V Satish Kumar vs The Oriental Insurance Co Ltd By Its ... on 13 August, 2010

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Karnataka High Court

V Satish Kumar vs The Oriental Insurance Co Ltd By Its ... on 13 August, 2010

Bench: Jawad Rahim

1
TN THE HTGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13?" DAY OF AUGUST 

BEFORE

THE HON'BLE MR.}USTICEmJAWAD"RAI§'_IM '*:    V

M.E.A. NO. 11737/zoo;-m:vTT~,N%C  %
BETWEEN: V '

v.SATISH KUMAR,  
S/O LATE VENKA.TT.ESHA.§3'PAT,T.:" _
AGED ABOUT 42 -Y_E='--\RS,   
R/O NO.K--86,    
4"' MAIN, 8"" CRO.SS,'--.I_.N_.pDRAM 
BANGALOI.{E.A;     ' 
     '.'..'A'PT>ELLANT
(BY S-R1" 'vIVSTHI;A;AIT.ATH'~._S.'--SHETTAR, ADV.,)

1:, THE ORIENTAT, IN.SU_RANCE
CO". %LTD.._BT..'ITS"-MATNAGER,
N'O-.2'1., MISS*I'ON.._ROAD,

 . NEA'R..SDDI3ATAH CIRCLE,
 BANGAL'OIR.E._.w 27

 ATDDEVADN, S/O ARJUN GOWDA,
.,.:VA.GED~A_BOUT 47 YEARS,
 N10.516, CHANNABASAVANAGARA,
A~N_Ej%<AL TALUK,
BANGALORE SOUTH.

~ 'Ix;

  RESPONDENTS
(BY SR1 R.GuNASHEI<AR, ADv., FOR R1)

 "THIS MEA FILED U/S 173(1) OF MV ACT AGAINST THE

 V"'I'T--.'.':;ODGMENT AND AWARD DATED 16~O4--2007 PASSED IN
  MVC NO5529/2005 ON THE FILE OF THE XII ADDL. JUDGE,

0""



"}

COURT OF SMALL CAUSES, MEMBER, MACT,
METROPOLITEAN AREA, BANGALORE, (SCCH.l\lO.8) PARTLY
ALLOWING THE CLAIM PETITEON FOR COMPENSATEON AND
SEEKING ENHANCEMENT OF COMPENSATION.

This appeal coming on for admission this clays, the
court delivered the following  

JUDGMENT

Dissatisfied claimant is in app.ea_l_ again'st"tC1§;e and award in Mvc.5529/o5 dated. 1tg;'4r..5.2oo7"or:i' Addl. MACT (SCCl-L8), BangaCl_o'r~e.

2. The appeal is listed fo'r*L'Cad'mi,ss,io-n afterxnovvtice to the respondents. Heard. and taken up for finavi"dii«s.VC;C.lQ'E?alr::fi,: if A

3. The Cappeivl.an't,'sotJ"gChttompensation on the allegation thatjion _27.i§.2t)AO:*--i'C'at'ab.out 4.40 rim. while the petitioner

- ~,...Was"lilr3»;"l<ing,.,_the of the offending motorcycle bearing by his rash and negligent driving, hit agiainstV_hi~mC',i£onsequent to which impact he suffered injuries ghisuopper iimb and other parts of the body, and was to the hospital. Despite treatment, he suffered perihaiient disability to the right upper limb to an extent of In 28% which caused total infirmity in the use of that limb.

4. The claimant was a driver in BangalorVe»~_44_'M_etro Transport Corporation earning Rs.7,SOO/-- p.m.__ is not in a position to do. He sought pecuniary and non-pecuniary loss a-ndflecl 'ev'i--de'n'ce_. Sfhie Tribunal accepted his case that theaccirlent;'vvas_the_:§resuif; of negligent driving of the the vehicle and that finding was not ---..ciha_lleiVng{;»di'; "~-.__'Tphei_oniy grievance is inadequacy of the awarrj.,..:._ 'V t V S. Relia'nc'é_~..¢is"~i"p_lac'ed._: on the evidence of the doctor to onlym the injuries, but surgery perforndedhad'cauAs'ed"s-.evei*e pain and agony which has not been-.properiyVAcornpensated. Despite long treatment, he . has 'Vno'ti'ibéegn restored to his original physical form and is vi.s.ite'd.::T'wyi.t"iiug"i3'.li1'ysical disabiiity of 28% to the right upper linzh. has become virtually useless and he has iost the grivotdue to mal~union of the fractured bone. in relation whole body, disability is assessed at 14%. 0n the other hand, counsel for the 15" respondent-- W"

insurance company opposes enhancement on the ground that medical evidence is exaggerated and does nVo't.._ireiEect the actuai position. He drew my attention claimant has admitted in cross--examinatio_n~tha"t._he.:is._stiiiin.' service as driver and has not been re.t.refnc'hge"d.,' '---.i~iei.'s.,ubn_ja,its if the appeilant had suffered.i_n§uri'e.s'"as doctor, he would have not medicai evidence is sought to'tieescheiwevd:«fro_n'iiconsiderlation. 7, Keeping in sides, I have examined . if if

8. is afdvriver in B.M.T.c. is not -in dispute)' he was drawing saiary of Rs],'SQAO/~u"p...rri;~.5Fo.rtun.ateiy evidence also shows he has not bleiefn retrencheidiiibut is in service. Coming to the nature I of;~inj'u._r:ie.s,' theéioctor has described the injuries as follows:

i.)~l')vlAi,spAilaced fractiire (intrasticuiar) Eower and z radius, scaphoid fracture right wrist, 2,)"Fracture of lower end of right radius. D-r.§.-hivaprakash--PW2 who has issued the certificate aiso .. Vdigserved the following injuries: E xi} D

1) Fracture lower end of right radius

2) Fracture scaphoid right.

He has been cross--e><amined on behalf of the_;i'n.su4ra.nce company in which there are questions relating. to"isTs'uari.c.e~--.g of wound certificate, x--ray reports ..and ce_rtVa'Er'i"-.o'rni'ssi'ons~r.in"» the radiology report regarding ma.1|4--ui_i'io.n'. "cite 'isjfmatterigaiiytio note that in crosswexarnination'---._the invsur'anc'e_ company ha-3-ﬂ questioned him on certain as_pect_s,*.._but'there is} no direct question posed to physécai disability suffered by the.icivaima.ri't;v:..:r'foVr'-- of clarity, it is better to _:cro.'svsjfe§<\arﬁitnation of PW2. It is as Undggri!._"',::»\*«;.~_ " ~ .. . _ 'EyartieritoV16-~...2h.2{}O7;"I have not treated the petitionerg'Iﬁha't:_e"'«not produced wound certiﬁcate and'rrji'sc._hiarge summary. I have ,not seen 'the * case sheet and record »'-'.,suibmitted""-b.efo_ri=: the Tribunal. Radiologist A had "not stated anything about x--ray fi.nding_sI=__ In the radiologist report and on 'reV'q--ue"stf~.ferrn, it is not mentioned that A "-.l'fractureA'cI=is mai united or non~union. It is faise to suggest that oniy in order to heip ' the petitioner, I have mentioned that fracture is rnal--union and non--union. I do it not know the avocation of the petitioner. It _,-'is faise to suggest that, without ascertaining the avocation of the petitioner, it is not possible to assess the disability. It is false to suggest that I have assessed disabiltty on (ﬁg,/* (.1- higher side in order to help the petitioner.'

9. in the circumstances, the evidence on record.vth4_ait.y_the claimant has suffered 28% physical disability limb at the wrist joint has remained In background we have to see whatiis the effect ~of"-the:a_nsi=;:.'er given by the appellant that'Vh'e__Vis sltillxinyserv'it;:e:y_Vas That sentence is used to thyattif' had physical disability he would as driver. The distinction that is to be.~d-ra\ivn.'\hcjiF.f$ as a driver or serving aséaig job in which the appellant was holding the said post §',c'cident. Whether he is still assigneduxthe the accident has not been illivistratteriyby th-e._i__n__si;rance company. As medical evidence 'relating"~to.._ph_ysical disability has not been dislodged in 'cr0'sis»exa":5a,ination, merely because the claimant has admitted that he is still in service cannot mean to say that Alheighasl no duty. Of course since he has not been hfetrenched, he will not be entitled to any amount for loss of V uHlElCO1Tl€ during the treatment period. But physical disability r--'9"

2' "L ,3 ' V ".7 as evaluated by the doctor entitles him to compensation towards loss of amenities in life The Tribunal has not awarded any compensation on that head. 9

10. In the result, the impugned award'"'i:h:rfno'difi'ed follows:

Pain and suffering V Loss of amenities & enjo\,n'nentVVof life : RsV.}30,OOO/- Medical expenses--«._z:" _ Rs.6,200/-- Co nveyance, atten-da_n't's' cha rages, "

Incldentar.e><1-penises Rs.10,000/-- Loss iol' period of ll RS.35,000/' lT"u_tur'e Rs. 10,000/-

TOTAL Rs.1,25,2oo/--

. i=1"ar*h,A_lnclinVeoiH'to grant Rs.10,00D/- towards future as I accept the contention of the learned cot;-nselv_.for_t»hAe appellant that medical certificate established V"metalllécﬁnpiant and fastening of fractured bone with a wire

-.w'hic':h have to be surgical removed in the future. No doubt __t_here is nothing elicited by the doctor in this behalf but the r7\:j?"'/

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Karnataka High Court