Karnataka High Court
C. M. Pranav S/O. C. M. Pramod vs C Rajappa on 20 August, 2013
Bench: Mohan.M.Shantanagoudar, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF AUGUST, 2013
PRESENT
HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
M.F.A. NO.1426/2011 (MVC)
BETWEEN
C. M.PRANAV
S/O C M PRAMOD
AGED ABOUT 21 YEARS
R/A "PRIYA NIVAS"
TAIKOLATHUR VILLAGE & POST
KOZHIKODE DISTRICT
KERALA STATE
PRESENTLY R/AT NO. 158, 1ST MAIN
NRI LAYOUT, KALKERE MAIN ROAD
RAMAMURTHYANGAR, BANGALORE-16
... APPELLANT
(BY SRI SHRIHARSHA R LONDHE, ADV.)
AND
1. C RAJAPPA
S/O CHANNARAYAPPA
R/AT NO.1, KARIYAPPANAHALLI
ANEKAL TALUK
BANGALORE DISTRICT
2. THE ORIENTAL INSURANCE CO. LTD
C.B.O.XI. NO.21, MISSION ROAD
NEAR SUBBAIAH CIRCLE
BANGALORE-27
2
3. THE MANAGING DIRECTOR
KERALA STATE ROAD TRANSPORT CORPORATION
TRIVENDRAM
KERALA STATE
... RESPONDENTS
(BY SRI V Y KUMAR FOR R2
R3 SERVED
R1 NOTICE DISPENSED WITH)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 16.12.2009 PASSED IN
MVC NO.6156/2007 ON THE FILE OF 14TH ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, MOHAN .M. SHANTANAGOUDAR DELIVERED THE
FOLLOWING:-
JUDGMENT
This appeal is filed by the claimant praying enhancement of compensation.
2. In the accident that occurred on 30.5.2007, the claimant has sustained fractures in the head portion consequent upon which, he was unconscious for about 87 days. He was admitted to NIMHANS hospital for treatment. The claimant was 3 aged about 18 years at the time of accident and he was a student. According to the records produced by the appellant's counsel along with an application, the claimant is suffering from epilepsy even after disposal of the matter before the Tribunal below. The Tribunal has awarded total compensation of Rs.8,20,000/- with interest at the rate of 8% p.a.
3. As aforementioned, the claimant was deeply unconscious. His unconscious was with a coma score of 4/15 before resuscitation and 3T/15 after resuscitation. CT scan of brain revealed right FT fracture, a right sylvina fissure contusion, moderate cerebral edema, bifrontal EDH (blood clots outside the brain but inside the skull) and effaced basal cisterns suggestive of severe diffuse axonal injury. After discharge from NIMHANS hospital, he was brought to Abhaya Hospital on 31.5.2007 for 4 further treatment and management. At the time of evaluation, the claimant was unconscious with a coma score of 3T/15, he was found to have a right hemparesis (weakness of the right upper and lower limb - about grade 3/5); he had multiple abrasions over limbs and face. CT brain was done and same revealed large segment right FT closed depressed fracture, right sylvian fissure contusion, moderate cerebral edema, bifrontal EDH and multiple facial fracture involving lateral wall of orbit, zygoma, maxilla, traumatic SAH and effaced basal cisterns suggestive of severe diffuse axonal injury. A trachestomy (tube put into the windpipe via a hole made in the front of the neck by surgery) was done to facilitate tracheal toilet, the facial and leg fractures were managed by the facio maxillary and ortho surgeons. Thereafter, he was taken to Baby Memorial Hospital at Calicut, Kerala, where he was admitted and treated from 27.8.2007 to 29.8.2007 5 on the advice of intense neuro rehabilitation. Thereafter, he was taken to KMC Hospital, Manipal regularly for physiotherapy. During neuropsychological assessment on 6.12.2007, PW-2 (doctor) noticed the following:
a) Impaired mental speed (<5th
percentile)
b) Impaired sustained attention (<10th percentile)
c) Impaired category fluency (<5th percentile)
d) Impaired phonemic fluency (<5th percentile)
e) Impaired logical memory (<5th percentile)
f) Impaired working memory (<5th percentile) had major difficulty in parallel processing, a very important executive skill
g) Had inability to do planning and organization
h) Impaired verbal learning and memory (<5th percentile) 6
i) Impaired visual learning and memory (<5th percentile)
j) He had construction appraxia and distortion.
These deficits were suggestive of bifrontal and left temporal lobe dysfunction and consistent with the injuries described and initial CT scan findings. The claimant was put through cognitive retraining with the hope of improving some of the above deficits. Further, PW-2 has deposed that claimant had episodes of abortive seizure or fits and behavioural problems like emotional liability and poor personal hygiene issues and fine motor skill problems with his right hand persisted and was disabling. Further, he deposed that he examined the claimant on 4.10.2009 for assessment of disability and noticed that he continued to have poor memory and since his work performance became poor, he had to apparently stop working. A detailed 7 neuropsychological assessment repeated on 6.10.2009 revealed evidence of:
a) III sustained attention span
b) Inadequate comprehension and the instructions need to be repeated at times
c) He had residual weakness of his right hand
d) Impaired motor speed both hands (right 10th percentile left 5th percentile)
e) Impaired phonemic fluency (<5th percentile)
f) Impaired working memory (<3rd percentile)
g) Impaired verbal comprehension (<15th percentile)
h) Impaired verbal learning and memory (<5th percentile)
i) Significant personality changes were reported in the form or irritability, poor frustration tolerance and disinhibition
j) There were signs of confabulation on test performance 8
k) Tests to assess mental speed, sustained attention, visual learning and memory and visual memory could not be assessed as the patient was unable to hold the pencils and tremors while attempting fine motor tasks.
4. According to the learned counsel for the appellant, the claimant was a brilliant student and had got bright future and because of the said accident, his education career is almost lost and it has affected his marriage prospectus to a greater extent.
5. Having regard to the aforementioned facts, it is clear that the claimant must have suffered lot of pain and agony & has lost amenities in future life. He was aged about 18 years at the time of accident and as he has to go long way in his life, the claimant would be entitled for compensation of Rs.2,00,000/- towards 'pain and 9 sufferings' and Rs.2,00,000/- towards 'loss of amenities'. In addition to the same, the claimant would be entitled for a sum of Rs.1,00,000/- towards 'future medical expenses' and Rs.1,00,000/- towards 'loss of marriage prospectus'.
6. In addition to the same, we find that the Tribunal below has awarded lesser compensation under the head 'loss of future income due to disability'. The Tribunal has taken 50% disability as against 80% deposed by the doctor. We do not find any reason to disagree with the evidence of the doctor that the claimant has suffered 80% disability. 18 is the appropriate multiplier as the claimant was 18 years of age. Therefore, the claimant is entitled for compensation of Rs.2,16,000/- (15,000x18x80%) under the head of 'loss of future income'.
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7. Further, we find that appropriate compensation has been awarded under the head 'medical expenses'.
8. We also find that the Tribunal below has awarded lesser compensation under the head 'travelling and other sundry expenses' . The parents of the victim have suffered lot of expenses for travelling, since the claimant was unconscious for about 87 days and he has taken treatment at 4 to 5 different hospitals in Bangalore as well as in Kerala, therefore, we propose to award Rs.50,000/- towards 'travelling and other sundry expenses'.
9. Thus, the claimant is entitled to an additional compensation of Rs.5,11,000/-.
10. In view of the above, the following order is passed:-
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ORDER
a) The compensation of Rs.8,20,000/-
awarded by the Tribunal is enhanced to Rs.13,31,000/-.
b) The enhanced compensation shall carry interest at the rate of 8% p.a. as ordered by the Tribunal.
c) 75% of the enhanced compensation shall be deposited in fixed deposit for a period of 3 years in any nationalized bank and remaining amount is ordered to be released in favour of the claimant.
Accordingly, the appeal is allowed in part.
SD/-
JUDGE SD/-
JUDGE DM