Madras High Court
Anandakumar vs M.Periyasamy on 1 December, 2015
Author: S.Manikumar
Bench: S.Manikumar, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 01.12.2015 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A.Nos.2809 & 3422 OF 2013 C.M.A.No.2809/2013 : Anandakumar, rep.by Next Friend & Guardian Mother Govindammal ... Appellant -vs- 1.M.Periyasamy 2.The Manager, Tamil Nadu State Transport Corporation, 37, Mettupalayam Road, Coimbatore. ... Respondents C.M.A.No.3422/2013 : The Managing Director, Tamil Nadu State Transport Corporation, 37, Mettupalayam Road, Coimbatore. ... Appellant -vs- 1.Anandakumar, rep.by Next Friend and Mother, Govindammal. 2.M.Periyasamy ... Respondents Appeals against the judgment and decree, dated 25.02.2013, passed in M.C.O.P.No.532 of 2010, on the file of Motor Accident Claims Tribunal-cum-I Additional District Judge, Tiruppur. For appellant in C.M.A.No.2809/2013 & first respondent in C.M.A.No.3422/2013 : Mr.MA.P.Thangavel For second respondent in C.M.A.No.2809/2013 & appellant in C.M.A.No.3422/2013 : Mr.V.Udayakumar COMMON JUDGMENT
(Order of this Court was made by S.Manikumar, J.) Being aggrieved by the finding, fixing negligence on the driver of the State Transport Corporation bus, bearing registration No.TN-38-N-1787, and the quantum of compensation of Rs.25,60,279/-, with interest, at the rate of 7.5% per annum, from the date of claim till deposit, awarded to the injured in M.C.O.P.No.532 of 2010, dated 25.05.2013, on the file of Motor Accident Claims Tribunal-cum- First Additional District Judge, Tiruppur, the Managing Director, Tamil Nadu State Transport Corporation Limited, Coimbatore Division, has filed C.M.A.No.3422 of 2013.
2. Not satisfied with the above quantum of compensation, the injured has filed C.M.A.No.2809 of 2013, for enhancement. He has also filed M.P.No.1 of 2015, to receive the medical bills, in two sets and the prescriptions, for the expenses of Rs.2,60,265.64 ps., and Rs.11,019/-, respectively, incurred by him.
3. On 14.08.2015, a representation was made by the learned counsel for the injured/claimant, stating that on account of the accidental injuries, the injured is still in coma, totally incapacitated from travelling, and prayed to treat him as 100% disabled and, accordingly, compute the compensation, due and payable, to him.
4. In order to ascertain the actual physical condition of the claimant, with reference to what was contended, we directed the Head of the Medical Department of the District, to depute a team of doctors, comprising neurologist and orthopedist, examine the claimant, and to assess the actual physical condition of the claimant and to state the functional disabilities, suffered by the claimant and accordingly, issue a disability certificate.
5. Pursuant to the said directions, the Joint Director of Health Services, Tiruppur, has sent a report to the Sub-Assistant Registrar (Statistics/CS), High Court, Chennai, in reference No.4041/MB/2015, dated 28.09.2015, and that the same is extracted hereunder:
From To Dr.V.N.K.Keshavan, MBBS,DCH, The Sub-Assistant Registrar, Joint Director of Health (Statistics/CS), High Court, Services (i/c), Tiruppur. Chennai-600 104. Ref.No.4041/MB/2015, Dated -09-2015 Respected Sir,
Sub : Medical Board Report of Thiru Anandakumar, S/o.(Late Ramasamy Residing @ No.77 Cotton Mill Road 1st Street, P.N.Road, Tiruppur Submission Regarding.
Ref : 1) Honourable High Court, Chennai Judgment in CMA No.3422/2013 in Mp No.1 of 2015 in CMA 3422/2013, Dated 14-08-2015.
2) Letter of Thiru A.Manavalan, BABL, Tiruppur.
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With reference to the direction of the Honourable High Court of Madras cited in reference (2) it was instructed to constitute a Medical team consisting of neurologist and orthopeadician in Govt.Head Quarters Hospital, Tiruppur, for conducting Medical examination on Thiru Anandakumar S/o (Late) Ramasamy, Residing at 77 Cotton Mill Road, 1st Street, Tiruppur, and submit a report about his disability and physical condition.
Since Neurologist Specialist is not available in this District a special Medical Board was constituted consists of the following team of doctors to examine the above patient and submit a report.
1Dr.N.S.Ramanan MS,Ortho 2 Dr.S.E.Bharanee-tharan MD,GM 3 Dr.G.Ravishankar MS Since Thiru Anandakumar was not in a condition to move from his residence the above team of doctors went his residence on 28-09-2015 and examined his condition. The opinion given by the above team of doctors is endorsed by the Medical Board of this district and enclosed herewith for kind perusal Sd/-xxxxx Joint Director of Health Services (i/c.) Tiruppur.
Enc.: As above 1 page CERTIFICATE 28-09-2015 We the following team of doctors 1 Dr.N.S.Ramanan 2 Dr.S.E.Bharaneetharan 3 Dr.G.Ravishankar went to the residence of Thiru Anandakumar S/o (Late) Ramasamy residing at 77, Cotton Mill Road, 1st Street, Tiruppur on 28-09-2015 and examined him.
The above individual had met with RTA on 13-12-2009. He was admitted and treated at PSG Hospitals Coimbatore from 13-12-2009 to 17-02-2010. At present he is on antiepileptic drugs. Now patient is awake vitals stable CNS Spontaneous Eye opening present. Doll's Eye movement present pupils equal and reacting to light. No Eye to Eye contact present. Responds to deep painful stimuli. No response to oral commands. According to glasgow coma scale his GCS is E4 V1 M3 8/15.
Tone increased in all 4 limbs DTR increased Plantar Bilateral flexor sensory system Response to pain present Spine normal. Cranial bone deformity right temporal and left temporal and parietal region.
CVS-S1 S2 No murmur RS BA EL Present NVBS Present P/A Soft At present, patient is in a vegetative state with disability of 100%.
6. From the above, it could be deduced that the team of doctors, comprising of an Orthopedist, General Medicine, and General Surgery, have opined that the injured/claimant is in a state of comatose. He is in a vegetative state, with a disability of 100%. The Chairman of the Medical Board, Tiruppur, as well as the Chief Civil Surgeon, Government Headquarters, Tiruppur, has endorsed the certificate.
7. As both the appeals arise out of the same accident, one filed by the Managing Director, Tamil Nadu State Transport Corporation, Coimbatore Division, challenging the finding, fixing negligence on the driver of the Corporation bus, and the quantum of compensation, the other, seeking for enhancement of compensation, they are being heard together and disposed of by a common judgment, along with M.P.No.1 of 2015, in C.M.A.No.2809 of 2013, filed by the injured, to receive the medical bills in II series, and prescriptions, as additional documents, in the appeal.
8. Facts deduced from the material on record are as follows :
8.1. On 13.12.2009, about 18.45 hours, when the claimant was proceeding from Udumalpet to Tiruppur in a Motorcycle, bearing registration No.TN-41-Y-1292, near Kannammal Matriculation School, Tiruppur Road, a Transport Corporation bus, bearing registration No.TN-38-N-1787, which came in the opposite direction, driven in a rash and negligent manner by its driver, dashed against the motorcyclist, causing grievous injuries in the head, resulting in bleeding in the left ear, fracture of both legs and multiple injuries all over the body. He was rushed to Government Hospital, Palladam; given fist aid, and referred to PSG Hospital, Coimbatore, for further treatment. Thereafter, he was inpatient in Kumaran Hospital, Tiruppur. A case in Crime No.1627 of 2009 under Sections 279 and 337 of IPC has been registered against the driver of the corporation bus, bearing registration No.TN-38-N-1787, on the file of Palladam Police Station.
8.2. As the injured has become permanently disabled, mother, next friend, has filed the claim petition M.C.O.P.No.532 of 2010, before the Motor Accident Claims Tribunal and I Additional District Judge, Tiruppur. She has submitted that before the accident, her son was a Merchandiser in Satish Garments, Tiruppur and earned Rs.7500/- per month. She had already incurred more than Rs.10.00 lakhs towards medical expenses. As the injured has become permanently disabled and continued to be in coma, she has sought for compensation of Rs.40,00,000/- (amended as per order in I.A.No.982 of 2012, dated 03.08.2012).
8.3. The Tamil Nadu State Transport Corporation Limited, Coimbatore Division, in its counter affidavit, has denied the manner of accident. According to the Corporation, the bus was driven with due care, observing traffic rules and regulations. About 06.45 p.m., when the bus was nearing Kannammal Matriculation School on Tiruppur-Palladam Road, a lorry was going ahead of the bus. Maintaining the distance, the bus was driven, but the lorry driver suddenly stopped the vehicle, without giving any signal or indication. To avoid the bus dashing against the lorry from behind, the bus was swerved to the right side. At that time, a motorcyclist was riding a bike with a pillion in the opposite direction, in the centre of the road. On seeing the same, the driver of the bus sounded horn, applied sudden brakes and, to avoid any collision, stopped the bus. In spite of care and caution, the motorcyclist dashed against the bus, as a result of which, both the rider and the pillion, fell down and sustained injuries. Thus, the corporation has denied the allegations made against driver and on the contra, attributed negligence against the motorcyclist. It is also their further contention that after two days, FIR has been given by the friend of the injured, who is an interested person. On the quantum of compensation, claimed under various heads, the corporation has disputed the age, avocation, income, nature of injuries, extent of disablement and consequently, the loss of earning capacity. Compensation claimed under various heads has been objected.
8.4. Before the Claims Tribunal, the pillion rider, Arjunan has been examined as P.W.1 and he has reiterated the manner of accident, nature of injuries sustained by the rider Anandakumar. P.W.2 is the mother. P.W.3 is the Medical Attendant. P.W.4 is the Manager of Satish Garments. P.W.5 is the Doctor, who assessed the extent of disablement and issued the Disability Certificate. Ex.P-1-FIR, Ex.P-2-MVI Report of the bus, Ex.P-3-MVI Report of the Motorcycle, Ex.P-4-Wound Certificate, issued by PSG Hospital, Ex.P-5-Medical Bills, issued by PSG Hospital, Ex.P-6 Calculation of the Medical Bills for Rs.10, 12,312/-, Ex.P-7-Salary details, Ex.P-8-Discharge Summary for the period between 13.12.2009 and 17.10.209, issued by PSG Hospital, Ex.P-9-Discharge Summary, issued by Sri Kumaran Hospital, Ex.P-10-Discharge Summary, issued by the same hospital, Ex.P-11-CT Scan Report, issued by KSG CT Scan, Ex.P-12-Future expenses, medical bills, issued by Deepak Hospitals, Ex.P-13-Authorisation letter, issued to P.W.4, Ex.P-14-Notary Public Certificate, Ex.P-15, Permanent Disability Certificate, Ex.P-16-X-Ray, Ex.P-17-Medical Bills, have been marked, on the side of the injured. Driver of the State Transport Corporation bus, examined as R.W.1, has adduced evidence. No document has been marked.
8.5. Evaluating the oral and documentary evidence, the Claims Tribunal held tht the driver of the Corporation bus was negligent in causing the accident. After considering the entire evidence, adduced by the respondent/claimant, to prove the age, avocation, income, nature of injuries sustained, extent of disablement, loss of future earning capacity, and such other parameters, the Claims Tribunal has awarded a sum of Rs.25,60,279/-, with interest, at the rate of 7.5% per annum, from the date of claim till deposit, as apportioned hereunder :
Permanent Disability 75% -Rs. 8,10,000/-
Pain & Suffering -Rs. 25,000/-
Loss of Amenities -Rs. 20,000/-
Extra Nourishment -Rs. 5,000/-
Medical Bills -Rs.11,43,029/-
Future Medical expenses -Rs. 4,00,000/-
Transport -Rs. 5,000/-
Attender Charges -Rs. 1,52,250/-
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TOTAL -Rs.25,60,279/-
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9. Assailing the correctness of the finding, fixing negligence on the driver of the corporation bus, bearing registration No.TN-38-N-1787, Mr.V.Udayakumar, learned counsel for the Corporation, appellant in C.M.A.No.3422 of 2013, contended that the Claims Tribunal has failed to consider the evidence of R.W.1, driver in proper perspective. Though to avoid the corporation bus from hitting the lorry, which was suddenly stopped, the bus driver swerved the same, according to him, it was the motorcyclist, who was negligent in dashing against the bus. For the abovesaid reasons, he prayed for reversal of the finding.
10. On the quantum of compensation, he submitted that without proper appreciation of medical evidence, the Claims Tribunal has determined the extent of disability as 75%. According to him, when the injured has not proved the avocation that he was a Merchandiser, by marking any order of appointment, salary or attendance register, the Claims Tribunal ought not to have determined the monthly salary as Rs.6000/-. When the extent of disablement assessed by P.W.5 doctor itself is questionable, the Claims Tribunal has erred in application of multiplier method, and, therefore, the award of Rs.8,10,000/- under the head 'loss of earning', requires to be interfered with. It is also his contention that the Claims Tribunal has erred in awarding a huge compensation of Rs.11,43,029/- under the head 'medical expenses', without any prescriptions, given by the doctors, and the award of Rs.4,00,000/- towards future medical expenses is also liable to be interefered with, as there was no valid medical report, to substantiate that the injured is likely to incur medical expenses in future. It is his further contention that a sum of Rs.1,52,250/- under the head 'attendant charges' is on the higher side.
11. Per contra, Mr.MA.P.Thangavel, learned counsel appearing for the injured/claimant, submitted that the findings of the Claims Tribunal, fixing negligence on the driver of the corporation bus, cannot be said to be perverse or it is a case of no evidence, warranting interference. He prayed to sustain the same.
12. On the enhanced compensation claimed in C.M.A.No.2809 of 2013, he submitted that at the time of accident, the injured was aged 30 years and as a Merchandiser in Satish Garments, Tiruppur, earned Rs.7500/- per month. He further submitted that when the employment of the injured was clearly spoken to by P.W.4 and Ex.P-7-Salary Certificate was also marked, the Claims Tribunal ought to have fixed the monthly income of the injured as Rs.7500/-, for arriving at the loss of earning, during the period of treatment and convalescence, and also future loss of earning. He also submitted that when P.W.5 doctor has clearly assessed the extent of disablement as 100%, the Claims Tribunal has committed an error in reducing the same to 75%.
13. However, now based on the medical report of the Medical Board, submitted to the Sub-Assistant Registrar, High Court, Madras, holding that the injured is still in a state of coma and vegetative state with 100% disability, he submitted that there should be enhancement of compensation under the head loss of future earning. He further submitted that though adequate evidence has been adduced to prove employment and earning, still, if this Court is not convinced of the monthly earning of Rs.7500/-, relying on a decision of the Hon'ble Apex Court in Syed Sadiq etc. v. Divisional Manager, United India Insurance Company Limited, reported in 2014 (1) TN MAC 459 (SC), Mr.MA.P.Thangavel, learned counsel for the injured, submitted that at least a sum of Rs.6500/- be taken as the monthly income, for the purpose of determining the loss of earning and future earning capacity.
14. It is also his contention that at the time of accident, the injured was aged only 30 years and therefore, the Claims Tribunal ought to have added 50% under the head 'future prospects', and, thereafter, ought to have computed the loss of future earning.
15. Contending that the quantum of compensation, under the heads, pain and suffering, and loss of amenities, as inadequate and placing reliance on the decision of the Hon'ble Apex Court in Kavita v. Deepak and Others, reported in 2012 (2) TN MAC 362 (SC), learned counsel for the injured sought for enhancement of compensation under the head 'pain and suffering' to Rs.3,00,000/-. Placing reliance on the same decision, the learned counsel has submitted that the injured, who has lost his amenities, has been awarded a meager compensation of just Rs.20,000/-, and sought for enhancement of the same to Rs.3,00,000/-.
16. According to him, considering the nature of injuries, extent of disablement, incapacity of the injured to mobilise, urinate, attend to the nature's calls, with tubes fitted for regulation, requirement of a permanent attendant, the Claims Tribunal has awarded a compensation of Rs.1,52,250/- only, towards attendant charges. According to him, even after discharge from the hospital, the physical condition of the injured has not improved and, now and then, he is being taken to the hospital, for change of tubes and to continue treatment. He also submitted that the mother of the injured is unable to bear the medical and attendant expenses in the hospital and, therefore, continuous engagement of an attendant at home, is required. In this appeal, she has claimed Rs.6,00,000/- as attendant charges, in addition to a sum of Rs.1,52,250/-, already granted by the Tribunal.
17. Before the Claims Tribunal, a sum of Rs.15,00,000/- has been claimed, for medical expenses (amended as per order, dated 03.08.2012 made in I.A.No.982 of 2012). On the basis of Exs.P-5,P-6 and P-7, and other medical records, the Claims Tribunal has awarded Rs.11,43,029/- (Rs.10,12,312 + Rs.1,30,717) for medical expenses. The Tribunal has awarded Rs.4,00,000/- under the head 'future medical expenses'. Considering the physical condition of the injured and the requirement of continuous treatment, Mr.MA.P.Thangavel, learned counsel for the injured, prayed that the medical bill series I and II, and prescriptions, filed along with M.P.No.1 of 2015, with a prayer to receive additional evidence in this appeal, be ordered and, accordingly, future medical expenses be enhanced from Rs.4,00,000/- to Rs.7,00,000/-.
18. Learned counsel for the injured further submitted that in the accident occurred on 13.12.2009, the claimant has sustained multiple injuries, as stated supra, now, he is in a vegetative state, and even taking for granted that he survives, there is no possibility in reduction of disablement. He has lost his marriage prospects, for which the Claims Tribunal has failed to award any compenation under the said head and therefore, prayed to award for Rs.5,00,000/- for the same.
19. Placing reliance on on the decision of the Hon'ble Supreme Court in B.Kothandapani v. Tamil Nadu State Transport Corporation Ltd., reported in 2011 (2) TN MAC 62 (SC) and in view of 100% disablement, now confirmed by the Medical Board, he prayed the Court to award compensation of Rs.4,00,000/- under the head 'disability' at Rs.4000/- per percentage. The Claims Tribunal has awarded Rs.5,000/- under the head 'extra-nourishment' and Rs.5,000/- for transportation. He sought for enhancement of Rs.1,00,000/- under each head. Thus, detailing the components under which enhancement is sought for, with reasons, the learned counsel for the injured submitted that C.M.A.No.3422 of 2013, filed by the corporation, requires to be dismissed, and, consequently, C.M.A.No.2809 of 2013, filed by the injured, has to be allowed, with enhancement of compensation, claimed under various heads.
Heard the learned counsel for the parties and perused the material available on record. We have also perused the medical bills series and prescription, filed before this Court, along with M.P.No.1 of 2015, in C.M.A.No.2809 of 2013.
20. Having regard to the nature of the injuries, treatment in various hospitals, substantiated by production of exhibits, mentioned supra, and the report of the Medical Board of Tiruppur Hospital, dated 28.09.2015, physical condition, as recorded, and the opinion of the Medical Board that the injured is 100% disabled, medical bills for the expenses incurred up to the year 2015 are taken on record, as additional evidence in C.M.A.No.2809 of 2013 and, accordingly, M.P.No.1 of 2015 is ordered.
21. As regards negligence, it is the case of P.W.1, pillion rider, Arjunan, that when the injured Ananda Kumar was riding a motorcycle bearing registration No.TN-41-Y-1292, the Transport Corporation bus, bearing registration No.TN-38-N-1787, which came in the opposite direction, in a rash and negligent manner, driven by its driver, dashed against the motorcycle, resulting in the accident, and that a case in Crime No.1627 of 2009, under Sections 279 and 337 of IPC has been registered on the file of Palladam Police Station, against the driver of the bus. P.W.2, mother of the injured, though not witnessed the accident, has reiterated the averments made in the claim petition.
22. Per contra, R.W.1, driver of the bus, has adduced evidence, denying the manner of accident. According to him, ahead of the bus, there was a lorry, which was suddenly stopped without any signal or indication and to avoid the bus hitting the lorry, the bus was swerved to the right side, and despite horn and caution, the motorcyclist dashed against the bus.
23. From the above, it could be deduced that though a lorry was proceeding ahead of the bus, without keeping a safe distance between the two heavy vehicles, the bus has been driven. When the lorry was stated to have been suddenly stopped, without any signal, the bus driver could not control the speed of the bus, slow down and stop the same. At this juncture, it is also to be noticed that vehicles plying on highways are normally operated at a higher speed. Apparently, the bus, which was proceeding at a very close distance could not be slowed down and stopped, preventing hitting the lorry from behind. Instead, to avoid the accident, the bus driver has swerved the bus towards the right side and, at that time, the motorcyclist was proceeding in the opposite direction. Certainly, the motorcyclist would have been taken by surprise and shock that suddenly, a bus had come to the right side of the road, and, considering the breadth of the bus, it cannot be said that the motorcyclist could have swerved the same to the extreme left side of the road to avoid the accident. He would not have expected that. Had the bus driver kept a safe distance between the two heavy vehicles and slowed down the bus maintaining the same direction, there would not have been any necessity to swerve the bus to the right side. Thus, there is a prima facie evidence against bus driver, in causing the accident. In addition to the above, during cross-examination, R.W.1, driver, has also admitted that he had swerved the bus to the right side and that there was also a departmental enquiry. Finding of negligence fixed on the bus driver by the Claims Tribunal is justified on the principles of preponderance of probability.
24. The contention of the learned counsel for the corporation that the Claims Tribunal has failed to consider the testimony of R.W.1 in proper perspective and that there was negligence on the part of the motorcyclist cannot be accepted. On the test to be applied for arriving at a conclusion of tortuous liability of a tort, this Court deems it fit to consider a decision in Jacob Mathew v. State of Punjab reported in 2005 (4) CTC 540, wherein, at Paragraphs 13 to 17, the Hon'ble Apex Court explained the difference between the tort and crime, as follows:
13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.
14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established."
Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case-
"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13)
15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
16. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423, a three-Judge Bench decision of this Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
25. It is the well settled law that proceedings before the Claims Tribunal are summary in nature and it is suffice to consider, whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition. Strict proof of evidence is not required. In the absence of any rebuttal evidence, the finding of the Tribunal regarding negligence cannot be termed as perverse or it is not a case of no evidence. Reference can be made to the decisions made in N.K.V.Brother's Private Limited v. Kurmai reported in AIR 1980 SC 1354, Union of India v. Saraswathi Debnath reported in 1995 ACJ 980 and Bimla Devi & Ors. Vs. Himachal RTC reported in 2009 (13) SCC 530.
26. In the light of the above discussion and the decisions, stated supra, we are of the view that the finding, recorded by the Claims Tribunal, fixing negligence on the driver of the Transport Corporation bus, bearing Registration No.TN 38 N 1787, does not warrant any interference and the same is confirmed.
27. On the quantum of compensation, P.W.2,mother, has deposed that at the time of accident, the injured was aged 30 years. She has stated that the claimant has sustained grievous injuries in the head, fractures in both legs, chest, hand and other parts of the body. She has also stated that the injured was initially treated in Government Hospital, Palladam, thereafter, referred to PSG Hospital, Coimbatore, and was inpatient in Tiruppur Kumaran Hospital. According to her, the injured was inpatient for 96 days. Till the date of adducing evidence, the injured was treated as out-patient in comatose state. There were several surgeries. She had engaged one Perumal as attendant. On the avocation, she has deposed that prior to the accident, the injured, as a Merchandiser in Satish Garments, earned Rs.7500/- per month. She has also deposed that at the time of accident, he was unmarried. He has become permanently disabled and is in a vegetative state. She has also submitted that about Rs.11,00,000/- has already been expended towards medical expenses and the doctor in Deepak Hospital has issued a certificate for future medical expenses of Rs.7,00,000/-. P.W.2, has been cross-examined, wherein she has denied the suggestion of the corporation, that Ex.P-6 salary certificate has been created, for the purpose of claim. P.W.3 Perumal has deposed that he was engaged as an attendant from 02.04.2010 onwards. According to him, the injured is motionless. He used to clean the body of the injured and whenever the injured gets cold, he would use a machine for its removal, otherwise, the injured would find it difficult to breath. He has also deposed that the injured was brought to the Claims Tribunal in an ambulance. P.W.3 has stated that a sum of Rs.8500/- was paid to him as monthly salary by P.W.2, mother of the injured. P.W.4 is stated to be the Manager of Satish Graments, in which the injured, claimed to have worked as a Merchandiser, before the accident. On the basis of Ex.P-12, authorisation letter, he has deposed that after the accident, the injured has become unconscious. Prior to the accident, the injured was paid a sum of Rs.7500/- per month. Ex.P-6 is the Salary Certificate. However, he has not produced any register. Suggestions made to discredit his testimony have not shattered his evidence. When the salary and attendance registers were not produced by the claimant, the Claims Tribunal has fixed Rs.5,000/- as the monthly income of the injured.
28. In Syed Sadiq etc. Vs. Division Manager, United India Insurance Company Limited reported in 2014 (1) TN MAC 459, the Hon'ble Supreme Court, has determined Rs.6,500/- as the monthly income of a vegetable vendor, who sustained injuries in the accident, which occurred in February 2008.
29. Considering the testimony of P.W.2 mother, P.W.4 Claimed to be Manager of Satish Garments, Tiruppur, Ex.P-6 Salary details, and in the absence of production of attendance or acquittance or salary register and such other documents, supporting the actual payment made to the injured prior to the accident, and having regard to the decision in Syed Sadiq's case, cited supra, in the interest of justice and on the basis of the principle of just compensation, this Court is of the view that the monthly income of the injured can be fixed as Rs.6500/-. At this juncture, this Court deems it fit to add a few cases on just compensation.
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, in Paragraph 12, the Supreme Court held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iii) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), a Hon'ble three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. (emphasis supplied)
(iv) In Aravind Kumar Mishra v. New India Insurance Co. Ltd., and another reported in 2010 (10) SCC 254, the Hon'ble Apex Court held that, The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living.
(v) In Branch Manager, National Insurance Co. Ltd., v. P.Selvam reported in 2013 (1) TNMAC 308, wherein, this Court held that, If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inabiity to lead a normal life and enjoy amenities which he would have enjoyed but for the disability caused due to the accident.
30. On the aspect that the Tribunal has failed to add a certain percentage towards future prospects, for computing the total compensation, this Court deems it fit to consider the decisions of the Hon'ble Apex Court in Santhosh Devi v. National Insurance Co.Ltd., reported in 2012 AIR SCW 2892; Rajesh v. Rajbir Singh reported in 2013 (9) SCC 54; V.Megala v. V.Malathi, reported in 2014 ACJ 1441 (SC), wherein the Apex Court has held that the future prospects is one of the factors to be considered while computing the loss of income, in future.
31. In so far as addition of 50% of the income under the head 'future prospects' is concerned, though in the case of Sarala Verma v. Delhi Transport Corporation reported in 2009 (6) SCC 121, the Hon'ble Apex Court held that certain percentage of income can be added under the head future prospects, only to those who had permanent jobs, with an expectation of earning increments in salary, in the subsequent decisions in Santhosh Devi v. National Insurance Co.Ltd., reported in 2012 AIR SCW 2892 and Rajesh and Others v. Rajbir Singh and Others, reported in 2013 (9) SCC 54, the Hon'ble Supreme Court extended the benefit of addition of certain percentage of income under the head future prospects to persons in unorganised sectors also.
32. In Santhosh Devi v. National Insurance Co. Ltd., reported in 2012 AIR SCW 2892, the Hon'ble Apex Court, at Paragraph 14, held as follows:
We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma v. Delhi Transport Corporation, 2009 (2) TN MAC 1 (SC), that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this Rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason, etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma v. Delhi Transport Corporation, 2009 (2) TN MAC 1 (SC), judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.
33. In Rajesh v. Rajbir Singh reported in 2013 (9) SCC 54, (Decided by three Judges' Bench) the Hon'ble Supreme Court, held that in case of self-employed persons or persons with fixed wages, the actual income of the deceased must be enhanced for the purpose of computation of compensation: (i) by 50% where his age was below 40 years, (ii) by 30% where he belonged to age group of 40 to 50 years, and (iii) by 15% where he was between age group of 50 to 60 years. However, it is observed that no such addition/enhancement permissible where deceased exceeded the age of 60 years. Relevant paragraph in Rajesh's case (cited supra), is extracted hereunder:
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self- employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
34. In the light of the above decisions, we are inclined to add 50% of Rs.6500/- under the head future prospects and thus determine Rs.9750/-, as the monthly income (Rs.6500/- + 50%), for the purpose of computing the loss of earning capacity. As per Ex.P-4, injuries recorded by the Casualty Medical Officer of PSG Hospitals, Coimbatore, are as follows :
1.Swelling & abrasion over left temporo occipital region & left cheek.
2. Deep laceration over left forehead & behind left ear.
3. Both eye echymosis
4. Tenderness over chest. Swelling & tenderness over left leg.
5. Multiple laceration over left foot & 4 x 5 cm size in lower part of right leg.
6. CT Brain :
i) Extradural haemorrhage in right temporal lobe.
ii) Haemorrhage in left frontal & temporal region.
iii) Haemorrhagic contusion in bilateral frontal, temporal lobe with cerebral ecema & pneumocephaius.
iv) Fractures in left frontal, sphenoid bone, bilateral nasal bone, right maxillary bones.
7. USG Abdomen : Normal study.
8. X-Ray Both legs : Tibia fracture.
During the stay in the hospital, the patient had been admitted under Neuro Surgery, operated for head injury, left leg fracture operated by Ortho I unit and right leg fracture treated conservatively with POP. Facial injuries operated & treated conservatively by Plastic Surgeon and discharged on 17-Feb-2010.
I am of opinion that the injuries are Grievous.
35. During the stay in the hospital, the injured has been operated for the head injury, left leg fracture, by Ortho-I Unit, right leg fracture has been treated conservatively with Plaster of Parris. Facial injuries treated and operated by Plastic Surgeon and was he was discharged on 17th February,2010. Hospital Discharge Summary Ex.P-8 further shows the following findings :
"Surgical Process underwent by the respondent :
SURGERY IM nailing of left tibia was done on 11.01.2010.
DISCUSSION :
This 30 years old male patient came with alleged historyof RTA on 13.12.2009 at 7.00 P.M. near Palladam to Tirupur Road. Initially treated in GH, Pollachi and then came here for further management. H/o.LOC, B/L nasal bleed, ear bleed (+). On examination, patient in shock under resuscitation, GCS-7/15, pupils -Right eye pupils could not be visualised, left pupil 2mm reacting to light, B/L black eye (+), ryles tube coffee ground aspiration (+). CT scan of brain showed extensive facial bone fracture with involvement of ethmoid, sphenoid, frontal sinus with a involving left anterior cranial fossa and bilateral middle cranial fossa floor with right squamous temporal bone fracture with underlying EDH with contercoup left temporal contusion with SDH with pneumocephalus with right and left frontal contusion with thin SDH (left) frontal region with diffuse cerebral edema. Series of follow up CT brain showed increase in edema both parietal and temporal lobes/haemorrhagic contusions in bitemporal, bilateral frontal, left parietal lobe/acute EDH right temporal and left frontal region/hasal cisterns not seen. Bilateral decompresive temporal craniectomy and evacuation of right temporal EDH was done on 17.12.2009. Orthopaedician opinion was obtained for open type IIB fracture of right leg, closed fracture of left leg with open type IIA injury of left foot. IM nailing of left tibia was done on 11.01.2010. Right leg fracture treated conervatively with POP. Plastic surgeon opinion was obtained for multiple facial bone fractures, left plena avulsion injury and sacral bed sore. Debridement and suturing was done on 17.12.2009. ENT surgeon was obtained for tracheostomy. Tracheostomy was done on 23.12.2009. Gastroenterologist opinion was obtained for deranged LFT. Pulmonologist opinion was obtained for chest infection. Nephrologist opinion was obtained for hyponatremia. Opthalomologist opinion was obtained for exposure keratitis. AFB culture, Ziel Neelsen stain were sent AFB not seen. Urine culture endotracheal and tracheal aspirate culture were sent according to C/S report antibiotics were given. Patient treated with ventilatory support, blood components, antibiotics, antiepileptics, antiederma drugs, vitamins, analgesics and other supportive measures. On 17.02.2010 patient is on tracheostomy tube, unconscious, opens eyes to painful stimuli, localises to pain, pupils-B/L 2 mm reacting to light, sacral bed sore healed well, right leg in POP, on asilicon urinary catheter and ryles tube feeding. Patient gradually improving well but patient's attenders wants discharge due to financial constraints. Hence patient discharged at request on 17.02.2010.
36. Perusal of the above entries in Ex.P-8 Discharge Summary shows that the injured was inpatient between 13th December 2009 and 17th February 2010 and was discharged due to financial constraints, despite the respondent had so much of injuries and continuous treatment. Thereafter, the claimant has been admitted in Srikumaran Hospital, Tiruppur, between 17.02.2010 and was hospitalised up to 05.03.2010. After recording the diagnosis, the Surgeon at Srikumaran Hospital, Tiruppur, has recorded as follows :
PAST ILLNESS :
1.H/o Bilateral decompression temporal creniectomy and evacuation of right temporal EDH was done on 17-12-09.
2. H/o Debridement and suturing was done on 17-12-09.
3. H/o Elective tracheostomy was done on 23-12-09.
4. H/o IM nailing of left tibia was done on 11-01-10.
ALL THE PROCEDURES DONE AT P.S.G. HOSPITAL.
Not a known DM / HTN / IHD / BA.
ON EXAMINATION :
Patient Unconscious / On Trechestomy / RT in Situ Responding to Painful Stimuli Bilateral Pupils 2 mm Reacting to Light Bed Sore + /Urinary Catheter in Situ His HR 84/min, BP 130/80 mm Hg CVS:- S1 S2 + /RS :- NVBS + /PA :- Soft
37. After a gap of few months, he was again admitted in the same hospital on 28.09.2010. He was found to be in coma. The details of Discharge Summary Ex.P-10 are as follows :
DIAGNOSIS : LOCULATED ABSCESS LEFT THIGH COMA / POST CRANIOTOMYSTATUS PROCEDURE : I & D done under LA.
COMPLAINTS: 30 yrs old Mr.Anandakumar presented with complaints of Swelling in the left thigh since 10 days. H/o Fever +. H/o Discharge from the swelling+.
PAST ILLNESS : Known case of RTA and had Craniotomy & Tibial nailing left done december 2009. Patient Comatose.
ON EXAMINATION :
Patient Comatose Patient is on Ryle's tube /Febrile His HR 82/min, BP-120/60 mmHg CVS:- S1 S2 + RS : - NVBS + PA :- SofT BS + CNS :- Not Responding to oral/Painful stimuli.
LOCAL EXAMINATION : Abscess left thigh +.
TREATMENT GIVEN : Treated with :-
IV fluids Inj.Zetri Inj.Pan Syp.Zincovit.
SURG.DONE BY : Dr.BALA KUMR, S., MS., ANAETHETIST : Dr.SATHIYASEELAN, G., MBBS., MD (ANAESTHESOLOGY) SURGERY NOTES : Under LA :- I&D done, drained 2 litre of pus. Wash with saline. Betadine gauze packed. Dressing given. Pus taken C/S. POST OF PERIOD : Uneventful. COURSE IN HOSPITAL : This 30 yrs old male was admitted with complaints of Swelling in the left thigh since 10 days. H/o Fever+. Ho Discharge from the swelling +. Local examination revealed Abscess left thigh +. I& D done under LA. Patient treated with IV fluids, analgesics, antibiotics, antipyretics and other supportive measures. Patient relatives wants discharge. He was discharged at request.
38. C.T. Scan has been done on 12.01.2012 by K.G.C.T.Scan and Diagnostic Centre, Tiruppur. A reference made by Dr.P.Senthil Kumar from Srikumaran Hospital shows as follows :
CT BRAIN PLAIN Serial axial section of the brain were studied from base of skull to the vertex without administration of intraveneous contrast.
Orbit and its contents appear normal.
Sellar, suprassellar and parasellar regions appears normal.
Posterior fossa and its contents appear normal.
Both cerebello pontine angles are free.
Both basal ganglia, internal capsule and both thalami appear normal.
Both cerebral hemisphere shows normal attenation.
Gray-white matter differentiation is maintained.
The ventricular system appears grossly dilated, both the lateral ventricle show rounding of the frontal and occiptal horn.
3rd ventricles appears dilated.
Both temporal horn appears grossly dilated.
4th ventricles appears normal.
Basal cisterns and sylvian cisterns appears mildly prominent.
Bilateral temporo-pareietal craniectomy with dural flaps.
Hypodense CSF density spaces seen in both temporal region- Porencephalic changes (csf spaces) extending extra cranially on both sides (temporal region).
Cortical sulci and gyri appears normal. No evidence of intra/extra axial bleed.
No mid line shift. No evidence of depressed fracture noted.
IMPRESSION :-
OLD CASE OF TRAUMA/POST-OPERATIVE FOLLOW UP
1. HYDROCEPHALUS.
2. POST OPERATIVE CHANGES IN THE FORM OF CRANITOMY WITH EXTRA CRANIAL CSF COLLECTION IN BOTH TEMPORAL REGION.
3. PORENCEPHALIC CHANGES IN BOTH TEMPORAL REGION.
39. We have already extracted the report of the Medical Board, dated 28.09.2015. Cumulative reading of the treatment records shows that the claimant has suffered grievous injuries, treated from 13.12.2009 onwards in various hospitals, underwent surgeries, and now he is stated to be in coma and vegetative state, with 100% disablement. The Medical Board has opined as follows :
Now patient is awake vitals stable CNS Spontaneous Eye opening present. Doll's Eye movement present pupils equal and reacting to light. No Eye to Eye contact present. Responds to deep painful stimuli. No response to oral commands. According to glasgow coma scale his GCS is E4 V1 M3 8/15.
40. Inasmuch as the doctors have used the medical terminology Glasco Coma Scale (GCS) referred to a scale to measure the extent of coma or unconsciousness, with reference to certain parameters, we deem it fit to extract what Glasco Coma Scale means and how the scale measures certain functions of the system.
"The Glasgow Coma Scale (GCS) is the most common scoring system used to describe the level of consciousness in a person following a traumatic brain injury. Basically, it is used to help gauge the severity of an acute brain injury. The test is simple, reliable, and correlates well with outcome following severe brain injury.
The GCS is a reliable and objective way of recording the initial and subsequent level of consciousness in a person after a brain injury. It is used by trained staff at the site of an injury like a car crash or sports injury, for example, and in the emergency department and intensive care units.
The GCS measures the following functions:
Eye Opening (E) 4 = spontaneous 3 = to voice 2 = to pain 1 = none Verbal Response (V) 5 = normal conversation 4 = disoriented conversation 3 = words, but not coherent 2 = no words, only sounds 1 = none Motor Response (M) 6 = normal 5 = localized to pain 4 = withdraws to pain 3 = decorticate posture (an abnormal posture that can include rigidity, clenched fists, legs held straight out, and arms bent inward toward the body with the wrists and fingers bend and held on the chest) 2 = decerebrate (an abnormal posture that can include rigidity, arms and legs held straight out, toes pointed downward, head and neck arched backwards) 1 = none Clinicians use this scale to rate the best eye opening response, the best verbal response, and the best motor response an individual makes. The final GCS score or grade is the sum of these numbers.
Using the Glasgow Coma Scale Every brain injury is different, but generally, brain injury is classified as:
Severe: GCS 3-8 (You cannot score lower than a 3.) Moderate: GCS 9-12 Mild: GCS 13-15 Mild brain injuries can result in temporary or permanent neurological symptoms and a neuro-imaging tests such as CT scan or MRI may or may not show evidence of any damage.
Moderate and severe brain injuries often result in long-term impairments in cognition (thinking skills), physical skills, and/or emotional/behavioral functioning.
Limitations of the Glasgow Coma Scale Factors like drug use, alcohol intoxication, shock, or low blood oxygen can alter a patients level of consciousness. These factors could lead to an inaccurate score on the GCS.
Children and the Glasgow Coma Scale The GCS is usually not used with younger children, especially those too young to have reliable language skills. The Pediatric Glasgow Coma Scale, or PGCS, a modification of the scale used on adults, is used instead. The PGCS still uses the three tests eye, verbal, and motor responses and the three values are considered separately as well as together.
Here is the slightly altered grading scale for the PGCS:
Eye Opening (E) 4 = spontaneous 3 = to voice 2 = to pain 1 = none Verbal Response (V) 5 = smiles, oriented to sounds, follows objects, interacts 4 = cries but consolable, inappropriate interactions 3 = inconsistently inconsolable, moaning 2 = inconsolable, agitated 1 = none Motor Response (M) 6 = moves spontaneously or purposefully 5 = withdraws from touch 4 = withdraws to pain 3 = decorticate posture (an abnormal posture that can include rigidity, clenched fists, legs held straight out, and arms bent inward toward the body with the wrists and fingers bend and held on the chest) 2 = decerebrate (an abnormal posture that can include rigidity, arms and legs held straight out, toes pointed downward, head and neck arched backwards) 1 = none Pediatric brain injuries are classified by severity using the same scoring levels as adults, i.e. 3-8 reflecting the most severe, 9-12 being a moderate injury and 13-15 indicating a mild TBI. As in adults, moderate and severe injuries often result in significant long-term impairments.
References: Teasdale G, Jennett B. Assessment of coma and impaired consciousness. A practical scale. Lancet 1974,2:81-84. PMID 4136544."
41. From the above, it is clear that if the coma score is 8 or less, it is a severe brain injury. Medical Board has further opined that the injured is in vegetative state with 100% disablement. Quantum of compensation, awarded under several heads, is sought to be enhanced by the claimant/injured, mainly based on the decision of the Hon'ble Supreme Court in Kavita v. Deepak, reported in 2012 (2) TN MAC 362 (SC). In the said judgment, the accident has occurred on 02.05.2004, the injured was 30 years and she was a working partner in Tirupati Enterprises. She suffered injury in brain and was treated by many doctors, including neurosurgeons. At the time of discharge, the status of the injured was vegetative. She followed only elementary simple commands with no clear indication, verbal or sign language. She was incontinent. The disability was assessed as 90%. The Tribunal has awarded Rs.4,00,000/- with interest, at the rate of 6% per annum, apportioned as Rs.2,50,000/- under the head permanent disablement and Rs.25,000/- under the head pain and suffering. In the appeal to the High Court, she has filed I.A.No.180 of 2010 under Order 41 Rule 27, for bringing on record the medical bills, to show that she has spent Rs.5,00,000/- and odd for treatment and as on the date of application, it was Rs.7,76,480/-.
42. The High Court enhanced the compensation to Rs.12,00,000/- with interest, at the rate of 7.5% per annum. Being aggrieved, in the further appeal to the Hon'ble Supreme Court, it was contended that though the High Court had enhanced the compensation, the same cannot be treated as just, because, as a result of the accident, the appellant/injured had suffered permanent disability and has virtually become vegetable, throghout her life. Submission has been advanced that due to the accident, the appellant therein was not in a position to do any work and give up her partnership in Tirupati Enterprises. It was also contended tht due to the accident, the appellant has lost her memory and spent huge amount for treatment. Compensation awarded under the head pain and suffering and future medical expenses was also pleaded as less.
43. After considering the decisions in R.D.Hattangadi v. Pest Control (India) Private Limited, reported in 1995 (1) SCC 551; Arvind Kumar Mishra v. New India Insurance Co.Ltd., reported in 2010 (2) TN MAC 383 (S); Nizam Institute of Medical Sciences v. Prasanth S.Dhananka, reported in 2009 (6) SCC 1; Raj Kumar v.Ajay Kumar, reported in 2010 (2) TN MAC 581 (SC); Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited, reported in 2011 (2) TN MAC 190 (SC) : 2011 (13) SCC 236, and the evidence of the doctor, who assessed the disability and deposed that the appellant therein had virtually become vegetable, the Apex Court, fixing the monthly income, computed the loss of future earning, by applying multiplier '17', applicable to the age group of 26 to 30 years. The Hon'ble Apex Court, by fixing the life expectancy to be 55 years, awarded attendant charges at the rate of Rs.2,000/- per month and physiotherpy expenses of Rs.3,000/- per month for 25 years.
44. At this juncture, it is to be noted that the age of the injured therein was also 30 years. For loss of amenities and loss of expectancy of life, the Apex Court has awarded Rs.3,00,000/-. The Apex Court has further awarded a sum of Rs.3,00,000/- for physical and mental pain and suffering. The Apex Court has not awarded any separate compensation under the head 'permanent disablement', but, having regard to a sum of Rs.2,000/- taken as the monthly income, and the age of the injured therein, adopted '17' multiplier for assessment of loss of earning, on account of 90% disablement. On the basis of the fixed sum of Rs.2,000/- per month, the Apex Court has calculated the loss of earning during the period of treatment commencing from the date of accident till the High Court passed the order, enhancing the compensation, i.e., for a period of six years from 02.05.2004 to 18.05.2010.
45. In Kavita's case, cited supra, at the time of discharge on 26.06.2004, she was found to be in a vegetative state, could not follow the simple elementary commands, with no other communication, verbal or sign language. Claim Petition was filed through her husband. The doctor, examined before the Tribunal, has deposed that the appellant therein was kept alive by feeding through a pipe. The doctor has further deposed that the claimant therein had made little progress till the date on which the disability certificate was issued i.e., 23.08.2006, and, according to him, she continued to be in a vegetative state and required attendant all times, and also required continued physiotherapy.
46. In the light of the earlier decisions, the Apex Court, by observing that both the High Court as well as the Tribunal, have failed to take into consideration the loss of income during the period of treatment, awarded compensation from the date of accident till 18.05.2010, the date on which the High Court decided the appeal. As she was not in a position to look after and discharge her functions as a partner, the Supreme Court applied the multiplier method.
47. In Kavitha's case (cited supra), the Supreme Court, having regard to the age of the injured, 30 years, and continued to be in a vegetative state, having lost her capacity of understanding, establishing interconnection and the long period of treatment, awarded a sum of Rs.3,00,000/-, under the head, pain and suffering. The Apex Court also awarded Rs.3,00,000/-, under the head, loss of amenities.
48. In the case before us, the accident has occurred on 13.12.2009, in which, the injured has suffered multiple injuries, stated supra, underwent surgeries, hospitalised for long period and still continues to be under treatment. Attendant has deposed that the injured requires assistance. Medical Board, in its report, has also recorded its observations, as to the present physical condition of the claimant.
49. As per the Glasgow Comma Scale, when the condition is 8/15, one cannot predict, as to when the injured would regain his normal status. He has been suffering for nearly six years and it is not known, as to how long, he has to suffer and what would be the extent of recovery, with or without defect in the neurological system. Having regard to the medical history, length of treatment, till date and future, this Court, following the decision in Kavita's case, deems it fit to award a sum of Rs.3,00,000/-, under the head pain and suffering and Rs.3,00,000/- under the head, loss of amenities, which has been explained by the Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, as follows:
"deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function".
50. A sum of Rs.1,52,250/- has already been granted by the Tribunal, towards attendant charges. In Kavita's case, the Hon'ble Supreme Court, having regard to the age of the claimant therein and the salary paid to the attendant, ie., Rs.2,000/- per month and assuming the life expectancy, upto 55 years, calculated the attendant charges for 25 years. In the said case, one of the Doctors, who examined the injured Kavita, has deposed that she would gain conscious slowly, but the status of the patient was on the lowest level and there was no improvement for the last 2= years. He has also deposed that probability of further development was negligible.
51. In the reported case, he had further deposed that while the treatment continues, hope of improvement always prevails. Case on hand before us, is not better than Kavita's case (cited supra) and more or less the same, as the injured is assessed to be in a vegetative state, requiring attendant at all times. All that is recorded by the Team of Doctors is that vitals are stable, but there is no response to the oral command and there is no eye to eye contact.
52. Though a sum of Rs.8,500/- is stated to have been paid to the attendant, PW.3, the Claims Tribunal has fixed the attendant charges as Rs.4,500/- (ie., Rs.150/- per day). The Claims Tribunal has also recorded that the claimant had been brought to the Court and that he was not conscious. Impugned judgment in M.C.O.P.No.532 of 2010, has been rendered on 25.02.2013. Now, for more than three years and eight months, still, the condition has not improved and he is in a vegetative state. Hence, the prayer for attendant charges requires to be answered.
53. Even accepting the monthly attendant charges, as Rs.4,500/-, as on date, mother of the injured, would have incurred a sum of Rs.1,44,000/- for the two years and eight months. Enhancement sought for, is Rs.6,00,000/-. Considering the escalation of costs, wages, one cannot expect that the attendant charges would remain the same. Therefore, this Court deems it fit to fix the attendant charges of Rs.5,000/- per month.
54. The next question to be considered is, as to, how long the charges have to be paid. As stated supra, in Kavita's case, the Apex Court decided the award the attendant charges for 25 years, fixing the life expectancy as 55 years. But in the above case, the estimated attendant charge was Rs.2,000/- and by calculating the same for 25 years, the Supreme Court has awarded Rs.6,00,000/-.
55. As of now, the estimated attendant charge, with a sum of Rs.4,500/- for two years and eight months, since discharge, works out to Rs.1,44,000/-. If Rs.5,000/- is fixed as the attendant charges per month, from today and if it is calculated for six years, the estimated charge works out to Rs.3,60,000/-. Hence, the total compensation towards attendant charges works out to Rs.5,04,000/- and the same is awarded.
56. The Tribunal has failed to award any compensation for loss of earning, during the period of treatment. At the time of accident, the injured was aged about 30 years. As per the decision in Syed Sadiq, etc., Vs. Divisional Manager, United India Insurance Co., Ltd., reported in 2014 (1) TNMAC 459 (SC), we have now fixed the monthly income as Rs.6,500/-. Now, for nearly six years, from 13.12.2009, the injured is immobilised, totally incapacitated from doing any work. Though in the application filed before the Claims Tribunal, the age of the injured is stated as 32 years, in all the medical records, the age is mentioned as 30 years. Based on the same, we deem it fit to fix the age as 30 years. Application of multiplier mothod for computing the loss of earning cannot be opposed, as medical redords prove that, the injured is wholly incapacitated. The multiplier to the age of the injured as per Sarla Verma v. Delhi Transport Corporation, reported in 2009 (2) TN MAC 1 (SC), is, '17'.
57. In Kavitha's case (cited supra), the Hon'ble Supreme Court has awarded compensation under the head, Loss of Earning, from the date of accident, till the High Court decided the appeal filed for enhancement. Following the decision, fixing the monthly income as Rs.6,500/-, we calculate the same from 13.12.2009 to this date and accordingly, award a sum of Rs.4,55,000/-, under the head, loss of earning, during treatment.
58. Taking note of the physical condition of the injured, loss of future earning and adding 50% of the income towards future prospects, the compensation towards loss of earning during the period of treatment and future earning capacity works out to Rs.19,89,000/- (Rs.9,750/- x 12 x 17). 1/3rd deduction towards personal and living expenses, is not liable to be made, in view of the decisions made in Raj Kumar v. Ajay Kumar reported in (2011) 1 SCC 343, following the decision made in New India Assurance Company Limited v. Charlie reported in 2005 (10) SCC 720, as follows:
In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses.
59. As regards medical expenses, the injured has claimed Rs.15,00,000/- (Amended as per the order in I.A. in M.C.O.P.). Based on the medical bills, discharge summaries, stated supra, the Tribunal has awarded Rs.10,12,312/- + Rs.1,30,717/- = Rs.11,43,092/-.
60. Ex.P12 is the Certificate, issued by Deepak Hospital, for future medical expenses, for Rs.7,00,000/-. Dr.Senthil Kumar, has issued a Certificate. However, the Claims Tribunal has awarded Rs.4,00,000/-. After discharge from the hospital, medical bills and prescriptions have been filed before this Court in M.P.No.1 of 2015 in C.M.A.No.2809 of 2013, to receive the same as additional documents and to prove that a sum of Rs.2,71,284.64, (rounded off to Rs.2,71,285/-) has been incurred by the claimant, till August, 2015. From April,2010, to August 2015, for five years and four months, approximately more than Rs.50,000/- per month, has been spent. Thus, out of Rs.4,00,000/- awarded for medical expenses, the claimant has spent Rs.2,71,284.64, rounded off to Rs.2,71,285/- till August, and the balance works out to Rs.1,28,715/-. The claimant would have incurred medical expenses for the months, September and October, 2015.
61. In the appeal, the claimant has sought for a sum of Rs.7,00,000/- towards future medical expenses. Considering the fact that a sum of Rs.2,71,285/- has already been spent from the date of discharge from Kumaran Hospital, out-patient treatment and future medical expenses, to be incurred at home and if necessary, in the hospital, we deem it fit to award a further sum of Rs.4,00,000/- towards future medical expenses.
62. Injured has lost his marriage prospects and the same requires to be compensated. Though the injured has claimed Rs.5,00,000/- under the abovesaid said, we deem it fit to award Rs.3,00,000/-.
63. In Kavita's case (cited supra), the Supreme Court has not awarded any separate compensation, under the head, disability. Whereas, by applying the multiplier method, has awarded compensation, under the head, loss of future earning.
64. In B.Kothandapani v. Tamil Nadu Transport Corporation Ltd., reported in 2011(5) SCC 420, the Supreme Court held that an injured person is entitled to claim compensation both under the heads disability and loss of earning capacity. Following the abovesaid decision, we deem it fit to award a sum of Rs.3,00,000/- (Rs.3,000/- per percentage of disability) as disability compensation.
65. The Claims Tribunal has awarded just Rs.5,000/- under the head, extra nourishment. For survival and speedy recovery, medicines alone are not sufficient. Certainly, there should be adequate nourishment. The injured has underwent several surgeries, withstood the effect of continuous medication. The Team of doctors have recorded that vitals are stable. A sum of Rs.5,000/- under the head, extra nourishment, is low. For purchase of fruits, milk and other nutrients, one may have to spent atleast Rs.30/- to Rs.40/-, per day. Having regard to the continuous treatment for almost six years from the date of accident and future treatment, with supportive nutrients, claim for Rs.1,00,000/- could not be said to be unreasonable. Hence, considering the nature of injuries, period of treatment, a sum of Rs.1,00,000/- can be awarded under the head, extra nourishment.
66. A sum of Rs.5,000/- has been awarded under the head, transportation. Medical records, in particular, discharge summaries, make it clear that thrice, the injured has been hospitalised and discharged. In addition to the above, one may also reasonably presume that the the claimant would have been taken to the hospitals, for review, as advised and spent expenses, as out-patient also. Though a sum of Rs.1,00,000/- has been claimed, under the head, transportation, considering the expenses, already spent and likely to spent in future, it would be reasonable to award a sum of Rs.50,000/-, under the transportation. Thus, the total compensation arrived at by this Court, is Rs.63,93,342/-, as apportioned hereunder:
Loss of Earning Capacity : Rs.19,89,000/-
Medical Expenses : Rs.11,43,092/-
(Already awarded by Tribunal) Future Medical Expenses : Rs. 4,00,000/-
(Already awarded by Tribunal) Loss of earning from the date : Rs. 4,55,000/-
of accident till the date of (Rs.6,500/- per month, for 5 years disposal of appeal and 10 months) Pain and Suffering : Rs. 3,00,000/-
Loss of Amenities : Rs. 3,00,000/-
Attendant Charges : Rs. 1,52,250/-
(Already awarded by Tribunal) Attendant Charges incurred : Rs. 1,44,000/-
from the date of discharge till date, ie., for 2 years and 8 months @ Rs.4,500/- p.m., Attendant Charges for another: Rs. 3,60,000/-
6 years @ Rs.5,000/- p.m., Future Medical Expenses : Rs. 4,00,000/-
Marriage Prospects : Rs. 3,00,000/-
100% Disability : Rs. 3,00,000/-
(@ Rs.3000/- per percentage) Extra Nourishment : Rs. 1,00,000/-
Transportation : Rs. 50,000/- -------------------- Total : Rs.63,93,342/- --------------------
67. A sum of Rs.25,60,279/- has already been awarded by the Claims Tribunal with interest at the rate of 7.5% per annum. A sum of Rs.15,60,653/- with proportionate interests and costs, has already been deposited to the credit of M.C.O.P.No.532 of 2010, on the file of the Motor Accident Claims Tribunal (1st Additional District & Sessions Court) Tiruppur and also directed to be withdrawn, vide order, dated 14.08.2015.
68. In Nagappa v. Gurudayal Singh, reported in 2003 (6) SCC 274, the Hon'ble Apex Court held that interest cannot be levied on future medical expenses or future transportation and hence, the respondent/claimant is not entitled to any interest on the award towards future medical expenses.
69. In the light of the discussion and decisions considered, C.M.A.No.3422 of 2013, filed by the Tamil Nadu State Transport Corporation is dismissed. C.M.A.No.2809 of 2013, filed by the claimant, through his next friend and guardian, is allowed. Compensation is enhanced to Rs.63,93,342/-. Though the claim is made for Rs.40,00,000/-, considering the principles of law, in awarding just compensation, the abovesaid amount is arrived at. Claimant, through his mother, is directed to pay the necessary Court fee. Thus, deducting the amount already deposited and the statutory deposit of Rs.25,000/-, the Tamil Nadu State Transport Corporation, Coimbatore, is directed to deposit the balance award amount, with proportionate accrued interest at the rate of 7.5% on all heads, except future medical expenses of Rs.4,00,000/- already awarded by the Tribunal and Rs.4,00,000/- awarded by this Court, on the same head, within a period of six weeks, from the date of receipt of a copy of this order. Pursuant to the deposit, the claimant is permitted to withdraw the entire amount with interest and costs, by making necessary application before the Tribunal. No costs. Consequently, the connected M.P.No.1 of 2015 in C.M.A.No.2809 of 2013 and M.P.Nos.1of 2013 and 1 of 2015 in C.M.A.No.3422 of 2013 are closed.
Index : Yes/No (S.M.K.,J.) (M.V.,J.)
Internet : Yes/No 01.12.2015
dixit/skm
S.MANIKUMAR,J.
AND
M.VENUGOPAL,J.
skm
To
The Motor Accident Claims Tribunal-cum-
I Additional District Judge, Tiruppur.
PRE-DELIVERY JUDGMENT
IN
C.M.A.Nos.2809 & 3422/2013
01.12.2015