(The second respondent was the third respondent before the Tribunal and he remained ex parte before the Tribunal. Hence, notice to the second respondent may be dispensed with)
(Prayer in C.M.A.No.1076 of 2009: Appeal filed under Section 173 of the Motor Vehicles Act, against the Decree and Judgment dated 20.03.2008 passed in M.C.O.P.No.82 of 2005, on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court), Srivilliputhur.
Prayer in Cross Obj.No.11 of 2010: Cross Objection filed under Order 41, Rule 33 CPC, against the Judgment and Decree dated 20.03.2008 passed in M.C.O.P.No.82 of 2005, on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate Court), Srivilliputhur.)
(B. RAJENDRAN, J)
1. The first appellant is the owner of the vehicle. The claimant/petitioner was 17 years old at the time of accident, studying second year Diploma Course in Computer Science in Arulmighu Kalasalingam Polytechnic, Krishnankovil. On 15.01.2002, when the claimant was travelling in T.V.S.50 bearing Registration No.TN-58-A-2589, as a pillion rider,, which was driven by one Nagaraj at a very slow speed observing all the traffic rules, at that time, a car bearing Registration No.TMR-7300, belonging to the first appellant herein, came from the opposite direction in a rash and negligent manner and dashed against the T.V.S.50, as a result of which, the claimant fell down and sustained multiple grievous injuries. The accident took place at 6.45 p.m. in Srivilliputhur ? Sivakasi main road near Nakkamangalam turning. According to the claimant, the accident took place only because of the rash and negligent driving of the car driver. In this context, Malli Police registered a case in Crime No.7 of 2002 under Sections 279, 337 and 304A of IPC.
2. In the accident, the claimant suffered fracture injuries in his right frontal bone and rupture of urinary bladder. The claimant was immediately admitted to Government Hospital, Srivilliputhur and thereafter, he was referred to the Government Rajaji Hospital, Madurai. Thereafter, the claimant was admitted in Meenakshi Mission Hospital and Research Centre, Madurai on 15.01.2002 and he was treated as an in-patient upto 24.02.2002. During the said period, he underwent two operations for setting right his urinary bladder, as there was a blockage of urinal output, as a result, urine is not being passed through the regular passage.
3. The claimant has suffered permanent disabilities and his memory has fainted. He suffered constant headache and he is not able to pass urine in the regular passage, as his urinal bladder is ruptured. The claimant's future prospects are completely lost and shatterred and he cannot marry. His movement is totally restricted. Therefore, he claimed compensation from the owner of the car which is insured with the New India Assurance Company, who has been impleaded as the second respondent in the claim petition. The claimant made a claim for a sum of Rs.26,97,000/- comprising of the following:-
a) Loss of earning : No
b) Partial loss of earning : No
c) Transport to Hospital : Rs. 10,000/-
d) Extra nourishment : Rs. 20,000/-
e) Damages to clothing &
articles : Rs. 2,000/-
I)Medical expenditure : Rs. 2,90,000/-
II)Future Medical expenses : Rs. 1,00,000/-
III)Cost of Attendant : Rs. 15,000/-
IV)Loss of future income : Rs.10,00,000/-
V)Loss of amenities : Rs. 2,50,000/-
g) Pain and suffering : Rs. 10,000/-
h) Compensation for continuing
of permanent disability if any : Rs. 5,00,000/-
i) Compensation for the loss of
earning power : Rs. 5,00,000/-
j) Total : Rs.26,97,000/-
4. The insurance company has filed a written statement stating that Ambassador Car was not responsible for the injuries sustained by the claimant, whereas the rider of the T.V.S.50, namely, Nagaraj, who died in the accident, was the cause for accident. They have further contended that the amount claimed by the claimant is excessive and there is no nexus between the loss sustained and compensation claimed by him. Furthermore, they would also contend that the owner and insurer of T.V.S.50 vehicle is a proper and necessary party. But, in the additional counter, they would admit that T.V.S.50 was insured with the National Insurance Company.
5. Before the Tribunal, the claimant himself was examined as P.W.1 and one Dr.Venugopal was examined as P.W.2. who is a Neurologist consultant in Meenakshi Mission Hospital and Research Centre, Madurai. On behalf of the respondents, the Assistant Branch Manager of the insurance company was examined as R.W.1.
6. As per the discharge summary issued by Meenakshi Mission Hospital and Research Centre, Madurai, the claimant has undergone the following treatment:
From 15.01.2002 to 24.02.2002
Bleeding from the nose
?periorbital bilateral oedema with black eye.
?Swelling and abrasion Right fore head
?Blood from Urethral meatus
?Scrotal edema and Perineal swelling lowe abdominal distention and tenderness vending towards Left Inquinal region and thigh.
?Bruises bilateral foot and leg.
Icterus ? nil
Cyanosis - nil
Oedema - nil
Pulse rate : 100/mt
BP : 110/70 mm Hg
CVS : NAD
PA: Swelling and tenderness lower abdomen
Genitalia : Scrotal edema
PR Prostate: flat No bones felt as such.
On 15.01.2002 CT Scan Report:
ABDOMEN AND PELVIS
Features suggestive of extraperitoneal rupture of urinary bladder with left lower anterior abdominal wall haematoma probably due to active bleed from the ipsilateral inferior epigastric vessels.
Pubic symphysis diastasis with moderate free fluid in the peritoneal cavity.
No shift of midline structures
No evidence of intraxial or extra axial haematoma
Linear non depressed fracture of right frontal bone involving
Right frontal sinus with pneumacephalus
On 16.01.2002 Abdomen and Pelvis Scan Report
Impression: Extra Peritoneal Rupture of Urinary Bladder with Ascites.
On 16.01.2002 UNDER GA, CLOSURE OF BLADDER INJURY + PACKING OF RETROPUBLICSPACE DONE
Findings: Large Hematoma extending from the retro pubic space and covering the whole bladder and going up in the retro peitonium.
Bladder rupture detected on the anterior wall just above the pubic synphysis. Bladder opened up. No other areas of perforation seen. 18F foley placed per urethra.
30 F Malecot placed. Bladder closed in 2 layers. Bleeding from the Retropubic space partly controlled. Adgel and roller gauge packed in the renopubic space. Abdomen closed in layers.
On 27.01.2002 Alternate Suture removal done.
On 01.02.2002 Under SA, Closed Reduction + External Fixation done.
On 07.02.2002 Under LA, Cystogram + Urethral Catheter Removal + SPC Change + SPC Clamp done.
Findings: Cystogram ? Good filling of bladder. No extravasation seen. However bladder neck opened up till the DUS. He could not void. SPC malecot 32F (hosepipe) changed for 16 fr. Foley, 10cc balloon inflatedafter ensuring tube is in place by repeat Cystogram ? SPC clamped.
On 11.02.2002 SPC gram + Removal done
On 15.02.2002 Abdomen and Pelvis Scan Report
Impression: Liver, Gall Bladder, Spleen, Pancreas, Kidneys and Urinary Bladder are sonographically normal.
On 19.02.2002 Under LA, AUG + Catheterisation done
Findings: AUG ? There is evidence of extravasation from lower end of bladder + Prostatic area Recatheterised with 18f foley.
ABDOMEN AND PELVIS SCAN REPORT
IMPRESSION: Urinary Bladder wall thickened with intraluminal adherent blood clots. Liver, Gall Bladder, Spleen, Pancreas & Kidneys are sonographically normal.
From 20.07.2004 to 26.07.2004
Hydration ? Good
BP: 120/80 mm Hg
PA: Soft, BS(+)
Lower mid line scar (+)
Sphincter contraction ? good
Perineal sensation ? normal
On 20.07.2004 Under GA, Urodynamic evaluation + Scopy + Trans urethral resection of bladder tumour done.
Findings: Filling phase ? first sensation at 100 ml, pdet 3 cm of H2O. First urge at 336ml, pdet 3cm of H20. No unstable contractions. Voiding phase: Pdet upto 37 cm of H2O, PVRU: Nil. No abdominal straining. Normal pressure. Normal flow. Scopy: Urethra normal except sacculation at penoscrotal junction at ventral aspect. Prostatic urethra? Scarred. Bladder showed multiple papillary growth occupying trigone, supratrigone, dome, left ureteric orifice and left lateral wall close to bladder neck. No trabeculation. Right ureteric orifice was normal. All tumours resected. Deep resection at 2 places. Left ureteric orifice was resected after RGC. Intravesical Mitomycin (40 mg) was put. 20 Fr. Foley placed in.
On 25.07.2004 Catheter removed. Voiding well.
Sections show polypoidal and papillary mucosal lesion with underlying inflammation, oedema and congestion of the lamina propria. In places the mucosa shows dysplastic changes.
Impression: Polypoidal and papillary cystitis with focal dysplastic changes.
ABDOMEN AND PELVIS SCAN REPORT
Impression: Papillary type of cystitis.
FROM 27.08.2004 TO 30.08.2004
Hydration - Good
PA: Soft, BS(+)
On 28.08.2004 Under EA, Scopy + Fulguration done.
Findings: 19F4.Scope was passed. Bladder-there was a resected scar and small papillry lesion over that area. All fulgurated. 20Fr. Foley placed in.
On 27.08.2004 USG Impression: Papillary type of cystitis.
On 29.08.2004 Catheter removed. Voiding well.
Smears show scattered epithelial cells, RBCs in a fibrinous background.
Malignant cells are not seen in the smears studied.
Sections show bladder mucosa and underlying zone shows dense collection of acute and chronic inflammatory cells especially eosinophils and lymphocytes with surrounding numerous thin walled congested blood vessels. Focal areas show attempted langhan's giant cell formation.
IN CORRELATING WITH THE CLINICAL HISTORY PICTURE SUGGESTIVE OF TUBERCULOUS CYSTITIS
FROM 21.09.2004 TO 27.09.2004
Temperature : 100F
P/A: Midline scar(+), No tenderness.
Genitalia - Normal
On 22.09.2004 Under EA, DIVU + P'SCOPY + BIOPSY + TUR DONE.
Findings: KUB - No ROD seen. Post contrast films of IVU show prompt excretion on both sides with normal PCS/Ureters. Bladder appears normal. Scopy done. Bladder full of clots - evacuated. Mucosal biopsy taken. Urethra dilated with 27F Iglasias sheath - mass at 12 O' Clock position near bladder nect resected, 20F Foley placed in.
On 25.09.2004 Catheter removed.
Voiding pattern: No haematuria, mild incontinence occasionally in full bladder, voiding with adequate force & calibre.
21.09.2004 USG Impression: Bladder shows wall thickening, few irregular polypoidal projection - cystitis.
23.09.2004 Bladder Biopsy Impression: Polypoidal cystitis.
24.09.2004 Urine culture: E.Coli. culture sensitivity to Amikacin, Imipenem, Nitrofuran.
ABDOMEN AND PELVIS SCAN REPORT
IMPRESSION: Bladder shows wall thickening, few irregular polypoidal projection - cystitis.
A. BIOPSY FROM ANT. WALL OF BLADDER
Sections show bladder mucosa lined by transitional epithelium and underlying subepithelial zone shows areas of haemorrahage and non-specific acute and chronic inflammatory cell collection.
B. TISSUE FROM 12 O' CLOCK POSITION:
Sections show bladder mucosa with polypoidal mucasal lesion underlying lamina propria shows areas of edema, inflammatory cell collection and haemorrhage.
IMPRESSION: Polypoidal cystitis
7. Considering the evidences on record and deposition of the doctor, the Tribunal granted compensation of a sum of Rs.12,00,000/- under the following heads:-
Medical expenses : Rs. 2,35,000/-
Future medical expenses : Rs. 2,50,000/-
Permanent disability : Rs. 80,000/-
Loss of future earning capacity : Rs. 4,60,800/-
Attendant's expenses : Rs. 14,200/-
Nutrition : Rs. 25,000/-
Loss of marital prospects and
permanent discomfort : Rs. 1,25,000/-
Pain and suffering : Rs. 10,000/-
Total : Rs.12,00,000/-
8. Aggrieved against the same, the appellants have preferred the present appeal and the claimant has also filed a cross appeal stating that the compensation granted by the Tribunal is very low.
9. We have heard both sides. On a careful analysis of the discharge summary issued by Meenakshi Mission Hospital and Research Centre, Madurai, it is evident that the claimant had undergone various operations and at the very young age, he was put to severe hardships. The rider of T.V.S.50, the said Nagaraj, has died on the spot and in the said accident, the urinary bladder of the claimant was ruptured and the intestines have been affected. Originally, he was admitted to Government Rajaji Hospital, Madurai and thereafter, he was shifted to Meenakshi Mission Hospital and Research Centre, Madurai on 15.01.2002 and upto 24.02.2002 he was treated as in-patient. During that period, two operations were performed, one in the stomach and the other for the hip fracture. In spite of the operations, he has been passing urine non-stop without any control. Due to the fracture in the hip bone, he cannot sit continuously for more than half an hour. Hence, he could not continue his studies and he will not be able to have a marital life. He was taking treatment continuously every month. On 10.07.2004, it was found that in the operated place, there was a tumour and hence, it was re-operated. For this purpose, he was admitted to hospital from 20.07.2004 to 26.07.2004 and he was once again admitted from 27.08.2004 to 30.08.2004 and from 21.09.2004 to 27.09.2004 and one more operation has been performed. Thereafter also, he was not fully cured. In spite of all these operations and having spent more than Rs.10,00,000/- still he is not cured fully and therefore, he has claimed compensation of Rs.26,79,000/-. He has also produced all the Doctor Certificates as well as the bills, hospital discharge summary, scan report and several documents pertaining to the treatment.
10. In his evidence, Dr. P.Venugopal, who was examined as P.W.2 would say that in view of the accident, oxygen did not pass into the claimant's brain and there is a slight damage in the brain also. He also confirmed various operations performed by him. Further, the muscles which controls the movement of the urine has been ruptured, therefore, he was urinating without control at all. He has even gone to the extent of stating that as per his medical report and treatment, since the muscles controlling the movement of the urine is not functioning properly and as there was a tube inserted into the urinary bladder at a latter stage, there is possibility of the claimant suffering from cancer and it would also mentally affect him. It is not at all possible for him to have marital life, but only he could move. He should also take continuous treatment and due to the backbone fracture, he will not be able to do any work and he cannot sit together. As per Ex.A48, disability certificate, the permanent disability sustained by the claimant was assessed at 80%. Even at the time of evidence, he would say that the claimant was passing urine through tube. The only suggestion made by the insurance company was even at the first operation, if it had been done properly, then he would not have complications and that the treatment given to him was beyond imagination and nothing else could be elicited from the cross-examination of the Doctor.
11. On behalf of the Insurance Company, the Deputy Manager has been examined. He has admitted that the ambassador car has been insured with the Insurance company and the claimant was travelling as pillion rider in the T.V.S.50 bearing Registration No.TN-58-A-2589. He would only say that because of the rash and negligent driving of the T.V.S.50 rider, who died in the accident, the accident took place. But, both the vehicles have been insured with the National Insurance Company. He would only contend that the contributory negligence should be given as the occurrence has taken place because of the dashing of the vehicles. In the cross-examination, he would admit that he does not know anything about the details and he is giving the evidence only on the basis of the file. He would admit that the first respondent vehicle has not violated any rule. He also would accept that the deceased Nagarajan, rider of the moped T.V.S.50, has also claimed compensation. But he would deny the said version after seeing the file. He would also admit that the driver of the first respondent vehicle has been charged and convicted in the criminal Court and the claim also has been settled in respect of the death of the said Nagarajan.
12. From the evidence given by the parties and as per the records, it is clear that as far as negligence is concerned, the Tribunal has categorically given a correct finding that inasmuch as the first respondent vehicle has not violated any rules, the third respondent alone was charge-sheeted for the offence of driving the vehicle negligently, namely, the ambassador car. He would also say that the driver of the said vehicle has been convicted for the charge. No evidence has been let in to say that the deceased Nagarajan was the cause for the accident and no records have been produced. Hence, the Tribunal has come to the correct conclusion that the accident took place in view of the rash and negligent driving of the third respondent in the Claim Petition and the second respondent in the appeal. We find no reason to interfere with the findings of the Court below in regard to the negligence. Even otherwise, the insurance company has transposed itself as the respondent and it is only for contesting the appeal, filed by the owner, the case was contested. In any view of the matter, as the evidence is cogent and clear, there is no necessity to interfere with the finding in regard to the cause of the accident.
13. As far as the quantum is concerned, the insurance company has raised certain points for consideration. At the outset, when we take into consideration the injury, first of all, the claimant/petitioner was only 17 years old at the time of the accident. At the time of his evidence, he was 20 years old. It is also clearly seen that he was a very bright student and he had got 451 marks out of 500 marks in the S.S.L.C. exam and he has also joined the Polytechnic college. As per Ex.A42, he had got 916 marks out of 1100 marks. Even in the second year Polytechnic in the third semester, as per Ex.A43, he had got 484 out of 600 marks He could not write the fourth semester examination due to the accident and thereafter, he could not continue the course, but still he is studying. He is a bright student with a very good prospectus for the future.
14. The claimant was originally hospitalised as an in-patient from 16.01.2002 to 26.02.2002 and there were operations performed in his urinary bladder and within 41 days, he has been operated on four occasions. Even in the urinary bladder, at least four operations had been performed. Subsequently, he was again admitted on 21.03.2002 to drain the urine from the bladder and further operation was performed. Thereafter, once again, he was admitted on 20.07.2004 as an inpatient, as he was passing out blood in the urine and there was a tumour in the urinary bladder which was also removed. Once again, he was admitted on 27.08.2004 and operated in the bladder. Lastly, on 21.09.2004, he was further operated to remove the tumour in the bladder. It was also opined that in future, as the tissues in the urinary bladder are not working properly, he may not able to control the urine and he will be passing the same without control. In such event, he has to necessarily depend on somebody. Further, the claimant has lost the chance to enter marital life. His disability has been assessed to 80%. Furthermore, he cannot sit for a long time and work continuously. Taking into consideration the enormous amount of mental torture and physical disability, which was inflicted on the petitioner and also taking into consideration the young age in which he was put into intolerable pain and suffering, we feel that, definitely, the claimant is entitled for higher compensation.
15. As far as the earning capacity is concerned of the petitioner is concerned, since he was a student and not earning at that point of time, the Tribunal came to the conclusion that from the twentieth year of his life, he would be earning and even if it is taken into consideration, he would earn a minimum of Rs.3,000/- per month. By adopting multiplier 16, the Tribunal worked out his earning capacity at Rs.5,76,000/- (Rs.3,000 x 12 x 16 = 5,76,000/-) and applying the 80% disabilities, the Tribunal awarded Rs.4,60,800/-. As far as medical expenses is concerned, the petitioner had taken treatment at Meenakshi Mission Hospital and Research Centre, Madurai where surgeries were perfor4med. The Tribunal therefore arrived at Rs.2,35,000/-, towards actual medical bills and further taking into consideration the evidence of the Doctor that he would definitely need further medical expenses and in future, operations have to be conducted and for the next five years he would be taking treatment, another sum of Rs.2,50,000/- was awarded. Towards permanent disability the Tribunal has separately given another sum of Rs.80,000/-. Towards attendant charge, a sum of Rs.14,200/- was awarded. For nutrition Rs.25,000/- was awarded. For loss of marital prospectus a sum of Rs.1,25,000/- and for pain and suffering Rs.10,000/- was awarded, totalling a sum of Rs.12,00,000/- was awarded.
16. The owner of the vehicle and the insurance company, aggrieved as against this, has preferred the appeal. The claimant has also preferred a cross objection stating that taking into consideration the enormous amount of pain and suffering and also the continued suffering, which he will have in future, enhanced compensation has to be ordered, but restricted the compensation in the cross objection to a further sum of Rs.13,00,000/-. He would mainly contend that the loss of earning of income should have been given as 100% and applying the 80% disability is not legally correct. Even for the medical expenses, some of the bills have been left out and he is further advised to undergo number of surgeries, namely, AMS artificial sphincter and evaluation of erectile and evaluation of ejaculatory, Evaluation of fertility function with cost of Rs.35 Lakhs within a short duration, otherwise he cannot lead normal life.
17. The Tribunal has taken Rs.3,000/- per month as the earning capacity of the claimant, but, it has failed to take into consideration that he will be working for a longer period and his income would increase much higher in the years to come inasmuch the claimant was studying Polytechnics. So, taking into his future prospectus as well as the earning capacity, we can easily fix the earning capacity at the rate of Rs.5,000/- per month and in that event, he would be earning Rs.60,000/- per annum. Applying multiplier of 16, he would earn easily a sum of Rs.9,60,000/-. Since it is almost 80% of disability and has lost his future prospectus also as he is going to be dependent with other, the entire loss of income would have to be taken into account. The Tribunal has given separate amount on the head of disability. We feel that the loss of income would be not less than Rs.9,60,000/-. If that is the case, the next important point is the loss of marital prospectus. It is very clear that the petitioner has been operated in the urinary bladder for more than five times and he is unable to stop the urine. This was clearly opined by the Doctor that in future, he may even incur cancer in the urinary bladder and he is not fit enough to have marital life at all. As an young boy, at this age, he has lost his marital life which has to be compensated in a better way. Hence, for loss of marital prospects, we feel that the compensation awarded by the Tribunal can be enhanced from Rs.1,25,000/- to Rs.2,00,000/-. As far as the medical bills are concerned, bills to the value of Rs.2,35,000/- has been submitted to show the medical expenses incurred. The Tribunal, after scrutinising each and every bill, has allowed Rs.2,35,000/- and therefore there is nothing for us to interfere with the amount. As far as future medical expenses is concerned, additional documents were filed wherein the Doctor has given a certificate that he requires further treatment and operations continuously for next five years. Therefore, the amount of Rs.2,50,000/- awarded by t
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he Tribunal is also fair and reasonable towards future medical expenses. As far as the pain and suffering is concerned, the Tribunal has awarded a meager amount of Rs.10,000/-. Taking into consideration the difficulty faced by the claimant for the injuries sustained by him and for having subjected to surgeries for more than five times, even though it cannot be calculated in terms of money, the meager amount of Rs.10,000/- would not be suffice and we enhance it to Rs.60,000/-. As far as attendant expenses is concerned, the reasonable amount of Rs.14,200/- was allowed and for nutrition taking into consideration that he has to take further treatment, the Tribunal has rightly awarded Rs.25,000/- which is also reasonable. If we add all these amount, the total would be Rs.17,44,200/- which can be rounded off to Rs.17,45,000/- taking into consideration the cross objection also filed by the claimant. 18. The learned counsel for the claimant has taken pains to bring to our attention the various definitions regarding damage and compensation. It is suffice to say that this is the fittest case where additional compensation has to be granted taking into consideration the ordeal the petitioner had undergone and the difficulties he has to face throughout his life time. 19. The petition in M.P.(MD) No.2 of 2010 has been filed by the petitioner/first respondent seeking to receive additional documents under Order 41, Rule 27 of CPC. The document, dated 04.12.2009, itself is being a certificate issued by a Doctor during the pendency of the appeal. The petitioner wants to produce this document only on the ground that the Doctor has certified that petitioner has to undergo a further course of treatment and he has to incur necessarily further expenditure in this regard. Inasmuch as, the Doctor has also certified that to the tune to which he will be expending he has filed this application to produce the document. But, when we carefully examined the evidence, already, P.W.2 the Doctor has been examined who was given treatment to him. He has categorically stated that in view of repeated operations held in his urinary bladder, he has to undergo further course of treatment for a number of years. Considering this aspect, the Tribunal has already granted a further some of Rs.2,50,000/- towards expenditure in this regard. Under these circumstances, the present application seeking for the production of certificate, that too only for this purpose of future expenses is not legally sustainable. Even otherwise, the certificate cannot be marked without the evidence and inasmuch as the appeal itself is taken up, we found no necessity or need for allowing this application or marking of this document. Hence, this petition is dismissed. 20. In the result, the Civil Miscellaneous Appeal filed by the owner of the vehicle is dismissed and the Cross Objection filed by the claimant is allowed enhancing the compensation from Rs.12,00,000/- to Rs.17,45,000/- with proportionate costs. Consequently, M.P.(MD)No.1 of 2009 and M.P.(MD)No.1 of 2010 are closed.