of Traumatic Brain Injury. He had undergone intracranial injection of Stem Cells on 12.5.2011 in their hospital. He was admitted for follow up on 19.8.2011 at present he is in a state of altered sensorium. He does not open eyes, does not verbalize, but tends to follow a few simple commands. He has spasticity in all four limbs. He requires physiotherapy, nursing care, and PEG feeding.
Ex.P13 dated 20.8.2011 and Ex.P14 dated 20.6.2012 issued by BGS Global Hospitals are continuation of Ex.P12. In that it is stated that the claimant had sustained traumatic brain injury during October, 2010. He had sustained left supra tentorial acute SDH for which he had undergone emergency decompression craniectomy elsewhere. He has been in a state of altered sensorium and had spasticity of all limbs for the past 7 months. He is now on oral feeds and has been receiving regular physiotherapy. He underwent intracranial injection of mesenchymal stem cells on 12.5.2011 and intrathecal injection of stem cells on 25.11.2011. He has now come for follow up. Following the therapy, his relatives have noticed that he can now produce a few sounds and is now able to understand and obey simple commands. He also is able to communicate with gestures. He is able to recognize and differentiate noises and touch of family members. His relatives have informed that he can write a few letters. On examination, it was found that his vital parameters were stable. He is in a state of altered sensorium, no spontaneous eye opening, no spontaneous eye opening, moves limbs on painful stimuls and spasticity in all four limbs.
As the appellant claimant was in coma and was not in a position to prosecute the claim petition on his own, the claim petition was presented through his father, the natural guardian and his father was examined as PW 1. The injuries sustained by the claimant and indicated in the wound certificates, medical certificate and discharge summary were also corroborated by the oral evidence of the father of the claimant and the Doctor who were examined as PW 1 and 2 respectively.
PW 2 - Dr. Shailesh A.V. Rao of Manipal Hospital has deposed that immediately after the accident, claimant was brought to Manipal Hospital and treated there as an inpatient for 85 days between October 2010 and January 2011. He has stated, as per the discharge summary, claimant had sustained poly trauma with left sided subdural haemotoma and fracture of the facial bones including zygoma mandible and orbit. He was admitted to Manipal Hospital on 27.10.2010 in an unconscious state. The CT scan of the brain reveals left sided subdural hematoma with midline shift and there was also fracture of facial bones. The claimant underwent a left fronto temporal craniotomy and evacuation of the subdural hematoma. He was treated with medications and ventilatin and with treatment, he slightly improved and was discharged on 10.1.2011. He has further stated, claimant underwent Tracheostomy and at the time of discharge he was not opening his eyes, moving the limbs to pain and had spasticity on all four limbs, he was on condom catheter PEG tube and was discharged with an advise to continue medications. He was admitted for the first time, on 9.5.2011 for evaluation and further treatment and that at the time of evaluation he was in altered sensorium with a GCS of E1M4. The claimant had spasticity in all four limbs. The MR scan revealed gliosis and volume loss in both frontal lobes, left temporal lobe and occipital lobe. There was dilation of ventricules and there was atrophy of the brain. He was treated with cell therapy, physiotherapy and was provided with medications and was discharged on 16.5.2011. Subsequently, he was admitted to their hospital on five occasions for further treatment and was last admitted and discharged on 27.5.2013. At that time, he was in altered sensorium with a GCS of E1V2M5 and he was on oral feeds. The doctor has assessed the disability of the claimant at 100% to the whole body.
Considering the nature of injuries sustained by the claimant, Rs. 5,00,000/- awarded by the Tribunal towards pain and suffering is on the higher side and therefore, it requires to be reduced by Rs. 2,00,000/- and we award a sum of Rs. 3,00,000/- under this head.
Considering the nature of injuries sustained by the claimant, disability stated by the doctor at 100% to the whole body and an amount of discomfort and unhappiness he has to undergo in his future life, Rs. 3,00,000/- awarded by the Tribunal towards loss of amenities and happiness is slightly on the higher side and therefore, it requires to be reduced by Rs. 68,000/- and we award Rs. 2,32,000/- under this head.
Claimant has produced medical bills for Rs. 14,96,629/- as per Ex.P17, 23, 24 and 28. He was treated as inpatient for about 85 days at Manipal Hospital and BGS Global Hospital on five different occasions. Considering the same, a sum of Rs. 16,00,000/- lakhs awarded by the Tribunal towards medical and incidental expenses such as conveyance, nourishment and attendant charges, is just and proper and it does not require either enhancement or reduction.
PW 1 who is none other than the father of the claimant has stated that claimant was aged about 22 years and was studying in BCA II year and while studying, he was earning a sum of Rs. 8,466/- p.m. by giving private tuitions. Except the oral evidence of the father of the claimant, no other evidence is available regarding the income and avocation of the claimant. Even assuming that the claimant, after his class hours, was used to work as a part time Tutor and earn some income, however, the income assessed by the Tribunal for the said profession of the claimant at Rs. 8,466/- is on the higher side. Therefore, considering his age as 22 years, year of accident as 2010, and his avocation as a part time tutor, his income is assessed as Rs. 7,500/- p.m. The multiplier 18 employed by the Tribunal based on the age of the injured claimant is just and proper. There is no dispute between the parties regarding 100% disability considered by the Tribunal as per the evidence of the doctor examined as PW2. If it is so, loss of future income would work out to (Rs. 7,500 x 12 x 18) Rs. 16,20,000/- and it is awarded as against Rs. 18,28,656/- awarded by the Tribunal.
The claimant has produced number of receipts at Ex.P27 for having spent Rs. 4,84,800/- towards physiotherapy. PW 1 has stated that claimant is still under coma and he is required to undergo further surgery, continuous physiotherapy which would cost between Rs. 25 to 30 lakhs. His statement is corroborated by the oral evidence of the doctors. In view of nature of injuries sustained by the claimant and amount already spent by his parents towards treatment, particularly towards physiotherapy and required to be spent in future, the Tribunal was justified in awarding Rs. 6,48,000/- towards physiotherapy charges and Rs. 5,00,000/- towards future medical and incidental expenses.
The nature of injuries sustained by the claimant would suggest that his marriage prospect is completely lost and that Rs. 50,000/- awarded by the Tribunal towards loss of marriage prospects is on the lower side and therefore, it requires to be enhanced by another Rs. 50,000/- and we award Rs. 1,00,000/- under this head.
Having awarded compensation towards loss of future income by assessing the disability caused to the whole body at 100%, Rs. 1,01,592/- awarded by the Tribunal towards loss of income during period of treatment is a duplication and therefore, is disallowed. Thus, claimant is entitled to the following compensation.
and compensation awarded by the Tribunal is reduced from Rs. 55,28,248/- to Rs. 50,00,000/-.
Hence the following order:
i) MFA 3662/2014 filed by the Insurance Company MFA 3662/2014 is allowed in part and the compensation of Rs. 55,28,248/- awarded by the Tribunal is reduced to Rs. 50,00,000/-.
ii) The Insurance Company is directed to deposit the reduced compensation of Rs. 50,00,000/- with interest at 6% p.a. from the date of claim petition till the date of realization after deducting the amount if any, already paid.
iii) In view of the appeal filed by the Insurance Company being allowed reducing the compensation awarded by the Tribunal, MFA 4169/2014 filed by the claimant for enhancement of compensation does not survive for consideration and is therefore, dismissed as devoid of merit.
iv) Out of the reduced compensation of Rs. 50,00,000/-, parents of the claimant are permitted to withdraw Rs. 30,00,000/- with proportionate interest, to meet the medical and other incidental expenses of the injured claimant. The remaining Rs. 20,00,000/- with proportionate interest, is ordered to be invested in fixed deposit in any nationalized/scheduled bank for a period of ten years and the parents are permitted to withdraw periodical interest. Amount in deposit is ordered to be transmitted to the Tribunal for disbursing the same in favour of the claimant in the terms indicated herein.
vi) The Tribunal while releasing Rs. 30,00,000/- with proportionate interest in favour of the claimant/his father shall issue Fixed Deposit slips so as to enable the claimant/his father to withdraw fixed deposit amount on its maturity without approaching the Tribunal once again. The bank in which the compensation amount would be kept in fixed deposit is also directed to release the fixed deposit on maturity without insisting for an order from the Tribunal.