Karnataka High Court
Divisional Manager, vs Pothappa S/O. Narayanaswamy on 10 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 10th day of December 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.20284/2012 (MV)
Between:
Divisional manager,
Royal Sundaram Insurance Company
D.B.Plaza, 3rd Floor, 47 Whites
Road, Chennai.
Present address
Subramanya Building, 2nd Floor,
No.1, Club House Road, Annasalai,
Chennai-600002.
Reptd., by Zonal Manager. ...Appellant
(By Sri. S.S.Joshi, Advocate)
And:
1. Pothappa, S/o. Narayanaswamy,
Age: 29 Occ: Driver of the Indica
Vista Car bearing No.KA-35/M-8209,
R/o. Near Pothappa Temple, Rupanagudi,
Bellary Tq & Dist: Bellary.
2. Gubbi Galaiah, S/o Gubbi
Hanumantappa, Age: Owner of the
Indica Vista Car bearing
No.KA-35/M-8209,
:2:
R/o. C/o. B.Nagaraj, Door No.56/72,
Ward No.12, Reddy Street,
Near Maremma Temple, Tq & Dist: Bellary.
3. Veerabhadra Reddy, S/o Yanka Reddy,
Age: 31 years, Occ: Agri.,
R/o. Rajeevgandhi Nagar,
Shiraguppa, Dist: Bellary.
Now residing at Kengal village,
Sindhanoor Taluka,
Dist: Raichur. ...Respondents
This appeal is filed under Section 173(1) of the
Motor Vehicles Act against the judgment and award
dated 09-11-2011 passed in MVC No.678/2011 on the
file of the Member, MACT-II, Bellary awarding
compensation of Rs.3,76,500/- with interest at the rate
of 8% p.a. from the date of petition till the date of
deposit.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
This appeal is by the insurance company questioning the quantum of compensation awarded by MACT No.II, Bellary, in M.V.C. No.678/2011 dated 09.11.2011 whereunder a compensation of Rs.3,76,500/- has been awarded with interest. :3:
2. Heard Shri. S.S.Joshi, learned advocate appearing for the appellant. Perused the impugned award as also the evidence of Dr.Kantesh Reddy Yallapur made available by the learned advocate for the appellant during the course of his submission.
3. It is the contention of Shri. S.S.Joshi, learned advocate appearing for appellant that Tribunal committed a serious error in awarding compensation of Rs.2,75,000/- towards 'loss of future income' by taking into consideration the whole body disability at 30% and P.W.2, the doctor, who has issued the disability certificate-Ex.P.8 has not specified the whole body disability to be at 40% and in view of the fact that the evidence of the doctor-P.W.2 being ambiguous viz., whether disability is to the whole body or to the particular limb, Tribunal could not have construed the whole body disability at 30% and assessed compensation and, as such, he seeks for setting aside :4: the judgment and award insofar as awarding of the compensation under the heading 'loss of future income'. No other ground is urged during the course of oral submissions made by the learned counsel.
4. From a perusal of the judgment and award assailed herein when read along with the evidence of P.W.2-Dr.Kantesh Reddy and the disability certificate- Ex.P.8, it emerges that on clinical examination of the claimant along with past medical records by P.W.2- Doctor, he has opined that there is a healed fracture of femur with K nail in situ and malunited fracture patella with circumferential wire in situ with degenerative knee changes. The wound certificate-Ex.P.4 would go to show that there is fracture of femur, type III open fracture patella which is also as per the discharge summary-Ex.P.7. These medical records were examined by P.W.2 who has issued the disability certificate and he :5: has stated in his examination-in-chief at paragraphs 7 & 8 to the following effect -
" 7. On examination - patient walks with limping gait, scar marks of previous surgery can be seen on left thigh and knee. Wasting of thigh muscles present by 3 cm compared to normal right side. Movements of left knee are restricted by more than 75% flexion being only 10% and left hip by 50%.
8. Due to above said injuries I find that working capacity of patient is reduced and also life styled compromised. Hence I find that patient hears permanent partial disability of 40% (forty percent)."
5. It is, no doubt, true that P.W.2 is not the doctor who treated the claimant. Admittedly, claimant was treated at VIMS Hospital, Bellary, Merely, because P.W.2 is not the treated doctor, his evidence cannot be brushed aside. Discharge summary-Ex.P.6 and P.7 discloses that claimant had sustained fracture of left femur, type III open fracture patella and he had :6: underwent surgery on 17.05.2010 and he was an inpatient for 26 days from 15.05.2010 to 11.06.2010. The cross-examination of the doctor, P.W.2 would not suggest that disability as assessed by him is to be understood as contended by the learned Counsel appearing for insurance company namely that it is particular limb disability, which has been assessed by doctor. But on the contrary suggestion has been made to P.W.2-doctor that the said disability assessed is incorrect and it cannot exceed 10%. Claimant was aged about 30 years as on the date of the accident and was carrying on the avocation of agriculture. On account of the injuries sustained and disability suffered by the claimant, who came to be clinically and radiologically examined by P.W.2-doctor it has been opined by him that claimant's permanent partial disability vis-à-vis working capacity of the claimant is reduced to an extent of 40%. In that view of the matter, I am not inclined to accept the contention of the learned counsel appearing :7: for the appellant that disability as assessed by P.W.2 is to be construed as particular limb disability and not whole body disability. In view of the same, contention raised by the learned counsel for the appellant does not merit acceptance and it stands rejected.
6. In view of the aforesaid discussion, I do not find any good ground to interfere with the findings recorded by the Tribunal. Hence the following order:
ORDER
(i) Appeal is hereby dismissed.
(ii) Judgment and award dated 09.11.2011
passed by MACT-II, Bellary in
M.V.C.No.678/2011 is hereby affirmed.
Amount in deposit is ordered to be transmitted to the jurisdictional Tribunal by the Registry forthwith.
Sd/-
JUDGE Kms