Geetha w/o Premkumar v. A.P. Suneer, N. Surendran & National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **MACA.No. 1903 of 2006 (B) --------------------------** **AGAINST THE AWARD IN OP.MV 54/2000 of M.A.C.T.,PERUMBAVOOR DATED 28-06-2006** ## **APPELLANT/PETITIONER::** **----------------------** **GEETHA W/O.PREMKUMAR, AGED 40 YEARS, MADAKKATHADATHIL HOUSE, PLANCHODU KAVALA BHAGAM, KEEZHOOR KARA, KEEZHOOR POST, MULAKKULAM VILLAGE, THALAYOLAPARAMBU (VIA), VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADVS.SRI.P.V.ELIAS SRI.N.N.ELAYATH** ## **RESPONDENT(S)/RESPONDENTS::** **---------------------------** **1. A.P.SUNEER , S/O.PAREEKUTTY, RESIDING AT ETTUPANKIL HOUSE, THIDANADU KARA, ERATTUPETTA VILLAGE, ERATTUPETTA POST, MEENACHIL TALUK, KOTTAYAM.** **2. N. SURENDRAN, ELAPPANAL HOUSE, EDANADU POST.** **3. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, THRIPPUNITHURA.** **R3 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OKB** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.1903 of 2006 **-----------------------------------------------** Dated this the 27[th] day of June, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** . This appeal arises out of the award passed on 28.6.2006 by the Motor Accidents Claims Tribunal, Perumbavoor, in O.P.(MV) No.54/2000, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injury sustained by the appellant in a motor accident that occurred on 7.4.1999. While the appellant was travelling as a pillion rider in a motor cycle bearing registration No.KL-8/J-7253 ridden by her husband, it was hit by a tempo bearing registration No.KL-5/5873 driven and owned by respondents 1 and 2 and insured with the 3[rd] respondent. As a result, the appellant fell down and sustained serious injuries. Claiming a total compensation of `2,50,000/-, claim petition was filed before the Tribunal. 2. Before the Tribunal, the claim petition was tried along with O.P.(MV)No.49/2000 filed by the rider of the motor cycle. M.A.C.A.No.1903 of 2006 :-2-: Exts.A1 to A16 were marked from the side of the claimant. Ext.A8 disability certificate was marked through Dr.George Mathew, who was examined as PW1, in which the percentage of permanent disability has been certified as 10%. Respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the tempo by the 1[st] respondent driver. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of `70,560/- and directed the 3[rd] respondent insurer to deposit the said amount together with interest at the rate of 7% per annum from the date of petition till realisation. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. Heard the learned counsel for the 3[rd] respondent insurer. 6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for M.A.C.A.No.1903 of 2006 :-3-: enhancement of compensation awarded by the Tribunal under different heads. 7. The accident is of the year 1999 and at the time of the accident, the appellant/claimant was aged 34 years, who was working as Blood Bank Technician earning a monthly salary of `7,450/- as certified in Ext.A9 salary certificate. Ext.A10 leave certificate would show the nature and extent of leave availed by the appellant after the accident. 8. In the accident, the appellant/claimant sustained the following injuries, which is evident from Ext.A4 wound certificate. “Lacerated wound upper 3rd left leg 10 x 5 cm. abrasion over right elbow, punctured wound right knee 2 x 1 cm. 2 x 2 cm. deformity of right thigh, segmental fracture of right femur.” Due to the injury sustained in the accident, the appellant had undergone inpatient treatment for a period of 20 days from 7.4.1999 to 26.4.1999. 9. Relying on Ext.A16 leave certificate, the Tribunal awarded a sum of `20,707/- towards 'loss of salary' for a total period of 244 days and a further sum of `3,000/- was granted towards 'loss of leave'. Considering the nature of injuries and the treatment the appellant had undergone, as evident from Ext.A4 wound certificate and also Ext.A7 treatment certificate, we find M.A.C.A.No.1903 of 2006 :-4-: that the amount awarded by the Tribunal under the above heads, represents just and reasonable compensation, which warrants no interference in this appeal. 10. As we have already noticed, the 10% permanent disability certified in Ext.A8 disability certificate was proved through a doctor who was examined as PW1. A perusal of Ext.A8 disability certificate would show that the appellant/claimant had the following disabilities on her right lower limb. “(1) Limbing (R) side. - (2) 4 cms waisting of (R) thigh muscles. - (3) 1.5 cms waisting of (R) leg muscles. - (4) Terminal degrees of internal and external rotations of (R) hip limited. - (5) Sitting on the ground in squatting position difficult.” 11. In Ext.A8 disability certificate, considering the nature of injuries and disability that had arisen therefrom, PW1 has certified the permanent disability as 10%. During cross examination of PW1, nothing could be brought out to discredit his version as to the assessment of permanent disability made in Ext.A8. 12. Learned counsel for the 3[rd] respondent insurer would contend that PW1 was not the doctor who had treated the M.A.C.A.No.1903 of 2006 :-5-: appellant/claimant and as such, the disability certified in the said certificate could not be accepted. We are unable to accept the aforesaid contention of the learned counsel for the 3[rd] respondent insurer in view of the law laid down by the Honourable Apex Court in the decision reported in **Raj Kumar v. Ajay Kumar** ## **[2011(1) KLT 620 (SC)]** , wherein it has held as follows : “12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of - disability of claimant, is tendered for cross examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.” (emphasis supplied). 13. When the appellant/claimant has succeeded in proving Ext.A8 disability certificate by examining the doctor as PW1, the M.A.C.A.No.1903 of 2006 :-6-: Tribunal went wrong in not awarding any compensation under the head 'disability'. It is not discernible from the impugned award as to whether such a document was ever considered by the Tribunal while assessing compensation. Since there is nothing on record to disbelieve the assessment of 10% permanent disability made by PW1 in Ext.A8 disability certificate, we find that the appellant/claimant is entitled for compensation under the said head reckoning a permanent disability of 10%. 14. Admittedly, at the time of accident, the appellant/ claimant was working as Blood Bank Technician earning a monthly salary of `7,415/-. Ext.A9 salary certificate would show that at the relevant time, she was drawing a pay of `5,500/together with D.A. and another benefits. Since the appellant was a Government employee and since the disability that had arisen out of the injury sustained in the accident has not adversely affected her earning capacity till her retirement, the compensation payable under the head 'disability' can be assessed by applying the multiplier of '9', based on a notional monthly income of `5,000/-. Therefore, the appellant will be entitled to a sum of ` **54,000** /- as compensation under the head 'disability' (5,000x12x9x10/100). M.A.C.A.No.1903 of 2006 :-7-: 15. The compensation awarded by the Tribunal under other heads reads thus ; |Rupees<br>Loss of salary<br>-<br>20,707/-<br>Loss of leave<br>-<br>3,000/-<br>Transport expenses -<br>1,000/-<br>Damage to clothings -<br>250/-<br>Extra nourishment<br>-<br>1,500/-<br>Medical expenses<br>- 23,100/-<br>Attendance charges<br>-<br>1,000/-<br>Pain and sufferings<br>-<br>12,000/-<br>Loss of amenities<br>-<br>8,000/-<br>=======<br>Total<br>-<br>70,557/-<br> is rounded to`|70,560/-| |---|---| 16. Towards 'damage to clothings', the Tribunal awarded a sum of `250/-. Considering the fact that the accident was of the year 1999, we deem it appropriate to refix the compensation under this head as `500/-, resulting an additional compensation of ` **250** /-. M.A.C.A.No.1903 of 2006 :-8-: 17. The appellant had undergone inpatient treatment for a period of 20 days. Towards 'extra nourishment' and 'attendance charges', the Tribunal awarded a sum of `1,500/- and `1,000/respectively. Since the accident was of the year 1999, we deem it appropriate to re-fix the compensation under the head 'extra nourishment' to `2,000/- (100x20), resulting an additional compensation of ` **500** /-. Similarly, the compensation under the head 'attendance charges', is refixed as Rs.3,000/- (150x20), resulting an additional compensation of ` **2,000** /-. 18. Towards 'medical expenses', the Tribunal awarded a sum of `23,100/-, which is supported by Ext.A11 series of medical bills and the same represents just and reasonable compensation, which warrants no enhancement in this appeal. 19. Towards 'pain and suffering', the Tribunal awarded a sum of `12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, we deem it appropriate to re-fix the compensation under this head at `20,000/-, resulting an additional compensation of ` **8,000** /-. 20. Towards 'loss of amenities', the Tribunal awarded a sum of `8,000/-. As a result of the injury sustained in the accident, the appellant sustained a permanent disability of 10% as certified in M.A.C.A.No.1903 of 2006 :-9-: Ext.A8. In such circumstances, we deem it appropriate to re-fix the compensation under this head as `15,000/-, resulting an additional compensation of ` **7,000** /-. 21. In the result, the appellant will be entitled for a total additional compensation of ` **71,750** /- (54,000+250+500+2,000+ 8,000+7,000). 22. In this appeal, notice was issued to the respondents on 1.11.2006. But the appellant has not bothered to pay the process till 13.6.2011. Therefore, by order dated 13.6.2011, a Division Bench of this Court permitted the appellant to remit process on payment of a sum of `250/- as cost to the Legal Services Committee attached to this Court. It was accordingly that the appellant paid the process. Thereafter, the notice issued to the respondents 1 and 2 were returned unserved and by order dated 1.3.2016, this Court dispensed with issuance of notice to the said respondents based on the submission of the learned counsel for the 3[rd] respondent insurer that the insurance coverage of the offending vehicle is not in dispute. 23. In such circumstances, we hold that for the additional compensation awarded in this appeal, the appellant will be entitled for interest only from 13.6.2011 till realisation. M.A.C.A.No.1903 of 2006 :-10-: 24. We direct the 3[rd] respondent insurer to deposit the additional compensation awarded in this appeal together with 8% interest from 13.6.2011 till realisation. 25. Since the insurance coverage of the offending vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within a period of 2 months from the date of receipt of a certified copy of this judgment. There will be no order as to costs. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/29.6.17 //True copy// P.A.to Judge