Haridasan s/o Madhavappanicker v. P.K. Krishnakumar, Ullas T.S. & The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 22ND DAY OF MARCH 2016 / 2ND CHAITHRA, 1938 **MACA.No. 1662 of 2012** AGAINST THE AWARD IN O.P(MV)No.342/2007 of M.A.C.T., PALAKKAD ## **APPELLANT** /CLAIMANT: HARIDASAN S/O.MADHAVAPPANICKER, THEKKIYIL HOUSE, KONGAD P.O., PALAKKAD. BY ADV.SRI.LIJU. M.P ## **RESPONDENTS** /RESPONDENTS: 1. P.K.KRISHNAKUMAR S/O.P.K.CHANDRAN, 13/47, THEKKEKATTIL HOUSE, PALAPPURAM, PALAPPURAM P.O., OTTAPPALAM, PALAKKAD DISTRICT-679103. 2. ULLAS T.S. S/O.SHIVAN, KURIYAKKATTIL HOUSE, KONIKKIZHI, PULAPPATTA POST, PALAKKAD DISTRICT-678632. 3. THE NEW INDIA ASSURANCE CO.LTD. - OTTAPPALAM-679101. R3 BY ADV. SRI.PMM.NAJEEB KHAN R3 BY ADV. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ. --------------------------------------------------M.A.C.A. No.1662 of 2012** **---------------------------------------------------** Dated this the 22[nd] day of March, 2016 ## **JUDGMENT** ## **C.T.Ravikumar, J.** The appellant was the claimant in O.P. (M.V)No.342/2007 on the files of Motor Accidents Claims Tribunal, Palakkad. He sustained injuries in a motor vehicle accident that occurred on 03.12.2005 at about 9.30 P.M. He was then travelling in an autorikshaw bearing Reg.No.KL9K/4934 driven by the second respondent. It capsized allegedly due to the rash and negligent driving of the second respondent and consequently, the appellant sustained severe injuries. Immediately, the appellant was taken to Paalana Institute of Medical Science, Palakkad and from there he was referred to West Fort Hospital, Thrissur on the next day. He had been an inpatient there from 04.12.2005 to 17.12.2005. It was in the said circumstances that he filed the above mentioned claim petition, contending that he was running a M.A.C.A.No.1662 of 2012 2 rice mill and was earning a monthly income of Rs.6,000/- per month and claiming for a total compensation of Rs.6,60,000/-. No oral evidence was adduced by both sides before the Tribunal. On the side of the appellant Exts.A1 to A12 series were got marked and there was no documentary evidence as well, on the side of the respondents. Ext.X1 is a court document which is the disability certificate in respect of the appellant. After analysing the evidence on record and appreciating the rival contentions the Tribunal granted an amount of Rs.1,28,500/- as compensation with interest at the rate of 7.5% per annum from 04.04.2007 till realisation. It is seeking enhancement of the quantum of compensation granted as per the award that the captioned appeal has been preferred by the appellant. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent, the insurer of the aforesaid autorickshaw. 3. The accident, insurance coverage of the offending vehicle and also the cause for the accident as the M.A.C.A.No.1662 of 2012 3 negligence from the part of the second respondent, are not at all disputed before us. In the said circumstances, the only question to be considered in this appeal is whether or not the appellant is entitled to get enhancement of compensation under any of the head. The learned counsel for the appellant contended that the Tribunal has not properly assessed the permanent disability. Though as per Ext.X1 disability certificate, the percentage of permanent disability was certified as 20% the Tribunal took only 10% as the whole body disability for the purpose of assessing compensation for permanent disability incurred due to the accident. The monthly income of the appellant was also erroneously fixed disregarding the specific averment in the claim petition that he was running a rice mill and was earning a monthly income of Rs.6,000/-. It is the further contention that Ext.A12 series of medical bills were not properly considered by the Tribunal. In the appeal it is stated that actually the amount covered by such bills is only Rs.91,543/-. But at the same time, when this matter is taken up for consideration the learned counsel M.A.C.A.No.1662 of 2012 4 for the appellant contended that a proper scrutiny of Ext.A12 series would reveal that the amount covered by such bills is not Rs.91,543/- and that the actual amount is Rs.1,58,000/-. It is submitted that no reason has been assigned by the Tribunal for rejecting the bills contained in Ext.A12 series. It was limited to Rs.20,008/- ignoring Ext.A12 series. 4. The learned counsel for the third respondent contended that from the impugned award it is evident that on considering the admissibility of Ext.A12 series the Tribunal found that only an amount of Rs.20,008/- is payable towards medical expenses though no specific reason has been assigned thereunder. That apart, it is contended that the Tribunal cannot be found fault with in not accepting the claim of the petitioner-appellant that he was conducting a rice mill and was earning Rs.6,000/- per month as the appellant had not adduced any evidence to establish his claim regarding the occupation and income. In such circumstances, the fixation of monthly income notionally by the Tribunal cannot be said to be erroneous, it is submitted. It is further M.A.C.A.No.1662 of 2012 5 contended that the Tribunal had correctly assessed the permanent disability with reference to Ext.X1 disability certificate. Though in Ext.X1 disability certificate the percentage of permanent disability was assessed as 20% the Tribunal took the whole body permanent disability as 10% for the purpose of calculating the compensation payable for the permanent disability incurred in the accident. In short, according to the learned counsel for the third respondent, the impugned judgment invites no appellate interference. 5. We have also perused the judgment and also the evidence on record. It is evident that the appellant had specifically taken up a contention that he was running a rice mill and was earning Rs.6,000/- per month. To substantiate the said contention Exts.A10 & A11 were produced before the Tribunal. Ext.A10 is a licence issued by the concerned Local Self Government Institution for enabling the appellant to conduct the rice mill. But at the same time, it would reveal that the said licence was issued on 01.04.2009 for a period from 01.04.2009 to 31.03.2010. Ext.A11 is the receipt dated M.A.C.A.No.1662 of 2012 6 24.02.2010 towards remittance of licence fee for the rice mill. The Tribunal took note of the fact that the accident in question had occurred on 03.12.2005 and in such circumstances Exts.A10 and A11 got no relevance at all, in the matter of proving the occupation and income of the appellant at the time of the accident. We do not find any infirmity or perverseness in the said conclusion arrived at by the Tribunal. The said documents are obviously issued years after the accident. In such circumstances, they could not be relied on for the purpose of establishing the occupation and income during the relevant period. Therefore, we are perfectly in agreement with the conclusions arrived at by the Tribunal. 6. At the same time, another question has to be considered, taking into account the fact that the Tribunal had fixed the income of the appellant only at Rs.4,000/-, is whether the fixation of the monthly income of the appellant for the purpose of calculating the compensation payable towards permanent disability requires interference ? The M.A.C.A.No.1662 of 2012 7 accident had occurred on 03.12.2005 and at that point of time the appellant was aged 42 years. As noticed hereinbefore, the contention of the appellant is that the income fixed by the Tribunal in that regard is on the lower side. While appreciating the said contentions, we are of the view that the decision of the Honourable Apex Court in _**Ramachandrappa** v._ _**Manager Royal Sundaram Alliance Insurance Company Ltd.**_ reported in _**2011 (13) SCC 236**_ assumes relevance. The accident involved in _**Ramachandrappa** 's case (supra)_ had occurred in the year 2004. Evidently, the Apex Court took the monthly income of the appellant who was a coolie as Rs.4,500/-, for calculation purpose. As noticed hereinbefore, the accident in this case had occurred on 03.12.2005. True that, the appellant had not adduced evidence to establish his occupation and income. At the same time, it is a fact that he was eking his livelihood by engaging himself in some other activities. If that be so, there is no reason for fixing his monthly income notionally for the purpose of calculating the compensation for permanent M.A.C.A.No.1662 of 2012 8 disability at an amount which is less than Rs.4,500/-. Hence, it is fixed as Rs.4,500/-. 7. We will now, consider grievance of the appellant regarding the assessment of permanent disability. Ext.A6 is the copy of the discharge summary issued from West Fort Hospital, Thrissur. It would go to show that he had been an inpatient in the said hospital from 04.12.2005 to 17.12.2005. In fact, the Tribunal had taken note of the said fact in paragraph 10 of the impugned award and it had also taken note of the injuries noted in the discharge summary. Going by Ext.A6 discharge summary, he sustained the following injuries:- _“Type III C open comminuted fracture both bones right forearm with crush injury hand right with CMC dislocation thumb, segmental loss of 2[nd] metacarpel, fracture base of ¾ meta carpel and right radial head.”_ 8. Ext.A9 is the certificate issued from Elite Mission Hospital, Thirssur. It would reveal that he underwent a surgery from the said hospital for crush injury which is for near total amputation right hand and a further surgery was M.A.C.A.No.1662 of 2012 9 also advised under Ext.A9. He was found to have neuromamedian nerve and was advised to undergo a surgical correction for the same. Ext.X1 is the discharge certificate issued from the District Hospital, Palakkad. Evidently, as per the same, his permanent disability was certified as 20%. The Tribunal took note of the fact that though his permanent disability was assessed and certified as 20% it is not stated in Ext.X1 as what is the actual percentage of disability with reference to the whole body. A careful scrutiny of Ext.X1 would reveal that the percentage of loss of earning power was also not assessed. As noticed hereinbefore, in Ext.A9 what is certified is that the appellant had undergone surgery for crush near total amputation of right hand on 06.01.2011. He was having neuroma-median nerve and requires a surgical correction. We are of the view that the whole body disability assessed by the Tribunal for the purpose of calculating compensation for permanent disability, requires to be revisited, taking into account all the relevant aspects, as mentioned hereinbefore. A perusal of the impugned M.A.C.A.No.1662 of 2012 10 award would reveal that the Tribunal had not actually considered all such aspects in detail. The percentage of whole body disability was taken as 10% only because in Ext.X1 the permanent disability was certified as 20% without specifically mentioning about the percentage of whole body disability. When the appellant was treated as a person engaging himself in some activities to eke his livelihood the loss of earning power is also be taken into account. We may hasten to add that there can be no question of granting compensation separately on account of permanent disability as also on account of loss of earning power in view of the Full Bench decision in **Oriental Insurance Co. Ltd.** v. **Hariprasad (2005 (4) KLT 977)** . We are making such an observation taking into account the fact that the claim of the appellant that he was conducting a rice mill was rejected for want of proper evidence. As regards the grievance of the appellant regarding the failure of properly appreciating the claim under the head medical expenses, it is to be noted that to establish the medical expenses incurred, the appellant had M.A.C.A.No.1662 of 2012 11 produced Ext.A12 series. We have already taken note of the fact that the specific contention raised in this appeal is to the effect that the amount covered by Ext.A12 series is Rs.91,543/-. We have also taken note of the fact that during the course of the argument the learned counsel stated that the actual amount covered by Ext.A12 series is Rs.1,58,000/and not Rs.91,543/-. When the appellant had produced Ext.A12 series and the Tribunal had taken them into consideration certain other aspects ought to have been considered by the Tribunal i.e., what is the actual amount covered by Ext.A12 series of medical bills and if any bill produced under Ext.A12 series could not be admitted in evidence which are they and under what circumstances such bills could not be admitted in evidence. On going through Ext.A12 series we are of the view that there is some force in the arguments of the learned counsel as primarily they would go to show that the amount covered by such bills is much more than Rs.20,000/-. We have also found that the impugned award did not contain any reason as to why the M.A.C.A.No.1662 of 2012 12 amount under that head was limited to Rs.20,000/- even after perusing Ext.A12 series of documents. In the said circumstances, we are of the view that the matters mentioned hereinbefore require fresh consideration. In the said circumstances, for the purpose of making such a fresh consideration the matter has to be remanded. We have already fixed the monthly income for calculation purpose as Rs.4,500/-. However, the question to be considered is what exactly is the extent of whole body disability of the appellant and whether he is to be compensated for permanent disability or for loss of earning power ? Subject to its answer the amount of compensation payable has to be quantified appropriately, taking the monthly income as Rs.4,500/-. It is to be noted that the Tribunal has not stated any reason as to why the whole body disability was fixed only at 10%. While considering the said question the Tribunal shall take into consideration Ext.X1 and also Ext.A9 where it was certified that he had undergone a surgery for near total amputation of the right hand. The Tribunal shall also consider the question M.A.C.A.No.1662 of 2012 13 why the entire bills under Ext.A12 series could be admitted in evidence? In other words, the amount payable towards medical expenses has also to be fixed after taking into account the admissibility of Ext.A12 series, correctly. For the aforesaid purposes specifically mentioned hereinbefore, the matter is remanded to the Tribunal and the impugned judgment is set aside to that extent, to enable the Tribunal to fix proper compensation under the aforesaid heads. On receipt of a copy of this judgment the Tribunal shall cause notice to the parties, take up the matter and proceed to consider the matter afresh on the aforesaid aspects, after hearing both sides viz., the appellant/claimant and the insurer/the 3[rd] respondent. The appeal is disposed of as above. Sd/- ## **C.T.RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** vs