Baby Francis and Others v. M.D. Davis Manachery House and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **MACA.No. 837 of 2010** **AGAINST THE AWARD IN O.P.(M.V.)No.1330/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONERS:** - **1 BABY FRANCIS, W/O. LATE FRANCIS, PALIYEKKARA HOUSE, P.O.NADATHARA, THRISSUR DISTRICT.** - **2 DHANYA TONNY, D/O.LATE FRANCIS, PALIYEKKARA HOUSE, P.O.NADATHARA, THRISSUR DISTRICT.** - **3 DAHHA TONNY D/O.LATE FRANCIS PALIYEKKARA HOUSE, P.O.NADATHARA, THRISSUR DISTRICT** - **4 RAPHEAL FRANCIS, D/O.LATE FRANCIS PALIYEKKARA HOUSE, P.O.NADATHARA, THRISSUR DISTRICT** - **BY ADV. SRI.P.V.CHANDRAMOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 M.D.DAVIS MANACHERY HOUSE, OLLUR PO, THRISSUR DISTRICT** - **2 GIRISH S/O.CHANDRAN, MANAPETTY HOUSE,THEMALIPADAM,EDAKUNNY, THRISSUR DISTRICT.** - **3 NATIONAL INSURANCE CO.LTD BRANCH OFFICE, THRISSUR.** - **4 ELIAKUTTY W/O.LATE INASU MADATHARA, THRISSUR.** **BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 837 of 2010 2 ## **JUDGMENT** The claimant in a proceedings for compensation under Section 163A of the Motor Vehicles Act, 1988 ('the Act') before the Motor Accidents Claims Tribunal has come up in this appeal challenging the decision of the Tribunal in dismissing the claim petition. 2. A scooter ridden by the claimant hit against an autorickshaw on 21.05.2001, as a result of which he sustained injuries. As the claimant was charge sheeted by the police for having caused the said accident, he preferred a claim petition invoking Section 163A of the Act for compensation for injuries sustained by him in the accident against the owner, driver and insurer respectively of the autorickshaw. The insurer of the autorickshaw contested the claim petition contending, among others, that the claimant has not suffered any permanent disablement due to the accident and the claim petition is therefore not maintainable. The fact that the vehicle was covered by a policy of insurance at the time of accident was, however, not disputed by the insurer. The claimant died pending the proceedings before the Tribunal and his legal representatives thereupon continued the MACA.No. 837 of 2010 3 proceedings. The Tribunal dismissed the claim petition holding that the claimant who sustained only a fracture of metacarpal bone in the accident cannot be said to be a person suffering from permanent disablement for invoking Section 163A of the Act, and the claim petition is, therefore, not maintainable. The legal representatives of the claimant are aggrieved by the said decision of the Tribunal. 3. Heard the learned counsel for the appellants as also the learned counsel for the insurer. 4. The fact that the claimant sustained various injuries in the accident including fracture of metacarpal bone is not in dispute. Ext.A6 disability certificate issued by an Orthopaedic Surgeon attached to the Medical College Hospital, Thrissur to the claimant establishes the said fact. The disability to which the claimant is subjected to on account of the injuries sustained by him in the accident has also been assessed by the Doctor who issued Ext.A6 disability certificate as 6%. Section 163A of the Act reads thus:- ## **“163A. Special provisions as to payment of compensation on structured formula basis.-** (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall MACA.No. 837 of 2010 4 be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. **Explanation.-** For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule” It is evident from the extracted provision that only in a case where the accident results in permanent disablement, the victim is entitled to invoke the said provision for claiming compensation. The explanation to sub-section (1) of the section clarifies that permanent disablement referred to in sub-section (1), wrongly expressed therein as permanent disability shall have the same meaning and extent as in the Workmen's Compensation Act, now renamed as the Employees' Compensation Act, 1923. Section 4(1) (c)(ii) of the Employees' Compensation Act prescribes the manner of determination of compensation payable where permanent partial disablement results from injuries other than those specified MACA.No. 837 of 2010 5 in Schedule I of the Employees' Compensation Act, 1923. Section 4(1)(c) of Employees' Compensation Act, 1923 reads thus: “4. **Amount of Compensation.** - (1) Subject to the Provisions of this Act, the amount of compensation shall be as follows, namely:- **==> picture [151 x 7] intentionally omitted <==** (c) where permanent partial disablement result from the injury (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.” In **Babu** v **Jacob K. Thomas,** 2011(4) KLT 733, a Division Bench of this court has clarified that if there is an assessment by a competent medical practitioner as to the extent of permanent partial disablement as provided for under Section 4(1)(c)(ii), such assessment as to the extent of permanent partial disablement can be accepted by the Tribunal for granting compensation under MACA.No. 837 of 2010 6 Section 163A of the Act. In the case of an injury not specified in Schedule I, what is required to be assessed by the qualified medical practitioner is the loss of earning capacity of the claimant permanently caused on account of the injuries sustained by him in the accident. The question survives for consideration is whether such an assessment has been made by the Doctor who issued Ext.A6 disability certificate. In Ext.A6 disability certificate, the Doctor has stated that the claimant is suffering from permanent disability to the tune of 6% on account of the injuries sustained by him in the accident. The particulars of the disabilities to which the claimant is subjected to are mentioned in the certificate as follows; 1) 2% for malunion 2) 2% for stiffness of MCP and I.P joints 3) 1% for weakness of grip and pain 4) 1% for head injury sequelae The certificate further recites that the disability suffered by the claimant on account of the injuries sustained by him in the accident will reduce his earning capacity to the extent of 6%. According to me, Exhibit A6 satisfies the requirements of Section 4(1)(c) of the Employees' Compensation Act, 1923 and the Tribunal, in the circumstances, ought to have granted compensation to the claimant proportionate to the disability MACA.No. 837 of 2010 7 assessed by the medical practitioner in Exhibit A6 disability certificate. 5. Coming to the quantum of compensation, it is seen that the claim was made on the basis that the claimant was earning a sum of Rs.3,000/- per month. The injured was aged 43 years at the time of accident. The claimant is, therefore, entitled to a sum of Rs.30,240/- (5,04,000X6/100) towards compensation in terms of the provisions contained in the Second Schedule to the Act. In addition, he is also entitled to a sum of Rs.5,000/- towards compensation for pain and suffering, as the claimant had suffered a fracture. He is also entitled to compensation for loss of earnings. As it is found that the claimant was admitted and treated as an inpatient in a hospital after the accident for about five days, I am of the view that he is entitled to loss of earnings for a period of two months. The compensation payable to the claimant under the above head would come to Rs.6,000/-. Ext.A7 series are the medical bills amounting to Rs.16,383/- indicating the expenditure incurred by the claimant for treatment. In terms of the Second Schedule, the claimant is entitled to only a sum of Rs.15,000/under the above head. Thus the total amount due to the claimant is Rs.56,240/-. MACA.No. 837 of 2010 8 In the result, the impugned award is set aside and O.P. (M.V.)No.1330 of 2002 on the files of the Motor Accidents Claims Tribunal, Thrissur is disposed of granting the claimant a sum of Rs.56240/-. Needless to say that the said amount would carry interest at the rate of 7.5% from the date of the claim petition. **Sd/P.B.SURESH KUMAR JUDGE** DK