Partly allowed

Sairam S/O Manjunath Narasinganavar v. Rajesh S/O Basavaraju

Karnataka HC13 Sept 2023MFA/102221/2020

Case brief

AI extract

What is this about?

Compensation for disabling spinal injuries was enhanced by assessing whole-body disability at 100%, adding future prospects and awarding lifelong attendant charges. The insurer's liability was upheld despite delayed reporting. Both appeals were partly allowed, and interest was reduced to 6% per annum.

What did the court decide?

Compensation enhanced; interest reduced to 6% per annum, excluding future medical expenses. Insurer directed to deposit compensation within six weeks.

Sairam S/O Manjunath Narasinganavar Vs Rajesh S/O… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:10580-DB MFA No.101028 of 2021 C/W MFA No.102221 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO.101028 OF 2021 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.102221 OF 2020 (MV-I)

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IN MFA NO. 101028 OF 2021

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BETWEEN:

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IFFCO TOKIO GENERAL INSURANCE CO. LTD., BY DIVISIONAL MANAGER, NO.127A, BHAVANI ARCHADE, III FLOOR, NEAR OLD BUS STAND, OPPOSITE BASAVA VANA,

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NEW COTTON MARKET, HUBBALLI 580029, BY ITS AUTHORIZED SIGNATORY.

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…APPELLANT

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.12.13 15:17:43 +0530

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(BY SRI RAVINDRA R. MANE, ADVOCATE)

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AND: 1. SAIRAM S/O. MANJUNATH NARASINGANAVAR, AGE: 26 YEARS, OCC: VEGETABLE VENDOR, R/O: A/P. LOKUR VILLAGE, TQ: DHARWAD-581206.

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RAJESH B S/O. BASAVARAJU, AGE: MAJOR, OCC: BUSINESS, R/O: 237/7, 15TH MAIN, 3RD BLOCK, RAJAJINAGAR, BENGALURU 560010. (OWNER OF SWIFT CAR NO.KA-02/MJ-1331).

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…RESPONDENTS

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(BY SRI R.H. ANGADI, ADVOCATE FOR R1; R2 NOTICE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING CALL FOR THE RECORDS, ALLOW THIS APPEAL, SET ASIDE THE JUDGMENT AND AWARD DATED 30.05.2020 PASSED IN MVC NO.714/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD AND TO PASS SUCH OTHER ORDER OR ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO. 102221 OF 2020

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BETWEEN:

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SAIRAM S/O. MANJUNATH NARASINGANAVAR AGE:25 YEARS, OCC: VEGETABLE VENDOR, R/O: AT POST LOKUR VILLAGE, TQ AND DIST: DHARWAD.

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…APPELLANT (BY SRI R.H. ANGADI, ADVOCATE)

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AND:

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RAJESH S/O. BASAVARAJU, AGE: ABOUT 45 YEARS, OCC: BUSINESS, R/O: 237/7, 15TH MAIN, 3RD BLOCK, RAJAJINAGAR, BANGALURU-560 010.

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THE DIVISIONAL MANAGER, IFFCO TOKYO GENERAL INSURANCE CO.LTD., NO.127A, BHAVANI ARCACADE, 3RD FLOOR, NEAR OLD BUSSTAND, OPP: BASAVA VANA, NEW COTTON MARKET, HUBBALLI-580 029.

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…RESPONDENTS

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(BY SRI RAVINDRA R. MANE, ADVOCATE FOR R2; R1 NOTICE DISPENSED WITH)

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NC: 2023:KHC-D:10580-DB MFA No.101028 of 2021 C/W MFA No.102221 of 2020

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 30.05.2020 PASSED IN MVC NO.713/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, DHARWAD, AND CONSEQUENTLY ENHANCE THE COMPENSATION FROM RS.60,45,018/- TO 79,95,000/- TO MEET THE ENDS OF JUSTICE.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Both these appeals are preferred against the judgment and award dated 30^th May, 2020 passed in MVC No.714 of 2015 on the file of I Additional Senior Civil Jude and CJM at Dharwad (for short hereinafter referred to as the "Tribunal").

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For the sake of convenience, the parties in these appeal are referred to with their status and rank before the Tribunal.

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Brief facts of the case are that on 26^th June, 2015, at about 3.30 pm, the petitioner was returning to Dharwad from Amboli Falls, Belagaum in his Swift car bearing registration No.KA-02/MJ-1331. The driver of the said car was driving the same in high speed and in a rash and negligent manner. When the car was descending steep gradient in the same momentum near Bade Kollamath Cross,

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the driver lost control and as a result of the same, the car over-turned. Resultantly, the inmates sustained grievous injuries. The petitioner sustained loss of cervical lordosis, burst compression fracture of C6 vertebral body with retropulsation of fracture fragment causing spinal-cord compression; edema in the spinal cord extending from C6 to C7 level; fracture of D2 vertebral body and hematoma in prevertebral space extending from C2 to D4 level measuring 6.1mm in maximum thickness. Immediately, he was shifted to Vijaya Ortho and Trauma Centre, Belgaum where he was treated as inpatient from 26^th June to 05^th July, 2015. He was surgically operated viz. corpactomy + cage + plating. It is stated in the claim petition that the petitioner has spent Rs.3.00 lakh towards medicine and other expenses. It is further averred that till today he is bed-ridden and taking conservative treatment at Vijaya Ortha and Trauma Centre, Belgaum. It is further contended that prior to accident, the petitioner was hale and healthy and was doing vegetable vending and was earning Rs.9,000/- per month and because of the unfortunate accident, he has become physically disabled permanently and is unable to do any kind of work

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and was doing prior to accident. Accordingly, on all these grounds sought for compensation.

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Pursuant to Notice, respondents appeared and

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filed objections. The substance of the objections of the respondent No.1 is that the driver of the car has valid and effective driving licence and the insurance of the car is a packaged policy. It is further contended that the driver was cautious and was driving the car observing all traffic rules and regulations. There was rain and hence there was no chance to drive the vehicle in excessive speed or in a rash and negligent manner. The accident occurred due to the burst of tyre and the steering got locked and because of that the car turtled and the accident was not due to rash and negligent

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driving. It is also contended that the car was covered with valid insurance and the policy was valid as on the date of accident. If at all the Court comes to the conclusion that the petitioner is entitled for compensation, then the liability be saddled on the respondent No.2-Insurer to pay the compensation. He further denied the averments made in the claim petition and sought for dismissal of claim petition.

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The gist of the written statement of respondent

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No.2 is that the claim petition is frivolous, vexations and concocted one and as such is not maintainable of facts or in the eye of law. It is contended that the owner of the vehicle has not reported the occurrence of the accident and has not submitted the claim form and other documents like Registration Certificate, Fitness Certificate, Driving Licence, permit, etc. It is further contended that the driver of the vehicle was not having valid driving licence and hence has contravened the terms and conditions of the policy. Being aware that the driver has not got the valid driving licence, the owner has entrusted the vehicle to the driver and hence the Insurer is not liable to pay the compensation. It is further contended that the claim made by the petitioner is exorbitant, excessive and disproportionate to the nature of injuries suffered in the accident and on all these grounds sought for dismissal of the claim petition.

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Based on the pleadings, the Tribunal framed the following issues:

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Whether the petitioner proves the alleged accident and in the accident, petitioner sustained injuries?

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Whether the petitioner is entitled for the compensation? If so, how much and from whom?

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What order or Award?

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In order to prove the case, the petitioner got himself examined as PW1 and examined Dr. Shrinivasalu as PW2 and got marked 28 documents as Exhibits P1 to P28. The respondents have examined two witnesses as RW1 and RW2 and got marked four documents as Exhibits R1 to R4. After hearing the arguments on both sides, the Tribunal answered the issues as under:

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Issue No.1 : In the affirmative. Issue No.2 : Partly in the affirmative. The petitioner is entitled for compensation of rupees 60,45,018/with interest at the rate of 9% p.a. (excluding future medical expenses of Rupees 1,00,000/-) from the date of the petition till the date of payment, from the Respondent No.2.

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Issue No.3 : As per the final Order.

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In view of the above finding, the Tribunal allowed

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the claim petition in part and awarded compensation of Rs.60,45,018/- with interest at the rate of 9% per annum from the date of petition till realisation.

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Being aggrieved by the judgment and award of

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the Tribunal, the respondent-Insurer has preferred MFA No.101028 of 2021 challenging the quantum of compensation as also its liability. Being dissatisfied with the quantum of compensation, the claimant/appellant has preferred MFA No.102221 of 2020 seeking enhancement in the compensation.

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Heard the learned counsel appearing for the

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parties.

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Learned counsel, appearing for the Insurer submits that the Tribunal has failed to appreciate the defence of the Insurer in the light of the evidence placed on record. Since there was an inordinate delay of six days in lodging the complaint in respect of the alleged accident, the Tribunal

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ought to have held that the burden of proving that the car in question involved in the accident lie heavily on the claimant and the claimant has failed to discharge the said burden. As

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there is no eye-witness to the accident, the Tribunal has failed to appreciate the evidence on record in accordance with law and facts. He further submits that the Tribunal has also erred

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in reckoning the income of the claimant from his alleged avocation of vegetable vending and submits that there is no cogent evidence or document produced by the claimant to prove his avocation and income. It is further submitted that the Tribunal has committed a grave error in awarding a sum of Rs.16,52,400/- towards loss of future income; further the Tribunal has awarded exorbitant compensation under other heads. The Tribunal has also committed an error in awarding an amount of RS.33,14,618/- towards medical expenses in spite of disputing the same. The learned counsel further submits that the Tribunal has also committed an error in awarding interest and the rate of 9% per annum which is on the higher side. On all these grounds sought to allow the appeal.

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On the other hand, the learned counsel appearing for the appellant-claimant, submits that the Tribunal has rightly appreciated the material placed before it, as to the liability of Insurance Company. He further submits that the

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Tribunal, though has assessed the oral and documentary evidence properly, but has awarded a meager compensation of Rs.1,00,000/- towards future medical expenses. He submits that, considering the present physical condition of the claimant and if the mediation is not provided it may lead to other complication which is threat to the life of the claimant, and considering the fact that the claimant requires conservative treatment regularly, so also requires medicine for his survival, the Tribunal ought to have awarded more compensation. He further submits that the Tribunal has erroneously considered the disability at 85% even though the claimant has 100% physical and functional disability as he has suffered cervical spine lordosis. He submits that the income

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of the claimant assessed by the Tribunal at Rs.9,000/- per month requires enhancement. He submits that the claimant is a dead-alive man and throughout his life he has to undergo sorrows and has depend on other for every requirement and day-to-day activities and in that view of the matter, the Tribunal ought to have considered that any mathematical or arithmetical calculation cannot bring back the natural human life of the claimant and hence on all these factors, the

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Tribunal ought to have awarded just compensation towards pain and suffering. He also submits that the Tribunal ought to have considered adding more towards future prospects considering the present paraplegic condition of the claimant and considering him as a differently-abled person. He also submits that the claimant has lost marital prospects due to the injury sustained. On all these grounds, sought for enhancement of compensation.

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Having heard the learned counsel appearing for the parties and on perusal of record, the following points would arise for our consideration in these appeals:

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1. Whether the Insurance Company has made out a ground to interfere with the impugned judgment and award as to liability of insurance company, so also, with regard to quantum of compensation and rate of interest awarded by the Tribunal?

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Whether the appellant-claimant is entitled for enhancement of compensation as sought for?

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What Order or award?

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Our answer to the above points is as under:

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Point No.1: partly in the affirmative;

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Point No.2: partly in the affirmative;

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Point No.3: as per final order.

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Regarding Point No.1:

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We have carefully examined the material placed before this Court. It is the case of the petitioner that on 26^th June, 2015, when the petitioner was travelling in Swift car towards Dharwad from Amboli Falls, Belgaum the driver of the car was driving the same at excessive speed and in a rash and negligent manner and when the car was descending steep gradient in the same momentum, the driver lost control over the car and as a result the car turtled and the petitioner who was the inmate of the car sustained grievous injuries and a case was registered before Hirebagewadi Police Station in Crime No.139 of 2015 and after thorough investigation, Investigating Officer submitted charge sheet against the driver of the offending car. Apart from oral evidence, the petitioner has produced documents Exhibits P1 and P28. Perusal of documents makes it clear that on the basis of complaint lodged by one Manjunath, Hirebagewadi Police

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registered Crime No.139 of 2015 against the driver of the offending car for commission of offence punishable under Section 279, 337 and 338 of the Indian Penal Code and submitted First Information Report to the Court. Thereafter, Police have visited the spot and conducted spot panchnama in presence of panchas and obtained Motor Vehicle Inspector report and wound certificate, recorded the statement of witnesses and the Investigating Officer submitted charge sheet against the driver of the offending car for offence punishable under Section 279, 337 and 338 of Indian Penal Code. During the course of cross-examination of PW1, respondents have not questioned as to the charge sheet submitted by the Investigating Officer. RW1-Rajesh B, has not whispered anything as to the charge sheet submitted by the Investigating Officer. Further, he has deposed that at the time of accident, one Purushothama was driving the car. RW2 Legal Officer of respondent-Insurance Company has not disputed the charge sheet submitted by the Investigating Officer. The main objection raised by the Insurance Company is that the Investigating Officer has submitted false charge sheet against the accused as there was inordinate delay of six

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days in filing the complaint. In this regard, we have examined the wound certificate Exhibit P6 and Exhibit P10, which reveal that the injured was admitted to the Hospital at around 3.00 pm on 26^th June 2015 with the history of road traffic accident. When any injured with the history of road traffic accident is admitted to the hospital, it is the duty of the concerned Medical Officer to register the case as MLC and intimate the same to the jurisdictional police. Any lapse on

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the part of the Medical Officer in not informing the jurisdictional Police, cannot be a ground to discard the charge sheet submitted by the Investigating Officer. In this regard, it is useful to refer to the decision of the Hon'ble Supreme Court in the case of RAVI v. BADARINARAYAN AND OTHERS

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reported in AIR 2011 SC 1226, where substantial delay was caused in lodging the FIR, it is observed as under:

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" The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging

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the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons. "

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In the instant case, in view of the evidence placed

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by both the parties, we are satisfied that there are sufficient material to accept the charge sheet submitted by the Investigating Officer. Hence, the argument advanced by the insurance company cannot be accepted. There is no ground to interfere with the impugned judgment and award as to the liability of the insurance company. However, we find force in the submission of the learned counsel with respect to the interest awarded by the Tribunal at the rate of 9% per annum. The same is on the higher side and hence considering the rate of interest paid by the nationalised banks on the Fixed Deposit, we deem it proper to award interest at

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the rate of 6% per annum. We accordingly answer point No.1 partly in the affirmative.

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Regarding Point No.2:

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With regard to quantum of compensation is concerned, the Tribunal, while answering Issue No.3, has elaborately discussed as to the evidence placed by the claimant at paragraphs 40 to 69 of the judgment:

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" 40. ISSUE NO.3 : The Petitioner has not

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produced any authenticated documents to consider his actual age at the time of accident. But, Ex.P.13 Case Sheet disclosed that, the date of birth of the Petitioner is 24.07.1994. The date of accident is 26.06.2015. From this, it is clearly proved that, at the time of accident, the Petitioner was 19 year old. Further, the above referred all the Police and medical documents clearly disclosed that, at the time of accident, the Petitioner was 19 years old. Hence, the age of the Petitioner is considered as 19 years at the time of accident.

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41. The P.W.1 has stated that, prior to the date of accident, he was hale and healthy and young boy and doing vegetable vending business and after taking vegetables from their agriculture lands, he sold the vegetables at Dharwad market and out of the said

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vegetable vending business, he was earning more than Rupees 10,000/ per month. To consider his avocation and income at the time of accident, the Petitioner has also not produced any authenticated documents. Further, at the time of accident, the Petitioner was 19 years old. Hence, the said avocation and income as stated by the P.W.1, who is the Petitioner, can not be believed and accept. However, at the time of accident, the Petitioner was 19 years old and he has clearly stated in his cross examination that, at the time of accident, he was studying in II PUC, which disclosed that, he was a major, by considering the same, this Tribunal feels that, it is just, proper and necessary to consider the notional income of the Petitioner is of Rupees 9,000/ per month at the time of accident, which is believable and acceptable one. Further, now a day, even a coolie can get minimum wages of Rupees 8,000/ per month. Hence, the notional income of the Petitioner is considered at Rupees 9,000/ per month at the time of accident.

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42. The P.W.1 has stated that, due to the unfortunate accident and the accidental injuries, he has become physically disabled permanently and unable to do any kind of work as he was does prior to accident, in other words, he is not in a position to stand and walk without support of nurses and he has lost his future earnings

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and the accidental injuries caused lot of pain and sufferings and therefore, in all, he is suffering physically, mentally and economically and hence, he is entitled the compensation as claimed in his petition.

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43. The P.W.2, who is an Orthopedic Surgeon, has stated in his examinationinchief that, he has examined the Petitioner, when he come for assessment of disability at Medical Board at District Hospital, Dharwad and he gives history of RTA on 26.06.2015. He has further stated that, initially, he has taken treatment at Vijaya Ortho and Trauma Centre, Belgaum, from 26.06.2015 to 05.07.2015 and as per Discharge Summary and Wound Certificate, the Petitioner has sustained the injuries, I,.e., loss of cervical lordiosis, burst compression fracture of C6 vertebral body with retropulsion of fracture fragment causing spinal cord compression, edema CD the spinal cord extending from C5 to C7 level and fracture of D2 vertebral body no evidence of fracture fragments in the spinal canal, hematoma in prevertebral space extending from C2 to D4. He has further stated that, as per MRI, it is diagnosed as quadriplegia with retropulsion of C6 vertebra with neat total cord causation and after discharge from Vijaya Ortho and Trauma Centre Belgaum, he has taken treatment at different Private Hospitals and he was treated as corpactomy plus cage

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plus plating hard cervical collar with 1 bottle blood transused. He has further stated that, he came to District Hospital, Dharwad, for assessment of disability with documents like Discharge Summary and Wound Certificate, on 14.06.2017 and he has examined the patient in detail and done necessary examination and the disability assessment is done as per the Guidelines of Disability Assessment and Certification by Government of India Ministry of Social Justice and Empowerment, GOI, June 2001 and ALIMCO. He has further stated that, in his opinion, the Petitioner about 20 years of age male, is having permanent physical permanent disability of 85%. He has further stated that, as per the request of the Petitioner, he has assessed the disability of the Petitioner at Medical Board Committee, District Hospital, Dharwad and signed on the Disability Certificate.

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44. The Petitioner has produced Ex.P.28 Disability Certificate and Identity Card for Differently Abled Persons issued by the District Hospital, Dharwad, wherein, it is mentioned that, the over all permanent physical impairment of the Petitioner as per the specified Guidelines is 85%.

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45. The P.W.2 has clearly stated that, the Disability Certificate is issued by the Board and

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he has identified and admitted his signature.

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46. No doubt, the P.W.2 is not a treated Doctor and he has only assessed the disability of the Petitioner, which has been clearly admitted by him in his crossexamination.

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47. But, based on the said grounds, it can not be thrown away the evidence of P.W.2 and it can not be said and come to the conclusion that, due to the said accidental injury, the Petitioner is not suffering from permanent physical disability of 85% and the said extent of 85% permanent physical disability as stated by the P.W.2 is on higher side, as, the P.W.2 is one of the member of the Medical Board, which issued Ex.P.28 Disability Certificate and Identity Card for Differently Abled Persons and the signature of the P.W.2 is also found on Ex.P.28, which is clearly admitted by the P.W.2, which is marked at Ex.P.28(a).

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48. Further, at the time of accident, the Petitioner was 19 years old and Ex.P.6 Wound Certificate and Ex.P.10 Case Sheet disclosed that, the Petitioner had sustained injuries, i.e., cervical spine tenderness (+) sensation from sternal notch below right. MRI Cervical spine with screening of entire spine, loss of cervical spine lordosis (+), C6 vertebral body fracture burs compression and fracture fragment causing

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compression (+), fracture of D2 vertebra with hematoma, i.e., injury to spine, which is grievous in nature, i.e., spine injury and by admitting as an inpatient from 26.06.2015 to 05.07.2015, i.e., for 10 days, he took treatment to the said accidental injury and during the course of treatment, it is diagnosed quadriplegra with retropulseon C6 vertebra with neat total cord causation and Corpactomy + cage + plating G.A. hard cervical collar x 6 weeks, 10 blood transfused and on 26.05.2015, the surgery was done and at the time of discharge, the Petitioner was advised to take regular followup treatment with medication.

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49. Further, Ex.P.11 Case Sheet disclosed that, the Petitioner was brought to Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute, Mumbai with a complaint that, A/H/O RTA on 26.06.2015 imaging C/o Burst compression fracture C6 vertebra doby with retropulsion of fracture fragment causing cord compression, fracture D2 vertebral body, underwent corpaetomy Cage + plating done in June 2015 and during the course of treatment it is diagnosed traumatic spinal cord injury port fixation with spastic quadriparesis, neurogenic bowel and bladder and by admitting as an inpatient from 05.04.2016 to 01.10.2016, i.e., for 178 days, he had taken treatment to the said accidental injury as an inpatient and at the time

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of discharge, he was advised to take regular followup treatment with medication.

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50. It is also clearly mentioned in Ex.P.11 that, the chief complaints of the Petitioner is A/H/O RTA on 2606.2015 imaging C/o burst compression fracture C6 vertebra body with retropulsion of fracture fragment causing cord compression fracture D2 vertebral body. Underwent corpaetomy + cage + plating done in June 2015 and Course in Hospital that, he was assessed investigated and ongoing medications were continued and comprehensive multi disciplinary integrated spinal cord injury rehab program was started comprising of antispastics, orthoses, physical therapy, occupational therapy, bowel retraining and he had severe spasticity and neuropathic pain bilateral lower limb.

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51. It is also clearly mentioned in Ex.P.11 that, on 15.04.2016, bilateral obturator and proximal scientic nerve block given under USG guidance by Dr. N. Purohit and procedure was tolerated well and Lov vitamin Dlevels were managed with supplements and he was started on Parathyroid Injections. It is also mentioned that, the Petitioner was started on Hyperbaric oxygen therapy (wound protocol) (at 2.0 ATA for 90 min sessions) for improving healing of pressure sore and Dr. Jayanti Mani was referred

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for acneform erruptions and was advised oral and topical medications and he had multiple episodes of contipation with fecal impaction and Xray abdomen showed loaded large colon.

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52. It is also clearly mentioned in Ex.P.11 that, Dr. Agal reviewed for the same and increased odes of laxatives and USG Abdomen showed uncomplicated cholelithiasis and he had tingling and burning in ulnar nerve distribution and EMG done on 20.08.2016 s/o B/L C7C8 severe active and chronic motor degeneration lesion at spinal level and no e/o ulnar neuropathy and he improved functionally and was stable clinically at time of the discharge.

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53. It is also clearly mentioned in Ex.P.11 that, during Rehabilitation and Mobility training, the Petitioner underwent extensive PT. Bilateral LL strengthening exercises, facilitation exercises, pelvic bridging, standing balance exercises, gait training in parallel bar and over ground with walker were done and during activities of daily living, he underwent extensive OT. Bilateral UL strengthening exercises, sitting balance exercises, bed mobility exercises and transfer training and bilateral hand activities in sitting were done.

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54. Further, Ex.P.12 Case Sheet disclosed that, on 01.10.2016, the Petitioner was admitted

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at Neurogen Brain and Spine Institute to take treatment to the accidental injury and during the admission, it is diagnosed complete traumatic spinal cord injury at C6C7 level with bowel and bladder involvement and by admitting as an inpatient from 01.10.2016 to 08.10.2016, i.e., 8 days, he took treatment to the said accidental injury in the said Hospital and at the time of discharge, he was advised to take regular followup treatment with medication and during the course of treatment, neuro regenerative neuro surgical was done.

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55. Further, it is mentioned in Ex.P.12 that, the Petitioner is a case of complete traumatic SCI at the level of C6C7 and on 26^Th June 2015, he met with a Car accident and was immediately taken to VOTC Hospital and he underwent surgery, i.e., corpectomy + cage + plating and he got discharged after 20 days and after discharge, few months later, he had bed sore, for which, he went to Kokilaben Dhirubai Ambani Hospital for treatment and he was admitted there for 6 months and underwent physical therapy and oxygen therapy (HBOT) and currently, he has difficulty in getting up and sit by himself, partially dependent for shifting and ADLS and loss of sensation in lower limbs. It is also clearly mentioned that, Neurologically, he is dependent for bed mobility except sitting on edge of couch and completely dependent in

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transfers and ADL's and in upper limb should and elbow muscles are above functional level, in forearm pronators) supinator 3++ and in wrist only wrist extensor is present ie 3+ and Upper abs is 1, lower abs and back extensors is 0. Lower limb is 0 muscle power. It is also clearly mentioned that, Sensory picture – Till C6 normal sensation, C7C8 80% sensation, T1T5 80% and below T5, no pin prick or light touch present and Deep sensation present below T4 is vague and patchy. It is also clearly mentioned that, with the patient in supine position, local anesthesia was given in region of the right anterior superior iliac spine following which using a bone marrow aspiration needle, 110 ml of bone marrow was aspirated and collected in heparinized tubes and transported to the laboratory and in the Neural tissue culture laboratory, the MNC's were separated by the density gradient method and the cells were sent for CD 34 counts and the cells were transported back to the O.T. in a sterile cool container and he was put in a left lateral position and using a spinal needle the thecal sac punctured in the L4L5 space and CSF obtained was sent for examination and the cells injected through the spinal needle and the needle was withdrawn after the cells were injected and (De) Solumedrol 1 gm in 500 ml Isolyte P was given intravenously (simultaneously) during the

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injection. It is also clearly mentioned that, Physiotherapy was given to the Petitioner, who is a 20 year old male, who is a case of compete traumatic SCI at the level of C6C7 with bowel and bladder involvement and presently, he is non ambulatory and his chief complaints include difficulty to sit up by himself, dependent in self car and transfers and he is dependent in all ADLs, bed mobility and transfers. It is also clearly mentioned that, Occupational therapy was given to the Petitioner, who is a case of SCI with quadriplegia with loss of bowel bladder control, reduced sensation below T2 level and he has fair + good voluntary control in bilateral shoulder and elbow joints poor fair voluntary in bilateral wrist joints and he has poor sitting balance and his hand fingers are also poor.

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56. Further, Ex.P.13 Case Sheet disclosed that, the Petitioner was admitted as an OPD at Fortis Suchirayu Hospital, at Hubli on 24.06.2015 and Xray of cervical spine and lateral was taken, which disclosed impression that, interpedicular screws noted at C5 and C7 level with metallic cage implant at the level of C6 vertebra.

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57. Further, Ex.P.14 Discharge Summaries 3 in numbers disclosed that, on 20.06.2017, the Petitioner was admitted at Shri Dharmasthala Manjunatheswara Ayurveda Hospital, Udupi, with

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a complaint and history of reduced strength in both upper and lower limbs since 2 years and during the course of treatment, it is finally diagnosed quadreparasis and by admitting as an inpatient from 20.06.2017 to 15.07.2017, i.e., 26 days, he took treatment to the said accidental injury in the said Hospital and during the course of treatment, ALEPA PIZICHIIL RY VASTI done and at the time of discharge, he was advised to take medication and again on 05.10.2017 the Petitioner was admitted at Shri Dharmasthala Manjunatheswara Ayurveda Hospital, Udupi, with a complaint and history of reduced strength in both upper and lower limbs since 2 years and during the course of treatment, it is finally diagnosed quadraparesis and by admitting as an inpatient from 05.10.2017 to 04.11.2017, i.e., 31 days and again the Petitioner was admitted in the said Hospital on 21.01.2018 with a complaint and history of loss of strength in all 4 limbs since 2 and A half years and during the course of treatment, it is finally diagnosed quadraparesis and by admitting as an inpatient from 21.01.2018 to 23.02.2018, i.e., for 34 days. Further, it is clearly mentioned in Ex.P.14 that, I chronic kidney disease (CKD) GFR 85217 ml/min U.73m2 mild (stagell) CKD 6085 ml/minU.73m2 moderate (Stage III) CKD 3060 ml/minU.73m2 Severe (stagelV) CKD 15

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30ml/minU.73m2 end stage renal disease (Stage V) 4.0 15 ml/min U.73m2, which disclosed about the severe nature of the injury to spine, which caused to the Petitioner in the said road traffic accident.

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58. Further, Ex.P.15 Medical Certificate dated 06.07.2017 issued by Dr. Vivek Patil, Suchirayu Healthcare Solutions Ltd., Hubballi, disclosed that, the Petitioner was admitted with quadriparesis with cervical burst compression fracture of C6 vertebra and cord near total contusion, edema extending from C5 to C7 level operated with corpectomy and cage plating on 26.06.2015 with present neurological status on 12.06.2017 and Power in lower limb 0/5, upper limb 3/5 up to C4, C5, C6 2/5, C6C7 1/5 with quadriparesis status with no bowel and bladder control.

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59. Further, Ex.P.16 Discharge Summary disclosed that, the Petitioner was admitted on 27.10.2015 at Dr. R.B. Patil Hospital, Hubballi, with a history of CS spine operated 2 months back, developed sore over sacral and B/L illiac region and by admitting as an inpatient from 27.10.2015 to 03.02.2015, i.e., for 100 days, he took treatment to the said accidental injury in the said Hospital and during the course of treatment, it is diagnosed post OP status traumatic C.S. spine with

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bedsore and at the time of discharge, he was advised to take physiotherapy and dressing by daily with medication.

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60. Further, Ex.P.17 Discharge Summary disclosed that, the Petitioner was admitted on 04.09.2015 at Dr. R.B. Patil Hospital, Hubballi, with a history of CS spine operated 2 months back, developed sore over sacral and B/L illiac region bed sores and by admitting as an inpatient from 04.09.2015 to 18.09.2015 i.e., for 15 days, he took treatment to the said accidental injury in the said Hospital and during the course of treatment, it is finally diagnosed post OP status C.S. spine with bedsore and blood transfusion 20 was done and discharged with an advise to take medication and wheel chair mobilization.

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61. Further, Ex.P.18 Discharge Summary disclosed that, on 02.04.2017, the Petitioner was admitted at Shri Dharmasthala Manjunatheswara Ayurveda Hospital, Udupi, with a complaint and history of reduced strength in B/L upper and lower limbs since 2 years and during the course of treatment, it is finally diagnosed traumatic quadriplegia and ALEPA ABHYANGA RAJAYAPANA BASTI done and by admitting as an inpatient from 02.04.2017 to 19.04.2017, i.e., for 18 days, he took treatment to the said accidental injury in the said Hospital.

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62. Further, Ex.P.22 Scan Films 4 in numbers and Ex.P.23 Xray Film 10 in numbers clearly disclosed about the nature of the injuries sustained by the Petitioners in the said road traffic accident.

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63. Further, Ex.P.24 Discharge Summary disclosed that, on 27.05.2018, the Petitioner was admitted at Shri Dharmasthala Manjunatheswara Ayurveda Hospital, Udupi, with a complaint and history of reduced strength over both lower limbs since 26.06.2015 and during the course of treatment, it is finally diagnosed paraplegia and ALEPA ABYANGA RAJAYAPANA BASTI done and by admitting as an inpatient from 27.05.2018 to 28.06.2018, i.e., for 32 days, he took treatment to the said accidental injury in the said Hospital.

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64. Further, Ex.P.25 Discharge Summary disclosed that, on 07.02.2019, the Petitioner was admitted at Shri Dharmasthala Manjunatheswara Ayurveda Hospital, Udupi, with a complaint and history of reduced strength both upper limb and lower limb and during the course of treatment, it is finally diagnosed quadriparesis RTA traumatic and pinda sweda matra basti done and by admitting as an inpatient from 07.02.2019 to 11.03.2019, i.e., for 33 days, he took treatment to the said accidental injury in the said Hospital.

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65. From the above said medical evidence, it is clearly proved that, in the said road traffic accident, the Petitioner had sustained injury to his spine, which is grievous in nature and totally by admitting as an inpatient for 485 days, he took treatment to the said accidental injury in different Hospitals and during the course of treatment, he has taken several required and proper treatement to the said accidental injury and inspite of that, he has not recovered.

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66. From the above said medical evidence, it is clearly proved that, in the said road traffic accident, the Petitioner has sustained injury to spinal card and he is unable to move, stand and walk without the support of the attendants and as such, he is living like a vegetable. Further, due to the said accidental injury, the Petitioner is in the wheel chair.

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67. By considering these material factors, this Tribunal feels that, due to the said accidental injury, the Petitioner is suffering from permanent physical and functional disability of 85% to the whole body, which is believable and acceptable one, as stated by the P.W.1 and as shown in Ex.P.28 Disability Certificate and Identity Card for Differently Abled Persons issued by the District Hospital, Dharwad. Hence, the Petitioner is entitled for compensation under the following heads.

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68. As this Tribunal has already come to the conclusion that, the permanent physical and functional disability of the Petitioner is of 85%. This would certainly come in the way of the future life of the Petitioner and thereby, his income to that extent would be definitely reduced. Therefore, the Petitioner is entitled for future loss of income arising out of the permanent physical and functional disability of 85%.

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69. As this Tribunal has already come to the conclusion that, the age of the Petitioner was 19 years at the time of accident. The multiplier corresponding to the said age as per Sarala Varma’s case is 18. "

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Learned counsel appearing for the claimant submits

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that the Tribunal has erroneously considered the disability at 85% though the claimant has 100% physical permanent and functional disability due to cervical spine lordosis. At this juncture, it is pertinent to refer to the judgment of of KAJAL v. JAGDISH CHAND reported in (2020) 4 SCC 413, it is observed thus:

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" It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O’Connor :

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" Damages to make good the loss of dependency over a period of years must be

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awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think, that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of Income Tax and, it may be, surtax. "

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Further at paragraphs 24 and 25 of the judgment, it

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is observed thus:

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“ 24. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati 10 1971 AC 115 and Ors.11, U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors.12, Sandeep Khanduja v. Atul Dande and Ors.13. This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant’s age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court.

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25. Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs.4846/ per month. We, therefore, assess the cost of one attendant at Rs.5,000/ and she will require two attendants which works out to Rs.10,000/ per month, which comes to Rs.1,20,000/ per annum, and using the multiplier of 18 it works out to Rs.21,60,000/ for attendant charges for her entire life. This takes care of all the pecuniary damages. ”

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During the course of argument, the learned counsel

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for the appellant has produced the appellant before the Court on the wheel-chair and we have examined the condition of the claimant. On physical examination of the claimant and also the evidence on record, and keeping in mind the decision of KAJAL (supra), we are of the considered opinion that the

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permanent physical disability of the claimant to the whole body is to be taken at 100%. Considering the evidence placed before the Tribunal, the Tribunal has rightly assessed, the income of the claimant at Rs.9,000/- per month. As per the judgment of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION LIMITED AND ANOTHER reported in (2009)6 SCC 121 the considering the age of the claimant, the appropriate multiplier would be 18 and the Tribunal has rightly applied the same. As per the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 40% is to be added to the income towards future prospects. If that is added, the loss of future earning would come to Rs.27,21,600/- (Rs.12,600/- x 12 x 18).

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The Tribunal has awarded the compensation of Rs.1,53,000/- towards loss of income during the laid up period. Since the functional disability of the claimant to the whole body is taken at 100% the question of loss of income

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during the laid up period does not arise and the claimant is not entitled to any compensation under the said head.

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Since this court has taken the disability of the claimant at 100%, it is necessary to award compensation under attendant charges. The Hon'ble Supreme Court in the case of KAJAL (supra), considering the tender age of child, the difficulty of the child in handling her periods, so also considering her marriage prospects, was of the opinion that the claimant in the said case require two attendants and accordingly, considering Rs.5,000/per attendant, has awarded Rs.10,000/- for two attendants and applying the multiplier of 18 has awarded Rs.21,60,000/towards attendant charges for the entire life. In the case on hand, since the claimant is aged 19 years and a boy, we deem it appropriate that one attendant would suffice to take care of the claimant. Accordingly, the amount towards attendant charges would be Rs.10,80,000/- (Rs.5,000/- x 12 x 18). Accordingly, we answer the point No.2 partly in the affirmative. Considering the nature of injury, pain and

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suffering of the claimant, it is just and proper to award

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compensation as follows:

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Sl.No.	Head	Amount (in Rs.)
1.	Pain and suffering	2,00,000
2.	Medical expenses	33,14,618
3.	Food, nourishment, diet charges	1,25,000
4.	Loss of amenities including marital expenses	3,00,000
5.	Attendant charges	10,80,000
6.	Loss of future earning	27,21,600
7.	Future medical expenses	1,00,000
8.	Conveyance charges	1,00,000
	Total	79,41,218

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In the result, we pass the following:

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O R D E R

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i. MFA No.101028 of 2021 is allowed in part;

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ii. MFA No.102221 of 2020 is allowed in part by modifying the compensation awarded by the Tribunal. The claimant is entitled for compensation of Rs.79,41,218/as against Rs.60,45,018 awarded by the Tribunal.

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iii. It is made clear that the compensation carries interest at the rate of 6% per annum from the date of petition till the date of realisation (excluding the amount of Rs.1,00,000/- awarded towards future medical expenses);

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