C.G. Sura v. The New India Assurance Co. Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ## **`MACA NO. 3945 OF 2019`** ## **`AGAINST THE ORDER/JUDGMENT DATED 18.05.2019 IN OPMV NO.743 OF 2017`** ## **`OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA`** ## **`APPELLANT/PETITIONER:`** **==> picture [78 x 115] intentionally omitted <==** ``` C.G.SURA, AGED 49 YEARS S/O GOPALAN @ GOPALAKRISHNAN, CHENNATTU HOUSE, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN-686 673. BY ADVS. T.K.KOSHY SMT.V.V.RISANI ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** |**`1`**|**`KABEERKHAN,`**| |---|---| ||**`S/O BAVA RAWTHER, POTTEKANDATHIL HOUSE,`**| ||**`NEAR NGO QUARTERS, MOOVATTUPUZHA,`**| ||**`ERNAKULAM DISTRICT, PIN-686 661.`**| |**`2`**|**`AKHIL BABU,`**| ||**`PANTHANTAZIKAM HOUSE, VALATHUNGAL P.O, ERAVIPURAM`**| ||**`VILLAGE, KOLLAM , PIN-691 018.`**| |**`3`**|**`THE NEW INDIA ASSURANCE CO LTD,`**| ||**`HIGH RANGE JN, KOTHAMANGALAM,`**| ||**`ERNAKULAM DISTRICT, PIN-686 691.`**| ||**`SRI.LAL K JOSEPH`**| ||**`SMT.M.HEMALATHA`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 **M.A.C.A. No.3945 of 2019** ## **C.S.SUDHA, J.** **--------------------------------------------------M.A.C.A. No.3945 of 2019 ---------------------------------------------------Dated this the 5[th] day of April, 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P.(MV) No.743/2017 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 18/05/2019. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 17/06/2017 at 3:30 p.m., he was riding motorcycle bearing registration No.KL-17/Q 6094 along the MC road and when he reached the place by name Kavumkara near E.E.C. market junction, a heavy goods vehicle, a tipper, bearing registration No.KL-17/P-1681 driven by the 2[nd] respondent in a rash and negligent manner knocked him down and 3 ## **M.A.C.A. No.3945 of 2019** ran over his right leg causing serious injuries to him. The 1[st] respondent owner, the 2[nd] respondent driver and the 3[rd] respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence, the petitioner claimed an amount of 5,50,000/- as compensation under various heads. ₹ 3. Respondents 1 and 2 remained _ex parte_ . The third respondent insurer filed written statement admitting the insurance policy of the vehicle but denying the liability. 4. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A12 were marked on the side of the petitioner. Ext.B1 was marked on the side of the 3[rd] respondent. Ext.C1, the disability certificate issued by the Medical Board, Taluk Head Quarters Hospital, Kothamangalam, has also been marked. 5. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the second respondent resulting in the accident and hence awarded an amount of 2,96,000/- with interest @ 7% per annum from the₹ 4 ## **M.A.C.A. No.3945 of 2019** date of the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 6. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 7. Heard both sides. 8. The learned counsel for the petitioner/injured challenges the Award of the Tribunal under the following heads- ## **Notional income** It is submitted by the learned counsel for the petitioner that Exts.A10 and A11, the income tax returns of the petitioner, clearly proves his annual income. However, the Tribunal has wrongly rejected the same. The petitioner relies on the decision of the Apex Court in **United India Insurance Co. Ltd. v. Indiro Devi, AIR 2018 SC 3107** to canvas the point that income tax returns are the best evidence that can be adduced by the petitioner to establish his income. _Per contra_ , it is submitted by the learned counsel for the 3[rd] 5 ## **M.A.C.A. No.3945 of 2019** respondent-insurer that Exts.A10 and A11 documents have been made to suit the contentions of the petitioner in the case and that they do not reflect the actual income of the petitioner. It is also pointed out that the income of the petitioner, which is the commission received by him as the collection agent of the Kerala State Financial Corporation (KSFE) would vary from month to month depending on the number of subscribers he is able to canvass for the KSFE and so a fixed amount cannot be taken as commission for all the months. 8.1. The marking of Exts.A10 and A11 income tax returns had been objected to by the 3[rd] respondent insurer when the same was attempted to be brought in evidence and hence the same was marked subject to the objections raised. As per Exts.A10 and A11, the annual income of the petitioner from the commission received is stated to be 2,73,762/- and 2,83,245/- respectively. None of the₹ ₹ officials of the KSFE were examined to prove the commission that had been received by the petitioner. It was submitted by the learned counsel for the petitioner that once the documents are marked and 6 ## **M.A.C.A. No.3945 of 2019** admitted in evidence, they stand proved and hence there is no embargo on relying on the same. I disagree. It is well settled that mere production and marking of a document as exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. (See **Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003 KHC 1695: 2003 (8) SCC 745; Sait Tarajee Khimchand v. Yelamarti Satyam, 1972 KHC 723: 1972 (4) SCC 562; Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003 KHC 1695: 2003 (8) SCC 745; Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 KHC 6268 :2023 KHC OnLine 6268: 2023 LiveLaw (SC) 211** ). 8.2. Further, as held by the Apex court in **Harendra Rai v. State of Bihar, 2023 KHC 6782: 2023 INSC 738,** at the stage of 7 ## **M.A.C.A. No.3945 of 2019** evidence, when any document / paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court's record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross - examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the trial court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. In this view of the matter, the marking of a piece of evidence as 'exhibit' at the stage of evidence in a trial proceeding is only for the purpose of 8 ## **M.A.C.A. No.3945 of 2019** identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders to get a clear picture of what is being produced as evidence in a trial proceeding. That being the position, Exts.A10 and A11 cannot be relied on. 8.3. It is pointed out by the learned counsel for the 3[rd] respondent-insurer that if at all this Court finds that the notional income fixed by the Tribunal needs to be modified, the dictum in **Ramachandrappa v. Manager, Royal Sundaram Allian. Co. Ltd, (2011) 13 SCC 236** can be relied on. As Exts.A10 and A11 have not been proved, they cannot be relied on. Therefore, in the absence of evidence to prove income, the dictum in **Ramachandrappa** ( _Supra_ ) can be followed coupled with a hike of 500/- every year. The₹ incident took place on 17/06/2017 and hence the notional income of the petitioner in the year 2017 is fixed at 11,000/- per month.₹ **-** 9. **Loss of earnings** It is submitted by the learned counsel for the petitioner that not only was the petitioner hospitalized for a period of 9 days, that is, from 17/06/2017 to 26/06/2017, he also had 9 ## **M.A.C.A. No.3945 of 2019** to undergo a surgery on his right leg, which has not been taken into consideration by the Tribunal. He submits that a period of at least four months was required to recover during which period there was loss of earnings. In the light of the injuries and the surgery undergone, four months seem to be quite a reasonable period and hence, I find that the petitioner is entitled to loss of earnings for a period of four months at the rate of 11,000/- per month, that is,₹ ₹44,000/-. **-** 10. **Attendant expenses** It is pointed out that the accident took place in the year 2017 and therefore, the attendant charges at the rate of 300/- granted by the Tribunal is low. The attendant₹ expenses at the rate of 400/- for a period of 9 days is granted,₹ considering the fact that the petitioner had to undergo a surgery also. **-** 11. **Pain and suffering** It is further pointed out by the learned counsel for the petitioner that the Tribunal had taken into account only the nature of injuries sustained by the petitioner and omitted to take note of the fact that the petitioner had also undergone 10 ## **M.A.C.A. No.3945 of 2019** a surgery, which was quite painful. Therefore, the amount of ₹20,000/- granted is too meagre. In the light of the injuries sustained by the petitioner, that is, a fracture and the fact that he had to undergo a surgery and an implant, an amount of 50,000/- would be₹ a reasonable amount under this head. ## 12. **Permanent disability/loss of future prospects/earning** **power** It is pointed out that as per Ext.C1 disability certificate, the petitioner is stated to have sustained disability of 26%. However, the Tribunal without giving any reasons scaled down the disability to 10%. The petitioner has developed ‘foot drop syndrome’, pursuant to the sustaining the accident. This has considerably affected the discharge of his duties as a collection agent who has to travel extensively in connection with his work. In the light of the nature of his work, there is certainly loss of future earnings and hence the Tribunal was wrong in not granting compensation under this head, goes the argument. On the other hand, the learned counsel for the 3[rd] respondent-insurer submitted that the percentage of disability noted 11 ## **M.A.C.A. No.3945 of 2019** in Ext.C1 is on the higher side and hence, the Tribunal was justified in reducing the percentage of disability to 10%. ## 12.1. The opinion of the Medical Board in Ext.C1 reads - “……. _found that he is Orthopedics handicapped by delayed union right tibia with implant in situ with foot drop (right) the Permanent Disability is 26% (Twenty Six percentage) Belong to MID category.”_ The certificate does not make it clear as to whether it is a wholebody disability or functional disability or whether disability of 26% has been caused to a particular limb. At the bottom of the certificate, it is also stated that the disability is less than 40% and that it is mid category. As held in **Rajkumar v. Ajay Kumar, (2011) 1 SCC 343,** where the claimant suffers a permanent disability because of the injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. What needs to be assessed by the Tribunal is the effect of the permanent disability on 12 ## **M.A.C.A. No.3945 of 2019** the earning capacity of the injured. The doctor who treated an injured / claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only regarding the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. The manner in which the effect of permanent disability on the actual earning capacity has to be ascertained has been explained thus- the effect of the permanent disability on the actual earning capacity involves three steps- (i) the Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). (ii) to ascertain his avocation, profession, and nature of work before the accident, as also his age. (iii) to find out whether (a) the claimant is totally disabled from earning any kind of livelihood, or (b) whether in spite of the permanent disability, the claimant could still 13 ## **M.A.C.A. No.3945 of 2019** effectively carry on the activities and functions, which he was earlier carrying on, or (c) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of ‘loss of future earnings’, if the claimant continues in Government 14 ## **M.A.C.A. No.3945 of 2019** service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. 12.2. No evidence has been brought in to prove that pursuant 15 ## **M.A.C.A. No.3945 of 2019** to the accident the work of the petitioner has suffered. This could have been proved by examining any of the officials of the KSFE to show that the rate of Commission received by him has come down. In the absence of any such evidence, I find that the percentage of disability of 10% fixed by the Tribunal is appropriate. **-** 13. **Loss of amenities and enjoyment in life** The amount of ₹15,000/- awarded under this head is also challenged. In the light of the fact that the petitioner had to undergo a surgery and as he was hospitalized for a period of 9 days, an amount of 20,000/- towards₹ loss of amenities and enjoyment in life would be reasonable, out of ₹ . which 15,000 has already been granted by the tribunal 14. The impugned Award is partly modified thus - |Sl.<br>No.|Head of<br>claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified in appeal| |---|---|---|---|---| |1.|Loss of<br>earnings for<br>a period of 6<br>months|1,20,000/-<br>₹|27,000/-<br>₹|44,000/-<br>₹<br>[11,000 x 4<br>months]<br>(27,000+17,000)| |2.|Partial loss<br>of earnings|10,000/-<br>₹|0|0<br>(No modification)| 16 ## **M.A.C.A. No.3945 of 2019** |3.|Transport to<br>hospital|3,500/-<br>₹|3,000/-<br>₹|3,000/-<br>₹<br>(No modification)| |---|---|---|---|---| |4.|Extra<br>nourishment|4,000/-<br>₹|4,000/-<br>₹|4,000/-<br>₹<br>(No modification)| |5.|Damage to<br>clothing|1,000/-<br>₹|1,000/-<br>₹|1,000/-<br>₹<br>(No modification)| |6.|Medical<br>expenses|60,000/-<br>₹|82,835.50/-<br>₹|82,835.50/-<br>₹<br>(No modification)| |7.|Attendant<br>expenses|6,500/-<br>₹|2,700/-<br>₹|3,600/-<br>₹<br>(400 x 9 days)<br>(2,700+900)| |8.|Pain and<br>sufferings|75,000/-<br>₹|20,000/-<br>₹|50,000/-<br>₹<br>(20,000+30,000)| |9.|Continuing<br>and<br>permanent<br>disability|1,50,000/-<br>₹|1,40,400/-<br>₹|1,40,400/-<br>₹<br>(No modification)| |10.|Loss of<br>earning<br>power|1,00,000/-<br>₹|0|0<br>(No modification)| |11.|Loss of<br>amenities<br>and<br>enjoyment in<br>life|50,000/-<br>₹|15,000/-<br>₹|20,000/-<br>₹<br>(15,000+5,000)| ||**Total**<br>Claim is<br>limited to|5,80,000/-<br>₹<br>5,50,000/-<br>₹|2,95,935.50/<br>₹<br>-|3,48,835.50/-<br>₹| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of **₹52,900/-** (total compensation ₹3,48,835.50/-, that is, 2,95,935.50/- granted by the Tribunal +₹ 17 ## **M.A.C.A. No.3945 of 2019** ₹52,900/-granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **Sd/C.S. SUDHA JUDGE** NP