Madras High Court
B. Imtiaz Ahanied vs G. Banumathi And Anr. on 3 August, 2001
Equivalent citations: 2003ACJ142
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. The claimant in M.C.O.P. No. 586 of 1994 on the file of the Motor Accidents Claims Tribunal (Third Additional Subordinate Judge), Tiruchirapalli is the appellant in the above appeal. In respect of grievous injuries sustained by him in a motor vehicle accident that took place on 28.8.1993, he filed the said claim petition before the Tribunal claiming compensation of Rs. 15,00,000. The claim petition was resisted by the insurance company, respondent No. 2 therein by filing counter statement. The Tribunal after considering oral and documentary evidence and after holding that the accident was caused due to rash and negligent act of the driver of the lorry MSR 8253 and that the claimant sustained serious injuries, passed an award for Rs. 5,00,000 with interest at 12 per cent from the date of petition till date of deposit. Regarding the disallowed claim, claimant has preferred the present appeal.
2. Heard the learned Counsel for the appellant. Though the respondents were duly served with notice of this Court, none of them has chosen to contest the appeal by engaging a counsel.
3. The appellant has filed C.M.P. No. 11661 of 2001 for reception of 8 documents, as described in Schedule appended to that petition as additional evidence in the above appeal. We shall consider the said petition at the appropriate time.
4. In view of the fact that the present appeal is only by the injured-claimant for higher compensation and in the absence of independent appeal or cross-objection by the owner or the insurer of the vehicle, it is unnecessary for us to consider the facts leading to the negligence aspect. The injured-claimant was examined as PW 1. He deposed in his evidence that due to the road accident, he sustained fracture in his left leg below knee, and a steel rod of the cycle seat on which he was riding penetrated his stomach, thereby the urethra in his urinary bladder was cut to an extent of 2 cm. He also deposed that he had another fracture near the left side of the hip. He further deposed that because of the said injuries, urine is coming without any control, that only by insertion of a tube in the penis, he is able to pass urine at his option, and that he is not able to squat. Apart from his evidence, Dr. Elangovan was examined as PW 2. He deposed that due to skin-grafting he found a scar to an extent of 16 cm. on the left side thigh of his leg and his left leg has been shortened by 2 inches. He also deposed that hip movement has been considerably reduced. According to him, he cannot rotate or turn like others. He assessed the ortho disability at 15 per cent in respect of hip movement and at 40 per cent in respect of left leg. His disability certificate has been marked as Exh. A-12.
5. With regard to damage to urethra, Dr. K.S. Devanathan, Urologist was examined as PW 3. He explained before the court the treatment given by him. He further deposed that because of the damage in the urethra and urinary bladder, blood was corning out from the urinary tube, that his urinary bladder was found swelling and that by way of an operation, a hole was put in the urinary bladder and a temporary system has been formulated for taking out urine from the urinary bladder. He further deposed that he once again examined him after 3 months and due to the cut and damage in the urine tube, he advised the injured to go to Christian Medical College Hospital, Vellore for further treatment. He also explained that in spite of taking continuous treatment at Trichy as well as at Christian Medical College Hospital at Vellore, even now the injured feels difficulty in passing urine and every day he has to insert a separate tube in the penis to take out urine from the urinary bladder for which necessarily he has to spend Rs. 100 per day. After analysing the case-sheet and the present position, he assessed the disability insofar as urology is concerned at 25 per cent. His disability certificate was marked as Exh. A-14. He has also expressed that because of the said injury and damage, lie cannot eject his semen from his male organ and cannot have a marital life at any point of time. The Tribunal after considering the oral evidence of the injured PW 1 and the two doctors, PWs 2 and 3 as well as documentary evidence, Exhs. A-12 and A-14, has granted Rs. 2,18,000 towards permanent disability as well as loss of future prospects, Rs. 30,000 towards pain and suffering, Rs. 2,50,000 towards medical expenses as seen from Exh. A-6 series, Rs. 2,000 towards nutritious food and altogether passed an award of Rs. 5,00,000 with interest at 12 per cent from the date of petition till date of deposit.
6. As stated earlier, the appellant has filed C.M.P. No. 11661 of 2001 for reception of 8 documents to prove the agony which appellant-claimant is undergoing every day and the nature of treatment to be given for passing of urine without any difficulty. A perusal of the evidence of PWs 1, 2, 3 as well as the assessment made by the two doctors, PWs 2 and 3 and the respective disability certificates, Exhs. A-12 and A-14 would clearly show that the appellant has to undergo treatment throughout his lifetime because of the injury sustained due to the accident. Apart from the permanent disability referred to above, the appellant has also highlighted the present complications in the affidavit filed in support of C.M.P. No. 11661 of 2001. It is stated that due to sudden complications, he has to undergo another surgery in order to implant some equipment. According to him, Dr. K.S. Devanathan, M.S., M.Ch. (Uro), PW 3, referred him to Dr. Vasan on 20.3.2000 for urodynamic study. Pursuant to the said request, he underwent various tests through Laborie Medical Technologics Urodynamic Analyzer, UDS-600 on 25.3.2000 in Diacon Institute of Neuro-Urology and Andrology, Bangalore. After verifying all the test reports, according to appellant, Dr. Vasan, D.N.B. (Urology), F.I.C.S., recommended requirement of penile prosthesis and implantation and use of artificial urinary sphincter surgery. Dr. Vasan has also anticipated the cost of surgery and equipment around Rs. 5,00,000. According to him, without the implantation, he could not pass urine in the normal course. The appellant has stated that he could not produce the documents, annexed in the petition before the trial court. After going through the various documents, namely, reference letter given by Dr. K.S. Devanathan to Dr. Vasan, cystometrogram diagnosis report, uroflow report, Penile Doppler Study given by Dr. Kiran, report of Dr. K. Vasan, recommendations of Dr. K. Vasan as well as Literature of Artificial Urinary Sphincter, we are satisfied that those documents can be marked as additional evidence in the above appeal. Accordingly, C.M.P. No. 11661 of 2001 is ordered as prayed for, consequently serial numbers 1 to 8 mentioned in that petition are marked as Exhs. A-16 to A-23.
7. Now we shall assess the proper compensation payable to the appellant. We have already referred to the evidence of PW 1 as well as the other two doctors, PWs 2 and 3. PW 2, the doctor who assessed the disability had issued Exh. A-12 which reveals permanent disability to the extent of 15 per cent due to the fracture in hip and 40 per cent due to the fracture in the left leg. PW 3, Urologist, has also assessed the damage to the urology system at 25 per cent. His disability certificate is Exh. A-14. Considering the evidence of PWs 2 and 3 as well as Exhs. A-12 and A-14 and the suffering of the appellant, particularly for passing urine, we are inclined to grant Rs. 2,00,000 towards permanent disability. The Tribunal has granted Rs. 30,000 for pain and suffering. We have already referred to the evidence of PWs 1 to 3, shortening of left leg by 2 inches, fracture in hip, restriction in hip movement, damage to urinary tube, operation undergone and to be done for implantation, etc. hence we fix Rs. 1,00,000 towards pain and suffering.
8. Though the Tribunal has clubbed together permanent disability and loss of future prospects and granted Rs. 2,18,000 for the same, we are of the view that loss of future prospects have to be assessed separately. At the time of the accident, the injured was aged about 19 years and we have also referred to the permanent disability in Ortho as well as Urology and with these disabilities the appellant cannot do any work till the rest of his life. PW 3 Dr. Devanathan, Urologist, deposed that, (Omitted as in vernacular) He further deposed that even after treatment at Christian Medical College Hospital, Vellore, there was a block in the urine tube and again he was operated. He also deposed that he cannot control urine. For this he deposed, (Omitted as in vernacular) Regarding loss of marriage prospects, PW 3 has explained, (Omitted as in vernacular) It is clear from his evidence that due to the accident, the appellant lost the entire urology system and he cannot have marital relationship at any point of time. Further, the present assessment made by Dr. K.S. Devanathan, PW 3 and referring the appellant to Dr. Vasan for further studies as well as implantation and use of artificial urinary sphincter surgery, we are of the view that the appellant has not only lost his employment opportunities, but has also to forego his personal comforts throughout his life. Taking note of all the above aspects, including the opinion offered by PW 3 and his recommendation to Dr. K. Vasan for future course of action, we are of the view that the appellant would be entitled to a further sum of Rs. 3,00,000 towards loss of future prospects including loss of marital relationship.
9. Based on the medical bills and expenses, the Tribunal granted Rs. 2,50,000 towards the medical expenses which we confirm the same.
10. Considering all the above ailments, period of treatment and the agony undergoing even now, the amount of Rs. 2,000 granted towards nutritious food cannot be sustained and we increase the same to Rs. 10,000.
11. In this appeal, after satisfying ourselves, we have marked Exhs. A-16 to A-23 as additional evidence. We have also perused the letter of Dr. K.S. Devanathan, PW 3, to Dr. K. Vasan and other documents relating to Penile Doppler Study, the report of Diacon Institute of Neuro-Urology and Andrology by Dr. Vasan as well as Urinary Incontinence and Guide for Men published by American Medical Systems marked as Exh. A-23. We accept the test report of Dr. Vasan as well as his recommendation, namely, requirements of penile prosthesis and artificial urinary sphincter surgery. We also accept the anticipated cost of surgery and equipment of Rs. 5,00,000. Taking note of the grievance expressed by the appellant that without the surgery and implantation as recommended by Dr. Vasan, he could not pass urine in the normal course and after considering various test reports submitted by the Institute and recommendations made by the doctors which established the gravity of the injury and suffering due to the accident, we grant a further sum of Rs. 5,00,000 for the purpose of implantation, surgery and for fixation of artificial urinary sphincter (AUS).
12. The amount granted under various heads are as follows:
Permanent disability Rs. 2,00,000
Pain and suffering Rs. 1,00,000
Loss of future prospects
and loss of marital
relationship Rs. 3,00,000
Medical expenses
(already spent) Rs. 2,50,000
Nutritious food Rs. 10,000
Future medical ex-
penses in implantation,
surgery and for fixation
of artificial urinary
sphincter (AUS) Rs. 5,00,000
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Total compensation Rs. 13,60,000
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13. In the light of what is stated above, we modify the amount arrived by the Tribunal and pass an award of Rs. 13,60,000 in favour of the claimant-appellant. In view of the recent judgment of the Apex Court in Kaushnuma Begum v. New India Assurance Co. Ltd. , we grant interest at the rate of 9 per cent for the award amount. Since the vehicle is covered by a valid insurance policy, the respondent No. 2, Oriental Insurance Co. Ltd., is directed to deposit the said award amount before the Tribunal within a period of eight weeks, and on such deposit being made, the claimant is permitted to withdraw the same.
14. Net result, the appeal is allowed in part to the extent mentioned above. No costs.