THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE M.GOVINDARAJ C.M.A.No.1199 of 2017 Krishnakanth .. Appellant versus The Managing Director, The Chennai Metropolitan Transport Corporation Limited, Pallavan House, Anna Salai, Chennai - 600 002. .. Respondent
Prayer: Civil Miscellaneous Appeal is filed, against the judgment and decree in M.C.O.P.No.246 of 2011, dated 21.01.2016, on the file of the Motor Accident Claims Tribunal, [IV Additional District Judge], Ponneri.
For Appellant : Mr.F.Terry Chellaraja For Respondent : Mr.S.S.Swaminathan
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR ,J.) On 25.04.2017, we passed the following orders.
"Contending interalia that at the time of accident, he was a Trainee Assistant in ICICI Bank, T.Nagar and due to the grievous injuries sustained in the accident, which occurred on 7/5/2011, he had lost the earning capacity, injured has filed M.C.O.P.No.246 of 2011. The Tribunal has awarded compensation of Rs.12,59,000/-. However, the Tribunal did not make an award under the head loss of earning capacity. For enhancement of compensation under various heads and for compensation under the head loss of future earning, injured has filed C.M.A.No. 1199 of 2017. In order to ascertain as to whether the appellant is working in the bank where he had training or not, we directed Mr.SivaKumar and Mr.Suresh, learned counsel appearing for ICICI Bank, High Court, Madras and Debts Recovery Tribunal, to verify and to get instructions from the bank.
2. Reverting, Mr.Balamurugan, learned counsel appearing for ICICI Bank submitted that Mr.V.Krishnakanth/appellant herein was a Trainee. He was offered appointment, as Junior Officer, in ICICI Bank and instructed to join, on 27/4/2011. But he did not join the post offered. Email particulars addressed to him and submitted before this court shall be treated as part of record.
3. Accident has occurred, on 7/5/2011. He has been directed to report, on 27/4/2011. From the E-mail particulars, it could be seen that when he himself had not chosen to report, on 27/4/2011, the question of losing employment opportunity in Bank, does not arise. Added further, Mr.Terry Chella Raja, learned counsel for the appellant / injured has also submitted that as on today, appellant is working in Andhra Pradesh.
4. However, on the aspect of enhancement of compensation under other heads, we deem it fit, to peruse the records, which have to secure from the Motor Accidents Claims Tribunal, IV Additional District Judge, Thiruvallur, Ponneri.
5. Post on 5/6/2017.
Registry was also directed to secure the records in MCOP No.246 of 2011 on the file of MACT (IV Additional District Judge), Ponneri.
2. When the matter is listed today for further hearing Mr.F.Terry Chellaraja, learned counsel for the appellant/injured submitted that in view of the subsequent employment in Andhra Pradesh, he is not pressing for any compensation under the head loss of future earning, but considering the nature of injures, viz., crush injury with soft tissue with bone loss left leg ankle, soft tissues loss right heel and physiological degloving injury left thigh, surgeries underwent for the injured numbering seven for LD free flap + MVR with haematoma evacuation from left thigh with debridement, split thickness skin graft to right heel and bone curettage and calcaneo tibial K wire fixation left leg and external fixator realignment, Tangential excision of LD Flap, wound debridement, change of dressing with suturing of left thigh, debridement and split thickness skin graft left leg, urethral injury, for which systography and other surgery performed for the progressive perineal urethroplasty, period of hospitalisation in Apollo hospital from 07.05.2011 to 27.05.2011 and 2nd spell from 27.06.2011 to 27.06.2011 and thereafter as inpatient in the same hospital from 16.09.2011 to 21.09.2011 and on 13.10.2011 for the fourth time, sought for enhancement of compensation under the heads transportation, extra nourishment and pain and suffering.
3. Learned counsel for the injured/appellant also submitted that though extent of functional disablement was assessed at 75%, the tribunal did not make any award under the head loss of amenities. He also pointed out that compensation of Rs.1,00,000/- awarded under the head pain and suffering is less.
4. Learned counsel for the appellant/injured also sought for enhancement of compensation under the head disability, at the rate of Rs.3,000/- per percentage of disability. It is also his contention that having regard to the period of hospitalisation in four spells, the compensation of Rs.30,000/- under the head loss of earning during period of treatment is less.
5. On the above, we have heard Mr.S.S.Swaminathan, learned counsel for the respondent-Transport Corporation, who submitted that compensation awarded by the tribunal under various heads appears to be reasonable and fairly admitted that having regard to the nature of injures, situs, period of hospitalisation, in different spells, extent of disablement assessed by the tribunal, there could be a reasonable hike in the quantum of compensation awarded under certain heads.
6. We have heard learned counsel for the parties and perused the materials available on record.
7. Details of the injury, treatment records reflected in Exs.P3 to P6 discharge summaries, are as follows.
Ex.P.3: Discharge Summary:
Period of Hospitalisation : 07.05.2011 to 27.05.2011 Date of Admission : 07.05.2011 Date of Surgery : 08.05.2011, 12.05.2011, 18.05.2011 and 21.05.2011 Date of Discharge : 27.05.2011 Allergies : Not known Diagnosis : 1. Road traffic accident with crush injury with soft tissue + bone loss left leg ankle
2. Soft tissue loss right HEEL.
3. Physiological degloving injury left thigh Surgery: 1. Wounds debridement (08.05.2011) External fixation left leg. Bone drilling.
Soft tissue repair both legs.
2. LD free flap + MVR with haematoma evacuation from left thigh with debridement + Split thickness skin graft to right HEEL (12.05.2011) Bone curettage and calcaneo tibial K wire fixation left leg and external fixator realignment.
3. Tangential excision of LD flap, would debridement change of dressing with suturing of left thigh (18.05.2011)
4. Debridement and Split thickness skin graft left leg (21.05.2011) History of Present Illness Chief Complaints : Mr.Krishnakanth B, 22 years old gentleman, came with history of road traffic accident on 07.05.2011 at 8.45am with history of fall from bus (while traveling on the foot board), with history of tyre run over his left leg and ankle and foot sustaining Type III B compound fracture with bone loss exposing the lateral aspect of left leg with severe soft tissue loss patient was taken to local hospital and referred here for further management.
History of Diabetes Mellitus: No History of Hypertension: No History of Coronary artery disease: No History of Asthma: No Part History:
Medical: Nil.
Surgical: Nil Social History: Smoking: No Ethanol : No Others: No Family History: Nil Significant Current Medication: Nil Clinical Examination Weight: Not able to stand Pallor: Nil Cyanosis : Nil. Clubbing Nil Oedema feet: Nil Oral Cavity:NAD Ieterus: Nil Lymph nodes: Nil Temperature: 98.4 F Pulse: 82/min. B.P.100/60 mm of Hg HEENT : No abnormality detected.
CVS: S1 S2 heard RS: Normal vesicular breath sounds heard ABDOMEN : Soft, tenderness (+) bladder palpable. CNS: Patient conscious and oriented GENITALS : Per-urethral bleeding (+) SURGICAL EXAMINATION Abdominal distension (+) Severe degloving injury left leg, ankle.
Leg distal 1/3rd ankle and foot (lateral aspect) with bone exposed and bone loss.
Post tibial pulsation (+) Capillary filling (+) Bone loss fibula / tibia / talus / calcaneum Right heel pad, medial aspect avulsion injury Left knee puncture wound (?Open knee) Course in the Hospital & Discussion Mr.Krishnakanth B, 22 years old gentleman, was admitted in the hospital with crush injury to both legs with soft tissue loss, bone loss left leg, ankle. After being investigated, evaluated, getting informed consent for surgery PAC clearance. Posted for surgery on 08.05.2011, wound debridement + external fixator for left leg, was done. Dressings were done in the ward. On 12.05.2011, taken up for second surgery, the exposed bones and ankle joint were covered with LD free flap transfer, split thickness skin graft to left leg. Regular dressings were done in the ward. On 18.05.2011, patient was taken up for third surgery as bleeding from the flap distally was not satisfactory, Debulking + tangential excision of flap done till fresh bleeding was seen. Regular flap monitoring was done. On 21.05.2011, taken up for further surgery as bleeding at distal end of the flap is not present. Tangentially excised, pedicle flow (+) proximal and portion of middle was viable split thickness skin graft done to cover the clap.
Patient was referred to above concerned specialists their advice was followed. Blood transfusion was given in the ward to correct low haemoglobin.
Dressing done on 25.05.2011, Split thickness skin graft take is good. Retained portion of the flap is visible. Discharged from hospital in the stable condition with following advice.
OPERATION NOTES:
NAME OF THE PROCEDURE: LD FREE FLAP + MVR WITH HAEMATOMA EVACUATION FROM LEFT THIGH WITH DEBRIDEMENT + SSG TO RIGHT HEEL - 12.05.2011 Under general anesthesia with endothracheal intubation both lower limbs painted and draped.
The raw area would over the right heel was thoroughly debrided till fresh bleeding was seen and the area was resurfaced with meshed SSG taken from right thigh.
Dressing done. POP given. Incision given over the anterior aspect of the left thigh. Haematoma about 750 ml evacuated.
There is physiological degloving extending proximally upto lower abdomen and distally upto lower thigh. All haematoma evacuated. Saline wash given. Tacking suture taken to close the incision with the corrugated drain insitu.
Left Leg Tangential excised wound lateral aspect of the left leg.
Exposed ankle joint, tendon, muscle at lower 1/3rd leg and ankle region laterally. This defect was planned to reconstruct with LD free flap. Markings made for LD flaps on left side after keeping the patient in right lateral position.
Incision given along post axillary border LD flap harvested based on thoraco dorsal artery with VC as its pedicle.
Transferred the flap to the recipient site.
Anastomosis:
Thoraco dorsal artery to the anterior tibial artery VC to the anterior tibial vein, both end to end with 10-0 ethilon.
Good perfusion seen on table after anstomosis.
The muscle was resurfaced with meshed SSG taken from right thigh Dressing done for the left leg Donor area of SSG dressed with nuskin OPERATION NOTES:
NAME OF THE PROCEDURE: TANGENTIAL EXCISION OF LD FLAP, WOUND DEBRIDEMENT CHANGE OF DRESSING WITH SUTURING OF LEFT THIGH - 18.05.2011 Under general anesthesia with LMA patient in supine position. Areas pinted and draped.
Procedure:
1. All the unhealthy looking muscle was excised tangential till bleeding from the muscle was seen at the proximal and distal edges of the flap.
2. Good perfusion seen both at proximal and distal edges of the flap.
3. SSG over lateral aspect of left leg, knee region 95% taken.
4. SSG over the right heel was completely taken without any loss.
5. Degloving injury over left thigh was also looked. Wash given with normal saline, edges freshened and sutured with 3.0 ethilon after keeping a corrugated drain.
6. LD muscle donar site dressing removed, left open the suture line, drain also cut opened.
Dressing done for all wounds, position maintained for left leg.
OPERATION NOTES:
NAME OF THE PROCEDURE: DEBRIDEMENT AND SSG LEFT LEG - 21.05.2011 Under general anesthesia parts painted and draped. Free flap examined tangentially excised.
Pedicle flow (+) Proximal flap and portion of middle viable SSG done and dressed.
Significant Medication given: Inj. Magnex, Inj.Supacef, Inj.Gentamicin, Inj. Clexane.
Condition at Discharge: Patient is comfortable and stable General condition is fair Vitals sable at the time of discharge External fixation intact left leg.
Dressing intact left leg, right leg, left thigh, No soakage.
EX.P4 : DISCHARGE SUMMARY
PERIOD OF HOSPITALISATION : 27.06.2011 TO 27.06.2011 DIAGNOSIS : RTA WITH SOFT TISSUE LOSS LEFT FOOT & THIGH & URETHRAL
INJURY, ON EXTERNAL FIXATOR SURGERY DONE : 1. REMOVAL OF EXTERNAL FIXATION LEFT LEG & POP SLAP APPLICATION
2. CYSTOSCOPY &
3. SSG LEFT THIGH & LEG EX.P5: DISCHARGE SUMMARY
PERIOD OF HOSPITALISATION : 16.09.2011 TO 21.09.2011
Date of admission : 16.09.2011 Date of Surgery : 17.09.2011 Date of Discharge : 21.09.2011 Allergies : Not known Diagnosis : Road Traffic Accident with Pelvic Fracture with Urethral Distraction Surgery : Progressive Perineal Urethroplasty History of Present Illness Chief Compliants : Mr.Krishnakanth B, a 22 years old gentleman presented to the hospital with history of road traffic accident with uretheral injury and soft tissue loss left feet in May 2011.
After stabilisation had cystoscopy in June 2011.
Complete blockage at bulbomembranous urethra. Scope through SPC went 1cm beyond verumontanum. He has come for further management.
History of Diabetes Mellitus: No History of Hypertension: No History of Coronary artery disease: No History of Asthma: No Part History:
Medical: Nil.
Surgical: Wound debridement on 08.05.2011 LD Flap + MVR +STSF 12.05.2011 Tangential excision LD flap 18.05.2011 Debridement + STSG on 21.05.2011 Social History: Smoking: No Ethanol : No Others: No Family History: Nil Significant Current Medication: Nil Clinical Examination Weight: 50 kg Pallor: Nil Cyanosis : Nil. Clubbing Nil Oedema feet: Nil Oral Cavity:Fair Ieterus: Nil Lymph nodes: Nil Temperature: 98 F Pulse: 86/min. B.P.130/80 mm of Hg HEENT : Within normal limits.
CVS: S1 S2 heard RS: Lungs clear ABDOMEN : Soft, Bowel sounds (+) SPC in situ CNS: No focal neurological deficit Course in the Hospital and Discussion Mr.Krishnakanth B, a 22 years old gentleman presented with history of Road traffic accident with uretheral injury in May 2011.
He was investigated and diagnosed to have stricture urethra. He underwent progressive perineal Urethroplasty in 17.09.2011.
OPERATION NOTES NAME OF THE PROCEDURE : PROGRESSIVE PERINEAL URETHROPLASTY Under general anaesthesia, patient in lithotomy position. Up and down cystoscopy done.
Midline perineal incision taken.
Urethra with corpus spongiosum mobilised.
Bulbar urethra mobilized, distal stricture part identified and urethra – dismembered at bulb.
Perennially progressive dissection done,triangular ligament divided.
Proximal segment of urethra identified. All scarved tissue excised.
End to end spatulated urethral anastomosis done over 16 Fr Foley using 2-0 Vicryl. Haemostatis secured.
Wound closed in layers with Vicryl. SPC deployed. He withstood the procedure well.
Post-operative period was uneventful.
Significant medication given : Inj.Magnex 2 gm IV.
Condition at Discharge:
Satisfactory. SPC in situ.
Foley's Catheter in situ.
Ex.P.6: Discharge Summary:
Period of Hospitalisation : 13.10.2011 to 13.10.2011 Date of Admission : 13/10/2011 Date of Surgery : 13/10/2011 Date of Discharge: 13/10/2011
Allergies : Nil
Reason for admission : ANASTOMOTIC URETHRAL STRUCTURE Procedures performed: VIU (VISUAL INTERNAL URETHROTOMY) Prostatic Urethra : Anastomotic Structure.
Ureteroscopy revealed narrowing at the anastomotic site. This was cut open with Sachse uretrotome.
Condition at Discharge : Stable
Final Diagnosis : ANASTOMOTIC URETHRAL STRUCTURE
8. Considering the nature of injuries and treatment procedures the appellant/injured would have experienced severe pain and suffering, at the time of accident, during the period of surgery, treatment and convalescence and having regard to the situs, particularly, hip and heel, there could be continuous pain and consequently suffering also. Pain is one, which is experienced momentarily, but it may continue even for a longer period, depending upon the gravity and situs of the injury, whereas, suffering is loss of happiness, on account of the same. Pain has no difference between Rich and Raff.
9. In the case on hand, the tribunal has awarded Rs.1,00,000/- under the head pain and suffering. Appellant has underwent seven surgeries including urethroplasty. Hospitalisation is for various spells. Having regard to the above, we are of the view that a sum of Rs.1,00,000/- awarded under the head pain and suffering is less. We deem it fit to enhance the same to Rs.2,00,000/-.
10. Functional disability has been assessed as 75%, which is not controverted by the respondent-Transport Corporation. Accident has occurred on 07.05.2011. Having regard to the same, as rightly pointed out by Mr.F.Terry Chellaraja, learned counsel for the appellant/injured, tribunal ought to have awarded Rs.3,000/- per percentage of disability. Thus, the sum of Rs.1,50,000/- awarded as disability compensation for 75% disability is enhanced to Rs.2,25,000/- (Rs.3,000/- x 75).
11. Having regard to the nature of surgeries, the appellant/injured would have been advised to take extra nourishment / special diet during the period of treatment and convalescence to improve his general condition. Rs.20,000/- awarded, for the above in our view is less and the same is enhanced to Rs.30,000/-. Injured has underwent seven surgeries and discharged. Rs.10,000/- awarded under the head transportation is less and the same is enhanced to Rs.25,000/-.
12. As rightly pointed out by the learned counsel for the appellant/injured, there is a conspicuous omission on the part of the tribunal in not awarding a just and reasonable compensation under the head loss of amenities. In Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC
433, a Hon'ble Full bench of this Court has explained as to what 'loss of amenities' means and as to how an injured is entitled to be compensated under the abovesaid head. The relevant portion of the judgment is extracted below:
"14. Loss of amenities : The next head of non- pecuniary loss is 'loss of amenities'. Besides damages for the pain and suffering sustained by a plaintiff by reason of his injuries, damages may be awarded for the losses sustained by him. Loss of amenities covers deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function. In India loss of marriage prospects and loss of enjoyment of life are awarded separately. Damages under this head are awarded whether the plaintiff is aware of the loss or not. They are awarded for the fact of the deprivation, rather than for the awareness of it."
In view of the above decision, we estimate the loss of amenities as Rs.75,000/-.
13. On the basis of Ex.P8, Medical Bills, a sum of Rs.9,49,000/- has been granted under the head Medical expenses and that the same does not require any enhancement.
14. Admittedly, the injured has taken treatment from 17.05.2011 to 13.10.2011. Considering the nature of injuries, it could be reasonably presumed that he would have been immobilised for some time and taken outpatient treatment, as well. The tribunal has awarded Rs.30,000/- under the head loss of earning during the period of treatment. Addition of another Rs.20,000/- i.e. Rs.10,000/- per month, would be reasonable. Therefore, compensation under the head loss of earning during period of treatment & convalescence is fixed as Rs.50,000/-.
15. Attendant charges is yet another factor, which is normally taken into consideration, while an injured is awarded compensation, and therefore, a sum of Rs.10,000/- is awarded.
16. There is no award under the head damages to clothes and articles and Rs.2,000/- would be reasonable.
17. In the light of the above discussion and reworking, compensation due and payable to the appellant/injured works out to Rs.15,66,000/- with interest at the rate of 7.5% per annum from the date of claim till realisation and costs awarded by the tribunal and that the same is apportioned as hereunder.
Pain & suffering : Rs. 2,00,000/-
Disability compensation (Rs.3,000/- per percentage of disability i.e. Rs.3,000/- x 75) : Rs. 2,25,000/- Medical Expenses : Rs. 9,49,000/-
Loss of earning during the period of treatment : Rs. 50,000/-
Loss of Amenities : Rs. 75,000/-
Extra Nourishment : Rs. 30,000/-
Transportation : Rs. 25,000/-
Attendant charges : Rs. 10,000/-
Damages to clothes : Rs. 2,000/- Total : Rs.15,66,000/-
18. Compensation awarded by the tribunal is Rs.12,59,000/- with interest, at the rate of 7.5% per annum. On appeal, compensation now determined by this Court is Rs.15,66,000/-. Enhanced compensation is Rs.3,07,000/-.
19. Both the learned counsel for the parties submitted that though the tribunal, vide judgement and decree dated 21.01.2016 in MCOP No.246 of 2011 directed the Managing Director, Chennai Metropolitan Transport Corporation Limited, Chennai, the respondent herein, to deposit the award amount of Rs.12,59,000/- with interest, at the rate of 7.5% per annum from the date of claim till deposit and costs, so far, it has not been done.
20. In the light of the above discussion, Civil Miscellaneous Appeal is allowed. No costs. Respondent-Transport Corporation, is directed to deposit the award amount now determined i.e. Rs.15,66,000/- with interest, at the rate of 7.5% per annum from the date of claim till deposit, and costs, in two equal instalments, within a period of six weeks, from the date of receipt of a copy of this order. On such deposit, the appellant/injured is permitted to withdraw the award amount, with interest and costs, by making necessary applications.
21. For reporting compliance, post the matter on 30.06.2017.
Note to office:
Issue order copy by 13.06.2017
(S.M.K., J) (M.G.R., J.)
09.06.2017 Index: Yes. Internet: Yes. ars To
1. The Motor Accident Claims Tribunal, (IV Additional District Judge), Ponneri.
2. The Section Officer, VR Section, High Court, Madras
S. MANIKUMAR, J.
AND M.GOVINDARAJ, J.
ars C.M.A.No.1199 of 2017
09.06.2017
http://www.judis.nic.in