Karnataka High Court
P. Vittal Bhandary vs Sathish Naik And Ors. on 11 December, 2003
Equivalent citations: 2004ACJ1179
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT Ram Mohan Reddy, J.
1. The appellant is the claimant-injured in M.V.C. No. 93 of 1997 on the file of the Motor Accidents Claims Tribunal at Puttur, D.K. (for short 'the M.A.C.T.') filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act'). In the claim petition, the appellant had claimed a total compensation of Rs. 15,00,000 from the respondents for personal injuries sustained in an accident that occurred on 8.3.1996 involving the motor vehicle owned by respondent No. 1, insured with respondent No. 2 and driven by respondent No. 3. M.A.C.T. awarded a total compensation of Rs. 4,75,000 with interest at 9 per cent per annum from the date of petition till payment/deposit. The appellant not being-satisfied with the quantum of compensation, has preferred this appeal under Section 173(1) of the Act.
2. The facts, in brief, leading to the filing of this appeal are as under:
The appellant it is said was a businessman running a grocery shop at Marasanige village in Mudigere taluk of Chikmagalur District. On 8.3.1996 when the injured along with one D.E. Ramappa and others were travelling in the motor vehicle being a jeep bearing registration No. KA 21-M 556 belonging to the respondent No. 1, was driven by the respondent No. 3 driver at a high speed and in a rash and negligent manner, due to which the driver lost control and the jeep went off the road and fell into a roadside ditch near Chappala Masjid of Savanur village at about 8 p.m. Due to the accident, the injured sustained grievous injuries and lost consciousness. He was shifted to the Primary Health Centre at Puttur and due to his critical condition, he was shifted to City Hospital, Mangalore, for treatment on the same day. Despite the best efforts and treatment, it is claimed that the injured lost his memory, suffered permanent disability both mental and physical and is not in a position to attend to his day-to-day activities without the assistance of an attendant. Due to the injuries, the appellant is unable to carry on his business. It is also claimed that the appellant was taken to NIMHANS at Bangalore for consultation. The appellant not in a position to move about and mentally not stable has filed the petition represented by his wife and next friend Geeta P. Vittal Bhandary, claiming compensation of Rs. 15,00,000. The respondent No. 1 entered appearance, but did not choose to file written statement. The respondent No. 2 insurer, filed the written statement denying all material allegation except the accident. The respondent No. 3 did not put in appearance in the proceedings. The M.A.C.T. on the basis of the pleadings of the parties, framed issues both on the question of negligence as well as quantum of compensation.
3. The wife of the appellant examined herself as PW 1 since the appellant being incapacitated is unable to appear before the court and tender his evidence. The appellant also examined two other witnesses one D.E. Ramappa as PW and Anil as PW 3. The appellant produced 135 documents which were marked as Exhs. P-1 to P-135. The respondents did not adduce any oral evidence, but produced a copy of insurance policy which was marked as Exh. R-1.
4. The M.A.C.T., on an appreciation of the oral and documentary evidence on record, rendered a finding attributing actionable negligence on the part of the driver of the jeep causing the accident resulting in injuries to the appellant. The M.A.C.T. has also awarded total compensation of Rs. 4,75,000 together with interest at 9 per cent per annum under different heads of account as extracted below:
(1) Loss of income during laid up period and future loss of income Rs. 3,60,000 (2) Medicines and treatment Rs. 47,200 (3) Pain and suffering Rs. 15,000 (4) Nourishment and attendant charges Rs. 17,685 (5) Conveyance Rs. 15,000 (6) Loss of expectation and amenities of life Rs. 20,000 totalling to Rs. 4,74,885 which has been rounded off to Rs. 4,75,000.
5. We have heard Mr. K.A. Ariga, the learned counsel for the appellant and Mr. S.V. Hegde Mulkhand for the respondent No. 2.
Mr. K.A. Ariga would contend that though there was substantial legal evidence to prove the grievous injuries sustained by appellant, the M.A.C.T. had awarded compensation as if the injuries were simple in nature. Mr. Ariga would also contend that the award of compensation under several heads is inadequate and not a just compensation within the contemplation of the Act. In addition, he would contend that award of Rs. 15,000 towards pain and suffering and Rs. 17,600 towards food and nourishment, attendant charges, as also the award of compensation towards conveyance, loss of amenities of life, is very meagre. In addition he would also contend that the M.A.C.T. had failed to award any compensation towards future attendant charges and future medical expenses.
6. Mr. Hegde Mulkhand, on the other hand, would support the findings recorded by the M.A.C.T. and contend that quantum of compensation awarded under various heads is just and reasonable.
7. The appeal has been preferred by the injured-claimant questioning the quantum of compensation only and the finding on actionable negligence is not in controversy between the parties and, therefore, there is no need to review the said finding.
8. Having heard the learned counsel for the parties, the only question that arises for decision is whether the compensation of Rs. 4,75,000 awarded by the M.A.C.T. under various heads is just and reasonable in the facts, circumstances of the case and evidence on record and if not, what shall be the just and reasonable compensation to which the claimant is entitled?
9. The appellant, on the date of accident was carrying on business in groceries at Marasanige in Mudigere taluk at Chickmagalur District and was aged 40 years as on the date of the accident. On account of the accident, the appellant sustained the following injuries as found in the wound certificate at Exh. P-2:
(1) Patient is unconscious with bleeding from left ear;
(2) Lacerated wound of 1 x 2 cm. over the nasal septum and above the nose;
(3) Lacerated wound of 2 x 2 cm. behind the left ear lobe;
(4) Deformity over the pelvis with flexion contradius of right hip.
CT SCAN
-- diffuse cerebral oedema with right temporal lobe contusion.
-- fracture right mastoid bone.
-- fracture left temporal and petrous bone.
The above injuries are grievous in nature.
10. The appellant was treated at the Primary Health Centre, Puttur, and thereafter was admitted to City Hospital, Mangalore as an inpatient from 8.3.1996 to 13.5.1996 and once again readmitted to the same hospital from 30.6.1997 to 7.7.1997. Due to the injuries sustained to the head, the doctors had treated the claimant for 'diffused brain injury'. In the opinion of the doctor who treated him, as found in Exh. P-3, spoken to by, PW 2 Dr. S. Adyanthaya, the appellant suffers from frequent aggressive outbursts and occasional attacks of epilepsy. The medical evidence discloses that the said condition of appellant would not improve and the appellant cannot live a normal life. The grievous injuries have thus caused permanent impairment of vital faculties of the appellant. M.A.C.T. in order to ascertain the mental and physical condition of the appellant, at the instance of the wife of the appellant directed the Medical Officer, Primary Health Centre, Kalasa within whose jurisdiction the appellant ordinarily resides, to examine the appellant at his place of residence and to submit a report. The Medical Officer, after due examination, on 29.10.2000 submitted his report to the M.A.C.T. This report is extracted in extenso by the M.A.C.T. in the impugned judgment and award. Having perused the documents and records which were placed before us in this appeal, we are convinced that the appellant has satisfactorily established that as a result of the accident, the appellant is rendered 'living dead', which is the expression employed by the M.A.C.T. In the aforesaid established facts, the M.A.C.T. arrived at a just conclusion that appellant cannot live without an attendant and has suffered physical and mental shock as well as loss of amenities of life. The M.A.C.T. also accepted the claim of the appellant that he suffered from inconvenience, hardship, discomfort, disappointment, frustration and mental stress, etc. In addition, the appellant established the pecuniary loss caused to him by not being able to carry on his business and earn money, on which the family members consisting of wife, two minor sons and minor daughter were totally dependent upon. Thus, the M.A.C.T. concluded that there was 100 per cent loss of earning capacity. This court in case of K. Jagannath Rai v. Gangarathna C. Bai, 2004 ACJ 982 (Karnataka), one of us, S.R. Nayak, J., speaking to the other co-ordinate Division Bench observed thus:
"The general principle which should govern the assessment of damages in personal injury cases is that the court should award to injured persons such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. This principle is sometimes referred to as 'restitutio in integrum'. However, no award of money can possibly compensate a man and renew a shattered human frame.
Though there are difficulties and uncertainties in assessing damages for personal injuries, that fact should not preclude an assessment as best as can, in the circumstances be made. In personal injury cases, the two main elements to be considered are the personal loss and pecuniary loss. In personal injury cases compensation can be given for:
(i) pain and suffering; (ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity, or in some cases, for both; and (v) medical treatment and other special damages."
This court in the said case, dealing with the claims for damages for personal injuries caused in the motor vehicle accident resulting in debilitating and incapacitating the injured, enhanced the compensation from Rs. 59,190 and 6 per cent interest to Rs. 2,85,000 with 8 per cent interest.
11. The fact that appellant was carrying on business of grocery shop is not disputed. The wife and son of the appellant have spoken to the fact that the appellant had an income of Rs. 5,000 to Rs. 6,000 p.m. The finding of the M.A.C.T. in its assessment that the claimant could have had an income of Rs. 2,000 is wholly unjustified. The M.A.C.T. ought to have noticed that the claimant had a wife and 3 minor children who were dependent on the income. To say, that a grocer could have earned Rs. 100 per day, cannot said to be something extraordinary or special. Though no concrete evidence is placed to substantiate the said fact, some amount of guesswork needs to be employed to ascertain what could be the income of the appellant in the established facts and circumstances. We are of the considered view that appellant would have earned, in the least, Rs. 3,000 per month. Keeping in mind the age of the appellant as 40 years, number of dependants being the wife, minor children consisting of two sons and one daughter, coupled with the fact the appellant suffered from 100 per cent disability, the application of the multiplier of 15 by the M.A.C.T. is appropriate. By applying the multiplier of 15 to the multiplicand Rs. 36,000 (being the annual loss of income), the future loss of income due to disability is Rs. 5,40,000 which we accordingly award.
12. The M.A.C.T. while awarding compensation of Rs. 3,60,000 has included loss of income during the laid up period and future loss of income which we find is not proper. The injured was an inpatient for 66 days and under treatment, we consider it appropriate to compensate the claimant at Rs. 3,000 p.m. for a period of 3 months which will amount to Rs. 9,000 for loss of earnings during period of hospitalisation and treatment.
13. In awarding Rs. 15,000 for pain and suffering, in our considered opinion, the M.A.C.T. has not taken into consideration the established facts in the decision-making. The brain damage caused due to the injury which is grievous and permanent in nature, is satisfactorily established by the appellant. In fact, the M.A.C.T. in its own finding has held that the appellant is 'living dead'. Keeping in mind that the injured was unconscious and hospitalised for 66 days and even now, is a patient requiring constant medical care resulting in inconvenience, hardship, discomfort and frustration in future life, the award of Rs. 20,000 towards loss of expectation and amenities in life by the M.A.C.T., is very meagre. We, therefore, award a sum of Rs. 1,00,000 towards pain and suffering, loss of expectation of life and loss of amenities of life, which would meet the ends of justice.
14. M.A.C.T. awarded Rs. 47,124.45 rounded off to Rs. 47,200 towards medicines and treatment. It is in the evidence of PW 1, wife of the appellant that Rs. 3 to 4 lakh including conveyance expenses was expended for medical treatment. Taking into account the well established facts and circumstances, we think it proper to award the sum of Rs. 60,000 under the head 'medical expenses and treatment' which we accordingly award. The award of Rs. 17,600 towards food and nutrition and attendant charges is inadequate. The appellant has produced canteen bills at Exhs. P-88-89 and P-110 which disclose that the canteen expenses during the stay of the appellant in the hospital is sum of Rs. 17,600 which cannot be disputed. The appellant was unconscious at City Hospital at Mangalore for 66 days and was assisted by an attendant. The M.A.C.T. has not taken into account the value of the services of the attendant. We, therefore, award a total sum of Rs. 25,000 towards food and nourishment and attendant charges. The appellant has also produced bills at Exhs. P-111 to P-122 in support of the claim of Rs. 21,800 towards conveyance. There is sufficient force in the contention of the learned counsel for the appellant that the M.A.C.T. had awarded a sum of Rs, 15,000 without considering the conveyance bills at Exhs. P-111 to P-122. Having perused the records, we find that the statement is factually true and hence, we award a sum of Rs. 21,800 towards conveyance.
15. The contention of learned counsel for the appellant that the M.A.C.T. has not awarded any sum of money towards future medical expenses is well founded. PW 1 has deposed that appellant suffered from epilepsy and has also developed behaviour abnormalities for which the appellant has to be administered drugs. PW 2 doctor has testified the physical and mental condition of the injured. The Medical Officer of the Primary Health Centre at Kalasa in his report to the M.A.C.T. has also stated the aforesaid disabilities. It is on record in Exhs. P-2 and P-3 that the appellant suffers from epilepsy and behavioural abnormalities due to the injuries sustained in the accident. It is also on record that the appellant has been administered certain drugs known as Dilantin; Degretal 200 mg; Cerenis liquid. The evidence of PW 2 Dr. Adyanthaya, is to the effect that the condition of appellant cannot be cured and the appellant has to endure the same throughout his lifetime. The question is, what is the cost of the medicines/drugs that are to be administered to the appellant for the rest of his lifetime. There is no evidence forthcoming except the say of PW 1 that she spends Rs. 100 per day for the drugs. We are not inclined to accept the said evidence of PW 1 since it is self interested testimony which is not supported by any documents. However, going through the medical bills that are produced by appellant which discloses the purchase of the aforesaid medicines such as Dilantin; Degretal 200 mg; Cerenis liquid, in large quantities, in our assessment, the cost of these medicines together could be around Rs. 30 per day and applying the multiplier of 15, would amount to Rs. 1,62,000. Keeping in mind the imponderables and uncertainties of life coupled with the fact that the payment for future medical expenses is to be made in advance, in the fitness of things, we consider it appropriate to award a lump sum of Rs. 50,000 for future medical expenses.
16. The learned counsel for the appellant has pointed out that the M.A.C.T. has not awarded any sums of money towards future attendant charges. The doctor examined as PW 2 and who has issued Exh. P-3, states that he treated the appellant for defused brain injury caused due to the motor vehicle accident and that appellant suffers from frequent aggressive outbursts and epilepsy. The said doctor has opined that the appellant is unlikely to improve completely to lead a normal life. In his cross-examination, it is elicited that the appellant requires continuous medical and bed care that can be given at home without any admission to any hospital. The report of the Medical Officer, Primary Health Centre at Kalasa also states that the appellant is unable to live independently and he needs an attendant for dressing himself, for feeding, in ambulating, for natures call and for hygiene. This report of Medical Officer is not disputed. Admittedly, the appellant is said to be 'living dead' and requires attendant to look after him throughout the rest of his lifetime. The wife, even if she looks after him, the extra services will have to be assessed and paid for. The expenses for such nursing and such attendant charges are permissible and have to be capitalised in the same manner as of loss of future earnings. In the facts of this case, the wife of the injured is a housewife, unemployed and by serving the husband, has not lost out of any income of her own. Moreover, while determining the loss of future earnings, no deduction is made towards such expenditure. We do not find any merit in such a claim, in the facts and circumstances of this case and accordingly reject such contention.
17. In the result and for the reasons set out supra, we allow the appeal in part with costs and in substitution of the impugned judgment and award, we award a total compensation of Rs. 8,05,800 under the following heads:
(1) Loss of income during hospitalisation and treatment at Rs. 3,000 for 3 months Rs. 9,000 (2) Future loss of income due to disability Rs. 5,40,000 (3) Pain and suffering, loss of amenities and expectation of life Rs. 1,00,000 (4) Medical expenses and treatment Rs. 60,000 (5) Special food and nutrition and attendant charges Rs. 25,000 (6) Conveyance Rs. 21,800 (7) Future medical expenses Rs. 50,000
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Total Rs. 8,05,800
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with interest at 9 per cent per annum from the date of petition till payment on a sum of Rs. 8,05,800.
Advocate's fee is fixed at Rs. 1,500.