Madras High Court
M.Premkumar vs M.Palaniappan on 22 December, 2016
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.12.2016
CORAM:
THE HON'BLE Dr. JUSTICE S.VIMALA
C.M.A.No.1718 of 2016
M.Premkumar ... Appellant
..vs..
1. M.Palaniappan
2. The Managing Director,
Tamil Nadu State Transport Corporation,
(Coimbatore Division-II) Ltd.,
Chennimalai Road, Erode-1. ... Respondents
Appeal filed under Section 173 of Motor Vehicles Act 1988, against the Judgment and Decree dated 29.07.2010 made in M.C.O.P.No.442 of 2008 on the file of the Motor Accident Claims Tribunal (Additional District Court, Fast Track Court No.IV), Bhavani Erode District.
For Appellant : Mr.Ma.P.Thangavel
For R2 : Mr.R.T.Sundari
---
JUDGMENT
The care, compassion and concern for a living injured person, deprived of full pleasures of living, shattered of his dream of colourful living on account of the accident should be higher than in cases of death. The two main loss in personal injury cases are personal loss and pecuniary loss.
1.1. Alleging that the amount of compensation awarded is not in conformity with the compassion and humanity and accountability of the Tribunal to award just compensation, the victim has filed this appeal for enhancement of compensation.
2. In respect of amputation (of right leg) sustained, in a road accident that took place on 03.06.2008, by a Sportsman with the aim of becoming a Police Officer, M.Premkumar, aged 19 years, who had been studying 12th standard, the Tribunal has awarded a sum of Rs.3,48,947/- and the break up details are as under:
Permanent Disability (Rs.2,000/- x 80%) - Rs.1,60,000/-
Medical Expenses - Rs.1,46,947/-
Pain and Suffering - Rs. 20,000/-
Extra nourishment - Rs. 20,000/-
Transport Expenses - Rs. 2,000/- ___________ Total - Rs.3,48,947/- ___________
3. The learned counsel for the Insurance Company/second respondent herein submitted that amputation is an outcome of an invited accident and the appellant, being responsible for the accident, is not entitled to more compensation and in any event, the appellant is also guilty of contributory negligence. This contention is not open to the Insurance Company/second respondent herein as challenging the finding on negligence there is no appeal by the respondent. Therefore, the finding on negligence, which is found on the part of the second respondent, having allowed to become final, cannot be re-opened.
4. Therefore, the next question to be decided is only with regard to the quantum of compensation.
4.1. The Doctor, who examined the claimant has stated that the thighbone is available only to the extent of 10.5 cm from the hip and there was no bone available in the right leg and that the disability is 80% as per the calculation available under the Employees' Compensation Act.
4.2. From the details of the compensation awarded, it is clear that the Tribunal has reimbursed the medical expenses, which was incurred at Rs.1,46,947/-. In respect of pain and suffering in case of an amputation, the Tribunal has awarded Rs.20,000/- without understanding what is the pain all about in case of amputation. As if the petitioner was taken to hospital only once, the Tribunal has awarded a sum of Rs.2,000/- toward transport expenses.
4.3. Therefore, it is necessary to consider what is the pain in case of persons who suffer amputation.
4.4. Amputation of a body part, whether as a result of trauma or surgical intervention, is almost always associated with awareness of, and sensations referred to, the missing body part. These sensations were first noted by Ambroise Pare, a French military surgeon in the middle of the 16th century. Mitchel first used the term phantom in 1871 from his observations and medical studies of the American civil war.
4.5. Three phenomena occur after amputation (i) phantom sensation, (ii) stump pain and (iii) phantom pain.
Phantom Sensation:
4.6. The term phantom sensation describes any sensation that is experienced in the absent part excluding pain. Its incidence is very high, with virtually all amputees describing phantom limb sensations. A variety of sensations can be felt, including the perception that the missing limb is still present and paresthesia occurring in the amputated limb. The phenomenon of telescoping occurs when the distal part of the missing limb is felt to recede back towards the stump.
4.7. Stump pain that occurs immediately after amputation is acute nociceptive pain and usually resolves after a few weeks as the wound heals. Infection or wound dehiscence may prolong postoperative pain in some cases.
4.8. Stump pain can persist for much longer than the initial period of wound healing, lasting months or years.
4.9. Further, Reports (Primary Care to be given to the amputees) in the Journal of Clinical Psychiatry Official Journal of the Association Medicine and Psychiatry, answers the question - What Does Rehabilitation After Amputation Entail, and What Can Be Done to Enhance Resilience in Patients?
Treatment after amputation involves planning a rehabilitation regimen (even prior to the surgery), managing the immediate postoperative period, planning for an appropriate level of care after discharge, and educating the patient and family to prevent complications.
A rehabilitation regimen includes upper extremity strengthening for lower extremity amputations, transfer training, crutch walking or training in the use of a walker, and evaluation for equipment that may be needed at home (including a wheelchair and a bench for bathing safely). Prosthetic training is also given if the patient is eligible for a prosthetic and has the energy to learn to use it. Such a regimen needs to be tailored to the patient's motivation and capacity; the more actively engaged the patient can become even prior to the surgery, the better the post-amputation prognosis he or she may have.
Discharge planning includes a home safety evaluation by occupational therapy and discussion with the patient and his or her family about what the patient's living situation can accommodate. It is important to include a discussion of the timeline of expected discharge in this process so that the patient is mentally prepared to leave the hospital after surgery and has activities or social contacts planned.
Management during the immediate postoperative period includes pain management, psychological support, proper positioning of the residual limb (including elevation to prevent limb edema), evaluation of the limb dressing and placement of a cast, and inspection of sutures. The discomfort that can be associated with wearing a cast should be explained to the patient as necessary in the prevention of contractures, which can ultimately compromise mobility.
Education of patients and their families is aimed at the care and prevention of complications; it includes attention to limb care and inspection, limb wrapping, prosthetic care, stump care, foot care, and emergency care and monitoring for early signs of infection. Patient inspection of the limb is particularly important if the patient has a prosthesis, as this should not be done if there is any possibility of infection. Limb wrapping often needs to be done several times a day. The prosthetic will require daily cleaning and inspection to prevent infection and to allow for maximal use. Stump socks must be scrupulously maintained to avoid risk to the site. Finally, preventive foot care (often with involvement of a podiatrist), as well as learning to recognize indications for emergency care, are important aspects for the prevention of a second amputation, for which lower extremity unilateral amputees are at high risk.
Important ways in which the resilience of amputees can be enhanced include building up social supports and caregiver resilience; individual psychotherapy, psycho pharmacologic treatment, and reinforcement of the positive coping styles; and treatment of preexisting psychiatric disorders (which carry a poor prognosis for post amputation survival and function). 4.10. Therefore, in respect of amputation, the pain and sufferings should have been adequately compensated and having regard to the nature and extent of pain suffered by the amputee appellant, it is estimated at Rs.2,00,000/-.
4.11. When the petitioner has suffered amputation at the age of 19 years, it is needless to point out that the marriage prospects will be the minimum in the marriage market. Therefore, loss of future prospects of marriage is estimated at Rs.2,00,000/-.
5. The petitioner is a sports personality at the age of 18 years and he has really received 70 certificates of meritorious performance, wherein, he is described to be a player/winner in Kabbadi, Shot put, Discus Throw, Marathon, Hammer throw, Cycling, Foot-ball, Valley ball, hand ball and 400 mts. Relay etc. Therefore, loss of enjoyment of amenities is estimated at Rs.2,00,000/-.
6. It would not have been difficult for the claimant/appellant to get a job in sports quota and he would have earned well. It is stated in the evidence that he wanted to become a Police Officer, but, his dream has been shattered into pieces, on account of disablement in the accident.
7. The petitioner has produced documentary evidence, showing medical expenses at Rs.45,900/- and Rs.9046/-, totalling Rs.54946/-, (which is rounded at Rs.55,000/-).
8. He would have been taken to hospital for regular checkup and therefore, the transport expenses is estimated at Rs.70,000/-
9. Towards expenses of prosthesis, the claimant/appellant has produced bills, showing expenditure at Rs.92,000/-. But, the learned counsel for the appellant would submit that it reflects only one time expenditure and that the prosthesis have to be changed as the petitioner would be growing and naturally, the artificial limb had to be changed quite often. Therefore, towards cost of maintaining and providing prosthesis, the amount awarded is Rs.2,00,000/-.
10. The learned counsel for the appellant submitted that in case of disablement also, the Tribunal has awarded Rs.2,000/- per percentage and in respect of 80% disability, has awarded a sum of Rs.1,60,000/-, which is grossly underestimated compensation in respect of loss of earning capacity.
11. The learned counsel for the appellant has relied upon the following decisions of the Hon'ble Supreme Court to show that in case of amputation, the compensation awarded is Rs.20,00,000/- to Rs.30,00,000/-.
(i) Contending that in the case of an injured person, aged about 18 years, a student, suffered fracture pelvis and other grievous injury, the Hon'ble Supreme Court has enhanced the compensation towards loss of marriage prospects from Rs.50,000/- to Rs.2,00,000/- and enhanced the total compensation from Rs.1,89,440/- to Rs.6,00,000/-, the decision reported in 2011 (2) TNMAC 641 (SC) (Ibrahim vs. Raju and others) is relied upon.
(ii) Contending that in the case of left leg amputation suffered by a 24-year-old boy, adopting the multiplier of '18', the Hon'ble Supreme Court has awarded the total compensation at Rs.9,53,000/-, the decision reported in 2012 (1) CTC 437 (Govind Yadav vs. New India Insurance Company Limited) is relied upon.
(iii) Contending that in case of fracture of pelvic region and urethral rupture sustained by a 19-year-old boy, a PUC student, the Hon'ble Supreme Court has awarded a sum of Rs.6,00,000/- towards Future Medical Expenses and awarded total compensation at Rs.20,20,000/-, the decision reported in 2013 (2) TNMAC 76 (SC) (G.Ravindranath @ R.Chowdary vs. E.Srinivas & another) is relied upon.
(iii) Contending that in respect of fracture in both legs and fixed Flexim deformity, which is leading to disability of 70%, sustained by a 11th std. Student, aged about 16-year-old, a brilliant student, the Hon'ble Supreme Court has enhanced the compensation from Rs.18,22,000/- to Rs.30,93,000/-, the decision reported in 2014 (2) TN MAC 6 (SC) (V.Mekala vs. M.Malathi and another) is relied upon.
The comparable case law is the one reported in 2014 (2) TN MAC 6 (SC) (referred to supra) referred to supra.
12. So far as the permanent disablement is concerned, the Doctor has certified the disablement at 80%. The percentage of physical disablement need not necessarily reflect the percentage of functional disablement. The functional disablement would depend upon the nature of the job that the appellant is likely to have undertaken. Because of the disablement on account of amputation, even though the petitioner could not have been able to take up any job, involving both the legs, he would be in a position to do any job involving upper limbs alone. Therefore, the loss of earning capacity cannot be stated to be 100%. However, it is a fit case where, multiplier method has to be adopted to assess the loss of earning capacity.
12.1. The permanent disablement which results in immobilization of the victim is worse than death, especially for a sports personality, and therefore, it calls for fixation of a higher amount of compensation. Therefore, in a case, which has resulted in amputation, the Tribunal should not have adopted the multiplication table by awarding Rs.1,60,000/- instead of applying the multiplier method of quantifying the compensation on account of loss of earning capacity.
12.2. Taking the modest estimate of monthly income at Rs.8,000/- (having regard to the fact that accident was of the year 2008) and adding Rs.4,000/- towards future prospective increase in the income, the loss of income per month would be Rs.12,000/-. Adopting multiplier of '18', as per Sarla Verma Case, the loss of earning capacity would be (Rs.12,000/- x 12 x 18 x 80/100) Rs.20,73,600/-, which is rounded to Rs.20,75,000/-.
13. The last contention of the learned counsel for the Insurance Company / second respondent is that the appellant has claimed only a sum of Rs.10,00,000/- and enhancement at Rs.30,00,000/- is not justified.
14. The claims Tribunal/Court is duty bound to award just compensation which is reasonable on the basis of evidence adduced. There is no ceiling limit for the Tribunal to award the compensation. The Claims Tribunal/Court is not bound by technical rules of evidence and when sections 168 and 169 of the Motor Vehicles Act, provide for summary procedure, it should be consistent with the Rules of Natural Justice. It is appropriate to point out the decision of the Hon'ble Supreme Court, reported in 2011 (10) SCC 683 (Govind Yadav vs. New India Insurance Company Ltd.), wherein, it has been pointed out due to sheer ignorance, poverty and other disabilities, such underestimated claims are made, therefore, the Tribunal should adopt a proactive approach and to award adequate compensation. The relevant observation reads as under:
A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Section 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of compensation in such cases should invariably include pecuniary and non-pecuniary damages.
15. Moreover, the inquiry contemplated under Section 168 of the Motor Vehicles Act is different from a trial. The procedure is expected to be inquisitorial and it is not adversarial. The Tribunal is expected to hold an inquiry. It is to be noted that the word 'trial' is absent. The relevant observation in the case of Mayur Arora vs. Amit reported in 2011 (1) TAC 878 reads as under:
13.1. On a fair reading of the statute, the wide power given to the Tribunal, the absence of onus" upon the claimant, the general position of the claimants and their wherewithal with the social obligation of the welfare State, all indicate that the procedure of the Claims Tribunal has to be Inquisitorial though keeping in view that most other procedures in the country are Adversarial, it would be proper to conceive and put in practice something which is a mix of the two.
16. Therefore, even though the Tribunal has failed in the duty to award just compensation, this Court, as the Appellate Court, should correct the mistake and to award just compensation.
16.1. As in the case of sexual assault, the victim of road accident suffers double victimization, one account of the injury and another on account of delay in disposal of the claims for compensation.
16.2. It is rightly said delay defeats justice. This is more true in the case of Motor Accident Claims especially cases of amputation where the victim requires instant justice. The Hon'ble Supreme Court has provided the solution for speedy disposal by giving directions in the case of Jai Prakash Vs. M/S. National Insurance Co. SLP (C) No 11801-11804/2005, vide order dated 13th May 2016. The Supreme Court has directed all States to implement the Claims Tribunal Agreed Procedure formulated by Delhi High Court on 16th December, 2009 through the Motor Accident Claims Tribunals in coordination with the Legal Service Authorities as well as the Director General of Police of the respective States. The relevant part of the said order is reproduced hereunder:-
Insofar as the said suggestion is concerned, learned Solicitor General drew our attention to the response filed before us on behalf of the General Insurance Council, in particular paragraph 4, which states that presently the procedure suggested in Paragraph 23 is being followed by the Insurance Companies in Delhi by way of a Scheme called Claims Tribunal Agreed Procedure which was formulated by the Delhi High Court in the judgment dated 16.12.2009 passed in FAO No.843 of 2003 in Rajesh Tyagi & Ors. v. Jaibir Singh & Ors. It is also mentioned therein that Tribunal as well as the Legal Service Authority are taking effective steps to implement the said procedure, which is being carried out in the National Capital Territory of Delhi. In paragraph 5, it is further submitted that since this procedure has been successful in Delhi it can be extended on pan India basis. The agreed procedure has also been filed as Annexure R5 with the response filed on behalf of the General Insurance Council.
We have also perused the procedure, which has been placed before us as Annexure R5 with the response which, in our view, appears to be a comprehensive one and that we can issue further directions to the Registrar General of the Delhi High Court to ensure that procedure is strictly followed insofar as Delhi is concerned and also circulate the said procedure to all the other High Courts and the Registrar General of all the other High Courts are directed to ensure that the said procedure is implemented through the Motor Accidents Claims Tribunals in coordination with the Legal Service Authorities as well as the Director General of Police of the States concerned.
The Registry of the Supreme Court is directed to forward a copy of this order along with Annexure R5 (pages 32 to 46 in the response filed on behalf of the General Insurance Council) to all the High Courts including the Delhi High Court to ensure compliance of the present order.
2.For the implementation of the Claims Tribunal Agreed Procedure, the Judicial Academies of the States would be required to sensitize the Motor Accident Claims Tribunals, senior Police officers of the State Police as well as the Insurance Companies.
17. It is expected of the Judicial Academies to ensure the implementation of the claims Tribunal agreed procedure as directed by the Hon'ble Supreme Court.
18. In the result, the award is enhanced from Rs.3,48,947/- to Rs.30,00,000/- and this amount of compensation shall be deposited less the amount already deposited along with interest at 7.5% per annum, from the date of petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this judgment. The claimant shall pay the deficit Court fee for the enhanced compensation. The claimant will be permitted to withdraw only a sum of Rs.10,00,000/- (Rupees ten lakhs only) towards expenses already incurred. The remaining amount shall be in Fixed Deposit for a period of ten years and the interest accrued thereon shall be credited to the Savings Bank Account of the appellant.
19. This Civil Miscellaneous Appeal is allowed with costs throughout.
22.12.2016 Index : Yes / No Web : Yes / No srk / ogy To
1. Motor Accident Claims Tribunal, Additional District Court, Fast Track Court No.IV, Bhavani Erode District
2. The Managing Director, Tamil Nadu State Transport Corporation, (Coimbatore Division-II) Ltd., Chennimalai Road, Erode-1.
3. The Section Officer, V.R.Section, Madras High Court, Chennai 104 S.VIMALA, J., srk / ogy C.M.A.No.1718 of 2016 22.12.2016 http://www.judis.nic.in