IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 709 of 2008()
1. SAJAD, S/O.E.SHARAFUDEEN,
... Petitioner
Vs
1. V.O.DAVIS, S/O.JOSEPH,
... Respondent
2. THE MANAGER, ORIENTED INSURANCE,
For Petitioner :SRI.RAJA VIJAYARAGHAVAN
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :21/01/2010
O R D E R
R.BASANT & M.C. HARI RANI,JJ
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M.A.C.A. NO. 709 OF 2008
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DATED THIS THE 21ST DAY OF JANUARY 2010
JUDGMENT
Basant,J.
The injured/claimant is the appellant. He suffered injuries
in a motor accident which took place on 18-9-1999. He was aged
23 years on the date of the accident. He was travelling in a two
wheeler as pillion. The rider of the vehicle died as a result of
injuries suffered in the accident. The appellant was hospitalised
and he underwent treatment as inpatient for a period of eight
days. The documents would suggest that there was long delay in
correctly diagnosing that he had a fracture on the right hand
(scaphoid right). Thereafter scaphoid cast was applied and the
treatment continued.
2. The Tribunal on an anxious consideration of all the
relevant inputs proceeded to pass the impugned award directing
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payment of a total amount of Rs.10,350/- as compensation as per
the details given below:
1) Loss of earning : 1500 x 3 = Rs. 4,500/-
2) Transport to hospital : Rs. 750/-
3) Extra nourishment : Rs.1,000/-
4) Damage to clothing : Rs. 500/-
5)Bystanders expenses : Rs. 600/-
6)Pain and suffering : Rs.3,000/-
Total : Rs.10,350/-
3. The Tribunal directed payment of that amount along with
interest at the rate of 6% per annum.
4. The appellant/claimant claims to be aggrieved by the
impugned award. What is his grievance? The learned counsel
for the appellant contends that the Tribunal’s approach was too
technical and unrealistic. Telltale materials were available to
indicate that the appellant had suffered fracture on the right
scaphoid. The Tribunal did not adopt a reasonable approach and
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did not accept that there was a fracture consequent to the
accident. The appellant had examined himself as PW1 and the
relevant documents including the case sheet from the hospital
were produced.
5. It is absolutely certain on a perusal of the documents,
copies of which have been made available to us for our perusal,
that the appellant had complained of pain on the right hand –
site of the fracture , from the very first day and X-rays were
taken earlier. It is true that a couple of X-rays taken earlier did
not precisely detect the fracture on the scaphoid. But the
conclusion appears to be reasonable and irresistible from the
totality of circumstances that though late, the fracture was
detected and that fracture was the result of injury suffered in the
accident. The tribunal found and the counsel for the Insurer
vehemently contends that the fracture cannot be accepted as a
consequence of the injury suffered in the accident. We find
absolutely no merit in this approach. In spite of the treatment
granted initially from the date of the accident, i.e. 18/9/1999 to
25/9/1999, it would appear that the fracture was not specifically
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detected, though pain on the site of the fracture was continuing.
We are left with not a semblance of doubt on the question that
the appellant had suffered scaphoid fracture as a result of the
accident. That conclusion appears to us to be reasonable and
irresistible. The Tribunal had found that the appellant had
suffered injuries and had to be involuntary unemployed for a
period of three months. Documents produced show that he was
an inpatient for a period of eight days, i.e. 18-9-1999 to 25-9-
1999 and that subsequently pain was continuing and he had to
continue treatment as outpatient. The indication suggest that he
had continued treatment as inpatient till 13-12-1999. The
learned counsel for the appellant contends that the amounts
awarded under the heads of bystanders expenses , medical
expenses and pain and suffering did not reflect the reality of the
suffering endured by him. We find force in the contention of the
learned counsel for the appellant. We are satisfied that the
appellant is entitled to further amounts by way of compensation
in addition to the amounts awarded by the Tribunal as per the
details shown below:
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1)Medical and miscellaneous
expenses (scaphoid cast ) = Rs.3,500/-
2) Bystanders expenses: 8 x 100=800 minus 600 = Rs. 200/-
3)Pain and suffering :Rs.8000 minus Rs.3000 = Rs.5,000/-
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Total = Rs.8,700/-
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6. The counsel contends that with the help of the decision
in Dharampal v. U.P.State Road Transport Corporation
[2008(2)KLT 691(SC)] and we agree that interest awarded at
the rate of 6% per annum is too inadequate and interest must be
awarded at the rate of 7.5% per annum.
7. In the result:
a) this appeal is allowed in part.
b)The appellant is found entitled to a further amount of
Rs.8,700/- in addition to the amounts already awarded
by the Tribunal.
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c) It is directed that the entire amount of compensation
shall bear interest at the rate of 7.5% per annum from
the date of the petition to the date of the payment.
d) All other directions of the Tribunal are upheld.
R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.