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Judgment
C.R. Kumaraswamy, J—This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 26.02.2014 passed in MVC No. 1047/2012 on the file of the 6th Additional District Judge, Additional MACT, Mysore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
With the consent of the learned counsel for the appellant as well as the learned counsel for the respondent, this matter was heard on merits. The records of the Claims Tribunal are called for and I have perused the same.
The case of the claimant in the Claims Tribunal is as under:-
That on 18.4.2012 at about 7.30 a.m., the claimant and his family members were traveling in the KSRTC Bus bearing registration No. KA-06-F-739 from Hunsur to Mysuru. On Hunsur-Mysuru main road, near SRS gate road hump, Mysuru, the driver of the bus drove the same with high speed and in a rash and negligent manner without observing the road hump. Consequently, the claimant who was seated in the last seat of the bus, jumped from his seat to the roof of the bus and his neck had been hit hardly to the roof of the bus and due to this, his neck and head and cervical spinal cord injured and he became unconscious. He was shifted to B.M. Hospital, Mysuru on 18.4.2012 and discharged on 21.4.2012 and he was inpatient for four days and for further treatment he was admitted to D.G. Hospital, Bengaluru, wherein surgery was conducted and material is inserted to the affected area and he was discharged on 30.4.2012 and he was inpatient for 10 days. The claimant has sustained Cord contusion with spinal canal stenosis from C3 to C5.
The age of the claimant is 60 years. The occupation of the claimant is retired Head Master and carrying on tuitions and tutorial classes. His earning was Rs. 10,000/- per month.
In the Claims Tribunal, the respondent has filed the objection statement as under:
The averments made in the claim petition were all denied. It is stated in the objection statement that when the KSRTC bus reached Mysuru bus stand, then some people were stepped down from the bus of Mysuru City Corporation and started to cross the road in front of KSRTC bus then the driver of the KSRTC bus taken the bus towards the right side and at that time there was little shake in the bus and then the passengers and conductor told the driver to stop the bus then the passengers who are sitting in the backside of the bus in the second row, collapsed and then they have admitted them to the B.M. Hospital.
The Claims Tribunal has observed in paragraph-8 of the judgment that the contents of the documents pertaining to Crime No. 111/2012 of N.R. Traffic Police Station corroborate the evidence of the claimant regarding the reason, mode and consequent of the accident. Ex. P3-Spot Mahazar and Ex. P4 rough sketch show that the police have conducted spot mahazar and drawn rough sketch at the spot of the accident, which shows that the accident occurred on tar road just abutting at the Zeebra lane. Ex. P5 is the Motor Vehicle Accident report shows that there is no mechanical defect in the bus. Ex. P6 is the Wound Certificate of the claimant shows that he has sustained grievous injuries in the accident. The R.W. 1-Sudhakar, who is the driver of the respondent deposed in his evidence that when his bus reached Mysuru bus stand, then some people were stepped down from the bus of Mysuru City Corporation and started to cross the road in front of his bus then he has taken the bus towards the right side and at that time there was little shake in the bus and then the passengers and conductor told him to stop the bus then the passengers who are sitting in the backside of the bus in the second row, collapsed and then they have admitted them to the B.M. Hospital. The Police have filed the chargesheet against the driver of the bus. After considering the evidence of the claimant and appreciating the documentary evidence and also evidence of R.W. 1, the Claims Tribunal came to a conclusion that the driver of the bus was driving the same in a rash and negligent manner and caused this accident.
The Claims Tribunal has awarded the compensation as under:
Feeling aggrieved by the same, the claimant has preferred this appeal seeking for enhancement of compensation.
I have heard the learned counsel for the appellant as well as the learned counsel for the respondent.
Learned counsel for the respondent vehemently argues as under:
No documentary evidence to show that the claimant was carrying tutorial and tuitions classes. He was a retired Head Master. Therefore, there is no question of awarding compensation under the head of loss of earning capacity. He was also getting a pension of Rs. 11,732/- per month. She further submits that there is no disability sustained by the claimant.
P.W. 2-Dr. T.S. Vasan was working as an Associate Professor, Neurosurgeon, JSS Hospital, Mysuru. He has stated in his evidence that MRI cervical spine done on 19.4.2012 showed cervical medullar junction hemorrhagic contusion. There was also ossified posterior longitudinal ligament from C2-C4. He was then shifted to DG Hospital, Bengaluru for further management. There, he was admitted on 21.4.2012 in conscious state, but with weakness in all the four limbs.
He underwent C3, C4, C5 decrompressiue laminectomy on 25.4.2012. Thereafter he was discharged on 30.4.2012 with advice to get review after one week. Patient had gone to DG Hospital for review five times as per his statement.
Presently, he continues to have weakness all the four limbs with severe paraestheseae and neck pain. He is unable to wear even his trousers and is unable to do any routine small personal jobs, like buttoning his shirt. He has difficulty even to grasp and take the food to his mouth apart from difficulty in maintaining his own personal hygiene. He requires constant presence of one attender to tent to his personal hygiene. He was earlier working as a Head Master of a school and now he cannot do his own signature. He continues to have severe neck pain. He is unable to sleep in the night, because of continuous pain. On examination power in left UL and LL-4/5, hand grip-20%, right UL and LL-4/5, hand grip 40%. He requires continuous nursing care with one attender even for maintaining his personal hygiene and for day to day living. He does not have any useful function in any of the limbs.
Fresh MRI done on 2.7.2013 continue to show myelomalacic changes at cervical modularly junction. He has been followed up in Neuro surgery OPD. He has not shown improvement in his neurological disability. Disability as per DGHS and WHO Publication is Quadriparesis - 60% and Paraestheseae - 15%, total - 75%. 75% is the disability to the whole body.
During cross-examination, he denies the suggestion put to him. He further states in his evidence that in order to help the claimant, has produced Ex. P10 - discharge summary, medical bills, x-rays, discharge summary of D.G. Hospital, laboratory report.
Learned counsel for the appellant has produced the Manual for Doctors to evaluate permanent physical impairment based on Expert Group Meeting on Disability Evaluation and National Seminar on disability Evaluation and Dissemination, New Delhi-1981. Guidelines for evaluation of physical impairment in neurological conditions. In this item, Table-V-Motor System Disability reads as under:
In this table, it is mentioned that for Quadriparesis, the disability rate is 75%.
Learned counsel for the appellant has filed an application under Section 151 of CPC for Expert Opinion. In support of this application, the Law Officer has sworn to an affidavit stating that the examination-in-chief filed by way of affidavit by P.W. 2 discloses the fact that the appellant is an old case of Cervical Spine injury, treated at DG Hospital, Bengaluru in April 2012 and was admitted in JSS Hospital, Mysuru with history of severe weakness in all four limbs on 5.2.2013, for physiotherapy treatment and was discharged on 8.2.2013 with advice to continue physiotherapy on OPD basis. The P.W. 2 is neither the doctor who has examined and treated the appellant at the first instance, or operated nor the appellant was under his treatment till 5.2.2013. The P.W. 2 has treated the patient only with physiotherapy and treated the patient based on the MRI of the cervical spine performed on 19.4.2012 and deposed 75% disability to the whole body. This respondent in the cross-examination has elicited that he has not taken scanning as on 5.2.2013 and has not operated the appellant and has further admitted that the appellant has consulted the P.W. 2 10 months after the occurrence of the accident.
He further states that as the appellant is relying upon the statements made by P.W. 2 who has not treated the patient, it is necessary to obtain a second opinion as regards to the medical condition of the appellant as against the permanent disability to the whole body and the quantum of compensation to be awarded thereof, which is just and proper.
He further states that in view of the dispute with regard to the percentage of permanent disability to the whole body and in order to obtain clarity, this respondent being a public sector undertaking, seeks leave of this Court to direct/refer the appellant to be present before an additional, reliable, independent medical expert either at Victoria Hospital or Bowring Hospital which are governmental organizations, for a second opinion, as this respondent is answerable to the public at large.
He further states that if this application is not allowed, this respondent will be put to great injury and disrepute and loss. Therefore, he seeks to allow the application.
Learned counsel for the respondent orally opposed the submission made by the learned counsel for the appellant on the application. The claimant was admitted in the Hospital of Dr. T.S. Vasan in JSS Hospital, Mysuru. He was admitted on 5.2.2013 discharged on 8.2.2013 for about four days. Ex. P75 is the latest scan report done in Medall Clumax Diagnostics. Dr. T.S. Vasan was a Neuro Surgeon and he was an expert. After observing for four days, he has deposed that there is a disability to the extent of 75%. Even after discharge from the hospital, he was taking treatment as an out-patient. Therefore, the learned counsel for the appellant seeks to reject this application.
The question that arises for my consideration is that-
"In an appeal filed by the claimant, KSRTC seeking for an expert opinion from the Victoria Hospital or Bowring Hospital."
In the instant case, Dr. T.S. Vasan was working as Colonel and was a Neuro Surgeon and he has deposed that there is a disability of 75%. His evidence is based on data.
Learned counsel for the appellant has also produced the copy of the guidelines for manual of evaluation of physical impairment. In this, it is clearly mentioned that the disability rate for Quadriparesis is 75%. Therefore, the evidence of this Doctor is based on the Manual for Doctors to evaluate permanent physical impairment based on Expert Group Meeting on Disability Evaluation and National Seminar on disability Evaluation and Dissemination issued by the Directorate General of Health Services - World Health Organisation - All India Institute of Medical Sciences, New Delhi.
No rebuttable evidence is adduced by the respondent by summoning Doctors of higher status. In the absence of the respondent - Corporation examining the Doctors of higher status to rebut the evidence of Dr. T.S. Vasan in an appeal filed by the claimant making an application to refer the claimant securing expert opinion that too at this stage, in my opinion, cannot be entertained. Therefore, this application deserves to be rejected.
The next question that arises for my consideration is that-
"What is the compensation that has to be awarded to the claimant in the facts and circumstances and the nature of injuries sustained by the claimant?"
As stated earlier, the claimant has got disability to the extent of 75% to the whole body. He has sustained the injuries to the head, neck and cervical spinal cord. He has sustained Cord contusion with spinal canal stenosis from C3 to C5. Taking into consideration of the nature of injuries, in my opinion, the compensation awarded by the Claims Tribunal under the head of pain and suffering is on the lower side. Therefore, it has to be increased to Rs. 80,000/-.
Due to the injuries sustained by the claimant, there is a curtailment of enjoyment of life. There is evidence to the effect that the claimant cannot attend day to day activities. Therefore, it is just and reasonable to award Rs. 40,000/- under the head of loss of amenities.
A sum of Rs. 1,50,000/- is awarded under the head of medical expenses.
The claimant needs good food for his improvement. Therefore, it is just and reasonable to award a sum of Rs. 7,000/- under the head of nourishment expenses.
The claimant has sustained disability to the extent of 75% as per the evidence of the Doctor. He needs an attendant. He also needs conveyance to go to the Hospital. Therefore, it is just and reasonable to award Rs. 15,000/- each under the heads of attendant and conveyance charges.
The year of accident is 2012. He was a retired Head Master. It is his case that he was giving tuitions to the students but he has not produced any documentary evidence to show that he was imparting tuition classes or tutorial classes. However, taking into consideration that he was a retired Head Master, in my opinion, the income of the claimant can be assessed at Rs. 7,000/- per month. A further sum of Rs. 24,500/- is awarded under the head of loss of earning during laid-up period for 3 1/2 months.
The next question that arises for my consideration is that-
"What is the disability that has to be assessed in the instant case?"
The Doctor has positively stated that for Quadriperesis - 60"%, Paraestheseae - 15%. Total disability comes to 75%.
However, taking into consideration of the evidence of the Doctor, medical papers and also after examining the guidelines manual, the functional disability can be assessed at 65%. As stated earlier, the income of the claimant assessed is at Rs. 7,000/-. The loss of income proportionate to the disability of 65% would be Rs. 4,550/-. As per the Sarala Verma''s case, the suitable multiplier applicable in this case is ''9''. So due to reduced capacity of work, the claimant has lost income of Rs. 4,91,400/- (Rs. 4,550/- x 12 = Rs. 54,600/- x 9) which has to be compensated now under the head of loss of future earning capacity.
Due to the serious injuries sustained by the claimant and also due to Quadriparesis, he needs income for future medical treatment. Therefore, it is just and reasonable to award a sum of Rs. 40,000/- under the head of future medical expenses.
Therefore, the claimant is entitled for the following compensation:-
In all, the claimant is entitled for the compensation of Rs. 8,62,900/-.
The enhanced compensation will bear interest at 8% per annum from the date of petition till the date of payment.
In view of the above discussion, I pass the following:-
ORDER
This Miscellaneous First Appeal is allowed in part.
The compensation is enhanced from Rs. 2,04,200/- as awarded by the Claims Tribunal to Rs. 8,62,900/-.
The enhanced compensation amount will bear interest at 8% p.a. from the date of petition till date of payment.
Rest of the judgment and award is accepted.