Tapan Kanti Saha vs Amal Saha and Others

Deepak Gupta, C.J—This appeal by the claimant for enhancement of compensation is directed against the award dated 18-07-2009 passed by the learned Motor Accident Claims Tribunal, Court No. 4, West Tripura, Agartala in case No. T.S.(MAC) 497 of 2006 whereby the learned Tribunal awarded a sum of Rs. 4,83,994/- to the claimant under the following heads:-

The undisputed facts of the case are that the claimant who was aged about 53 years at the time of the accident was working in the Border Security Force (BSF) as Sub-Inspector (S.I.). He suffered injuries in an accident involving two vehicles on 10.7.2006 at 11 a.m. After the accident, the petitioner became unconscious. He received his initial first aid at Tripura and he was referred to Kolkata for further treatment. He was admitted in the Peerless Hospital, National Neurosciences Centre, Calcutta where he remained admitted from 12.7.2006 to 04.8.2006. The history of the treatment of the claimant is best set out in the discharge summary issued by the National Neurosciences Centre, Calcutta which reads as follows:-

FINAL DIAGNOSIS: Post-traumatic cerebral concussions with right sided rib fractures.

BRIEF CLINICAL HISTORY: This 53-year-old male was admitted here on 12/07/06 with history of alleged road traffic accident at 11 AM on 10/07/06, after which he lapsed into unconsciousness. He received his initial first aid at Tripura before arrival to Kolkata. There was no significant past medical history.

On examination, he was unconscious, GCS-7/15 [E1M4V2]. His respiratory rate was 32/min. There was gross surgical emphysema involving the thorax and extending upto face and into thigh with profuse purulent secretions in oral cavity. BP-130/80 mm Hg; Pulse-84/min. Pupils were 3 mm in size and bilaterally reacting to light. Plantars were bilaterally extensor. He was catheterized. There was no evidence of long bone fractures.

INVESTIGATIONS: CT scan of brain showed no evidence of any intra-cranial bleed of skull bone fractures.

Chest X-ray showed multiple rib fractures on right side with haziness of both lung fields (right > left).

ABG revealed mild respiratory acidosis.

USG of abdomen was not conclusive due to lack of satisfactory window.

All other investigations attached alongwith.

TREATMENT/COURSE IN HOSPITAL: In view of his poor respiratory pattern, he was incubated and connected to a ventilator. Bilateral intercostals drainage was done as the patient had hemopneumothorax. He was put on anti-epileptic drugs, analgesics, proton pump inhibitors and multi-vitamin injections. Dr. A.K. Sarkar (Consultant Chest Physician) was consulted and advice was sought and carried out. He was put on inj. Magnex Inj. Magnamycin and Inj. Tarivid. He was on SIMV and PS mode on a ventilator and on 19/07/06 to aid in weaning and better trachea-bronchial toileting, a tracheostomy was done. Meanwhile both the drains were removed as they were not functioning. He was continuing to have low grade fever which was treated by cold sponging and anti-pyretics. He was finally taken off the ventilator on 17/07/06. His ET tube culture showed growth of Methicillin resistant Staphylococcus aureus for which he was put on Inj. Vancomycin. A repeat ultrasound of the abdomen did not show any collection. Bilateral pleural spaces had fluid collection with partial collapse of the lower lobes. The patient was shifted to the ward. He was requiring persistent oxygen via T-tube and his X-rays showed persistent haziness on the right side. To find out whether it was a contusion or hemothorax, a CT scan was done. Following demonstration of a massive right sided hemothorax on 23/07/06 under aseptic precautions, an intercostals drain was inserted via the right fourth space into the pleural cavity. With this his respiratory pattern improved. He did not require supplemental oxygen and on 26/07/06 his drain was removed.

He was seated on a wheel chair and ambulated. By 30/07/06, his was decannulated. He was put on a condom catheter and made to walk with support in the post-decannulation period. All antibiotics were stopped after 14 days and he remained afebrile.

At the time of discharge, he was conscious, could recognize his relatives, verbalize and could say simple words. He was able to walk few steps with support. He was afebrile on normal diet. He was incontinent for urine. The wound over ICD sites were healthy. A CT scan was done prior to discharge on 03/08/06 which revealed bilateral subdural hygroma without any midline shift. In view of his improving neurological status, it has been decided not to intervene right now. However, he will require a repeat CT scan of head after 4 weeks to see for increase or resolution in the size of the collection.

He is being referred for further rehabilitation to the Frontier Hospital, BSF, Salt Lake.

ADVICE ON DISCHARGE:

� Normal diet.

� Ambulation with support.

� Tab Nootropil (800 mg) 1 tablet thrice daily for 2 months.

� Deep breathing exercises 4 times daily.

� Cap Becosule Z 1 capsule once daily to continue.

� Referred to BSF Hospital and to undergo rehabilitation for chest and limbs as shown.

� Attend NNC-OPD on Wednesdays/Saturdays after 4 weeks or earlier SOS.

SIGNATURE OF RESIDENT

Sd/- (Illegible) SIGNATURE OF CONSULTANT (Dr. Prasad Krishnan) Consultant Neuro Surgeon National Neurosciences Centre Calcutta."

The most important aspect, according to me, is that at the time of discharge, though the petitioner was conscious and could recognize his relatives but could only say simple words. He could only walk a few steps. He was thereafter admitted in the BSF Hospital where he remained admitted from 04.8.2006 to 28.8.2006. The CT scan revealed no evidence of any brain injury and he was discharged from the hospital on 28.8.2006. The case of the petitioner is that though he was discharged from hospital, he could not work properly and he got himself treated from Dr. Shyamal Roy who has found that the petitioner is suffering from vertigo and lapses of memory. Dr. Shyamal Roy was examined as PW-2 and has stated that the petitioner came to him twice on 22.5.2007 and 07.11.2007 but never thereafter. In cross-examination, the witness has stated that on clinical examination he found no neuro deficiency in the petitioner though the patient claimed that he was suffering from vertigo and loss of memory. It is also admitted by him that he is not a Neurologist. The other claim of the petitioner is that due to his injuries he could not work and, therefore, sought voluntary retirement from the BSF.

It is well settled law that in a case of injuries compensation is awarded under two heads; pecuniary damages and non-pecuniary damages. Under the head of pecuniary damages, the expenses of treatment, attendants, special diet, transportation, hospitalization will be covered. Under the head of pecuniary losses, the claimant will also be entitled to the amount of income which he has actually lost due to his being unable to attend his work and in case, the injury has caused a permanent disability, then the future loss of income shall also have to be considered. Under the head of non-pecuniary damages, normally damages will be awarded under the head of pain and suffering and in cases of permanent disability also for loss of amenities of life and future discomfort in life. In cases where the claimant is a young unmarried person and the injuries affect his marital prospects, damages for loss of marital prospects can also be awarded.

Applying the aforesaid principles, I now assess the compensation. The claimant remained hospitalized for almost 3(three) months and even on his discharge it is apparent that he was not able to do work. He still needed support. During hospitalization, he would have required attendant round the clock. Over three months, he would have required attendants and even if the cost of attendant with boarding and lodging at Kolkata is assessed at Rs. 1,000/- per day, for 3(three) months it comes to Rs. 90,000/- which the claimant is entitled. While awarding this amount I am taking into consideration the fact that as per the report of the Peerless Hospital quoted hereinabove, the petitioner was not even in a position to move and could not even speak properly when he was discharged from the hospital. Therefore, such a patient requires constant attention and may be 2/3 attendants would have been required and, therefore, this amount has been assessed slightly on the higher side than is normally assessed by this Court.

The learned Tribunal has awarded no amount to the claimant for leave taken on the ground that there is no record of the leave taken and there is no record that such leave was without pay. This Court can take judicial notice of the fact that every employee in Government service is entitled to encash at least 300 days of his leave at the time of his retirement and at least the claimant could not have worked for 3(three) months when he was hospitalized and one month thereafter. The salary certificate of the claimant shows that he was earning Rs. 14,469/- which is rounded off to Rs. 15,000/- and for 4(four) months, he is granted Rs. 60,000/- for loss of income.

Coming to the question of medical expenses. The claimant has proved expenses of Rs. 4,38,804.18/-. It is apparent that the claimant requires treatment even after his discharge from hospital. The nature of the injuries is an injury to the brain which has caused memory loss, vertigo etc. which is required treatment and, therefore, keeping in view the fact that in addition to the amount of Rs. 4,38,804/- the claimant may have spent some other amounts. He is awarded a sum of Rs. 5,00,000/- in all for medical expenses.

The claimant has been awarded Rs. 17,190/- only on the basis of the air tickets. The learned Tribunal did not realize that even to reach the airport from the hospital and to reach the hospital from the airport costs money. Taxis would have been hired for local transport and, therefore I award Rs. 25,000/- under the head of transportation.

As far as future pecuniary damages are concerned, I am clearly of the view that the claimant is not entitled to any amount under that head. The claimant continued to remain in service. He has sought voluntary retirement and the order of voluntary retirement does not show that he has sought voluntary retirement on medical grounds. If a person seeks voluntary retirement, he cannot now claim anything further than that. He is getting the same pension as he would have got and, therefore, I find that this claim is not justified.

Coming to the head of non-pecuniary damages. The award of Rs. 15,000/- to a person who remained hospitalized for almost 3(three) months, has suffered loss of memory, could not walk along like a normal human being for those 3(three) months is absolutely low. I enhance this amount to Rs. 50,000/-.

The learned Tribunal has only granted Rs. 13,000/- for other lump sum including loss of amenities of life, enjoyment of life etc. This is also on the lower side. True it is that the claimant has not suffered any financial loss but from the evidence of Dr. Shyamal Roy, it is apparent that the claimant as a result of the injuries received in the accident is suffering from vertigo and from lapses of memory and this condition may plague him for the rest of his life. This is something which the claimant will suffer forever and, therefore, I award him Rs. 1,00,000/- under the same.

Therefore, the total compensation works out to Rs. (90,000 + 60,000 + 5,00,000 + 25,000 + 50,000 + 1,00,000) =Rs. 8,25,000/- (rupees eight lakh twenty five thousand).

In view of the above discussion, the appeal is allowed. The award of the learned Tribunal is modified and the compensation is enhanced from Rs. 4,83,994/- to Rs. 8,25,000/-, i.e. by Rs. 3,41,006/-. Since both the Insurance Companies have already satisfied the award of the Tribunal in equal shares, they are directed to deposit the enhanced amount of compensation along with interest @ 7.5% per annum in equal shares from the date of filing of the claim petition till payment/deposit of the awarded amount in the Registry of this Court within 4 (four) months from today after deducting/adjusting the amount, if any, already paid/deposited by them along with proof of such earlier deposit.

The appeal is disposed of in the aforesaid terms.

Send down the lower court records forthwith.