Vinodh B.A. vs Sither Tsewang and Others

Ram Mohan Reddy, J.—1. Claimant/injured, dissatisfied with the quantum of compensation awarded by judgment and award dated 20.02.2015 in MVC 1191/2013 of Addl. Senior Civil Judge and CJM, Mandya, (for short ''MACT''), has presented this appeal for higher compensation.

Appellant, aged 27, suffered L2 wedge compression fracture, bicolumnar + posterior wall fracture right acetabulum, pubic rami fracture, which were grievous, in the accident that occurred on 14.02.2013 involving the motor vehicle belonging to the first respondent and insured by 2nd respondent, following which appellant was brought to NIMHANS, Bengaluru from Mandya General Hospital and thereafter shifted to Hosmat Hospital, Bengaluru, on 15.02.2013 where he was an inpatient and discharged on 01.03.2013, whence, he underwent surgical intervention by way of recon plate fixation to posterior wall right acetabulum and D12-L4 posterior stabilization. Appellant was once again admitted in Hosmat Hospital on 04.04.2013 and discharged on 10.04.2013 with advise to undergo regular physiotherapy.

In the claim petition registered as MVC 1191/2013 invoking Section 166 of the Motor Vehicles Act, 1988, (for short ''Act'') it was further asserted that on 16.02.2013 appellant underwent surgical intervention for stabilization of D12 to L4 with decompression of the cord and pedicle screws was done; on 18.02.2013, reconstruction plating of the right acetabulum was done and was intensively monitored in ICU with blood transfusions, despite which and follow-up treatment, weakness of lower limbs had been recovered and had incomplete control of bladder and bowel functions.

That petition was opposed by filing statement of objections of the 2nd respondent, insurer, denying the allegations. In the premise of pleadings of parties, MACT framed three issues, first of which related to negligence and second over compensation, from whom it was to be recovered and third, as to what order?

Before the MACT, appellant was examined as P.W.1 and Dr. Krishan Prasad as P.W.3 and marked documents, Exs.P.1 to P. 16, while for the respondents, one witness was examined as R.W. 1 and no documents were marked.

In the light of the pleadings, evidence, both oral and documentary and material on record, MACT returned finding on issue No. 1 attributing actionable negligence to the driver of the offending vehicle and regard being had to the nature of injuries suffered, as testified by P.W.3/Doctor, who treated the appellant at Hosmat Hospital, opined that appellant had impairment of 38% and likely to develop painful arthritis of right hip in future requiring hip replacement at cost of Rs. 2.5 lakhs, nevertheless, MACT, reckoned 20% disability and monthly income as Rs. 6,000/- to award the following compensation with interest at 9% per annum.

Learned counsel for appellant submits that appellant was a flower decorator earning Rs. 20,000/- per month and since evidence of P.W.3/Doctor who treated the appellant, incriminating statements when not elicited in the cross-examination, MACT was not justified in reckoning Rs. 6,000/- as monthly income and reducing disability to 20%. Learned counsel hastens to add that award of compensation under conveyance, attendant charges, loss of amenities and loss of earning during the period of treatment are on the lower side and there is failure in not awarding compensation for future medical expenses.

Per contra, learned counsel for insurer seeks to sustain the award impugned as well merited, fully justified and not calling for interference.

Facts not being in dispute that in the accident, appellant suffered injuries, noticed supra, for which treatment was given by surgical intervention, while in the hospital in two spells for 20 days and was intensively monitored in ICU with blood transfusion, coupled with the fact that appellant developed incomplete control of bladder and bowel functions and disability was assessed at 38%, at a young age of 27, unmarried, there is force in the submissions of learned counsel for appellant.

It is true that appellant was unable to place relevant material constituting substantial legal evidence of avocation, as well as income or educational qualification, nevertheless, in the Lok Adalath, it is recognized during the year 2013 that an able bodied young man would earn nothing less than Rs. 8,000/-. P.W.3/Doctor who treated the appellant at Hosmat Hospital, testified to Exs.P.14 to 16 being medical records relating to treatment as an inpatient as also an out patient, requiring the appellant to travel from Mandya to Bengaluru and the fact that appellant has incomplete control of bladder and bowel functions by reason of which the impairment at 38% to the whole body, MACT was not justified in reducing disability to 20% without assigning reasons to discard the testimony of P.W.3.

Reckoning Rs. 8,000/- per month as income of the appellant and 38% as disability, applying multiplier 17 as applicable to age 27, loss of future earning is Rs. 6,20,160/- as against Rs. 2,44,800/-.

The injuries suffered by appellant and surgical intervention on two occasions, MACT was fully justified in awarding Rs. 2,00,000/- towards pain and suffering, so also Rs. 3,75,000/- towards medical expenses of which there is no dispute. Appellant had to travel from Mandya to Bengaluru and required assistance of an attendant for 20 days and thereafter too. Award of Rs. 10,000/- towards conveyance and attendant charges is just and proper. MACT did not award compensation towards food and nourishment. It is proper to award Rs. 10,000/- under the said head. Appellant was in and out of hospital and took treatment as an out patient and keeping in mind the nature of injuries and treatment, it is needless to state that appellant was off duty, for atleast four months, hence entitled to Rs. 32,000/- towards loss of earning during the period of treatment, as against Rs. 20,000/- awarded by MACT.

Loss of amenities and discomfort is palpable from the testimony of P.W.3. Hence 20,000/- awarded by MACT is on lower side. Appellant''s impairment has resulted in loss of pleasures of rest for the left of his life. Appellant, a young man aged 27 has also lost marriage prospects, and on both counts, deserves to be compensated. It is just and fair to award Rs. 1,00,000/- towards loss of amenities of life and Rs. 20,000/- towards loss of marriage prospects.

Testimony of P.W.3 discloses that there is likely hood that appellant has to undergo hip replacement surgery which would cost around Rs. 2,50,000/-. That opinion of P.W.3 is not supported by any scientific data and analysis, but appears to be just an opinion and therefore, it is not possible to accept that the appellant would have to undergo such a hip replacement at a later date. The fact that appellant has incomplete control of bladder and bowel function requires use of diapers, a very uncomfortable situation for a young man aged 27. In that view of the matter, there is a need to compensate the appellant towards future medical expenses. Cost of an adult diaper is Rs. 75/- according to learned counsel for appellant and according to learned counsel for insurer, if diapers are purchased on wholesale at Manipal Hospital, it is sold at a low price. Even if appellant would have to use two diapers a day as also a catheter since incomplete bladder function, award of Rs. 3,00,000/- towards medical expenses is just and fair, although this amount will not carry interest.

In the circumstances, appellant is entitled to the following compensation.

In the result, this appeal is allowed in part. The judgment and award impugned is modified entitling the appellant to Rs. 16,67,160/- as against Rs. 8,79,800/- awarded by the MACT, with interest at 9% per annum and in all other respects, remains unaltered. However, Rs. 3,00,000/- awarded towards future medical expenses does not carry interest.