Karnataka High Court
V Subramani vs The Oriental Insurance Co Ltd on 25 March, 2010
Author: Aravind Kumar
Bench: Aravind Kumar
2 B.M. Hanurne Gowda, S/0 H. Miniraja, R/a No.6, Anugraha, 5*" Main, 3" Block, Gorugantepalya, ._ Bangalore M 22. Respondentsfl--.g. V' (By Sri K. Sreedhar, Adv. for M/X Axis Lawns. for f V " Notice to R2 dispensed with by CourI."ord'e'r dated V This M}scelianeou's l4<"irset.'j/Xppeal isxfiled under Sec. 173(1) of the Mot0r----Vehi"e1es i9_88,V' agai,ns_t,»~the judgment and award dated 1912,2007 "passedAi.in No-1 636/2006 on the file of XIX Addl. Small Cause lluldgellcfiz. Mern--ber,' MACT, Bangalore, etc. This ll/l«i_.seellaneous._ Appeal coming on for Admission this day', the Court: delivered the following: JUDGMENT
ll the..lrnatter is listed for admission, by consent of the learned C'..o"uu-se"1 appearing for the parties and also the matter being 3 .l_.'oi7. the year' 2007 and records of the Tribunal having been secured, it up for final disposal.
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2. The claimant is seeking for enhancement in this"ap'peal5 being not satisfied with the judgment andfiaward it No.l636/2006 dated 19.2.2007.
3. The facts in nutshell are as __ On account of road Vtrailic on 51.2006 at about 8.10 pm. near Lglaimant filed a claim petition girl Ifilo'; gntotal compensation of Rs.3,50--,--000/if"bei'oi'e;._the r; Bangalore.
4. Onliservi.ce'of iioticeg' the first respondent appeared and '~ ._vfiled._':it3é: vivfgittevn state:ne._nt,.T he second respondent had been placed exrparte. -respondent denied the averments made in the petition. Onthic of the pleadings of the parties, the Tribunal ghad framechthe following issues for its consideration:
4/ "l. Whether petitioner proves that he suffered injuries in a road traffic accident that occurred on 5.1.2006 at about 8.10 p.m. on LN. Pura market road, near eastern medical centre, L.N.Pura, Bangalore due to actionable negligence by the driver of Tata bearing No.KA--03 13-1986?
2. Whether the petitioner proves that-.he-is entitledipffori' compensation? If so, what arriotirnt andgfrom they are entitled to?
3. What Order or award?'
5.:':__The-- of his claim, got himself examined as'*P._WlV and also .eV>Earnined the Doctor as P.W2 and also got rparlfied. documents Ex.l?1 to Ex.P11. On behalf of respondent No.*l--.; no _evidenc'e was let in and no documents have been marked. €.31iAlc'onsidering"the pleadings and evidence of the parties, the 'pffribunal itsjudgment and award dated 19.2.2007 allowed the if i'..ji_c1aiir1-..petit;ion in part and awarded a compensation of Rs.88,000/-- ' together with interest at 6% per annum under the following heads:
S1.No. Particulars Amount A pi Towards pain and sufferings Towards Medical conveyance & attendant charges expenses, nourishment "and. A ,' _j3wQ,U€):0.00 ~ ._ Towards loss of physical disabi]it§.an'd_i A' 3 loss of amenities i.ipi3o;U0o;i:io»fir1 ._ Towards loss of incorne_i"*~.during .. ' treatment period i"}i6dKKl0d it i ' tnass,d00.oo present appeal by the'e1_a'imarat. 3:
:mIOTALddpia It is this judgment and :6/h.i.oh'~.nj§,_iassailed in the
6. have 'Sihripad V. Shastri, learned Counsei appearing for. K. Sridhar, learned Counsel r8.3.:0_1«o.'i' !I appeariigiigiion behalf. Axis Law Inc., for respondent No.1. W._Notieeto respondent No.2 has been dispensed with by order dated a»
7. Sri Shripad V. Shastri, learned Counsel appearing appellant by drawing the attention of this Court to paragraph . the judgment and award of the Tribunal would"
disability to the whole body is 10% wasiiacce_pte.d if and in the very same paragrapflLfllfribunal disc' disability assessed by the Doetor WiVpthri)i{:1p~F\.:assi.gning Cogentreasons resulting in not awarding head "loss of future income". .vH'C:liCC, is to be compensated for consideration whole body sat it I-ie....vgiou1d also submit that compensation' loss of amenities is to be separately awiarded apart 'r.«:g'm.._ awarding compensation for loss of future"i'nco_:ne._ He eilabmiates his submissions by contending that i'--.comp'ensa'ti.onl towards future medical expenses also requires to be iigly, he seeks for allowing the appeal. Per c':o'nt1'a, Sri K. Sridhar, learned Counsel appearing for iii"V1iespondenit"' No.1 submits that Tribunal has rightly opined that Doctor who was examined as P.W2 is not an Orthopedic Surgeon and therefore, the disability assessed by him has been rejected and submits that finding of Tribunal does not call for any interferen.-ce. He would submit that Tribunal after taking into consideration"
evidence of Doctor and also the wound certificate at Exf_P5 .f1nd:"t-he -- if discharge summary at E',x.P8, has awa;r'ded"*a. comp_en_As'ati_on of in Rs.30,000/-- towards physical disability Allanclploss ofxy.;1reenitiies'.'.,fi"
Hence, he submits that no compensation'-ii,s required'Vtoj""-be'awarded under the heading loss of future inco1ne."l%l.e would also"sub"rnit that question of awarding compensation'underfthe 9 heading future medical expenses not arise ----since the witness«P.W2 has not spoken to about' any operatio'121surgery to be done on the claimant at
-V . pa laterstage; AVccordi'ng1_y_,_pseeks for dismissal of the appeal. " l?{avinrg_.heard the learned Counsel for the parties, the fellov_vinAg" points arise for my consideration:
"«.(i) ja/Vl1€'E;fl6AI' the compensation awarded by the Tribunal in till/iV(j..No.Vl*6¢36/2006 dated 19.2.2007 is just and reasonable or it requires to be modified/enhanced under any of the headings.and4:'_'if so, to what extent?
(ii) What order?
Reg. Point No.11' )2
10. The claimant in support regardinginjuries sustained in the accident the wound certificate which is at .P5:"a"1id' summary which is at Ex.P8. _themVciairnant has been cg;-tarrnned the claimant on 2'1.1.200':'7vs--a_an--c1" claimant on the date of the accident i.e.v'*--on .5.'1..2006" sustained fracture of Eateral
--.4ma]Ieoi'ous__f'onv% righ't""an_klev and surgery for open reduction and .W,intet*r:a1 _fix_atio_n. conducted for fixing fracture with plate and screws';hfHefh'as_ opined that there is a scar over right ankie and 'xt_erIninal~~twenty degrees of extension is restricted and East fifteen ":d'egrees_.of flexion is painful and assessed the disabiiity to 30% to ..,wtheg%1eg and 10% to the whole body.
11. The claimant is an Auto Driver by profess«ion_5 account of the injury sustained, he has stated in his evidence it is unable to carry on the job of Auto Dif>i\/eI'_2A1'S' hegpwas'idbin.g.__por'VV{p_ carrying on before the date of accident. When the Tivibtinai has"
accepted at paragraph 15 that the body iskitowithe extent of 10%, it fell into ii.W2 in the later portion of its orderA.o,nly--.oii__Vthep jvpthat the person, who has It is an admitted fact that P.'W2:V Chhaya Nursing Home and is for the said hospital and is having experien_cei,inV'the'Afield..'i'ln the cross--examination, he has yspecifiéalliyii'stated th~at___h_e_has treated the claimant. He has also .7.,staI.ed--. assessed the disability based on clinical examination '~atI.d1'vVALOMCO Manual Guidelines. The only ii.suggestionu'put forth in the cross--examination was that disability by him is on the higher side. This suggestion would clearly goes to Show that there is a disability and what has been $2"
11
"loss of future income" in substitution to the amount awardedby the Tribunal at Rs.30,000/-- under the heading "towards disability and loss of amenities".
12. There is no dispute that on'account_.ofV_"_'theinjury' Z sustained, there is a loss of amenities inflblifetoyi the'._c1'aira.ant.., same is required to be suitably compensated._by'-- awarding. and reasonable compensation. Consideringthe natureof injury found in Ex.P5 which is to the fo1Iowi.ng e-l'feet.: ~
(i) Fracture of lateral I'}T1vE'_~!l:é()']()llV§ riighti
(ii):"~Ab'rasion: o%;%je;»ii4:righ't' 'elbow. ' and the medical. evidence eniirsenord, I am of the considered opinion mthat Rs.lA0;0Q0_[--«'is required to be awarded under ihe Wheadi'n'g_"'loss :(v')'fAV.':'1VIi'-E.E3I1ifi€S", which would be just and reasonable. iTribuna1~~uvnLiler ; W) other heads are not disturbed. Aceoréingly,'it'i_is9;so awarded. The compensation awarded by the 12 In view of the above discussions, point No.(i) is answered_in._V favour of the claimant/appellant and the judgment passed by the Tribunal is modified.
Reg.Point N0.(ii1:
13. In view of the above dist;ussions,._ following; order'=.j$' i' passed:
. A_ -I i j' 2 it - ._
(a) The appeal is allowed
(b) The andlawardi No. 1636/2006 dated 19.2-.,20'()7 is extent above stated by awarding a sum of Rs.6'4.,o0o/-- iwitiieit Carry interest at 6% from the date . er the pietitiott till the"da.t¢:_.0i award.
' " _{§)..Qut the_said compensation awarded, 50% is ordered to beikeptin a fiX'ede1'deposit in any Nationalised Bank of appellant's ivehoice iforperiod of 3 years and the appellant would be entitled to ._ "d1'a.w periodical interest.
$'M/._ '!3 (cl) The balance of 50% together with proportionate is ordered to be reieased in favour of the ciezirnant/ElI3_?\3~'C3;.£}.$'~jr«o*\t:4'. . order as to costs.
rEGo@E BMM/2532010