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2023 DIGILAW 1816 (PNJ)

Sanjeev Sharma v. Yadwinder Singh

2023-05-18

NIDHI GUPTA

body2023
JUDGMENT Nidhi Gupta, J. Present appeal has been filed by the injured-claimant seeking enhancement of compensation of Rs.14,68,000/- granted by the Motor Accident Claims Tribunal, Chandigarh (hereinafter referred to as 'the Tribunal') vide Award dated 5.9.2016 passed in MACT Case No.363/2015 under section 166 of the Motor Vehicles Act,1988 (hereinafter referred to as 'the Act'). 2. Brief facts of the case are that ld. Tribunal on the appraisal of facts, pleadings and evidence adduced on record held that the injured-claimant (appellant herein) sustained injuries in a motor vehicular accident that took place on 24.12.2014 due to rash and negligent driving of Car bearing registration No. CH-04-A-0061 (hereinafter referred to as 'the offending vehicle') being driven by respondent no.1, owned by respondent no.2 and insured by respondent no.3. The Tribunal awarded compensation as above along with interest @ 7.5% per annum from the date of filing of the claim petition till realization. Liability to pay the compensation was joint and several. 3. Ld. counsel for the appellant seeks enhancement of compensation on the ground that due to the injuries suffered by the appellant, in the accident in question the appellant has been rendered 80% disabled. It is further submitted that at the time of accident the appellant was 43 years of age and was a businessman and used to fit Dish TV from which vocation he was earning Rs.25,000/- per month. However, as a result of the accident he suffered fracture of both bones distal right leg, Hemiperisis right side, head injury, fracture ribs and other multiple injuries. He was taken to Civil Hospital Mohali from where he was referred to GMCH Sector 32, Chandigarh. He had undergone an operation and External Fixator was applied. He remained in ICU in GMCH Sector 32, Chandigarh for about one month in unconscious state. He was discharged on 3.2.2015. He was again admitted in GMCH 32, Chandigarh on 10.3.2015. He was again operated on 17.3.2015 and 25.3.2015. He was discharged on 6.4.2015. It is submitted that till date the appellant is bed ridden and cannot move without any support and is continuously under follow-up treatment in GMCH Sector 32, Chandigarh. He was examined by the Medical Board of GMCH Sector 32, Chandigarh and his permanent disability was assessed to the extent of 75%, which has been taken as 80% functional disability by the learned Tribunal. He was examined by the Medical Board of GMCH Sector 32, Chandigarh and his permanent disability was assessed to the extent of 75%, which has been taken as 80% functional disability by the learned Tribunal. It is submitted that appellant is in wheelchair and in this situation functional disability of the appellant should have been assessed as 100%. It is further submitted that in these circumstances sum of Rs.78,000/- as granted by the ld. Tribunal towards attendant charges is on lower side and deserves to be enhanced; and also amount of Rs.5,040/- granted by the Tribunal towards physiotherapy is also on lower side and deserves to be enhanced. In support, ld. counsel relies upon judgement of the Hon'ble Supreme Court in Jithendran v. New India Assurance Co. Ltd. And anr., Law Finder Doc Id # 1901704, and judgement dated 8.12.2022 of this Court in Ms. Arti v. Sakun Ahmed @ Kaka and others, FAO No.7459 of 2017. 4. In response, it is submitted by the ld. counsel for the Insurance Company that ld. Tribunal has granted future prospects @ 30% whereas keeping in view that the appellant was 43 years of age, the same should be taken as 25%. It is further submitted that notional income of the appellant has been assessed on higher side as Rs.7,000/- per month whereas as per relevant Minimum Wage Notification, notional income ought to be fixed at Rs.6,647/- per month. Ld. counsel relies upon judgement of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and others (2017) 16 SCC 680 , in particular paragraph 54 thereof and submits that once the multiplier method has been adopted, loss of income already stands assessed and therefore, nothing needs to be granted towards pain and suffering and loss of amenities. 5. No other argument has been raised. 6. Heard ld. counsel. 7. Fact that age of the appellant is 43 years at the time of accident is not disputed. Perusal of the record of the case shows that in the accident in question the appellant has suffered injuries as already enumerated hereinabove. However, the same are re-reproduced here for proper appreciation. It is undisputed that in the accident in question, the appellant suffered fracture of both bones distal right leg, Hemiperisis right side, head injury, fracture ribs and other multiple injuries. However, the same are re-reproduced here for proper appreciation. It is undisputed that in the accident in question, the appellant suffered fracture of both bones distal right leg, Hemiperisis right side, head injury, fracture ribs and other multiple injuries. He was taken to Civil Hospital Mohali from where he was referred to GMCH Sector 32, Chandigarh. He had undergone an operation and External Fixator was applied. He remained in ICU in GMCH Sector 32, Chandigarh for about one month in unconscious state. He was discharged on 3.2.2015. He was again admitted in GMCH 32, Chandigarh on 10.3.2015. He was again operated on 17.3.2015 and 25.3.2015. He was discharged on 6.4.2015. Admittedly, till date the appellant is bed ridden and cannot move without any support and is continuously under follow-up treatment in GMCH Sector 32, Chandigarh. He was examined by the Medical Board of GMCH Sector 32, Chandigarh and his permanent disability was assessed to the extent of 75%, which has been taken as 80% functional disability by the learned Tribunal. 8. In the present case, testimony of PW1 Dr.Ravi Kumar Prenja, Assistant Professor, Department of Orthopaedics and Member of Disability Board, GMCH, Sector 32, Chandigarh is vital and relevant extract thereof is reproduced as under:- "I have brought the summoned records of Sanjeev Sharma who was admitted in GMCH Sector 32 Chandigarh on 24-12-2014 with alleged to have received injures in RSA (Roadside accident) on 24.12.2014. On examination he was found to have suffered fractured tibia right side, lacerated wound over right chin abrasion right front parietal region and skin avulsion right hand inter digital space. He was put on ICD (Insertion for right side pleural effusion). Tracheostomy was done on 31.12.2014 and Pintrectia dressing done. He was discharged on 3.2.2015. he was readmitted on 10.3.2015 and he was operated on 25.3.2015 and tibial plating was done. He was discharged on 7.4.2015 and called for follow up treatment on 10.5.2015. He was referred for neurosurgery on 24.4.2015 CT Brain and MRI Brain was advised by Neurosurgeon and physiotherapy was advised. We recommend high protein diet to such patients. On 8-2-2016 the patient Sanjeev Kumar appeared before Medical Board for assessment of disability. Patient was diagnosed as a case of post-traumatic brain injury right hemiparesis with facial muscle weakness right side. The disability of patient was found to be 75% in relation to whole body. This disability is permanent in nature. We recommend high protein diet to such patients. On 8-2-2016 the patient Sanjeev Kumar appeared before Medical Board for assessment of disability. Patient was diagnosed as a case of post-traumatic brain injury right hemiparesis with facial muscle weakness right side. The disability of patient was found to be 75% in relation to whole body. This disability is permanent in nature. This disability is a functional disability. Patient will have problem in walking, stair climbing stairs and activities involving right hand squatting, standing on affected leg. He needs attendant for dressing and undressing, bathing, toileting, transfer from ne place to another. Patient will have problem in doing bi manual work/hand activities. Ex.P1 is copy of disability certificate which is signed by me and other Members of Medical Board. Ex.P2 and Ex.P3 are copies of discharge and follow up card respectively issued by GMCH. Due to weak facial muscles, patient will be having problem in chewing and sucking. Patient can only be mobilized through wheelchair". 9. Perusal of the above testimony of PW1 shows that the appellant has weak facial muscles and will be having problem in chewing and sucking and can only be mobilized through wheelchair. It is further borne out that appellant will have problem in walking, climbing stairs and activities involving right hand, squatting, standing on affected leg and needs attendant for dressing and undressing, bathing, toileting, transfer from one place to another and will have problem in doing bi manual work/hand activities. Basically, the appellant is immobilised and will require assistance for all and every activity. 10. In view of the above undisputed facts on record, it becomes clear that the appellant will not be able to resume his former business as a businessman and fit Dish TV(s). Accordingly, in such circumstances functional disability of the appellant has to be taken as 100%. In this regard, reliance may be placed upon judgement of the Hon'ble Supreme Court in case of Syed Sadiq etc v. Divisional Manager, United India Insurance Company Law Finder Doc ID # 515167. 11. From the above facts it is also undisputed that the appellant shall require physiotherapy for the remaining part of his life as such, meagre amount of Rs.5040/- granted by the ld. Tribunal for physiotherapist is enhanced to Rs.2lacs. It is common knowledge that as on date about Rs.2500/- is the charge for one session of physiotherapy. 11. From the above facts it is also undisputed that the appellant shall require physiotherapy for the remaining part of his life as such, meagre amount of Rs.5040/- granted by the ld. Tribunal for physiotherapist is enhanced to Rs.2lacs. It is common knowledge that as on date about Rs.2500/- is the charge for one session of physiotherapy. From the above facts, it is also clear that the appellant shall be bound to a wheelchair for the remaining part of his life. Accordingly, transportation charges are enhanced from Rs.20,000/- to Rs.1 lac. The pain and suffering undergone by the appellant cannot be estimated in monetary terms. However, as token compensation for the same, amount of Rs.50,000/- granted by the learned Tribunal is enhanced to Rs.1,50,000/-. Though present appeal has not been filed by the Insurance Company, however, as per law laid down in Pranay Sethi (supra), keeping in view the age of the appellant, future prospects have to be added @ 25%. Further the ld. Tribunal has correctly applied multiplier of 14. In view of the above discussion, the compensation payable to the appellant is reworked as under: - Sr. No. Head MACT (in Rupees) In appeal (in Rupees) 1 Income 7000 7000 2. Disability 80% 100% 3. Annual income 84000 84000 4. Annual income as per disability 67200 84000 5 Multiplier 14 14 6. Total loss of income 67200x14x12=9,40,800 84000x14=11,76,000/- 7 Future prospects @ 30% = 2,82,240/- @25% = 2,94,000/- 8 Total of row 6 and 7 above. 12,23,040/- 14,70,000/- 9 Medical expenses 16,268/- 16,268/- 10. Physiotherapy expenses 5040/- 2,00,000/- 11. Attendant charges 78,000/- 5,00,000/- 12. Pain and suffering 50,000/- 1,50,000/- 13 Loss of amenities 50,000/- 50,000/- 14. Transportation expenses 20,000/- 1,00,000/- 15. Healthy diet and hospitalisation 25,000/- 25,000/- 16. Total 14,68,000/- 25,11,,268/- 17. Interest @ 7.5% per annum @ 7.5% per annum 12. Appeal stands allowed in the above terms. 13. Pending Application(s), if any, stand disposed of.