Partly allowed

The Executive Engineer v. K.Ravi Teja

Madras HC4 Aug 2017CMA/3560/2013

Case brief

AI extract

What is this about?

The High Court of Madras disposed of civil miscellaneous appeals challenging a Motor Accidents Tribunal award. The court affirmed the driver's negligence, held the vehicle owner vicariously liable for medical complications, and enhanced compensation to Rs. 18,15,245 by increasing the notional income and disability percentage.

What did the court decide?

Compensation enhanced to Rs. 18,15,245. Appellant (CWC) in separate appeal dismissed as devoid of merits.

The Executive Engineer Vs K.Ravi Teja — Medical Negligence | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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JUDGMENT RESERVED ON : 27.01.2017 JUDGMENT PRONOUNCED ON : 04.08.2017 CORAM:

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THE HONOURABLE Mr.JUSTICE N.SESHASAYEE

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C.M.A.Nos.3560 and 3668 of 2013

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and M.P.No.1 of 2013

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C.M.A.No.3560 of 2013 The Executive Engineer, Hydrology Division, CWC, Rajaji Bhavan, Besant Nagar, Chennai. ... Appellant/Respondent Vs. K.Ravi Teja ... Respondent/Claimant C.M.A.No.3668 of 2013 K.Ravi Teja ... Appellant/Claimant Vs. The Executive Engineer, Hydrology Division, CWC, Rajaji Bhavan, Besant Nagar, Chennai. ... Respondent/ Respondent

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Common Prayer :- Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 08.02.2013 made in O.P.No.4363 of 2009 on the file of the Motor Accidents Claims Tribunal, III Small Causes Court, Chennai.

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In CMA.No.3560 of 2013: For Appellant : Mr.B.Rabu Manohar CGSC For Respondent : Mr.K.Suryanarayanan for Mr. K.Varadhakamaraj In CMA.No.3668 of 2013: For Appellant : Mr.K.Suryanarayanan for Mr.S.Ravikumar For Respondent : Mr.B.Rabu Manohar CGSC

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https://hcservices.ecourts.gov.in/hcservices/

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COMMON JUDGMENT

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In a road accident that took place on 25.11.2009 at about 8.45 hours, the claimant had suffered injury and fracture in his left femur. He approached the Tribunal initially with a compensation for Rs.2,00,000/- then amended twice, first time for Rs.5,00,000/- and finally for Rs.10,00,000/-.

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The Tribunal awarded Rs.8,39,245/- and directed its payment to be made by the respondent therein with interest at 7.5% per annum. Both the parties challenged this award. Whereas the claimant has come forward with this appeal in C.M.A.No.3668 of 2013 seeking enhancement of compensation, the respondent challenges both the manner in which the accident was said to have taken place as well as the quantum of compensation awarded by the Tribunal.

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In his petition, the claimant /appellant in C.M.A.No.3668 of 2013 narrates the accident as follows : On 25.11.2009 at about 8.45 a.m., claimant was riding his motorcycle bearing Registration No.TN-20-AJ-7321 from west to east, along Rathinavel Pandian Salai - Ponnammal Street junction and was knocked down by a rashly and negligently driven Tata Sumo bearing Registration No.TN-07-J-1573 from north to south direction. The offending vehicle belonged to Central Water Commission [CWC]. In the accident, claimant suffered fracture to his left femur. He was treated in M/s.Apollo Hospitals, Chennai from 25.11.2009 to 04.12.2009. There, his injury was surgically corrected and implants were planted. However that implants broke and he therefore, admitted himself in M/s.Balaji Orthopedic & Trauma Hospital, Tirupathi where a new implant was fixed, for which he was hospitalized for eleven days from 21.04.2011 to 02.05.2011. Even this proved to be unsuccessful and therefore he was again admitted in M/s.Global Hospitals & Health City, Chennai-600 100, where another new implant was fixed and this time he was in hospital for seven days.

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The victim was a final year engineering student at the relevant time and he was aged 21 years then. PW-2, the orthopaedician assessed the extent of his disability at 55% whereas, the Tribunal has determined it at 20%. Fixing his income notionally at Rs.5,000/-, it applied multiplier method and arrived at a compensation of Rs.2,04,000/[Rs.5,000x12x17x20%] on the head of permanent disability. Including the other non-pecuniary heads of compensation, the break-up of which are given below, the award reads as follows :

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https://hcservices.ecourts.gov.in/hcservices/

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Heads	Amount Awarded by Tribunal (Rs.)
Transport to Hospital	5,000.00
Extra nourishment	10,000.00
Medical Expenses	5,55,245.00
Future Medical Expenses	25,000.00
Pain and sufferings	40,000.00
Permanent disability	2,04,000.00
Total :	8,39,245.00

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The learned counsel for the appellant/claimant in CMA.No.3688 of 2013 contended that for an engineering student who had passed his graduation in first class, the Tribunal has fixed his income notionally but at a nominal Rs.5,000/-. For his prolonged pain and sufferings since the date of accident till today, as he was forced to get hospitalized thrice and to undergo some corrective procedures thrice. He was paid a meager compensation of Rs.40,000/- on the head of pain and sufferings. The injury suffered has also shortened his left leg about 2 inches and he has forced to limp that it has affected his marital prospects. On this head nothing was awarded.

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The learned counsel for the appellant/CWC in CMA.No.3560 of 2013 argued that the accident had occasioned when the motorcycle in which the claimant was riding, hit against the stationary vehicle belonging to the appellant/CWC and he was responsible for the accident, which fact, the Tribunal has overlooked. Turning to the point, more particularly the compensation awarded for the second and third surgeries, the same cannot be fastened on the Chennai Water Commission, since there is no knowing whether the implant fixed in the claimant in the first instance by M/s.Apollo Hospital broke in the normal course. The claimant has not established that the second surgery required was not due to his fault. Even his own subsequent negligence could have easily caused it and the claimant was silent on its cause and if it had broken, not due to his negligence. And, if it is a case of medical negligence then the claimant ought to proceed against M/s.Apollo Hospital for the consequence of the treatment given by it since there is not even an approximate relationship between the need for second and third surgeries and the injury suffered in the accident.

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The accident is admitted, but not the manner of it as narrated by the claimant. The scene of accident is a crossjunction where two roads bisect each other perpendicularly. The driver of the four wheeler's only point is that he stopped

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his vehicle well before the accident as he entered from northsouth road to the cross-junction with a view to taking a U-turn, when the motor-cyclist / claimant rammed on it. The only version to support this narration in defence of the claim is the interested version of the driver of Tata Sumo. Hence, the Tribunal has taken some elements from Ext.P.2, the rough sketch prepared by the investigating agency in the course of its investigation into the criminal angle of the accident to conclude that the accident had occasioned due to the negligence of the driver of Tata Sumo. This sketch shows the position of the Tata Sumo right about the middle of the junction, and motorcycle was lying about the front-right tyre. Now, even if the theory of R.W.1 was to be taken on its face value that he had chosen to stop his vehicle with the intention of taking a U- turn, but had he communicated his intention with appropriate hand-signal to other users of road? If he has not, then he creates a situation for an accident. On this aspect, both pleading and evidence of the owner of the offending vehicle is silent. This Court therefore, has little hesitation in concluding that the driver of Tata Sumo, concerning the appellant in CMA.No.3560 of 2013 alone has been negligent.

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In the accident, the claimant suffered fracture to his left femur bone, besides fracture or dislocation of left shaft of femur and other multiple injuries. In the context of the present case, the injury has caused two consequences on the claimant : (a) first it let him permanently disabled to an extent and (b) it required successive surgeries for correcting his fracture.

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As to the second point, the claimant would say, first he had a surgery done in M/s.Apollo Hospitals, Chennai, where the plate was implanted in him. As it broke, he went to M/s.Balaji Orthopedic and Trauma Hospital, Tirupathi and when it failed, he finally moved to M/s.Global Hospital & Health City, Chennai.

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The learned counsel for the appellant in CMA.No.3560 of 2013 (owner of the offending vehicle) would argue that it might be that the first surgery would be necessary, but repeated surgeries for correcting the same injury, due to failures in the earlier surgeries would imply that either the hospitals were negligent in treating the claimant or the claimant was negligent in conducting his affairs.

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This Court is not impressed with the said argument that even this line of contention was not even confronted to the claimant when he was in the witness box. On the other hand, the claimant himself has explained that the breaking of plates implanted by the first two hospitals could be attributed either to his excessive weight or to the inherent tension in the bone.

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Now, it needs to be emphasised that the claimant did not invite the condition in which he found himself in, but was thrust on him. It is therefore not given to one who is vicariously liable for the fault of his employee to articulate an argument bordering on insensitivity of human sufferings. As to the quantum of compensation awarded, P.W.2, the doctor who evaluated the extent of disability, has assessed the same at 55%. He would further say that because of tightening of muscle below the knee, about 90% of his movement has been affected and has also added that he cannot walk fastly nor can he climb up the stairs. The Tribunal, however determined the functional disability of the victim only at 20% and it fixed his monthly income notionally as Rs.5,000/- and has awarded Rs.2,04,000/- towards permanent disability. In the context of the objection of the owner of the vehicle in fault, it must be stated that of the total award amount, the medical expenses of Rs.5,55,245/- alone constitute about 66%. Therefore, it cannot have any more objection to the quantum of compensation.

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The learned counsel for the claimant/appellant in CMA.No.3668 of 2013 would argue that (i) given the fact that the claimant is an engineering student when the accident took place and the monthly notional income of Rs.5,000/- as fixed by the Tribunal is disproportionately low to the qualification that the claimant would possess, and that in the year 2005 when the Tribunals would normally fix Rs.5,000/- as notional monthly income even for those who are engaged in any menial work or semi-skilled avocation. Secondly, without any rational basis, the Tribunal has fixed the functional disability of the victim at a mere 20%, when the doctor's evidence is to the fact that the victim's movement of the injured leg is restricted about 90% and extent of his disability is 55%. In determining compensation for loss of earning capacity, the Tribunal must not relate the percentage that the disability bears to the whole body, but to the victim's ability to pursue the career of his dream and choice. Even on non-pecuniary heads, most critically on pain and suffering only Rs.40,000/- has been awarded. Therefore, the compensation awarded must be enhanced to an extent that it represents a just and fair compensation. He relied on the following authorities :

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(i)Nagappa v. Gurudayal Singh and Others [2003 ACJ 12]

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(ii)Raj Kumar v. Ajay Kumar and another [2011 ACJ 1]

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(iii)V.Mekala v. M.Malathi & another [2014(2) TNMAC 6 (SC)]

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(iv)Syed Sadiq & Others v. Divisional Manager, United India Insurance Co. Ltd., [2014 ACJ 627]

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(v)Dinesh Singh v.Bajaj Allianz General Insurance Co. Ltd, [2014 ACJ 1412]

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(vi)G.Dhanasekar v. Managing Director, Metropolitan Transport Corporation Limited, [(2014) 14 SCC 391]

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(vii)Sri Laxman @ Laxman Mourya v. Divisional Manager, Oriental Ins. Co. Ltd., and Another [(2012) 1 MLJ 1002 (SC)]

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(viii)Ashvinbhai Jayantilal Modi v. Ramkaram Ramchandra Sharma and another [2014 ACJ 2649]

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(ix)United India Insurance Co. Ltd., v. V.Giriprasath [2013 (2) TNMAC 146]

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(x)Managing Director, Metropolitan Transport Corpn. Ltd., v. S.Mariam Beevee and another [2014 ACJ 2693]

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(xi)Managing Director, Metropolitan Transport Corporation Ltd., v. K.Murugesan and another [2015 ACJ 183]

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The submissions of the learned counsel for the claimant/appellant in CMA.No.3668 of 2013 is not without merit. It is not in dispute that the injured left leg of the claimant is shortened by 2 inches. The medical evidence is also to the effect that the movement of the left leg below the knee is limited to a bare 10% which was not just the result of the fracture, but also due to crushing of the muscle of this portion of the injured leg. As a young man and a student of an Engineering College, it certainly would affect his career prospects, atleast partially. To that extent, it would also affect his marital prospects. In all such cases, it may have to be stated that the victim can hardly be stated to be responsible for the condition that visited him. It is not just about whether the claimant could engage himself profitably in an alternate avocation, but is about his failure to achieve the dreams that he would have been in a position to achieve, but for the injury. Taking an overall view of the facts proved more particularly and given the fact that he is an engineering student at the threshold of a bright career, I fix his monthly income at Rs.10,000/- and the extent of functional disability at 50%. Since he was only aged 21 years at the relevant time, adopting the multiplier at 17, the award amount and the compensation payable on the head of functional disability is [Rs.10,000 x 12 x 17 x 50%] Rs.10,20,000/-. For pain and suffering, I enhance the amount to Rs.1,00,000/-. Towards damages of marital prospects, I grant Rs.1,00,000/-. On the other heads of damages, the award of the Tribunal is retained. The final break-up of compensation awarded to the claimant reads as below:

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Heads	Enhanced Award Amount (Rs.)
Transport to Hospital	5,000.00
Extra nourishment	10,000.00
Medical Expenses	5,55,245.00
Future Medical Expenses	25,000.00
Pain and sufferings	1,00,000.00
Functional disability	10,20,000.00
Towards damages of marital	1,00,000.00
prospects
Total :	18,15,245.00

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In the result, the appeal in CMA.No.3668 of 2013 is allowed and the compensation amount awarded in MCOP.No.4363 of 2009 is enhanced from Rs.8,39,245/- to Rs.18,15,245/- and the respondent in CMA.No.3668 of 2013/the appellant in CMA.No.3560 of 2013 is directed to deposit the entire enhanced award amount with accrued interest at the rate of 7.5% per annum as determined by the Tribunal, less any amount already deposited, within a period of four weeks from the date of receipt of a copy of this order and the claimant is permitted to withdraw the same forthwith. The claimant is directed to pay the necessary court fee for the enhanced portion of the award amount. The claimant is not entitled to award of interest during the delay period in filing the appeal. The appeal preffered by CWC in CMA.No.3560 of 2013 stands dismissed as devoid of merits. No costs. Consequently, connected miscellaneous petition is closed.

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Sd/Assistant Registrar(CCC)

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//True Copy//

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Sub Assistant Registrar ds To

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