Michel vs Tayappa and Others

G. Narendar, J. - Heard the learned counsel appearing for the appellant and respondent-insurer. Matter is listed for admission and with the consent of the learned counsel appearing on both sides, it is taken up for final disposal.

The case of the claimant is that, on 29-1-2008 within the Bevinahalli, Kireoskar RMHS Yard, the claimant was supervising the labourers who were loading the coak in to the tipper bearing No. KA-37/6466, at that time, respondent No. 1-driver drove the said tipper in a rash and negligent manner and dashed against the claimant. As a result of the accident, claimant sustained severe bone fractures. Immediately he was rushed to the Government TBP Hospital, Munirabad and thereafter to St. Mery Hospital, Bellary and then shifted to VIMS Hospital, Bellary and admitted for about a month and that he spent Rs. 80,000/- towards medical expenses. The claim of the claimant that, at the time of accident, he was earning Rs. 10,000/- p.m. and that he has become permanently disabled on account of the accident and hence, he seeks compensation of Rs. 12,00,000/-.

The claim was contested by the insurer denying the liability on the ground that the accident had occurred within the private place and hence the same not being on a public place, the insurer is not liable to pay the compensation. The Tribunal after considering the pleadings and material available on record pleased to award a sum of Rs. 1,80,600/- with interest at 8% p.a. from the date of petition till the date of deposit.

The learned counsel appearing for the appellant would contend that the Tribunal erred in awarding meager amount under the various heads and seriously erred in construing the disability at 10% contrary to the medical evidence asserting the disability suffered by the claimant at about 45% to 50%. Ex.PS-wound certificate would show that the claimant has sustained fracture of pelvic bone lateral SI joint diseocation with diastases. He has also produced photographs, which depicts scar on the abdomen due to deglowing injury of abrasion to abdomen muscles, which are lost. X-ray corroborates the fact that claimant has sustained fracture of pelvic bone. He would submit that the Tribunal ought to have accepted the evidence of the doctor who assessed the disability. He would draw the attention of this Court to Exs. PI3 and 14, which are the photographs of the claimant and the disability certificate issued by one Dr. Venkatesh, consultant Orthopedic Surgeon Government General Hospital, Munirabad Dam. Ex. PI3 prima facie demonstrates the injury and the aftermath of the treatment. Ex. PI 4-disability certificate details the clinical diagnosis had clinical examination and the doctor has certified that the disability is to the extent of 45% to 50% and the assessment is based on MC Bride''s Chart and Alimco Guidelines of disability. A perusal of Ex. P14 would detail the diagnosis, disability and constraints being faced by the claimant on account of injury suffered.

Per contra, the learned counsel appearing for the respondent-insurer would submit that the Tribunal has correctly assessed the disability and was inclined to disbelieve the medical evidence on account of the fact that the doctor who has issued the disability certificate is not the doctor who has treated the claimant. That apart, he would submit that the assessment of 45% to 50% disability to the whole body on account of fracture of pelvic bone is disproportionate to the injuries suffered. He would further contend that, apart from the certificate and statement, no other material is placed to corroborate the factum of 45% to 50% disability to the entire body. He would also draw the attention of this Court that P.W.2-doctor though refers to certain material upon which the certificate and analysis is based, the same are not placed before the Court for verification or to authenticate the expert opinion rendered by him as a doctor. Hence, he would submit that though Ex. P13 would demonstrate that the claimant has suffered some disability, the quantum of disability assessed at 45% to 50% is wholly disproportionate to the injuries sustained. He would submit that it is has not been amply demonstrated before the Tribunal and hence, the Tribunal has rightly assessed the disability at 10%.

Heard the learned counsel. The learned counsel restricted their arguments to the limited point of disability. The appellant does not press claim on other issues. After perusal of Exs. P13 and 14 the fair submission of the learned counsel for the respondents, this Court is of the opinion that the disability as assessed by the Tribunal is on the lower side. The disability as asserted by P.W.2 is also not properly demonstrated to the satisfaction of the Tribunal. It is seen that the claimant has undergone multiple surgical operations and has also undergone treatment at multiple centres, which are all pointers to the nature and severity of the injuries suffered. Hence this Court is of the considered opinion that the ends of justice would be met if the disability is assessed at 20%. Accordingly, the judgment and award of the Tribunal is required to be modified and accordingly, it is modified, the disability suffered by the claimant is assessed at 20%. In the result, the appellant is entitled to an enhanced compensation of Rs. 78,000/-. In all, the appellant-claimant is entitled for total sum of Rs. 2,58,600/- including the enhanced amount with interest at 8% p.a. from the date of petition till the date of deposit. The 3rd respondent shall deposit the enhanced compensation amount within three weeks from today.

The appeal is accordingly disposed of.

In the facts and circumstances of the case, there is no order as to costs.