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Judgment
Heard Mr. S. Roy, learned counsel appearing for the appellants as well as Mr. P. Gautam, learned counsel appearing for the respondent No.2, United India Insurance Company Limited. None appears for the respondent No.1 despite due notice.
This is an appeal under Section 173 of the Motor Vehicles Act from the judgment and award dated 16.12.2017 delivered in T.S.(MAC)No.188 of 2011 by the Motor Accident Claims Tribunal No.1, West Tripura, Agartala.
The fact relating to the accident that occurred on 30.12.2010 between Mohanpur and Hazamara may be placed at the outset. When one Jiban Das [the original claimant] now deceased, was walking along the road and reached nearby a place adjoining to Mohanpur Tea Garden, the vehicle bearing registration No.TR-01A-1261 dashed him from behind having driven with extreme speed. He sustained grevious injury and he was immediately transferred to Mohanpur P.H.C. and within a short while he was referred and transferred to G.B.P. Hospital, Agartala where the victim was under treatment since 30.12.2010 to 24.01.2011. He was again admitted on 02.03.2011 and discharged on 10.03.2011. Injuries led to 70% disability of non-progressive nature. The original claimant claimed a sum of Rs.5,00,000/- as compensation. The said claim petition was resisted by the respondents by filing separate written objections but none of them has denied the accident. The original claimant adduced two witnesses but the respondents did not adduce any evidence either oral or documentary.
It has been stated by Mr. S. Roy, learned counsel appearing for the appellants that by the judgment and order dated 16.01.2013, the original claim petition was disposed of by the tribunal, but on appeal, the said judgment was set aside by this court and remanded for fresh consideration on the basis of the disablement certificate that was issued by the District Disability Medical Board [Exbt.20]. The original claimant was again examined on 09.12.2016 and P.W.2, Dr. Dibyendu Roy was examined as the expert on 04.12.2017 to prove the disablement.
During pendency of the appeal, the original claimant died. Since the appeal was in pendency, the legal heirs were substituted. Neither the dependents nor the legal heirs have claimed further benefit but continued the challenge against the said judgment.
Mr. Roy, learned counsel appearing for the appellants has stated that there is no dispute that the accident under reference occurred for rash and negligent driving of the said vehicle bearing No.TR01A 1261 which was insured by the respondent No.2. Even, regarding the insurance coverage, there is no dispute. According to him, determination of damage suffers from perversity generated from mis-reading of the documents. While deciding the issue No.2, the tribunal has observed that there are some prescriptions issued by the doctors namely Dr. Sunil Kumar Ghosh and Dr. Prasenjit Deka who are eminent neurologists. The tribunal has given the compensation, computing monthly earning as Rs.4000/- per month and Rs.15,000/- for transportation, fooding and lodging etc. On the basis of the disablement certificate, the tribunal has observed that such disablement has caused due to old age of the claimant. Such interrogation is available in the statement made in the cross-examination by PW-2. PW-2 has stated that he advised the original claimant to do C.T. Scan and from the CT Scan, it revealed that the brain material of the original claimant had dried up.
This court is constrained to observe that information of the laymen is inadmissible under Section 45 of the Evidence Act. It has been mentioned that a sum of Rs.15,855/- was added as the cost of medicine and Rs.20,000/- was for pain and suffering. The compensation has thus been assessed at Rs.62,855/-. The liability of paying the said compensation was saddled with the insurer, as stated. The said amount was directed to be paid with 9% interest in terms of the judgment and award which is under challenge in this appeal.
It appears on revisit of the evidence that the appellant was admitted in the GBP Hospital on 30.12.2010 at 7.15 p.m. being referred from Mohanpur P.H.C. It has been further observed that the victim was suffering from Subarachnoid Haemorrhage and he was treated in the same hospital till 24.01.2011, as reflected in the discharge summary dated 24.01.2011 [Exbt.1 series]. The victim was again admitted on 02.03.2011 to 10.03.2011 as it appears from the discharge certificate dated 10.03.2011. The prescription dated 23.02.2011 [part of Exbt.1 series] issued by the out-patient department has been produced in the tribunal and the said prescription has clearly recorded that that was a case of RTA. But in two discharge certificates, no such information was recorded. From the disability certificate [Exbt.20] it appears that the appellant has been suffering from Organic Psychosis of mental illness which has caused disability to the extent of 70% in the certificate. It has been clearly noted in the said disability certificate that (1) the condition is non-progressive and (2) re-assessment is not necessary. In this regard, let us turn to the opinion of PW-2, who had examined the victim on 04.12.2017. PW-2 has given his opinion in the disability certificate. We have come across that the condition of the patient is non-progressive, meaning he will not be fully cured in future. PW-2 has identified his signature on the disability certificate. But no question was put to him whether the illness can be related to the road traffic accident or not. As stated earlier that only in the prescription dated 23.02.2011 it has been recorded by the doctor in the GBP Hospital that that was a "case of RTI".
Mr. Roy, learned counsel has produced a literature in respect of Subarachnoid Hemorrhage & Vasospasm from MayfiledClinic.com which has given every feature of the said phenomenal disease. The relevant part is reproduced hereunder :
"What is a Subarachnoid Hemorrhage?
The Subarachnoid space is the area between the brain and the skull. It is filled with Cerebrospinal fluid (CSF), which acts as a floating cushion to protect the brain. When the blood is released into the Subarachnoid space, it irritates the lining of the brain and damages brain cells. At the same time, the area of brain that previously received oxygen rich blood from the affected artery is now deprived of blood, resulting in a stroke. SAH is frequently a sign of a ruptured aneurysm.
Enclosed within the rigid skull, clotted blood and fluid build up increases pressure that can crush the brain against the bone or cause it to shift and herniated. Blockage of the normal CSF circulation can enlarge the ventricles (hydrocephalus) causing confusion, lethargy and loss of consciousness."
It has been opined that SAH caused by injury is often seen in the older people who have fallen and hit their head. Among the young, the most common injury leading to SAH is motor vehicle accidents. 5 to 10% of strokes are caused by SAH.
If this opinion is considered by this court on the basis of the said literature we too observe that since the original claimant was an aged person when he was hit from behind by the offending vehicle, he suffered from SAH. The most common injury leading to SAH is the motor accidents. What has happened in the progressive study of the symptoms, it appears that after injury was received and the patient suffered SAH, it was life-threatening type of stroke caused by bleeding into the space surrounding the brain. SAH can be caused by way of raptured aneurysm, AVM or head injury. Such finding surfaced from the empirical survey. It surfaced that one-third will die. On the basis of this literature, Mr. Roy, learned counsel has urged this court to revisit the assessment of damage. Since the cause of death are not placed in this appeal, this court will not travel back to inquire into that aspect and thus, the damage will be confined to the matrix of effect.
There is no dispute that the original claimant has suffered 70% disability of non-progressive character, meaning he will be unable to live a healthy life nor will he be able to do any labour. Thus, it is a total loss of his earning for the rest of his life. Income of the injured-claimant has been assessed at Rs.4000/- per month and that determination has been challenged even by the appellants. Thus, the total income per annum would be Rs.48,000/-. In terms of Sarla Verma & Ors. vs Delhi Transport Corp.& Anr reported in (2009) 6 SCC 121. From the said income, one-third has been deducted for the personal expense of the injured-claimant. Thus, the loss of income per annum would come at Rs.36,000/-. The said amount is required to be multiplied by 13 as per the multiplier scheme as suggested in Sarla Verma(supra).The total loss on account of injury thus comes at Rs.04,68,000/-. With the said sum, the amount of Rs.15,855/- [cost of medicine] would be added. The cost of transportation at Rs.15,000/- would further be added as the component of compensation. No further amount would be awarded for non-pecuniary damage. Thus, the total compensation comes to Rs.4,98,855/- This can be said to be just compensation if that injury‟ is found to be suffered by the accident and that has been caused by the offending vehicle.
There is no denial by the respondents that offending vehicle had hit the original claimant from behind and he was immediately taken to the Mohanpur P.H.C. From there, he was taken to the GBP Hospital. The victim was diagnosed to have suffered from SAH leading to 70% disability. Mayfield Brain & Spine literature may not be considered as this opinion could not be questioned and tested by the respondents. But the prescription dated 23.02.2011 has categorically observed as follows :
"Case of RTA Traumatic SAH."
Therefore, waiving all doubts, this court is of the view that the claimants who entered their feet in the shoes of the victim are entitled to get the said award. The said award shall be paid with interest @ 6% per annum from the date of filing of the claim petition i.e. 09.12.2016. The final payment be made after deducting the amount that has been already paid.
In terms of the above, this appeal stands allowed.
The respondent No.2, United India Insurance Company Limited shall make payment of the said amount in the manner as indicated above within a period of two months from the day when a copy of this order will be made available by the appellant. In the tribunal, the substituted legal heirs of the original claim would be entitled to receive the said amount in the equal share.
There shall be no order as to costs.
A copy of this order be sent to the tribunal forthwith.