1 MVOP:40_14 MACT/III-ADJ, Gadwal
FAIR COPY
BEFORE THE MOTOR ACCIDENT CLAMS TRIBUNAL
- CUM -
III ADDITIONAL DISTRICT JUDGE, GADWAL,
MAHABUBNAGAR DIST.
Tuesday, 20 th day of October, 2020
Present: Y. Govinda Reddy,
Chairman,
Motor Accident Claims Tribunal, Gadwal
M.V.O.P. No. 40 of 2014
Between:
S. Rakesh Kumar Reddy S/o. S.Loka Reddy, Age: 24 Yrs, Occ: Presently Nil, R/o. Undavelli Village of Manopad Mandal, Mahabubnagar District.
... Petitioner
Vs.
1. Telugu Mahesh Babu S/o. Narsimulu, Age: Major, Occ: Owner of the Passion Pro motor cycle Br.No:AP-22-AN-4350, Mahabubnagar District.
2. National Insurance Company Limited, Rep. by its Divisional Manager, Opp. govt. Civil Hospital, Mahabubnagar.
... Respondents
* * *
This case has come up before me for final hearing on 13th day of
October, 2020 in the presence of Sri R. Raghuram Reddy, the Counsel for the petitioner and Sri A. Rajender Reddy, the Counsel for the Respondent no.2/National Insurance Company, and the Respondent no.1 remained ex-parte, and upon the perusing the material on record, and the matter having stood over for consideration till this day, this court has delivered the following: -
::A W A R D ::
[1]This petition is filed by the petitioner/injured U/Sec. 166 of The
M.V. Act claiming the compensation of Rs, 1, 00,00,000/- (Rupees one crore only) from the respondent no.1 (owner of crime motor cycle bearing no. AP 22
AN 4350) and respondent no. 2 (National Insurance Company) for the injuries 2 MVOP:40_14 MACT/III-ADJ, Gadwal sustained by him in the road traffic accident which occurred on 11-05-2014 at 17-00 hours.
[2] CASE OF THE PETITIONER:That on 11-05-2014 at about 11-30 hours the petitioner was proceeding on motor cycle bearing registration no. AP 22-AN 1293 from Undavelly village to Gadwal Town to attend a marriage function. When the petitioner reached near a culvert in the limits of
Jammichedu village, the crime motor cycle bearing registration no. AP 22 AN 4350 driven by the respondent no.1, came in a rash and negligent manner in opposite direction and hit the motor cycle of the petitioner, as a result of which the petitioner sustained severe injuries to his head, face and waist all over the body. The petitioner was shifted to Govt. Hospital, Gadwal, from where he was shifted to Renuka Hospital in Kurnool, where he underwent treatment from 11-5- 2014 to 12-05-2014, and was advised to visit a better hospital for necessary investigation and surgery. Accordingly, on 12-05-2014 the petitioner was shifted to Sunshine Hospital, Hyderabad, where he underwent surgery for fracture of his spinal cord (D4 to D9), and another operation for fracture to his right distal radius and was discharged 29-05-2014. Again the petitioner was shifted to Balaji
Hospital, Kurnool for suitable treatment and he underwent physiotherapy treatment from 29-05-2014 to 31-05-2014. Once again, the petitioner was shifted to Kerala Sanjeevani Ayurvedic Centre, Panjagutta, Hyderabad, where he underwent treatment for traumatic paraplegia from 11-10-2014 to 13-11-2014.
Even after discharge of the petitioner from the hospital, the petitioner was given physiotherapy treatment in Amma Hospital, Kurnool. The police of Gadwal
Rural PS have registered a case as Cr.No. 52/2014 for the offence U/Sec. 338 of
I.P.C., conducted an investigation and filed charge sheet against the respondent no.1. The District Medical Board, Mahabubnagar has examined the petitioner and declared his disability as 80% since the petitioner suffered fracture 3 MVOP:40_14 MACT/III-ADJ, Gadwal dislocation of D6 and D7 in spinal cord with bladder involvement, and that due to such disability the petitioner can not walk or stand throughout his life. His further case is that he expended more than a sum of Rs. 15,00,000 for his medical treatment, and inspite of it he could not come to normalcy due to fracture of spinal cord. Now the petitioner is totally confined to his bed and he can not move or crawl even to attend the calls of nature, and his bladder is running involuntarily. The petitioner requires the assistance of somebody to move from his bed even to attend the calls of nature and to take bathe. The petitioner is constantly taking physiotherapy even now and he is under constant medication for his pains and other side complications. The petitioner was aged about 25 years at the time of marriage, and he was hale and healthy at the time of accident. The petitioner is an MBA degree holder, and he was earning a sum of
Rs. 21,863 per month by doing a job in M/s Accenture Services Private Limited,
Banglore. By so saying the petitioner claimed Rs. 35,68,041 for loss of future earnings for 17 years, Rs. 15,78,170 towards medical expenses, Rs. 30,000 towards transportation bill, Rs. 51,00,000 towards physiotherapy, medical expenses, and attendant charges, Rs.10,00,000 towards pain and suffering, Rs.
5,00,000 towards loss of amenities and loss of marriage prospectus, and Rs.
20,00,000 towards loss of expectation of life, and from all the above heads the claim of the petitioner comes to Rs.1,37,76,511, but he restricted his claim to
Rs. 1,00,00,000. The crime vehicle was insured with the respondent no.2 and as such the respondent no.1 and 2 have to pay the compensation to the petitioner jointly and severally.
[3] COUNTER OF THE RESPONDENT NO. 1: The respondent no.1 remained ex-parte, and as such his counter is not on record.
4 MVOP:40_14 MACT/III-ADJ, Gadwal [4] COUNTER OF THE RESPONDENT NO. 2: The respondent no.2/National Insurance Company has filed its counter denying the rash or negligent driving by the rider of crime motor cycle, denying the educational qualifications and earnings of the petitioner, disputing the percentage of disability of the petitioner. The respondent no.2 further contended that the claim of the petitioner is excessive. The further contention of the respondent no.2 is that the rider of the crime motor cycle at the time of accident was not possessing the valid driving license and as such the respondent no.2 is not liable to pay any compensation. The respondent no.2 has also reserved its right to take all the defenses which are available to the insurer as per Sec. 170 of MV Act.
[5] ISSUES: Basing on the pleadings the following issues were settled by this Tribunal:-
1. Whether the accident occurred on 11-05-2014 at about 11-30 hours at a Culvert near the Tank-Bund, on the road running between Yarravalli and Gadwal in the limits of Jammichedu village, was due to rash or negligent driving of motor cycle bearing registration no. AP 22 AN 4350 by the respondent no.1 ?
2. Whether the petitioner is entitled for compensation, if so from whom and to what extent ?
3. To what relief ?
[6] EVIDENCE OF THE PETITIONER: The petitioner has examined Pws 1 to 6 on his behalf and got marked Ex.A1 to A34 on his behalf.
Ex.A35/Bank account extract has been marked by consent during the course of arguments. Now let me present gist of the evidence of the petitioner for the sake of perusal as under:
[6.1] PW1/S. Rakesh Kumar Reddy is the injured and claimant. His evidence in his chief examination is that on the date of accident while he was proceeding on motor cycle bearing no. AP-22-AN-1293, the respondent no.1 5 MVOP:40_14 MACT/III-ADJ, Gadwal came in high speed in negligent manner on his motor cycle bearing no. AP-22-
AN-4350 in opposite direction and hit him, as a result of which he sustained (1) fracture dislocation of D6 and D7 to spinal cord, (2) fracture of right distal radius, (3) gastric stress ulcer and (4) other multiple injures all over the body. That he was admitted in Govt. Hospital, Gadwal for first aid and later he was moved to
Renuka Multi Speciality Hospital, Kurnool where he took treatment from 11-5- 2014 and 12-5-2014, and later he was moved to Sunshine Hospital, Hyderabad where he underwent surgery for his spinal cord and left leg from 12-5-2014 to 29- 5-2014. That after discharge from Sunshine Hospital he was admitted in Kerala
Sanjeevani Ayurvedic Hospital, Panjagutta, Hyderabad where he took physiotherapy treatment from 11-10-2014 to 13-11-2014. That he incurred a sum of Rs. 15,00,000 towards medical expenses, and that the District Medical Board,
Mahabubnagar has certified that he suffered 80% of disability due to injury to his spinal cord and that he is not a position to attend even to his nature calls and that his bladder is running involuntarily. That after discharge from the hospital, he is totally confined to his bed and has been incurring a sum of Rs. 25,000 to
Rs.30,000 per month towards his medical expenses and extra nourishment. As regards to his income prior to accident, he deposed that he was earning a sum of
Rs. 21,863 per month by working as a Transaction Process Associate in
Accenture Services Private Limited, Banglore, and that because of this accident he was terminated. By so saying he prayed to award compensation of
Rs.1,00,00,000 and future medical and attendant expenses at the rate of Rs.25,000 to Rs. 30,000 per month. Ex.A1 is CC of FIR; Ex.A2 is CC of charge sheet;
Ex.A3 is CC of wounds certificate; Ex.A4 is Disability Certificate issued by
District Medical Board, Mahabubnagar District; Ex.A5 is MBA certificate;
Ex.A6 is photographs of petitioner (six in number); Ex.A7 is pay slip issued by
Accenture Services Limited, Banglore; Ex.A8 is his ID card issued by 6 MVOP:40_14 MACT/III-ADJ, Gadwal
Accenture Services Limited, Banglore; Ex. A9 to A34 are medical bills and laboratory reports; and Ex.A35 is account extract. In cross examination nothing was elicited from him except putting a suggestion that the Ex.A4/Disability certificate was obtained for higher value and that the medical bills issued by
Physiotherapy and Rehabilitation Center, Kurnool as in Ex.A25 and 28 (16 bills) are fabricated with exaggerated figures to claim more compensation.
[6.2]PW2/Cnhaskar Reddy is the Manager Balaji Hospital, Kurnool. He deposed that the petitioner has undergone treatment in Balaji Hospital, Kurnool from 29-5-2014 to 31-5-2014 and that the petitioner has paid a sum of Rs. 5,100 under Ex.A20-receipt.
[6.3] PW3/Dr. K. Suryavardhan is consultant Physiotherapist at Amma
Physiotherapy and Rehabilitation Center, Kurnool. He deposed that he had advised the petitioner by way of prescription as under Ex.A25 to purchase surgical items like folding cot, air bed, spinal extension brace, folding wheel chair, walker and urine bag physiotherapy to the petitioner and that he had also given physiotherapy treatment to the petitioner and collected charges under the receipt as in Ex.A28 (16 receipts) on several dates. He added that he had issued the receipts in his individual capacity, but not on behalf of the Amma Hospital.
[6.4] PW4/Dr. Raghunatha Reddy is a medical practitioner in Renuka
Multi Speciality Hospital, Kurnool. He deposed that on 11-5-2014 the petitioner took admission in his hospital and discharged on 12-5-2014 with an advise to go to better hospital for further treatment and surgery in Hyderabad, and he issued
Ex.A9 and A10/receipts towards his charges.
[6.5] PW5/Dr. G.P. V. Subbaiah is Consultant practicing as a
Consultant Orthopedic Spine Surgeon in Care Hospital, Gachibouli, Hyderabad.
He deposed that on 13-5-2014 he had performed surgery on the petitioner for 7 MVOP:40_14 MACT/III-ADJ, Gadwal
Fusin D4 to D9, in Sunshine Hospital, Hyderabad and again he had performed another operation on 21-5-2014 on right distal radius and discharged the petitioner on 29-05-2014. He further deposed that at the time of discharge from
Sunshine Hospital, the petitioner had paralysis for his both the lower limbs with bowel and bladder disturbances. Ex.A17 (8 pages) is the discharge summary issued by him.
[6.6] PW6/Dr. Saji D’Souza is running Kerala Sanjeevani Ayurvedic
Hospital, Panjagutta, Hyderabad. He deposed that he gave physiotherapy to the petitioner from 11-10-2014 to 13-11-2014 and issued Ex.A21/summary report and A22 (14 receipts).
[6.7] PW7/Dr. S. Chakradhar Goud is working as Ortho Surgeon in
District Hospital, Mahabubnagar District. He deposed that on 2-9-2014 the petitioner appeared before the District Medical Board for obtaining disability certificate for the injuries sustained by him. He further deposed that on examination of the petitioner they found that the petitioner had fracture of right radius, fracture dislocation of D6 and D7 with para plegia and issued Ex.
A4/disability certificate with disability of 80% for post traumatic pare plegia, post
D6 and D7 fracture dislocation with bladder involvement, and that due disability the petitioner cant walk or stand throughout his life, and that he needs assistance for his entire life.
[6.8] PW8/ Priyatham Raghuram Kadali is working as People
Adviser Specialist in H.R. Department, Accenture Solutions Private Limited at
Hyderabad Branch. He deposed that the petitioner worked in their company from August,2013 to May 2014 as Process Associate and his salary during that period was Rs.12,916. He further deposed that Ex.A7/salary certificate was 8 MVOP:40_14 MACT/III-ADJ, Gadwal issued by their company, and as per Ex.A7 the salary of the petitioner was
Rs.20,860. He filed Ex.A34 (19 pages) file related to the petitioner.
[7] Now let me answer the issues basing on the above oral and documentary evidence.
[8] ANSWER TO ISSUE NO.1:
Whether the accident occurred on 11-05-2014 at about 11-30 hours at a Culvert near the Tank-Bund, on the road running between Yaravalli and Gadwal in the limits of Jammichedu village, was due to rash or negligent driving of motor cycle bearing registration no. AP 22 AN 4350 by the respondent no.1 ?
To answer this issue, the documentary evidence as in Ex. A1/FIR and
Ex.A2/charge sheet are the pertinent documents. The police have issued
Ex.P1/FIR, and filed charge sheet stating that the respondent no.1 drove the crime motor cycle bearing no. AP 22 – AN 4350 in rash and negligent manner and filed charge sheet for the offence U/Sec. 337 of I.P.C. The oral evidence of
PW1 that the respondent no.1 caused the accident with his rash and negligent driving and caused fatal injuries. The evidence of PW1 and the contents of
Ex.A1 and A2 are not under challenge. Therefore, I hold that the accident in question was occurred due to the negligent driving of the respondent no.1. As a result this issue is answered in favour of the petitioner and against the respondents.
[9] ASNWER TO ISSUE NO. 2:
Whether the petitioner is entitled for compensation, if so from whom and to what extent ?
In view of my finding in respect of issue no.1, the petitioner is entitled for compensation. Now let me proceed to determine the salary of claimant.
Admittedly, the petitioner is an MBA degree holder as can be seen from Ex.A5, which was issued by Jawaharlal Nehru Technological University of Anantapur, 9 MVOP:40_14 MACT/III-ADJ, Gadwal
Andhra Pradesh. Undisputably the petitioner used to work in Accenture
Solutions Pvt. Limited, Banglore at Level H sublevel 3 in Delivery Center at
Banglore. The evidence of PW1 is that prior to the accident in question, he was getting a sum of Rs. 21,863 per month from Accenture Services Private Limited,
Banglore and Ex.A7 is his salary certificate, Ex.A8 is ID card issued by his employer. The Ld. Counsel for the R-2 objected for taking Ex.A7 into consideration on the ground that Rs.21,863 of salary for April, 2014 includes
Rs.12,000 as a bonus, and his further contention is that bonus is a variable component in the salary for the reason that it may be high when the Company gets high profits, and it may be low when the profits are low or nil. As against this the Ld. Counsel for the petitioner has submitted that the Ex.A7 needs to be taken into consideration since the petitioner was given HRA @ Rs.1,750 p.m.,, and Conveyance Allowance @ Rs. 800 p.m. He invited the attention of the
Tribunal to the contents of Ex. A34, which is the service agreement/appointment letter issued by the employer of petitioner. Ex.A34 reads that the petitioner was appointed by Accenture Solutions Pvt. Limited, Banglore on 25-July, 2013. This document reads that the annual salary of the petitioner was fixed as under:
(a) Annual Fixed Compensation ... Rs. 1,23,400
(b) Variable Pay (20% of Annual Fixed Compensation) ... Rs. 24,680
(c) Annual Total Earnings ... Rs. 1,48,080 (a+b)
(d) Additionally bonus per annum ... Rs. 12,000
To be clear, I may reiterate that the (a) Annual Fixed Compensation was fixed at
Rs. 1,23,400, and in addition to it, (b) Variable Pay was given at the rate of 20% on Annual Fixed Compensation, which comes to Rs. 24,680. Annual Fixed
Compensation and Variable Pay put together come to Rs. 1,48,080 (Rs.1,23,400 + Rs.24,680), and this Rs.1,48,080 is shown as Annual Total Earnings. A sum of
Rs. 12,000 was also given to the petitioner towards annual bonus, and this is to be 10 MVOP:40_14 MACT/III-ADJ, Gadwal added to the Annual Total Earnings. As per Ex.A7/Salary Certificate the petitioner was also given a sum of Rs. 800 p.m., towards conveyance and another
Rs. 1,750 p.m., was also given towards HRA. Therefore the annual salary of the petitioner has to be taken as under:
(A) Annual Fixed Compensation ... Rs. 1,23,400 (B) Annual Variable Pay ... Rs. 24,680 ------------------ Annual Total Earnings (A + B) ... Rs. 1,48,000
Plus: Allowances (C) Annual Bonus ... Rs. 12,000 (D) HRA @ 1,750 p.m. ... Rs. 21,000 (E) Conveyance @ Rs. 800 p.m. ... Rs. 9,600
------------------
Total salary per annum ... Rs. 1,90,600 (Rs.15,883p.m.) ------------------
The oral evidence of PW7/authorized officer of the company that the petitioner was paid a sum of Rs.12,916 for the month of February, 2016, is not supported by either Ex.A7 or Ex.A34. For the above discussions the income of the petitioner is fixed at Rs. 15,883 per month on the basis of Ex.A-34. In the matter of National Insurance Co. Ltd vs Pranay Sethi on 31 October, 2017, the
Apex Court has held that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. As per the said judgment, the petitioner, who is aged about 25 years, is entitled to have an addition of 40% to his monthly salary towards future prospects. It is also settled law that the personal expenses at the rate of 50% shall be deducted from the salary income in the case where the claimant is a bachelor [Refer: Sarala Varma Vs. Delhi
Transport Corporation Civil Appeal No. 3483 of 2008]. The petitioner is a self-employed person. Hence his future prospects shall be taken as 40% and 50% of salary shall be deducted towards personal expenses of claimant, in computation 11 MVOP:40_14 MACT/III-ADJ, Gadwal of his salary. By adopting the above yard stick, the monthly salary income of the claimant is calculated as under:
(a) Salary of petitioner per month: ... Rs. 15,883
(b) Add: 40% of future prospects : ... Rs. 6,353 --------------- Salary on addition of future prospects: ... Rs. 22,236
(c) Less: 50% of personal expenses: ... Rs. 11,118 --------------- Income to be taken into consideration after adding 40% of future prospects and after deduction of 50% of personal expenses: ... Rs. 11,118 ( Per month ) ----------------
For the above discussions, I hold that the income of the petitioner for the
purpose of computation of compensation shall be taken as Rs. 11,118 per
month.
[9.1] Now let me examine the disability of the petitioner. PW5/Dr. G.P.
Subbaiah,Consultant of Orthopedic and Spine Surgeon, Sunshine Hospital,
Hyderabad deposed that he had performed two surgeries on PW1 on 13-05-2014 and 21-05-2914 on right distal radius and on Fusion D4 to D9 and issued
Ex.A17/Discharge Summary. There is no dispute with regard to that the PW1 had undergone two surgeries for his vertebra and right distal radius. The petitioner has filed Ex.A4/Medical Certificate issued by the District Medical
Board, Mahabubnagar. PW7/Dr. S. Chandra Sekhar Goud, Ortho Surgeon of
Govt., District Hospital, Mahabubnagar, deposed that on 02-09-2014 the District
Medical Board, consisting of himself and District Medical Board of
Mahabubnagar, had examined the person of PW1 and observed the following:
(1) Fracture of right radius, (2) Fracture of D6 and D7 vertebra with paraplegia, and (3) Fracture of D6 and D7 vertebra with bladder involvement.
12 MVOP:40_14 MACT/III-ADJ, Gadwal
He further deposed that the disability of the petitioner was estimated at 80% for post traumatic paraplegia, and that the patient (PW1) can not walk or stand throughout his life and that he needs the assistance of somebody for his entire life. He admitted to have issued Ex.A4/disability certificate. Settled medical proposition is that Paraplegia is caused by spinal cord injury, or a congenital condition such as spina bifida that affects the neural elements of the spinal canal.
The area of the spinal canal that is affected in paraplegia is either the thoracic, lumber, or sacral regions. Immediately after the spinal cord injury, the loss of movement, sensation, and reflexes below the level of the spinal cord injury can occur. Sexual dysfunction and loss of bowel and bladder control may also occur, depending on where the spinal cord injury occurred and if the spinal cord was completely cut or partially cut. Damage to lower area of spinal cord may result in paralysis of the legs, whereas damage farther up on the cord causes possible loss of control over the muscles of the bladder and rectum as well or, if occurring even higher, may result in paralysis of all four limbs and loss of control over the muscles involved breathing. Due to the decrease of loss of feeling or function in the lower extremities, paraplegia can contribute to a number of medical complications to include pressure sores, thrombosis and pneumonia. Constant
Physiotherapy and various assistive technology such as a standing frame as well as vigilant self-observation and care may aid in helping to prevent future and mitigate existing complications. Life expectancy for people with paraplegia is lower than the normal. When the case of the petitioner is examined on the above medical proposition, it is clear that the petitioner who suffered fracture dislocation of D6 and A7 can not attend to his normal functions such as sitting, standing and walking. PW5 categorically stated that the petitioner can not walk or stand throughout his life, and he needs the assistance of somebody for his entire life. The medical disability of the petitioner with reference to injury to 13 MVOP:40_14 MACT/III-ADJ, Gadwal spinal cord is 80%, whereas the functional disability of the petitioner is 100%.
The reason being that the petitioner being a corporate employee is supposed to dress up neatly, reach to his work place in a gentle gait, walk and move in the work place, hold meetings, take decisions, and implement them to the satisfaction of his employer. The person like PW1, who is sitting in wheel-chair being cathetered with an urine drainage bag, can not perform his duties to the satisfaction of any corporate-boss. Hence he is not suitable to the present job in
Accenture Company. Ex.A34 reads that the petitioner was terminated with effect from 02-3-2016. The possibility of PW1 doing similar job in his future is impossible, and as such his functional disability is to be taken as 100%. In the case of Rajkumar Vs. Ajay Kumar, (2011)1 SCC 343, the Apex Court gave an illustration of driver, who had permanent disability of hand, and stated that the loss of his future earning capacity would be virtually 100% since he will never be able to drive the vehicle again. The contention that the such driver can take another suitable employment, can not be countenanced to reduce compensation.
In the case on hand, since the petitioner is paralyzed in his lower limbs with fracture of D6 and D7 of spinal cord and confined to wheel-chair, his functional disability shall be regarded as 100%, which I do. The disability of the petitioner, therefore, taken as 100%.
[9.2] COMPUTATION OF COMPENSATION:Now let me proceed to compute the compensation to the petitioner. In the case of compensation for injuries in road accident, the oft-quoted judgment is Rajkumar
Vs. Ajay Kumar, (2011)1 SCC 343, wherein the Apex Court has laid down the heads under which compensation is to be awarded for personal injuries:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
14 MVOP:40_14 MACT/III-ADJ, Gadwal
(ii) Loss of earnings (and other gains) which the injured would have
made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages):
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads
(ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. ..” [9.3]In the case of K. Suresh Vs. New India Assurance Company &
Ors, 19 October, 2012, the Apex Court has ordained to grant “just compensation” since it was emphasized in Section 168 of The Motor Vehicles
Act, 1988, and it was indicated that the compensation awarded must be neither bonanza nor a windfall, and simultaneously, should not a pittance. Applying the aforesaid principles, we need to proceed to assess compensation in terms of Raj
Kumar Vs. Ajay Kumar (supra).
[9.4] PECUNIARY DAMAGES (SPECIAL DAMAGES):
Under this head, (1) the expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure, (2) loss of earnings during the period of treatment, (3) loss of future earnings on account of disability, and (4) future medical expenses, needs to be awarded.
Now let me proceed to deal each of them.
15 MVOP:40_14 MACT/III-ADJ, Gadwal
Expenses relating to transportation, treatment, hospitalisation,
medicines, nourishing food and miscellaneous expenditure,
TRANSPORTATION: The petitioner has testified that immediately after the accident, he was shifted to Govt. Hospital, Gadwal, from there he was shifted to
Renuka Multi Speciality Hospital, Kurnool where he was given some treatment on 11-5-2014 and 12-5-2014, and later he was referred to Sunshine Hospital,
Hyderabad, where he underwent surgery between 12-5-2014 to 29-05-2014 for his fracture of right distal radius and fracture of spinal cord. He further deposed that he took physiotherapy treatment from Kerala Ayurvedic Center, Panjagutta,
Hyderabad from 11-10-2014 to 13-11-2014. He further deposed that he took treatment from Amma Physiotherapy and Rehabilitation Center, Kurnool after discharge from Kerala Ayurvedic Center, Hyderabad. Now let me see the medical expenses incurred by him towards transportation. The petitioner has filed five bills as in Ex.A27 (Five receipts) to prove his payment towards transportation. I have perused five receipts under Ex.A27. They are showing that the petitioner has engaged Ambulance from Sai Krupa Ventilator Ambulance
Services, Kurnool, for the purpose of moving from Gadwal to Kurnool, from
Kurnool to Hyderabad, and Hyderabad to Kurnool on several dates, and totally he paid Rs. 30,300. The distance between Gadwal to Hyderabad is 180 Kms and distance between Gadwal to Kurnool is 60 Kms; and per each trip Rs.6,000/- to
Rs.7,000/- was charged by ambulance, and it is reasonable. Therefore Rs.30,300 is allowed to the petitioner towards transportation charges.
TREATMENT, HOSPITALISATION, MEDICINES: The petitioner has filed medical bills as in Ex.A10 to A16 to prove his payments dated 11-5-2014 and 12- 5-2014 to Renuka Multispeciality Hospital, Kurnool to the tune of Rs. 41,558.
I have examined them. They are disclosing that the petitioner has paid amount towards MRI scanning, CT scanning, X-rays of all suspected fractures at seven 16 MVOP:40_14 MACT/III-ADJ, Gadwal places, blood and sugar profile testing, some medicines, IV sets to supply fluids, urine bag and its catheter. The treatment given at Renuka Multispeciality
Hospital is showing that on 11-5-2014 and 12-5-2014 they conducted preliminary investigation all over the body and after finding fractures, they referred the petitioner to Sunshine Hospital, Hyderabad for necessary operation. PW4/Dr. J.
Raghunatha Reddy has certified that Ex.A9 and A10 were issued by his hospital.
The amount paid by the petitioner under Ex.A 10 to A16 in Renuka
Superspeciality Hospital is Rs. 41,558 allowed since it is justifiable
expenditure.
The petitioner has filed bunch of medical bills as in Ex.A18 and A19 (18 bills) in respect of amount spent by him in Sunshine Hospital, Hyderabad from 12-5- 2014 to 29-05-2014 for his medical treatment and surgical charges. PW5/Dr.
G.P.V. Subbaiah deposed that he had performed operation on the petitioner for his fracture of right distal radius, and for fracture dislocation of D6 and D7 in spinal cord, and issued Ex.A17/summary. I have perused Ex.A17 and it reads that the petitioner has undergone surgery on 13-5-2015 and he was discharged from the hospital on 29-05-2014. I have examined Ex.A18/medical bill and it reads that the petitioner has paid Rs.3,16,581 to Sunshine Hospital, Hyderabad.
I have perused Ex.A19 (18 bills) under which the petitioner purchased medicines and services from Sunshine Hospital, and the amount involved in these bills is the amount involved in these is Rs. 25,666. The petitioner has paid a sum of Rs. 3,42,247 to the Sunshine Hospital towards two surgeries and medicines.
The claim of the petitioner in this regard is just and tenable. Therefore, the
claim of petitioner for Rs. 3,42,247 towards medical expenses spent in
Sunshine Hospital, Hyderabad under Ex.A 18 and A19 is allowed.
17 MVOP:40_14 MACT/III-ADJ, Gadwal
The petitioner further claimed a sum of Rs. 5,100 which he is stated to have spent in Balaji Hospital, Kurnool from 29-5-2014 to 30-5-2014. PW2/C.
Bhaskar Reddy deposed on behalf of Balaji Hospital, Kurnool that the petitioner was admitted in his hospital on 29-5-2014 and discharged on 30-5-2014 for which he paid Rs. 5,100 under Ex.A20. I have perused Ex.A20 and it reads that the petitioner has paid Rs. 5,100 to Balaji Hospital. The claim of the petitioner
for Rs.5,100 under Ex.A20 towards medical expenses spent in Balaji
Hospital, Kurnool is allowed.
The petitioner has filed Ex.A22 to A24 for a sum of Rs. 2,75,018 in respect of his physiotherapy treatment in Kerala Sanjeevani Hospital, Panjagutta,
Hyderabad from 11-10-2014 to 13-11-2014. PW 6/Dr. Saji D’Souza, who is running the hospital, deposed that he had given treatment for traumatic paraplegia and his hospital issued Ex.A21 and A22 (14 bills). I have perused Ex.A21 and
A22. Ex.A21 reveals that the petitioner was given ayurvedic treatment in the form of abhyanga, elakizhi, thoracic vasti, sarwangadhara, mamsarohini, navarakizhi with traction for neck/back. Ex.A22 to A24 read that the petitioner has paid a sum of Rs. 2,75,018 to Kerala Sanjeevani Ayurvedic Hospital for post- operation physiotherapy. Physiotherapy treatment is essential for the patient who underwent surgery. Therefore, I feel that the amount spent by the petitioner under Ex.A22 to A24 has to be compensated. Hence the amount covered by
Ex.A22 to 24 is allowed.
The petitioner has paid a sum of Rs. 17,430 under Ex.A26 towards purchase of surgical instruments like folding cot, air bed, hyper belt, walker, wheel chair and foot recover. These items are essential for the person who undergone major surgery for his comfort. Therefore the amount of Rs.17,430 spend by the petitioner is allowed.
18 MVOP:40_14 MACT/III-ADJ, Gadwal
The petitioner has filed Ex.A28 (bunch of 16 bills) to show that he has paid a sum of Rs. 8,70,000 towards physiotherapy in Amma Physiotherapy &
Rehabilitation Center, Kurnool. PW3/Dr. K. Suryavardhan, Consultant
Physiotherapist of Amma Hospital, Kurnool, deposed that he had given physiotherapy treatment to the petitioner for four years and issued 16 bills as under Ex.A28 in his individual capacity. The PW3 has charged a sum of
Rs.15,000 per month towards physiotherapy from June 2014 to May 2015, and
Rs. 1,80,000 per annum towards his consultation fee for the years 2016, 2017, 2018 and 2019. The learned counsel for the R-2 has contended that the claim is exorbitant. The PW3 has admitted in his cross examination that he had issued 16 bills under Ex.A28 in his individual capacity, but not on behalf of Amma
Physiotherapy & Rehabilitation Center, and that he had not shown this amount in his income tax returns. A patient, like the petitioner, visits the hospital with pain, suffering and discomfort, and pays money at the prescribed counter in the hospital, and the patient can not be blamed for the Doctor not showing such income in his income tax returns. The petitioner suffers incalculable loss if he is denied medical expenses. It is to be born in mind that the essential and indispensable medical charges born by the petitioner, shall not be disallowed merely because the greedy person like PW3 has evaded the income tax on his earnings. It is the funeral between the Income Tax Department and the PW3, but not the petitioner. Now let me examine as to whether the claim of the petitioner under Ex. A28 is false or exorbitant. It is undeniable fact that the petitioner underwent fateful surgery to spinal cord and suffering from paraplegia (paralysis to the lower part of the body) due to non-function of D6 and D7 in spine.
Physiotherapy is not a luxury to such a patient of paraplegia. Constant massaging by the physiotherapist is indispensable for the petitioner to keep upper part of his body in live and blood circulation condition. The claim of the 19 MVOP:40_14 MACT/III-ADJ, Gadwal petitioner to meet physiotherapy expenses is neither false nor dispensable. Now the question is whether the charges under Ex.A-28 are exorbitant and reasonable.
The petitioner is living in Undavally village, which is 40 KMs away from
Kurnool town, where Amma Physiotherapy Clinic is being run. The petitioner has to take a car or auto on hire, and take one attendantand proceed to Kurnool town, have treatment and return back in the car or auto. Two persons, one car or auto and one physiotherapist like PW3, have to be earmarked to the petitioner on every day for his service, and all the expenses like hire on car or auto, attendant, and physiotherapist charges shall be born by the petitioner. This ritual is not of single day. It must continue till the last breath of the petitioner. The family members like father, mother, brother will extend their service to the petitioner without expecting any remuneration, and even their services are also to be valued as per the judgment of Apex Court in Kajal Vs. Jagadish Chand, on 5 th
February, 2020. The victim of road accident shall not be get rid off just with a pittance, and he/she must be given just compensation and be placed with the same comfort which he would have, but for the accident. Therefore, the claim
of the petitioner to the tune of Rs. 8,70,000 towards physiotherapy charges in
Amma Physiotherapy & Rehabilitation Center, Kurnool, from the year
2014 to 2019, is allowed.
The petitioner has also claimed a sum of Rs. 9,104 under Ex. A29 and A30, and
Rs. 17,713 under Ex.A31 (bunch of 28 medical bills) under which he is stated to have purchased the prescribed medicines, got the blood tests, and paid consultation fee to the local Doctors of VR Multi Speciality Hospital at
Kurnool during the years 2014 to 2019. There is no whisper in the petition about taking treatment from VR Multi Speciality Hospital, Kurnool. The issuer of bills under Ex.A29, 30 and 31 were not examined, and as such they deserve to be 20 MVOP:40_14 MACT/III-ADJ, Gadwal discarded, which I do. Therefore, the claim of petitioner in respect of
Ex.A29, A30 and A31 for Rs. 26, 817 is disallowed.
For the above discussions, I hold that the transportation expenses
incured by the petitioner towards Ambulance charges, and medical expenses
paid in Renuka Hospital of Kurnool, Sunshine Hospital of Hyderabad,
Kerala Ayurvedic Hospital of Hyderabad, Amma Physiotherapy of Kurnool,
to the tune of Rs.15,81,653 is hereby allowed. Medical bills as in Ex.A29, 30
to the tune of Rs.9,104, and to the of Rs. 17,713 under Ex.A31 are
disallowed.
LOSS OF EARNINGS DURING THE PERIOD OF TREATMENT: As per the judgment of the Apex Court in Raj Kumar Vs. Ajay Kumar (supra) the compensation is to be awarded to the injured person for the period of medical treatment. In the case on hand the petitioner met with an accident on 11-05-2014 and from that day onwards he was permanently reprieved of his income from salary. The present petition was presented on 04-11-2014. The loss of earnings from the date of accident (11-05-2014) to till the date of presentation of this petition 04-11-2014), has to be compensated to the petitioner at the rate of his monthly income, which I have calculated hereinbefore at para no.9 as Rs. 11,118.
From the date of accident to till the date of presentation of petition, 7 months have elapsed, and the petitioner is entitled for compensation for this period. This compensation will come out as Rs. 77,826 (Rs.11,118 x 7), which is awarded accordingly under the head “loss of earnings during the period of treatment”.
LOSS OF FUTURE EARNINGS ON ACCOUNT OF PERMANENT
DISABILITY: The petitioner was adjudicated as totally disabled and his disability was found at 100% in the earlier discussion hereinbefore. As per the judgment of the Apex Court in Raj Kumar Vs. Ajay Kumar, the petitioner 21 MVOP:40_14 MACT/III-ADJ, Gadwal has to be awarded compensation towards loss of future income on account of disability. I have assessed the income of the petitioner, hereinbefore at para no.9 with reasons, as Rs.11,118 per month, which comes to Rs. 1,33,416 per annum.
The petitioner is aged about 25 years and 17-multiplier is to be adopted to compute the compensation, as per the decision of Apex Court in Sarala Varma
Vs. Delhi Transport Corporation (supra). The compensation awardable is Rs.
22,68,072 (Rs.1,33,416 X 17). For the above discussions, I hold that the
petitioner is entitled for loss of earnings on account of permanent disability
for a sum of Rs. 22,68,072.
FUTURE MEDICAL EXPENSES: The petitioner is entitled for future medical expenses as per Raj Kumar Vs. Ajaya Kumar (supra). The petitioner, who is paralytic in his lower limbs and urinary bladder, requires medicines for every day and physiotherapy at least once in a week. The claimant is required to take a taxi or an auto and one attendant to reach physiotherapy center at Kurnool, for which he has to incur taxi charges. The medical expenses at the rate of Rs. 5,000 per month and physiotherapy at the rate of Rs. 4,000 per month, is not an exaggerative figure, and a sum of Rs. 9,000 is required per month towards medical expenses, and it comes to Rs. 1,08,000 per annum. If this is multiplied with 17-multiplier it comes to Rs. 18,36,000 (Rs.1,08,000x17). Therefore the
petitioner is granted compensation of Rs. 18,36,000 under the head “future
medical expenses”.
ATTENDANT CHARGES: In the case of Kajal Vs. Jagdish Chand (supra) the
Apex Court has indicated that the attendant charges should be quantified with the aid of same multiplier as the compensation is determinable. In the reported case a 9-year old girl, after the accident, was left with a very low I.Q., and severe weakness in all four limbs, with urinary incontinence, for which the Apex Court 22 MVOP:40_14 MACT/III-ADJ, Gadwal has awarded attendant charges to employ two attendants at the rate of Rs.5,000 each per month. In the case on hand the claimant is aged about 25 years and his mental faculties are normal, but his lower limbs have become weak and functionless, and bladder incontinence developed, as result of which he was rendered to bed and he is depending upon somebody for his day to day maintenance. This court feel that the services of one attender will meet the necessity of the claimant. Therefore, I am inclined to grant attendant allowance to employ one attandant at the rate of Rs.5,000 per month, which comes to Rs.
60,000 per annum, and by using the multiplier of 17 it comes to Rs. 10,20,000.
For the above discussions, I allow attendance allowance of Rs. 10,20,000 to the
petitioner.
[9.5] NON-PECUNIARY DAMAGES: As per the decision of Apex
Court in Raj Kumar Vs. Ajay Kumar (supra) the petitioner is entitled for non- pecuniary damages (general damages) under three heads – pain and suffering and trauma as a consequence of the injuries, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life (shortening of normal longevity).
PAIN AND SUFFERING AND TRAUMA AS A CONSEQUENCE OF THE
INJURIES: The Apex Court in the case of Kajal Vs. Jagdish Chand (Supra) has dealt with this aspect. In the reported case the claimant was a girl of 9 years with permanent disability. Having regard to this, the Apex Court has observed that the victim can not enjoy the fun of childhood, can not see the excitement of youth and company of friends, can not taste the pleasure of marital life and children, for all these deprivations, she was granted a sum of Rs. 15,00,000 as compensation. In the case on hand, the claimant is aged about 25 years and he is an unmarried. He can not stand and walk, can not sit due to fracture and 23 MVOP:40_14 MACT/III-ADJ, Gadwal malfunctioning of spinal cord, can not move among the friends, and he has to remain in bed with urine bag by his side till his last breath, for which this court feels that Rs.15,00,000 compensation will meet the ends of justice. Therefore,
compensation of Rs. 15,00,000 is allowed to the petitioner under the head
“pain and suffering and trauma as a consequence of the injuries”.
LOSS OF AMENITIES (AND/OR LOSS OF PROSPECTS OF MARRIAGE):
The Apex Court in the case of Kajal Vs. Jagdish Chand (Supra) has dealt with this aspect, and awarded a sum of Rs. 3,00,000 for the loss of marriage prospects.
This court is inclined to adopt the same and hereby grant Rs. 3,00,000 to the petitioner for the loss of marriage prospects for the petitioner.
LOSS OF EXPECTATION OF LIFE (SHORTENING OF NORMAL
LONGEVITY): The petitioner is aged about 25 years at the time of accident, and now he is aged about 30 years. His marriage prospects have become nil.
Because of fatal injury to his spine and bladder incontinence, he is forced to remain in bed room. Because of immobility and excretion of urine and faces in the diapers, his pelvis portion of body is prone to infections and bed sores. This will reduce his life span considerably. Therefore, this court feels that compensation of Rs.2,00,000 for loss of life expectation, will meet the ends of justice. Accordingly, a sum of Rs.2,00,000 is hereby granted for loss of life expectation.
For the above discussions, issue no.2 is answered in favour of the petitioner and against the respondent.
[10] ANSWER TO ISSUE NO. 3:
To what relief ?
24 MVOP:40_14 MACT/III-ADJ, Gadwal
In view of my findings in respect of issue no. 2, the petitioner is entitled to compensation under the following heads to the extent indicated above:
Amount Sl.No. Head of account (in Rupees)
1. Transportation : Rs.30,300/- Treatment, Hospitalization, Medicines
(i). Renuka Hospital : Rs.41,558/-
(ii) Sunshine Hospital : Rs.3,42,247/-
(iii) Balaji Hospital : Rs.5,100/- 2.
(iv) Kerala Sanjeevani : Rs.2,75,018/-
Surgical equiptment wheel chair, air bed,
(v) : Rs.17,430/- walker, folding cot
(vi) Amma Physiotheraphy : Rs.8,70,000/-
3. Loss of earnings during hospitalization : Rs.77,826/-
4. Loss of future earnings : Rs.22,68,072/-
5. Future medical expenses : Rs.18,36,000/-
6. Attendant charges : 10,20,000/-
Pain and suffering and trauma as a consequence
7. : Rs.15,00,000/- of accident
8. Loss of amenities (Loss of marriage prospects) : Rs.3,00,000/-
9. Loss of expectation of life : Rs.2,00,000/-
TOTAL: : Rs.87,83,551/- [11] In the result petition is allowed with proportionate costs thereby awarding compensation of Rs.87,83,551/- (Rupees eighty seven lakhs eighty three thousand five hundred and fifty one only) to the petitioner along with interest @ 9 % per annum from the date of petition till the date of realization payable by the respondents no.1 and 2 jointly and severally.
The respondents shall deposit the total compensation amount within thirty days from the date of this award and upon such deposit; the petitioner is permitted to withdraw 50% with proportionate costs and interest and balance amount of 50% shall be kept in Fixed Deposit in any Nationalized Bank for a period of three 25 MVOP:40_14 MACT/III-ADJ, Gadwal years. The compensation paid to the petitioner shall be exempted from Income
Tax as per the Judgment of Telangana High Court in Kolluri Narasamma Vs.
M.Anjaneyulu, 2019 (1) ALT 459.
Since the petitioner claimed exemption from the paymetn of court fee at the time of filing petition, petitioner shall pay the court fee, failing which, the same shall be deducted from the total compensation amount payable to him.
Rest of the claim is dismissed without costs.
The Advocate fee is fixed at Rs.10,000/-.
Typed to my dictation by Field Assistant, corrected and pronounced by me in the open court on this the 20th day of October, 2020.
III Addl. Dist. & Sessions Judge, Gadwal.
Appendix of evidence
For Petitioner For Respondents
PW1: S.Rakesh Kumar Reddy, -NIL- PW2: C.Bhaskar Reddy, PW3: Dr.K.Suryavardhan, PW4: Dr.J.Raghunath Reddy, PW5: Dr.G.P.V.Subbaiah, PW6: Dr.Saji DSouza, PW7: Dr.S.Chakradhar Goud, PW8: Priyatam Raghuram Kadali.
Exhibits Marked
For Petitioner::
Ex.A1: CC of FIR and complaint dt: 12-05-2014, Ex.A-2: CC of charge-sheet, Ex.A-3: Cc of wound certificate dt:12-05-2014, Ex.A-4: Original disability certificate issued by Medical board, Mahabubnagar, Ex.A-5: Original provisional certificate of MBA of petitioner, Ex.A-6: Photographs (8-Nos) of petitioner with its negative in the shape of CD, 26 MVOP:40_14 MACT/III-ADJ, Gadwal
Ex.A-7: Pay slip for the month of April,2014 issued by Accenture Service Pvt. Ltd., Bangalore, Ex.A-8: ID Card No: 10896788 of petitioner issued by Accenture Service Pvt. Ltd., Bangalore, Ex.A-9: Original emergency admission certificate, dt: 11-05-2014, Ex.A-10: Original essentiality certificate, dt: 12-05-2014, Ex.A-11: outpatient counter original cash bill dt: 11-05-2014, Ex.A-12: outpatient counter original cash bill of MRI dt: 07-05-2014, Ex.A-13: outpatient counter original cash bill of CT Scan dt: 11-05-2014, Ex.A-14: original registration receipt No: 2325, dt: 11-05-214, Ex.A-15: Original registration receipt No: 2331, dt: 12-05-214, Ex.A-16: Original pharcy bills (4-Nos.) of MM medicals, Ex.A-17: original discharge summary of petitioner Adm. No: SS-14-003466, Dt: 29-05-2014, Ex.A-18: Original IP detailed bill No:FB-43021, Dt: 29-05-2014 , Ex.A-19: Original pharmacy receipts ( 18 in Nos.), Ex.A-20: original Balaji Hospital, Kurnool in patient bill No: 3822, IP-9883, Dt: 31-05-214, Ex.A-21: Discharge summary of KSAC Hospital, dt: 13-11-2014, Ex.A-22: KSAC Hospital receipts (14 in Nos.), Ex.A-23: Requisition cum receipts, dt: 11-11-2014, Ex.A-24: Cash bill of Kerala Ayurvedic care, dt: 28-09-2014, Ex.A-25: Prescription for providing instrument for physiotherapy, dt: 03-06-214, Ex.A-26: Tax invoice of Malik marketing (2 in Nos.) dt: 31-05-2014, Ex.A-27: Original receipts (5 in Nos.), Ex.A-28: Original receipts (16 in Nos.) of Physiotherapy, Ex.A-29: Original in-patient admission/receipts (2 in Nos.), Ex.A-30: Original pharmacy bill (7 in Nos.), Ex.A-31: Original pharmacy bill (28in Nos.), Ex.A-32: X-Rays with reports (2 in Nos.), Ex.A-33: MRI reports with 12 films, Ex.A-34: Entire record of the petitioner marked by PW-8, Ex.A-35: Extract of Bank account of petitioner (by consent).
For Respondent::
-NIL-
III Addl. Dist. & Sessions Judge, Gadwal.