Karnataka High Court
Sri D Vishwanatha vs Shanavaz on 6 July, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 06*" DAY OF 3ULY, 2010 BEFORE THE HON'BLE MR. JUSTICE JAWAD RAN~IMf.j,fl__'7 ,,,'" MFA. NO. 12297 OF 2007 BETWEEN: AND : SR1 D.VISHWANATHA, _ S/O DEVIKARIYAPPA, _ AGED ABOUT 25 YEARS, * R/O THOTADA MANE, SRIRAMPURA POS_T~,._ HOSAOURGA TALUK_,u '-- _ A. OURGA OISTRIc'r.,,_" 5 ._ ' ' ?'§Pfi£LL%?r*f?' (BY I,~(_:,_fiLEA_T_UREi'f,'4.AE)\V'/E')'VVV' $HANAVAZQxEafiVH" S/O_A'B_OUL_GAFAR-,SAS, R/O 'N.O.67/2_65A,_ KENGERI TOWN, . 2"" DIVISION, BANO_ALO'R--E ¢;_5.00 060 T.HE,O.IvISIONAL MANAGER, ORIENTAL INSURANCE co. LTD, " N0.2I»I23"-;217, O0.N0.I0, 3'3D'FLi0'OR, 3"' MAIN, AW CROSS, CHAMARAIARET, BANGALORE -- 560 018 5 NREAPONDENTS C-'(BY SRI M.RAMESH FOR R1 AND SR1 ASHOK.'N.PATIL FOR R2, ADVS) gw»Q/ ***
THIS MFA IS FILED U/S 173(1) OF Mv ACT AGAINST THE JUDGMENT AND AWARD DATED 01~02--2007, PASSED ILN JVC NO.5188/O5 ON THE FILE OF THE XII ADDL JUDGE AND MEMBER, MACT, BANGALORE (SCCH~8), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION--.,AND SEEKING ENHANCEMENT OF COMPENSATION. "
THIS APPEAL IS COMING ON FOR fiD"iYiI$SI:(Vji~i THIS BAY, THE COURT DELIVEREDTHE,iéOi,i.O,wIi$iG JuDGEN£NIa':: % i it Y Ciaimant is in appeai against the 3~I.idgrne,nVt'*:a'Vnd award"
in MVC No. 5188/2oo5._DATED' --0,1--o"2;20ot7'oniifhe file of MACT, Bangaiore (SCC'HV%--8) iisejeiiinfiggIIvv:%_gn,h'anCement of the Compensation, 2".) " ._C|'aima,rit.VVfiie6r--.Ciaim petition tinder Section 166 of the Karn'a.ta'i<awifiotioirlfehicles Act seeking compensation persoriai------~irij0ries suffered by him in a motor motor Car bearing registration No. KA--O3 by him and iorry bearing registration No. KA-
7._25 2199':.on 14-002005 at 2-45PM on Bangaiore M Mysore ":ii"_R.o:a"ci}« In support of the claim he urged that while he was cautiously driving his vehicle towards Kumbaiagodu Carrying passengers the offending vehicie coming from opposite €K:C,é/ direction traversed to the extreme right side of the road and collided with his vehicle. Due to the impact so generated he suffered fracture of his left limb and blunt to abdomen. He was shifted to Victoria Hospital.for5w:a:n't:..Vo1'«_ blood. He was transferred to Bowring Hospital, where doctors subjected him 'for=ai!__me;.f>.t fixing the fractured bone of the -legs anti"repaiarv"of;dab-iai}geVlto.:':v his abdomen. He was inpatienlt«.lforVV402 he was discharged with an advice _tc'_V_ undle';=.go.iA"surgery after some time for removal of imp|a.n.ts_.}. 'V A f if
3. i--|4_g-ivalil§1ieig_'edv::'*acciclent;.vh'as""'ieft him physically impaired""no-.Vlonger""abIVe to drive the vehicles thereby:"'loo'3'ing income. Claiming that he was a proflessiornal -drlixreruelarning Rs.5,500/-- per month he ~"'.o.souc"ht. com_ensation....towards ecuniary and non-- ecuniary Vlossesw'xl";"~l ..__"'-'E"ll'ie respondents - owner & insurer of the offeVn_dingw~'vehicle are made parties. They resisted the claim a._lai'1_V<if"i*.a'lve filed detailed counter.
5. Based on the material proposition in their pleadings the Tribunal raised relevant issues and applying evidence tendered by the claimant as PW1 and the vevidence of his witness Dr. S.Rajanna as PW2 and also evidence Ex.P1 to 14, held that he sufferance of injuries in the imotorj;vehici'e-.,accildegnt'. Fastening actionable wrong on the 'driver ofbtiie' lorry 'the, Tribunal held him entitle for com'p_er.sation';.
6. Based on the tendered by PW-
2 Dr. s.Rajannéy: and Ex.P5--
Wound Ex.P8 -- cash éand.....::EO OPD slips, Ex.P11 -
Scanning sheet and Ex.P13 and 14 -
X--rays, thae*7fribuna_lVh_eid.:."~~that the claimant had established sufferance of inj"urie_s...and consequent disability. However, 'whi'ie.1qu:ant<iifyin_g compensation the Tribunal declined to accepbt therirnieydical evidence that petitioner had suffered fnphysllical'disability to his abdomen as also lower limb. On A '~:if"such"~«_.conclusion the Tribunal held that claimant will be ' entitled to compensation towards notional physical disability jwb of 15% of the whole body, thereby dis--agreeing the evidence of the Medical Officer.
7. In the resultant position the Tribuna!--«j'a.,w'a_rded Rs.30,000/-- towards pain and sufferings.,";*-- towards medical expenses, Rs.5,0.00/~.ytowairds"conyeyan'c_e'« and nourishment, Rs.91,800/~ awards iiilessfyofi earning, Rs.8,000/-- towards --fu't.ure rrredicaliiiv-ex:p:e'rrses and-it Rs.10,000/~ towards .~!0.ss Qf""tl?fiemtie5-'fi"~ThE3'§ claimant questioning the grant'4'as_,.':n'e.agevr low is in this appeat
8. in 'isuppoirt' olfltiie"grou"nd's in appeal the learned counsel subxmits ~th'e.',V__clai_mVant's hospitaiisation for 40 days has._b4eento_ta-lly by the Tribunal and the fact thatghe chad asuffered injuries, which was grievous in nature jéuyrgeryflmhas not been property taken into physical disability is disbelieved by the Tribuna_i"erroneouslyion the ground that PW2 - Dr. :_"S.R_ajanen"a was only an Orthopedician. Thus, appellant enhancement, which is opposed by the learned
-~-counsel representing the insurance company. rt 6
9. The learned counsel for the respondent --~ insurance company would contend that the appellant may have suffered injuries, but injuries were not severge"-as is alleged. He submits that claimant has obtained treatment in the Government hospital and right in awarding Rs.2,500/-- towlalrd:s'rmedi<:a.lV:_"treat'rneni:, Rs.5,000/-- towards conveyance a4r:d1"Rs.1Ol,O_QO/--* loss of amenities. He submitlssthat the'.claiiir.r:an't;lhas been cured and there Is ncfprobiem" fractured bones. Therefore, he is not entit-ledltojl ans,<:_:lco'mp'ensation towards alleged physical'i;n'pair;megnt'»~or"lols'si_'o.fV_i_ni:ome. 'Keepi.n;_g_in,_'mind" urged I have examined record sin" supp|Ve§rjiV1eVntaltio_n *the'reto. ;,,¢1_. limdtihle outset it is to be observed that e,n.t"itlern:en:tr~of thevflaplpellant for compensation is on the basis %wl.i.a.l:iility of the negligence caste on the driver of the4..offe'ndiAn'glvehicle, which has not been questioned by the it .inisured~-or insurer.
12. The medical evidence reveals soon after the accident petitioner was rushed to Victoria Hospital at Bangalore, where he was treated by PW2--Dr. S.Rajanna. PW2 is very clear in his deposition that he has examined the petitioner soon after admission on :i4--06--2005 andg he treated him along with team of doctors.
statement in his evidence that he has tgreatiedv 'for V' orthopedic problems like injury to i;j;one';etc*;._ -3 ii
13. Besides the doctoréhas clearly deposed"thtatonkg examining the claimant also examined the records.' fhe d«:icto'r»i"§3:w,2;"~has fuvrther deposed that petitioner had following "1) gag.mir _'--ignjgri,} i.jVa'xbd'o«n"ien with ilealm'perforation and " h (2) Sweilivng' and tenderness over left thigh diagn_os'is Qfracture shaft left femur; V-':i..°'(3.A)».Sutu red w"o'und over cheek about 6 cms." PW2--Dr. S.Rajanna, operated victim on closure of Ileal perforation and mescentric 3u""'*--__V"'teagr and,_.Aabdomen drainage was done on 13--07--200S. Open g.":.eda.iC§:ion and internal fixation with K nail and cerceilize wire _,d.one. He was discharged on 25-07-2005 with the advice 2' non weight bearing till further advice; regular dressing twice a week; quadriceps, ankle and knee exercises and review after one month.
3.5. Besides, in the cross--examination dofijei-i:b";(i"the insurance company he was questioned a.b4'o~uty:'yVtreatyi'reg«a patient. To such questions the..doctor replied that "I have personally :'trea_'tecI Case sheet bears my signatfire. 1' 1' is false 'to':suggest' V L' that, petitioner hadyeznot ahy...tinj:uries as stated by me in the time of examination _ theft' :'assessment of disability, V' the petitioner.
Petitioner 'rram»:'14-o6~2oo5 to 25-07- 2oo5.'?--._ '-- i ;~16_. Case 'sheet produced by the patient bears oj"f'i~t_he doctor. That Doctor who was on duty had Ai'-exa-rnilri-ed..t'l'.e'f-petitioner and his observations are recorded. I have a_vl'so,e'xAamined the case sheet filed. it On examination of case sheet it is also seen that ' itgissigned by the doctor --PW2, wherein there is record of surgery having been performed. Even if we accept contention of the insurance company that the doctor was an Orthopedic Surgeon, but the statement made by the witness that he treated patient with team of doctors answe-é:rs.uthis question.
18. In cross--examination PW»2-_-g at one stage stated that he has :t_reate'd~.the'? pgetit-ioihveir with regard to abdomen inju»i*i_:ef's~,.V_AbutA"he haVs>v.fu'rtii'er. addeci-L' that he has assessed.gggdisabiii-E-t§"g'v--including'~.i.nju,r3/ of the abdomen. This was counsel for insurance com_pa:ny_ toigsiaiy 'clearly admitted that he has abdomen injuries.
On this.i.basis"h_Ve of PW2 with regard to abdomen' injuri'és_can"no_t'"be accepted. ;'19_. 'co'nte'nti'o.n must be rejected because there a"'is_n'o.suggestion ouitiito PW2 that he was incompetent in disabiiity of a patient suffering from inju'r,iesV.__vto.t7he abdomen. It is no body's case that doctor VV"'was either less qualified or was incompetent to assess the '~in'j'uries to the body. It is seen from his qualification that he Professor of Orthogiiaedic in Bowring and Lady Curzon Hospital, Bangaiore. There could be no dispute being 10 qualified as general physician he has obtained specialisation in Orthopedics unless his incompetence is proved. For removal of doubt it is worth examining medical records relating to surgery and treatment. Documents)'_'»e:str:a'Vbl'ish petitioner has suffered injury at the abdomen'V:"vir:hi'Qjh~..its blurit V' injury.
20. Be that as it ma>,?,_4we arermoreg.c'on'C'erned'with, his orthopedic problem becauléegifpetltion'er's"chi-aim:isnthat he' was driver and becauseof trie injur1_e.sVl'h.e is not in a position to drive the vehicle. tc3~.,,.:F5'ii'l.I(j2'.__'the claimant has suffered followin7;}rpVhys.ical; d'isa'bi.l:ity':'~ '..'.(--1")v _§a)t.i'e.nt;).»_Aralibs-with *-l--§._mp'§ on to left side; (2.) well of abdomen;
1 ' -(3) scarfnon lateral aspect of thigh if and .,bnUtt0d'(;. .....
over anterior well if abdomen inr;ls'ix§m'al hernie;
if (S) Shortening of left lower limb by 2.5 cms.; (6) Limitation of left knee movements by 30%; (7) Limitation of left hip movements by 30%; (8) Wasting of left thigh muscles by 4 cms.; (9) Wasting of left leg muscles by 3 cms.;
(10) Tedtheer of left thigh muscles ie., under lying bone."
Check x--ray 27894 dated 23-11-2006 sh.owsil.Vo:1dj:~ mea,..i fracture of shaft of left femur with"im'p!an--lts .;th.at'«_i_s:VK-Vwilre and circillize wire fixation in situ.
21. The description' Medical Officer has renj_iained""un'disturbed"'i'n the cross examination. The ultim4ate_"opi-niwioii Alimco manual is that appellantlias of left lower limb and 1:5'6/§f _itc{'ii~2o.92¢'idi-aabiliftyflueito blunt injury to his abdomiena "to"'wl'i'o|e body.
of considering grant of compensation forVloss'=_of"amenities 32% disability has to be «Withw1'reg'ard to earning capacity the disability of has to be taken into consideration. This is because'.th'e€--.V_case of the appellant is that he was driver and V'-i.therefore} the normal functioning of limbs ie., legs and is must. Any impairment in functioning of the limbs if"--allundoubtedly cause impairment in his driving and has bearing on his earning capacity. Therefore, the physical
5.' .5 Olvigx 3:5», receive. The accident is in the year 2005 and normal salary payable to driver would be Rs.S,0O0/- per month which should have been the basis. Therefore, the fixVa'tion_ of Rs.3,000/- per month as income, is not a the result, award of compensation of the T.ri.b_'u'haljarequires.'VT' re~determination.
25. For the reasons d'isc_usse'd_above,»"the':4_awa';rd'of', of Rs.30,000/- towards pain for figacture of both lower Eimbs and tovfifabxdomen, is enhanced to Rs.5o,ooot_/t_-gt':1ewtird-§--lVi.eles:,_at amenities and enjoyment "3T_ri'bu'n'al:Vv":h'as..t%Warded a Sum of enhanced. As the claimant disabilities which are permaner.t_L"in enhanced to Rs.45,000/--. Rs.24E3S<.'()./-4xtow'a'r'dsffymedicai expenses, granted by the confirmed." Towards future medical expenses the 1i'Tribunaivl:4h«a»'s'awarded Rs.8,000/-, which is based on the evid'ence'ofd'octor and hence the same is also confirmed. it Towards conveyance and nourishment the f Tribunal has awarded Rs.5,000/~-- as against the evidence, which would establish that the claimant was hospitablised U 14 for 45 days in Bangalore. The said award is not realistic. Considering the injuries sustained by the claimant and the evidence and also the expenses towards his and conveyance as also expenses incurred towards..atten.dga'nt charges, the amount awarded by the Tribunal.,l:'S~--.enh.angced'at' Rs.25,000/-.
27. Towards loss of'-.i:vi'i=..r;ome" the' claimant is taken at Rs.S,000.,l~VVw.o'er'month'and 'disability of limb at 44%, it would be"pro'p,ei*Vto'4ztaketfunctional disability at 40% at per month.
Annually it is aged 24 years ari*dv would be 18. This gives loss and the claimant is entitled tothis. 0 T 23. in eereguit, the claimant will be entitled to the fo«!ll_owi'~ng'--« .aVrn.o-unt:
(1')«Pai,.n' sufferings Rs. 50,000/~ (2) Mledihcal expenses Rs. 2,500/~ T "~._V('3)*«Future medical expenses Rs. 8,000/-
" Towards conveyance, nourishment & Attendant charges Rs. 25,000/~