Madras High Court
K.Shyla vs The Managing Director on 30 March, 2021
Author: N.Kirubakaran
Bench: N.Kirubakaran, Abdul Quddhose
C.M.A.No.595 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.595 of 2019
and
C.M.P.No.1887 of 2019
K.Shyla ... Appellant
Vs
1.The Managing Director,
Chennai Metropolitan Transport Corporation,
Pallavan Salai, Chennai.
2.Dr.K.Illanchetchenni
3.Suraksha (Minor)
Minor, Rep. by her mother and Natural Guardian
Mrs.K.Shyla, the appellant herein.
4.Ministry of Road Transport and Highways,
Rep. by its Secretary,
Union of India,
New Delhi.
5.The Director General of Police,
State of Tamil Nadu,
Mylapore, Chennai ..Respondents
(R2 and R3 suo motu impleaded vide order dated
20.06.2019 made in C.M.A.No.595 of 2019)
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1/43
C.M.A.No.595 of 2019
(R3 amended as per the order made on 30.03.2021
in C.M.A.No.595 of 2019)
(R4 and R5 suo motu impleaded vide order dated
30.03.2021 made in C.M.A.No.595 of 2019)
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 for enhancement of compensation against the
Judgment and Decree dated 06.09.2018 made in M.C.O.P.No.224 of
2014 on the file of the Motor Accidents Claims Tribunal (Chief Judicial
Magistrate) at Vellore.
For Appellant : Mr.U.M.Ravichandran
for Mr.M.Marudhachalam
For Respondents : Mr.S.S.Swaminathan (for R1)
Mr.G.Karthikeyan (for R4)
Central Government Standing counsel
Mr.T.M.Pappiah (for R5)
Special Government Pleader
JUDGMENT
(Judgment of the Court was delivered by N.KIRUBAKARAN, J) "Speed may thrill but it shall kill"
- warns Traffic Police India has got only 1% of world’s vehicle population which accounts for http://www.judis.nic.in 2/43 C.M.A.No.595 of 2019 6% of the world’s road traffic accidents, according to a data from "World Health Organisations’ Report - 2018". The said report states as many as 73% of all deaths due to road traffic accidents in the year 2018 in South Asian Region happened in India. In the year 2017, the "World Health Organisation's Global Health" estimates that road accidents are one of the 12 known causes of deaths in India, the ninth most common cause of premature deaths and tenth most common reason for disability.
2.Road accidents cost India’s 3 – 5% of Gross Domestic Product every year and are avoidable, if our country could improve its roads and city planning, train our drivers better and enforce traffic laws properly. The report published by the Ministry of Road Transport and Highways (MoRTH) viz., “Road Accidents in India, 2018” states that India’s young productive population aged 18 to 45 years is involved in 70% of road accidents.
3.The Ministry of Road Transport and Highways states that two most frequent causes of road traffic deaths are speeding and drunken http://www.judis.nic.in 3/43 C.M.A.No.595 of 2019 driving followed by lack of lane discipline, jumping the red light and use of mobile phone while driving.
4.Overspeeding is the most common cause of deaths on roads in India. The most deaths due to speeding are happening in Rajasthan followed by Tamil Nadu and Karnataka.
5.In 2013, over all 1,37,000 people were killed in road accidents alone, i.e, more than the number of people killed all over the wars put together. As already stated above, overspeeding is the highest cause for road accidents. However, in April 2018, the Government of India has increased the maximum speed limit and fixed it for Express ways at 120km/hr, for National Highways at 100km/hr and urban roads at 60km/hr for M1 category of vehicles. The M1 category vehicles include most passenger vehicles that have less than 8 seats. States and local Governments in India may fix lower speed limits than those prescribed by the Union Ministry. Mostly, State Governments follow the speed limit fixed by the Central Government.
6.Inspite of knowing the fact that overspeeding is the main http://www.judis.nic.in 4/43 C.M.A.No.595 of 2019 killer and responsible for most of the accidents, the Government, for various reasons, particularly, for commercial reasons has increased the speed limit resulting in more deaths. According to Dr.Patanjali Dev Nayar, Regional Advisor to World Health Organisation, if we reduce the speed limit to about 55-57 km/hr, India could save 30-37% lives. The following are the data regarding accidents due to overspeeding from 2017 to 2019:
Over speeding Total no. of % S.No. Year Deaths Injuries accidents Total share of total 1 2017 4,64,910 1,47,913 4,70,975 98,613 66.7% 2 2018 4,37,396 1,54,732 4,39,262 86,241 55.73% 3 2019 4,67,044 1,51,417 4,69,418 97,588 64.4%
7.The number of accidents in Tamil Nadu due to overspeeding from 2014 to 2018 as per the data of Ministry of Road Transport and Highways (MoRTH) is as follows:
Year No. of Accidents No. of fatalities
2014 28804 7155
2015 38042 9380
2016 47055 11444
2017 51565 12570
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Year No. of Accidents No. of fatalities
2018 46113 9224
8.The United Nations' Golden Plan for the decade of Action for Road Safety 2011-2020 recommends the member countries and international agencies to implement many activities at international, national and sub-national levels, as per the five pillars of road safety which refer to road safety management, safer roads and mobility, safer vehicles, safer road users and post crash response. Several guidelines and reference materials are available globally on each of the pillars and India needs to identify the best practices and mechanisms for implementation.
9.The National Institute of Mental Health and Neuro Sciences brought a comprehensive report viz., “Road Safety” in collaboration with WHO collaborating Centre, in which the purpose has been stated as follows:
“The present report provides a comprehensive review of road safety scenario in India from a public health perspective. Data sources for the review include published and unpublished reports from National Crime Records Bureau (2016), Ministry of Road Transport and Highways (2016) as well as global reports and independent research http://www.judis.nic.in 6/43 C.M.A.No.595 of 2019 studies/reports/unpublished documents. The report focusses on Road Traffic Injuries, deaths, disabilities, risk factors, injury patterns and distributions, as well as the current Indian response to this burgeoning epidemic. This summary report in conjunction with the detailed report entitled “Advancing Road Safety in India-- implementation is the key" and “Advancing Road Safety in India-- facts and figures” provides in-depth information on all aspects of road safety and the current road safety initiatives from the Indian region. These reports are aimed at policy makers from different sectors and road safety practitioners from diverse disciplines for taking all possible steps to save lives and reduce injuries on Indian roads.” ...
"Need for implementable framework for road safety in India"
“The wide ranging discussions and debates about road safety in India point to a strong need for data-driven and implementable mechanisms within a framework for road safety. Such a defined framework can bring together policy makers, build consensus among administrators and political leadership, aid data driven programmes, help prioritization of activities, improve public engagement and convergence of actions, all of which are considered key elements for success in road safety. India being a federal state, the roles and responsibilities in road safety is the shared responsibility between centre and the state. Hence, there needs to be a framework for activities at the central level with corresponding activities at the state level. Most significantly, as health, transport and safety, including road safety, is the direct responsibility of Indian states, the need for such a framework at the state level is critical and essential. http://www.judis.nic.in 7/43 C.M.A.No.595 of 2019 Furthermore, implementation of many activities in road safety needs to be seen across 624 Indian districts with well-coordinated strategies. This requires strong institutional mechanisms with an investment by governments and international agencies in road safety. As there is no single solution that works for all; a wide range of activities are required to strengthen road safety at national and state levels. Within a defined framework, prioritization of activities should be considered at the highest level by concerned authorities based on global understanding, evidence available, existing expertise and capacity, required finances, and current administrative and legislative framework. Since safety should be an essential component of India’s growth in coming years, “Safety and Mobility” should be the focus in the interest of road users. This can only happen, if road safety is recognized as science and given importance in the coming years.”
10.National Crime Records Bureau (NCRB) report released on 1st September, 2020 would reveal that 48 persons were killed in accidental deaths every hour in 2019 which is marginally higher than 2018. According to the said report, road crash deaths in the country has increased by 1.3% namely, from 1,52,780 to 1,54,732. The annual accident report for the year 2019 would also reveal that out of 1,54,732 people killed in road crash deaths in the year 2019, 65% were youths of 18 to 45 years. As per the report analysis carried out by the Save LIFE Foundation, among the States, Uttar Pradesh recorded the highest road http://www.judis.nic.in 8/43 C.M.A.No.595 of 2019 crash deaths with 23,285 deaths (15 per cent of total deaths in 2019), followed by Maharashtra which recorded 14608 deaths (9.4 per cent). In terms of crashes, road accidents (67,228 cases) accounted for 97.3 percent of total traffic accidents in 53 mega cities during 2019. Chennai accounted for 10.2 percent (6,871 out of 67,228 cases) of total road accidents reported in 53 mega cities, followed by Delhi (8.0 percent or 5,349 cases). 38% of the two-wheelers are meeting with road accidents.
11.In terms of percentage, during the year 2018, the number of accidents has increased by 0.46%; persons killed have increased by 2.4% over the previous namely, 2017. In the accidents which occurred in the year 2018, the share of male deaths in total number of accident was 86% and the share of female was 14%. As per the statistics data released by MoRTH in 2017, out of total number of motor vehicles in India, Maharashtra has 11.9% of vehicles, followed by Uttar Pradesh. with 10.4% and Tamil Nadu stands 3rd with 10.3%. India is a signatory to Brasilia Declaration and has committed to reducing the number of road accidents and fatalities by 50% by 2020. However, the above data proves that contrary to commitment, the number of road accidents got increased http://www.judis.nic.in 9/43 C.M.A.No.595 of 2019 and fatalities also got increased year by year. Due to increase in accidents, consequently deaths and injuries have also increased. The reasons for increase in accidents are non-compliance of road rules, absence of co-ordination between the stakeholders, increase in permitted speed limit and poor law enforcement.
12.The biggest culprit for road traffic accidents as evident by data is "overspeeding". One such case of accident caused due to overspeeding is the subject matter of the present appeal preferred by the claimant aggrieved over the compensation of Rs.18,43,908/- for 90% disability sustained by her due to the injuries caused in the accident occurred on 18.04.2013, when she was riding her two wheeler on the left side of the Kancheepuram Road from North to South which was hit down by the bus driven rash and negligently belonging to the 1st respondent/corporation.
13.This Court by order dated 20.06.2019, suo motu impleaded the daughter of the appellant as 3rd respondent, as she is also victim due to the accident. However, the learned counsel appearing on behalf of the appellant would submit that the 3rd respondent, daughter of the appellant http://www.judis.nic.in 10/43 C.M.A.No.595 of 2019 viz., I.Suraksha is a minor. Hence the Registry was directed to amend the name of the 3rd respondent as "I.Suraksha (Minor), Rep by her mother and Natural Guardian Mrs.K.Shyla, the appellant herein" instead of "I.Suraksha" in the causetitle.
14.Though Mr.U.M.Ravichandran, learned Counsel for the appellant would restrict his arguments only with regard to the quantum, Mr.S.S.Swaminathan, learned Counsel for the 1st respondent would submit that the accident occurred because of the rash and negligent driving of the two wheeler with great speed. He would submit that the accident could have been avoided if the victim had driven the two wheeler with minimum speed and by not violating the rules and regulations. He would point out from the evidence of RW1, driver of the bus that the victim alone was responsible for the accident which took place on 18.04.2013 as she was overtaking the bus from the left side of the road and dashed against the bus and therefore, the two wheeler rider alone has to be blamed for the accident. However, Mr.U.M.Ravichandran, learned Counsel for the appellant would submit that there was no negligence on the part of the two wheeler rider. In fact, the Bus was driven rash and negligently with high speed hitting the two wheeler causing accident, http://www.judis.nic.in 11/43 C.M.A.No.595 of 2019 when the appellant was riding her two wheeler on the left side of the Kancheepuram Road, near SPK Theatre at Chengalpattu.
15.Heard Mr.U.M.Ravichandran, learned Counsel for the appellant and Mr.S.S.Swaminathan, learned Counsel for the 1st respondent.
16.Negligence:
A perusal of the records would show that Ex.P.13 FIR has been filed against the driver of the bus. PW1, the victim, deposed in her evidence that because of the rash and negligent driving of the bus with high speed, the accident occurred. The Appellant as PW1 deposed as follows:
" vd;Dila ,Urf;fu thfdk; TN 19 H 3005 ?d; kPJ vjph;kDjhuUf;F brhe;jkhd muR ngUe;J Xl;Ldh; mjpntfkhft[k;. ftdf;Fiwthft[k;. m$hf;fpuijahft[k;. jhWkhwhft'k; Xl;o te;J vd; thfdj;jpd; kPJ nkhjp vd; kPJ VwpaJ/"
Even RW1, the driver of the bus categorically admitted that the two wheeler was going on the left margin of the road. The relevant portion of http://www.judis.nic.in 12/43 C.M.A.No.595 of 2019 the evidence of the Bus Driver DW1 reads as follows:
" kDjhuh; rhiyapd; ,lJ gf;fkhf ,Urf;fu thfdj;ij Xl;o te;jhh; vd;why; rhpjhd;"
Ex.P.13, FIR would also prove that the two wheeler was going on the left margin of the road. Therefore, it is very clear that it was the two wheeler which was going on the left margin of the road and only the bus driven with speed dashed against the two wheeler causing accident.
17.The tribunal, taking note of both the evidence of PW1 and RW1, observed that even if the rider of the two wheeler was going on the left margin of the road, after noting the two wheeler, if the bus driver tried to swerve the vehicle to the right margin of the road, or if he had stopped the vehicle the accident could have been averted whereas, in the course of swerving the vehicle towards right, the back portion of the bus hit the two wheeler causing the accident. Hence, the bus driver alone was negligent and responsible for the accident. The tribunal found that the sudden swerving of the bus which was going straight was the reason for the accident. Therefore, the finding regarding the negligence aspect, given by the tribunal is confirmed.
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18.Further, Mr.S.S.Swaminathan, learned Counsel for the 1st respondent submitted that the driver of the bus has been acquitted by the Criminal court. It is well settled law that the Judgments of Criminal Courts do not bind civil Court. The proof before the criminal court should be beyond doubt whereas in the civil proceedings judgments are based on preponderance of probabilities. Moreover, the evidence of PW1 is very categorical and it is admitted by RW1 himself, that the two wheeler was going on the left margin of the road. Therefore, even from that point of view, the finding that the driver of the bus alone was rash and negligent in driving, cannot be disturbed. Moreover, there is no appeal filed by the first respondent Transport Corporation against the award passed by the Tribunal. Therefore, the finding regarding negligence on the part of the bus driver reached finality.
19.Disability:
It is proved before the Court that the claimant sustained serious injuries and she was admitted in MIOT hospital as proved by Ex.P.6, Ex.P.9 to Ex.P.12 and Ex.P.14 medical records. She was also admitted in Christian Medical College, Vellore. In the accident, she sustained the following injuries as proved by Ex.P.6 and Ex.P.7, discharge summaries http://www.judis.nic.in 14/43 C.M.A.No.595 of 2019 issued by MIOT hospital and Christian Medical College, Vellore:
"DISCHARGE SUMMARY BY MIOT HOSPITAL:
DIAGNOSIS:
* Bilateral Sacral Ala Fracture with Right Sacroiliac Diastasis. * Perineal injury involving urethra, vagina and anal canal. * Pelvic fracture with large retroperitoneal hematoma. * Bilateral superior and inferior pubic rami fracture. * Chest injury - fracture of right 6th to 10th ribs with right lung contusion.
* Spine injury.
L1 Burst fracture with D12 facet dislocation with severe cord injury with paraplegia.
* Fracture of right L1 - L3 and left L1 - L5 transverse process.
DISCHARGE SUMMARY BY CMC, VELLORE - 4:
DIAGNOSIS * T10 Complete Asia A Paraplegia * Polytrauma * L1 Burst fracture, T12 facet dislocation. * Bilateral Sacral Ala fracture with Sacroiliac diastasis * Perineal injury (Urethra, vagina and anal canal) *Fracture 6th to 10th ribs * Pelvic fracture."
From the above, it is clear that the Appellant has T12 complete paraplegia viz., loss of power and sensation in both lower limbs, impaired bladder- bowel sensations and control.
http://www.judis.nic.in 15/43 C.M.A.No.595 of 2019 Ex.P.8, Medical Report dated 18.12.2014 issued by CMC Hospital, Vellore about the health condition of the appellant reads as follows:
"Discussion:
This is to state that Mrs.Shyla was reviewed in PMR2 OPD today. Past history of road traffic accident on 18 April 2013, in which she incurred polytrauma. She continues to have T12 complete paraplegia (loss of power and sensations in both lower limbs, impaired bladder-bowel sensations and control). She is on suprapubic catheter and colostomy for bladder and bowel management respectively. She needs to use a wheelchair for indoor and outdoor mobility. She has significant neuropathic pain refractory to commonly used medications. She needs assistance with mobility and transfers in most outdoor locations due to issues with accessibility.
Since no recovery has occurred 20 months from the time of injury, chances of recovery in future are remote. As on date, there is no scientifically proven treatment modality that would bring-about neurological recovery. In view of this, compared to non-paraplegic population, Mrs.Shyla continues to be at increased risk of potentially life threatening complications due to complete paraplegia such as pulmonary embolism, deep vein thrombosis, pressure ulcers, urinary tract infection. These risks would continue life-long, unless there is neurological recovery."
20.The Medical Board, Chengalpattu examined the claimant http://www.judis.nic.in 16/43 C.M.A.No.595 of 2019 and determined the permanent disability at 90% as per Ex.C.1 dated 21.12.2017. Moreover, the victim is also present before the Court in a wheel chair and her condition would exhibit that she is unable to do any work on her own and she has to depend on others throughout her life. It cannot be expected that patients would come and take treatment from a handicapped dentist who is wheel chair bound, and therefore, there is 100% loss of income.
21.Loss of income:
Even though the disability is 90% as proved by Ex.C.1, the tribunal calculated the loss of income, taking the disability at 28% by mistake. Therefore, the said calculation is set aside. Further, the tribunal took Rs.7,000/- as monthly income of the Dentist, which is not at all sustainable.
22.Mr.U.M.Ravichandran, learned Counsel for the appellant relied upon the Division Bench Judgment of this Court in "M/s.Oriental Insurance Company Limited No.115 and others Versus Sushma Jitaraja and others" reported in "2018 (2) T.N.M.A.C.308", wherein this Court determined the monthly income of a B.E. student, who died in http://www.judis.nic.in 17/43 C.M.A.No.595 of 2019 an accident at Rs.36,000/-. He also relied upon another Judgment of the Division Bench of this Court in "The Managing Director, Metropolitan Transport Corporation Ltd., Chennai Versus S.Mariam Beevee and another" reported in "2014 ACJ 2693", in which the Division Bench of this Court determined the monthly income of a M.B.B.S. student at Rs.30,000/- per month. One more Judgment cited by Mr.U.M.Ravichandran, learned counsel is the Judgment of the Division Bench of this Court in "Managing Director, State Express Transport Corporation (Tamil Nadu) Ltd., Versus Dr.Saravana Ruban" reported in "2018 (2) TN MAC 713 (DB)" in which for an injured dentist, a sum of Rs.35,047/- was determined as monthly income.
23.However, Mr.S.S.Swaminathan, learned Counsel for the 1st respondent would oppose the determination of higher monthly income and would urge this Court to confirm Rs.7,000/- as monthly income. As per the judgment passed in the case of "Managing Director, State Express Transport Corporation (Tamil Nadu) Ltd., Versus Dr.Saravana Ruban" reported in "2018 (2) TN MAC 713 (DB)", a dentist was injured in the accident which occurred on 30.04.2013 and a http://www.judis.nic.in 18/43 C.M.A.No.595 of 2019 sum of Rs.35,047/- has been taken as monthly income. The determination is based on salary certificate as the victim dentist in that case was employed. Therefore, this Court cannot fix Rs.35,000/- as monthly income. However considering the qualification of the claimant, it would be just and proper to determine the monthly income at Rs.30,000/-.
24.Further, this Court is of the view that 50% needs to be added towards future prospects, as the claimant has got prospects of earning more, if she had been normal. If 50% is added towards future prospects, the monthly income would be Rs.30,000 + 50% future prospects = Rs.45,000/-. The age of the claimant is 28 years at the time of accident as proved by Ex.P.3, Ex.P.4 and Ex.P.5 and the appropriate multiplier is '17'. Therefore, the loss of income would be Rs.45,000 x 12 x 17 = Rs.91,80,000/-.
25.Attendant charges:
Since 90% disability has been sustained by the claimant and she is wheel chair bound, she is unable to look after herself and has to depend upon a third party even for her day to day affairs including http://www.judis.nic.in 19/43 C.M.A.No.595 of 2019 answering the nature's call. Hence, an assistant is needed through out her life. In the Judgment of the Hon'ble Supreme Court of India in "Kavita Versus Deepak and others" reported in "2012 (2) TN MAC 362 (SC)", the Apex Court determined the attendant charges for a 90% disabled victim at Rs.2,000/- per month for 25 years. In the said case, the accident occurred in the year 2004 whereas, in this case the accident occurred in the year 2013. Almost one decade has passed and it is impossible to engage an attendant with an amount not less than Rs.7,500/- and therefore, this Court determines the attendant charges at Rs.7,500/- per month and for twenty five years, the appellant is entitled to Rs.7,500/- x 12 x 25 = Rs.22,50,000/-.
26.Loss of amenities:
The life of spinal card injured victim like the Appellant is best explained in the research article published in "Neurology Research International" Volume 2019 written by Abdul-Ganiyu Fuseini, Patience Aniteye and Afizu Alhassan. It would reveal that Spinal Cord Injury (SCI) is a life threatening one. A study was conducted to explore the live experiences of persons with SCI. The three main themes that emerged from the data during analysis were "Physical effects", http://www.judis.nic.in 20/43 C.M.A.No.595 of 2019 "Psychological effects" and "Social issues", which are as follows:
Physical Effects: “I Am in Constant Pain”.
The physical effects that participants endured following their injury were pain, bladder and bowel problems, pressure ulcers, and neuro-logical symptoms.
All the participants in the study reported pain of varying degrees as part of the physical ramifications of their injury. Pain was the most devastating symptom they endured and it had a ripple effect on their mobility and functioning. Close to half of the participants reported that their pain had become chronic. ...
Psychological Effects: “They See Me as a Disabled Person”.
The psychological effects that participants endured as a result of the injury included “anxiety”; “perceived physical disability”; and “self-adequacy.” The majority of the participants reported that they were saddened by the injury and the resultant consequences on their entire life. Some of these participants identified the sudden occurrence of the injury and the resultant paralysis and immobility as the major cause of their worry while others attributed their anxiety to the high cost of treatment and fear of remaining in a wheelchair for the rest of their lives. Peter had paralysis after his injury and was worried about the possibility of remaining in the wheelchair for life. ...
Social issues: “Everyone Has Abandoned Me”.
The participants reported a number of societal factors including support, neglect, marital and spousal problems and impaired participation that promoted or hindered their adjustment to the injury.
http://www.judis.nic.in 21/43 C.M.A.No.595 of 2019 ...
The study's conclusion is as follows:
The findings suggest that spinal cord injury is a life threatening condition and that persons with the condition grapple with a myriad of physical symptoms ranging from chronic pain and paralysis of lower and/or upper limbs, to bladder and bowel incontinence. These physical symptoms impact negatively on the psychosocial life of affected persons and their overall quality of life.
The fond hope of a dentist that she would lead a normal life has been shattered by the unfortunate incident. Moreover, she is wheel chair bound and unable to do any work. Since, no amount has been awarded towards loss of amenities, a sum of Rs.3,00,000/- is awarded under this head.
27.Loss of marital bliss:
It is not the victim alone who suffered but the pain is felt by the entire family especially his spouse who has been impleaded as 2nd respondent. The marriage gives lot of pleasures as well as pain. Marital bliss is one of the basic elements of marriage. The spinal cord injury causes loss of marital bliss as it is impossible for the appellant and her spouse/the second respondent to have a normal sexual relationship. The http://www.judis.nic.in 22/43 C.M.A.No.595 of 2019 following medical reports would give details about the sexual problems after spinal cord injury:
[a] The Research Article "Physiology and Management of Bladder and Bowel Continence following Spinal Cord Injury" by authors Kathleen Francis, reported in Ostomy Wound Management Magazine; Volume 53-Issue 12-December, 2007 states as follows:
Spinal cord injury (SCI) is among the most devastating healthcare issues. It affects individuals and their families psychologically, physically, economically, and socially. The injury often results in complete loss of control of genitourinary and gastrointestinal function as well as loss of motor function or paralysis of the extremities. These impairments can have a profound effect on the person’s ability to perform common tasks and activities of daily living. Patients with incontinence suffer from anxiety, depression, social isolation, and loss of self-esteem. 1 Experiences teaches that continence issues, including fear of urinary and fecal accidents, cause patients to isolate themselves or to spend countless hours attempting to eliminate. These factors negatively impact the patient’s quality of life. [b] The Research Article titled "Neurogenic bladder in spinal cord injury patients" authored by Waleed Al Taweel & Raouf Seyam, department of Urology, King Faisal Specialist Hospital and Research Center, Riyadh, Saudi Arabia states as follows:
Spinal cord injury (SCI) can occur secondary to spinal column fracture after road traffic accidents or trauma or as a consequence of vascular ischemia or infection. The most common urologic complications following SCI are urinary tract infection (UTI), upper and lower urinary tract deterioration, and bladder or renal stones. One of the most fundamental steps following the initial injury is bladder management. However, many factors are involved in bladder management, including sex, lifestyle issues, hand dexterity, and http://www.judis.nic.in 23/43 C.M.A.No.595 of 2019 access to health care providers. When an efficient bladder management program is applied, the patient will experience less incontinence, with improved quality of life. More than 250,000 people are living with SCI in the USA. The National Spinal Cord Injury Statistical Center reports 40 new cases per million of the population per year. More than 80% of these individuals exhibit at least some degree of bladder dysfunction. There is no single management program that can work for every patient, and patients will require frequent clinic visits and hospitalizations. In a large cohort study of patients with neurogenic bladder, 40% attended a urology clinic visit over 1 year, 33% were hospitalized, and 15% were in a nursing home. UTIs were responsible for more than 20% of all 1-year hospitalizations.
...
The most common complications of neurogenic bladder due to SCI are UTI, urinary stones, and renal impairment. These complications are associated with the pathology of bladder dysfunction itself or occur as a consequence of the use of urinary catheters for drainage.
Urinary tract infection Patients with SCI bladder and stable bladder management are prone to repeated UTIs. Symptomatic UTIs continue to pose a significant problem for these patients. Symptomatic UTIs might include fever, foul smelling urine, and/or hematuria. A comparative study followed patients for 1 year and showed that episodes of bacteriuria with fever were significantly more common in patients who were catheterized by someone else than in patients on self-CIC or with indwelling catheters. Patients who exhibited the least frequent episodes of symptomatic UTI were those with external sphincterotomies.
[c] "Problems of sexual function after spinal cord injury" a research paper made http://www.judis.nic.in 24/43 C.M.A.No.595 of 2019 by Stacy L.Elliott, Department of Psychiatry and Urology, University of British Columbia, BC, Canada, British Columbia Centre for Sexual Medicine published as Chapter 26 in L.C.Weaver and C.Polosa (Eds), Progress in Brain Research, Vol. 152 gives the following details:-
"Sexual functioning is recognized by the health care profession as an area of joy for many people, but it can also be an area of great mental and physical suffering. Medicine is mandated to relieve suffering. After spinal cord injury, in general, sexual satisfaction decreases. Sex is a legitimate and fundamental need in humans. Substantial changes to both the autonomic and somatic nervous system occur after spinal cord injury, and result in altered sexual function and fertility potential. This chapter provides a clinical overview of the main sexual and reproductive concerns and priorities men and women face after spinal cord injury. Besides genital functioning, other autonomic functions affect sexuality, such as bladder and bowel function, cardiovascular control and temperature regulation. These interlinked autonomic functions are presented in their impact on sexuality. The mind- body interaction and spinal feedback loops are discussed. It is proposed that human sexuality after spinal cord injury can be a model for investigating integrated autonomic function. Recent research on the measurement of cardiovascular parameters during vibrostimulation and ejaculation demonstrates the discordance between objective and subjective signs of autonomic dysreflexia. "
A medical study "Social, Sexual and Personal Implications of Paraplegia" made by Colette Ray, B.A., Ph.D. and Julia West, B.a, Department of Psychology, Brunel University, Uxbridge, Middlesex UB, U.K., reported in Paraplegia 22 (1984) 75-86 gives the implications of Paraplegia. The relevant paragraphs of the report are as follows:-
"Social implications http://www.judis.nic.in 25/43 C.M.A.No.595 of 2019 PHYSICAL DISABILITY has been described as a 'stigma', a term which refers to any attribute which marks its possessor as different from others, discredits him or her and disqualifies the person from a full participation in society (Goffman, 1963; Katz, 1981). As part of the process of stigma tis at ion there is a tendency to 'typify' the whole person on the basis of the attribute in question. Thus, the disabled person will find that his or her social identity has been redefined in terms of the disability (Rubington and Weinberg, 1973) and, furthermore, that this redefinition results in some degree of social exclusion and rejection. Attitudes towards the disabled are ambivalent. On the one hand there exists a positive prejudice. People are often protective, helpful and considerate in their behaviour, and rate the disabled in favourable terms (Kleck, 1968; Mussen and Barker, 1944). On the other hand, disability can be a source of distress and embarrassment for the able-bodied; people often avoid contact with the disabled and are critical towards them (Kleck, 1968; Piliavin et al., 1975; Snyder et al., 1979; Tringo, 1970). Our self perception depends in part upon the image that we are seen to have in the eyes of others (Mead, 1934) and the disabled person may come to accept the typification imposed or, if they are rejected by others, may introject this evaluation and value their own worth more negatively.
Sexual implications The nature and degree of impairment in sexual functioning after injury to the spinal cord will depend upon the level and the completeness of the lesion. With a complete lesion paraplegic men will rarely experience ejaculation, although orgasm can occur with this. Some have referred to this as a 'phantom orgasm', while others argue that orgasm as such is a central event and does not depend for its occurrence upon peripheral responses (Geiger, 1979). Male paraplegics will generally be able to achieve a reflexogenic erection, but not a psychogenic one and the erection may be difficult to maintain. Less is known about the sexuality of spinal cord injured women http://www.judis.nic.in 26/43 C.M.A.No.595 of 2019 than that of men (Thornton, 1979). Vaginal lubrication may still occur as a response to stimulation, and orgasm, as in men. A woman's fertility is not affected, although child-bearing and labour will be more difficult; most men, in contrast, will find that their fertility is severely impaired. The act of intercourse itself is complicated by the spinal cord injury, whichever partner is the injured one. There will be limitations in the positions that can be adopted; involuntary spasms may occur and incontinence, or the management of an indwelling catheter, can be a problem also. Little is known of the psychological impact of sexual dysfunctions. Some commentators have suggested that patients are more concerned about these than about any other aspect of their disability (Bloom, 1974; Breslin, 1971; Cole et al., 1973), but this may overstate the case. In one study paraplegics rated sex the least of the major functional losses resulting from their injury; 52 per cent thought the loss of the use of their legs the most important, 35 per cent the loss of control over bowel or bladder, and only 13 per cent the loss of sexual functioning (Hanson and Franklin, 1976). Furthermore, in long term relationships sexual difficulties may be of secondary importance compared with other problems such as loss of fertility (David et al., 1978). Personal implications The difficulty that any particular individual finds in adjusting to the social, sexual and other implications of injury will depend in part upon the personal significance that these have for him or for her. No stress or crisis is uniform in its impact. This will depend upon how the situation is appraised within the framework of the individual's own life style and values (Lazarus, 1966). Thus a person whose sense of personal worth is centred upon their appearance or physical prowess might, other things being equal, be more greatly affected by injury than another whose focus in life is intellectual and non-active. The meaning of the injury at a more general level will also be important. For example, if it is seen (unconsciously or otherwise), as some kind of http://www.judis.nic.in 27/43 C.M.A.No.595 of 2019 punishment, then feelings of worthlessness may be enhanced (Simon, 1971). If, in contrast, it is associated with an act of bravery it may acquire a positive as well as a negative meaning; Katz and colleagues (1978) found that disabled war veterans had a more positive self image than people who had received their injuries in accidents at work. Disabled people, as a group, do have a poorer adjustment than the able-bodied (Wright, 1960). Those with spinal injuries often have emotional problems (Geis, 1972; Hohmann, 1966), have higher scores than normal on the Hypochondriasis, Hysteria and Depression scales of the M.M.P.I. (Bourestom and Howard, 1956), and may be more prone to self destructive behaviour and suicide (Hopkins, 1971)." Therefore, the appellant as well as the 2nd respondent have to be compensated for loss of marital bliss or reduction in marital bliss. Accordingly, a sum of Rs.2,00,000/- each, totally Rs.4,00,000/- is awarded to them under this head.
28.Loss of Mother's normal care and guidance:
Similarly the child who has been impleaded as 3rd respondent is also a sufferer as she could not be shown the normal love and affection by the injured Mother. The needs of the child would be usually looked after by the Mother. However, the victim who is now wheelchair bound cannot discharge her responsibilities as Mother which are essential for normal growth of any child, especially, girl child. Therefore, for loss of http://www.judis.nic.in 28/43 C.M.A.No.595 of 2019 Mother's normal care and guidance, which the child can expect only from the Mother and not from anybody else, a sum of Rs.2,00,000/- is awarded under this head.
29.Transportation:
A sum of Rs.25,000/- awarded towards transportation is very low and the same is enhanced to Rs.1,00,000/- as the claimant has to visit hospital frequently since four surgeries were done as proved by Ex.P.6 Discharge summary, issued by MIOT Hospital, Chennai, Ex.P.7 Discharge summary issued by CMC Hospital, Vellore and Ex.P.12 viz., medical bills.
30.Extra Nourishment:
A sum of Rs.25,000/- awarded towards extra nourishment is found to be very low as she underwent four surgeries. Therefore, amount is enhanced to Rs.1,00,000/-.
31.Medical Bills:
A sum of Rs.11,50,548/- awarded towards medical expenses based on Ex.P.10 to Ex.P.12/medical bills is confirmed.
32.Pain and sufferings:
A sum of Rs.25,000/- awarded towards Pain and sufferings is http://www.judis.nic.in 29/43 C.M.A.No.595 of 2019 very low. The bus ran over the victim and she lost power and sensation in lower limbs and she continues to have T12 complete paraplegia. When a person is disabled to the extent of 90% because of the unfortunate accident and she had undergone four surgeries, the pain and sufferings and the mental agony being suffered by the victim cannot be estimated in terms of money and therefore, Rs.3,00,000/- is awarded towards pain and sufferings.
33.Future medical expenses:
It is evident that she is wheel chair bound and due to complete paraplegia, she cannot move about. She has got no bladder and bowel control over nature's call. Hence, motion is collected in a bag and urine is passed through catheter tube. Thus, every month a number of catheter tubes and motion bags have to be purchased. It is stated that a sum of Rs.8,422/- is being spent every month and a bill has been produced before this Court. Even if Rs.5,000/- is determined as monthly expenses towards medical expenses including purchase of catheter tubes and motion bags, for 25 years, the expenses would be Rs.15,00,000/- (Rs.5000 x 12 x 25). However, this Court deems it appropriate to award Rs.10,00,000/- (Ten Lakhs Only) towards future medical expenses and http://www.judis.nic.in 30/43 C.M.A.No.595 of 2019 accordingly, in view of the four surgeries and other medical expenses, this Court awards a sum of Rs.10,00,000/- towards Future medical expenses as per the Judgment of the Hon'ble Supreme Court of India in "Kavita
-vs- Deepak and others" reported in "2012 (2) TN MAC 362 (SC)".
34.Therefore, the sum of Rs.18,43,908/- awarded by the tribunal is enhanced to Rs.1,49,80,548/- in the following manner:
S.No Head Amount (Rs.)
1. Loss of income 91,80,000/-
2. Loss of Amenities 3,00,000/-
3. Transportation 1,00,000/-
4. Extra nourishment 1,00,000/-
5. Medical expenses 11,50,548/-
6. Attendant charges 22,50,000/-
7. Future medical expenses 10,00,000/-
8. Pain and sufferings 3,00,000/-
9. Loss of marital bliss 4,00,000/-
10. Loss of Mother's normal 2,00,000/-
care and guidance
Total 1,49,80,548/-
Rounded off 1,50,00,000/-
Hence, the total compensation payable in this case is Rs.1,50,00,000/-. The interest awarded by the Tribunal at the rate of 7.5% per annum is http://www.judis.nic.in 31/43 C.M.A.No.595 of 2019 confirmed. The appellant shall pay the additional Court fee within two weeks from the date of receipt of a copy of this order, failing which the enhancement made shall not accrue to the appellant.
35.The 1st respondent/Transport Corporation is directed to deposit the entire award amount as per the order of this Court before the trial Court along with interest (except for the amount awarded towards future medical expenses) and costs after deducting the amount, if any, already deposited, within a period of twelve weeks from the date of receipt of a copy of this order. On such deposit being made, the tribunal is directed to transfer Rs.68,00,000/- to the account of the appellant and Rs.2,00,000/- to the account of the second respondent / Husband through RTGS within a period of one week and Rs.50,00,000/- is directed to be deposited in the name of the 3rd respondent/minor viz., Suraksha in fixed deposit in any one of the nationalized banks until the child attains majority. The appellant is permitted to withdraw the accrued interest thereon once in every two months. Further, the balance amount of Rs.30,00,000/- is directed to be deposited in the account of the appellant in fixed deposit and she is permitted to collect the monthly interest for future medical expenses.
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36.It is further made clear that the compensation awarded to the victim for the disability suffered by her due to the unfortunate incident cannot be termed as an "income" under the provisions of Income Tax Act. If the compensation is derived from business or from sale proceedings of the property, the said amount would attract the provisions of Income Tax Act. This Court in the case of The Managing Director, Tamil Nadu State Transport Corporation (Salem) Ltd., Vs. Chinnadurai on 02.06.2016 in C.R.P. (P.D.) No.1343 of 2012 and M.P.No. 1 of 2012 held that compensation awarded for motor accident claims will not fall under the term "income" as defined under the Income Tax Act, 1961. Therefore, this compensation would not attract income tax.
37.As explained above, many fatal accidents occurred due to overspeeding. The increase in speed limit multiplies the risk of accident resulting in number of deaths and injured. Greater risk will be the consequence of higher speed. Therefore, the speed control should be enforced very strictly, as our masses are known for violation or indiscipline of road rules. Inspite of increase in accidents the Government has increased the speed limit in April 2018. The details http://www.judis.nic.in 33/43 C.M.A.No.595 of 2019 already given would show that because of the increase in speed limit in the year 2018, the number of accidents also got increased and consequently many persons died. Therefore, the Central Government has to reconsider the decision taken in April 2018, fixing the maximum speed limit on express ways at 120 km/hr.
38.In view of increase in speed limits, the motorists are unable to control their vehicles, if they go in high speed. Therefore, the higher speed fixed by the Union Ministry of Road Transport has to be reduced.
39.The law enforcement should be made very strict and modern gadgets should be used to find out the speeding vehicles and punish them. The latest equipments like speed governor, speed gun and drones can be used. Moreover CCTV camera should be fixed on Highways at regular intervals to monitor the speed of the vehicles and to fine the drivers who ply beyond the permitted speed limit, as it is humanly impossible to watch the movement of large number of motor vehicles, which population is sharply increasing in India.
40.Though the two wheeler is popular, affordable and easiest mode of transport, the data would reveal that between the year 2009 and 2019, the number of deaths of two wheeler riders in road accidents have http://www.judis.nic.in 34/43 C.M.A.No.595 of 2019 more than doubled, as these vehicles have least protection for occupants. The comparative statement of 10 years of data of National Crime Records Bureau (NCRB), would show that the share of two wheeler occupants deaths increased year on year basis. The fatalities of the two wheeler occupants was 20.7% of total road deaths in the year 2009 whereas it is 38% during 2019. The number of deaths of two wheeler occupants in the year 2009 was 26,219 and it got increased to 58,747 in the year 2019.
41.Since the victim in this case is a two wheeler rider and she sustained spinal cord injury, this Court has to warn the two wheeler riders about the safety and security. If one goes through the data regarding road traffic accidents, it is evident that two wheeler riders are more vulnerable for accident. The following data would give as to how the rate of death of two wheeler occupants is dangerously increasing for the past five years:
Year Fatalities (%) Top 2 states
2015 43,540 (29.3) TN (3,668) MH (3,146)
2016 46,370 (30.5) TN (5,666) MH (5,595)
2017 52,359 (34.9) UP (5,906) MH (5,758)
2018 54,610 (35.7) UP (6,474) MH ( 6,389)
2019 58,747 (38) MH (7,137) UP (6,431)
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C.M.A.No.595 of 2019
42.Report published by Ministry of Road Transport and Highways in the year 2020 states that 6 two wheeler riders die every hour in Indian road accidents. The details would reveal that the two wheeler riders or occupants are vulnerable for accidents and therefore, the two wheelers riders have to be disciplined and there should not be overspeeding. Many two wheeler riders are inviting accident by overspeeding and that is the reason why the number of fatalities of two wheeler riders are dangerously increasing. Therefore, it is the bounden duty of the concerned Government to direct the manufacturers of two wheelers to install speed governors in the two wheeler in the manufacturing stage itself as component of two wheeler, so that speeding of vehicle itself would be prevented and the accident could be averted.
43.One more important reasons for increase in accidents due to overspeeding is by imported vehicles. The imported vehicles are not manufactured for Indian conditions. The imported vehicles come with high speed engines and therefore, they should be calibrated in such a manner that the vehicle would not pick up speed beyond the limit permitted in our Country. The Government should also instruct the same at the manufacturing stage itself to control the speed limit. In the http://www.judis.nic.in 36/43 C.M.A.No.595 of 2019 notification issued on 05th August 2014, the following are the maximum speed prescribed in respect of different class of motor vehicles:
S.No Class of Motor Vehicles Maximum speed per . hour in kilometres (1) (2) (3) 1 Motor vehicles used for carriage of 80 passengers comprising nine or more seats in addition to the driver's seat 2 Motor vehicles used for carriage of 100 passengers comprising not more than eight seats in addition to the driver's seat 3 Motor vehicles used for carriage of goods 80 4 Quadricycle 70 5 Three wheeled vehicles 60 6 Motor cycles 80 In the notification issued on 06th April 2018, the following are the maximum speed prescribed in respect of different class of motor vehicles:
Maximum speed per hour in kilometres on roads in India S.No. Class of Motor Vehicles Expressway 4 lane and Road Other with Access above divided within Roads Control carriageway Municipal (roads with Limits Median strips / Dividers) (1) (2) (3) (4) (5) (6) 1 Motor vehicles used for 120 100 70 70 carriage of passengers comprising not more than eight seats in addition to the driver's seat (M1 category vehicles) 2 Motor vehicles used for 100 90 60 60 http://www.judis.nic.in 37/43 C.M.A.No.595 of 2019 Maximum speed per hour in kilometres on roads in India carriage of passengers comprising nine or more seats in addition to the driver's seat (M2 and M3 category Vehicles) 3 More vehicles used for 80 80 60 60 carriage of goods (All N category Vehices) 4 Motor Cycles 80* 80 60 60 5 Quadricycle - 60 50 50 6 Three wheeled vehicles - 50 50 50 *If permitted to ply on Expressway.
44.The speed governor as provided under the Rule 118 of Motor Vehicle Rules has to be fitted in every vehicle including two wheelers as the two wheelers are more vulnerable for accidents. The data available would show that majority of the victims are two wheeler riders. Therefore, the Government shall implement Rule 118 of Motor Vehicle Rules by directing the manufacturers to fit the speed governor in every vehicle at the manufacturing stage itself, so that it would be a part of the vehicle.
45.Though the issue involved in this case is motor accident claim, since overspeeding is the main cause for road accident and innumerable precious lives are lost, this Court suo motu invokes Article http://www.judis.nic.in 38/43 C.M.A.No.595 of 2019 226, to issue directions to control overspeeding in the interest of public. Therefore, this Court suo motu impleads the following as party respondents to this proceedings as Respondents 6 and 7:
(1) Ministry of Road Transport and Highways, Represented by its Secretary, Union of India, New Delhi.
and (2) The Director General of Police, State of Tamil Nadu, Mylapore, Chennai.
Mr.G.Karthikeyan, learned Central Government Standing Counsel takes notice on behalf of the 4th Respondent and Mr.T.M.Pappaiah, learned Special Government Pleader takes notice on behalf of the 5th Respondent.
46.Every driver thinks that he is a super expert driver and that is the reason for many of the accidents. The mind set of the drivers should be changed. While issuing license, the drivers should be taught to drive the vehicle or ride the two wheeler responsibly and cautiously, not only taking care of himself but also considering the life of the other persons including occupiers of the opposite vehicles. Before issuing http://www.judis.nic.in 39/43 C.M.A.No.595 of 2019 license, classes should be taken for those, who are seeking driving license about the precautions to be taken and experts like psychologists should also be involved to explain the dangers of rash and negligent driving and the consequences of accidents, viz., deaths and the mental agony of injured persons. Those lessons will definitely help the applicants to drive very cautiously.
47.The road rules should be incorporated as a chapter in the school education, so that from young age onwards the children would be able to learn and observe the road rules and in due course when they grow up, it will help in maintaining discipline on road and avoid violations and accidents.
48.For the reasons stated above, the newly impleaded respondents are directed to implement the following directions:
(1) The Central Government/Fourth Respondent shall reconsider the decision taken in April 2018 to increase the speed limit and reduce the speed limit.
(2) Speed governor should be fitted and made part of the vehicles including two wheeler as per Rule 118 of Motor Vehicle Rules in the manufacturing stage itself.
http://www.judis.nic.in 40/43 C.M.A.No.595 of 2019 (3) Modern gadgets like speed gun, speed indication display and drones should be used to find out the speeding vehicle to punish the driver.
(4) The violators of road traffic rules should be strictly punished in accordance with law.
(5) Important vehicles with high speed engines should be calibrated in such a manner the vehicle does not exceed the permitted speed limit.
(6) The license seekers have to be taken to hospitals, where the accident victims are taking treatment, so that evil consequences of violation of road rules would be understood properly by first hand information. (7) The speed breakers should have been laid according to the road safety measures, so that speed breakers themselves becoming black spots could be avoided. (8) The Special Courts should be constituted to deal with traffic offences and the accident claim cases, so that criminal case arising out of the accident and the claim arising out of the same accident could be dealt with by the Special Courts together comprehensively.
(9) Hence, the State Government is directed to rope in the celebrities to spread the message of road discipline through media, as they also have the social responsibility for an orderly and disciplined society.
(10) The State Government is directed to arrange for http://www.judis.nic.in 41/43 C.M.A.No.595 of 2019 lectures by experts, doctors, social workers etc. to the licence seekers, stressing upon the necessity to follow road rules, before the licence is given.
(11) The Respondent Governments are directed to identify the Accident prone zone/black spots and to station the mobile trauma units/Ambulances there.
(12) The Respondents/Governments shall illuminate intersections on the Highways with high power lights to indicate the drivers about the intersections which would make drivers to slow their vehicles.
49.Accordingly, this appeal is partly allowed, by enhancing the award of the Tribunal from Rs.18,43,908/- to Rs.1,50,00,000/-. Consequently, connected miscellaneous petition is closed. No costs.
50.For reporting compliance and for filing report by respondents 4 and 5, call the matter on 02.08.2021.
(N.K.K.,J.) (A.Q.,J.)
30.03.2021
ay
Note: Registry is directed to carryout necessary amendment in the cause title.
http://www.judis.nic.in 42/43 C.M.A.No.595 of 2019 N.KIRUBAKARAN, J.
and ABDUL QUDDHOSE, J.
ay To The Motor Accident Claims Tribunal, Chief Judicial Magistrate, Vellore.
C.M.A.No.595 of 2019
and C.M.P.No.1887 of 2019 Dated : 30.03.2021 http://www.judis.nic.in 43/43