Jaison Mathew v. Madhu K.S., Nagi P.C. and Reliance General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** **MACA.No. 2373 of 2017** **AGAINST THE AWARD IN OPMV 787/2015 of M.A.C.T., THALASSERY DATED 28-12-2016** ## **APPELLANT/PETITIONER:** **JAISON MATHEW S/O. MATHEW, AGED 42 YEARS, RESIDING AT KUZHI KANNIYIL HOUSE, P.O. CHUNKAKKUNNU DESOM, IRITTY TALUK, KANNUR DT., PIN 670 651.** **BY ADVS.SRI.U.P.BALAKRISHNAN SMT.MARY MATHEW (THALASSERY) SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.PRAJIT RATNAKARAN** ## **RESPONDENTS/REASPONDENTS:** **1 MADHU.K.S. S/O. SREEDHARAN, AGED 47 YEARS, DRIVER, KOLACHIRA HOUSE, MURINGODI, PERAVUR P.O., IRITTY TALUK, KANNUR DISTRICT, KERALA STATE, PIN - 670 673.** **2 NAGI. P.C. 2/554, S/O. NOT KNOWN, AGED 27 YEARS, PULIKKANDATHIL HOUSE, CHETTIAM PARAMBA P.O., KELAKAM, IRITTY TALUK, THALASSERY, KERALA STATE, PIN - 670 674.** **3 RELIANCE GENERAL INSURANCE CO.LTD. 2ND FLOOR, GLOBAL PLAZA, OPP.NEW RAILWAY, VANCHIKKULAM ROAD, PUTHOOLE P.O., TRISSUR, KERALA, PIN - 680 004.** **BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.)** ## **OTHER PRESENT:** **SRI.MATHEWS JACOB, SR.ADV. FOR THE INSURANCE COMPANY.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2019, ALONG WITH MACA.3415/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos.2373/2017 & 3415/2017** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** **MACA.No. 3415 of 2017** **AGAINST THE AWARD IN OPMV 787/2015 of M.A.C.T., THALASSERY DATED 28/12/2016** ## **APPELLANT/SRD RESPONDENT :** **RELIANCE GENERAL INSURANCE COMPANY THRISSUR NOW REPRESENTED BY ITS LEGAL-CLAIMS MANAGER, REGIONAL OFFICE, KOCHI 682 020** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SMT.PREETHY R. NAIR SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **JAISON MATHEW S/O.MATHEW, KUZHI KANNIYIL HOUSE,CHUNGAKKUNNU P.O,KELAKOM, KANNUR DISTRICT, PIN 670 651** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.K.R.AVINASH (KUNNATH) SRI.U.P.BALAKRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2019, ALONG WITH MACA.2373/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos.2373/2017 & 3415/2017** **3** ## **JUDGMENT** Both these appeals are directed against the award dated 28.12.16 in OP(MV) No.787/15 on the files of the Motor Accident Claims Tribunal, Thalassery (for short 'the Tribunal'). 2. The appellant in MACA No.3415/17 is the insurer of the offending vehicle who was the 3[rd] respondent in the claim petition before the Tribunal and is represented by the learned Senior Counsel Sri.Mathews Jacob. The appellant in MACA No.2373/17 is the petitioner in the aforesaid claim petition and is represented by the learned counsel Sri.U.P. Balakrishnan. 3. MACA No.3415/17 is filed seeking for a modification of the compensation arrived at by the Tribunal as payable under the heads, loss of earning, disability, pain and suffering and loss of amenities and enjoyments in life. It is also pleaded that the Tribunal failed to consider the plea of the appellant on contributory negligence of the petitioner. In MACA No.2373/17 the contention of the learned counsel for the appellant was that inadequate and unjust compensation have been awarded by the **MACA Nos.2373/2017 & 3415/2017** **4** Tribunal under various heads of compensation. According to the learned counsel, the evidence on record has not been correctly and properly appreciated by the Tribunal and therefore the compensation have been arrived at on the lower side. Accordingly, re-fixation and enhancement was sought for. 4. Before adverting to the rival contentions advanced by the respective counsel, the facts of the case is required to be dealt with: The petitioner, who was riding a motor cycle from Kelakom to Chunkakunnu on 05.05.2009 was knocked down by a lorry bearing registration No.KL 3 Q 4307. The petitioner was thrown on the road and sustained serious injuries. He had multiple fractures on right thigh, fracture on right hand and fracture on left shoulder. He was rushed to Baby Memorial Hospital, Kozhikode and treated there as inpatient for 42 days. Thereafter he was shifted to Thejasvini Hospital, Mangalore and treatment was continued as inpatient for a period of 25 days. Alleging that the accident was occurred due to the rash and negligent driving of the lorry by its driver and seeking for a total compensation of Rs.7 **MACA Nos.2373/2017 & 3415/2017** **5** lakhs, the claim petition as above was preferred before the Tribunal. The driver, owner and insurer of the lorry were arrayed as respondents 1 to 3 in the claim petition. 5. The petitioner had let in evidence, both oral as well as documentary, before the Tribunal. Administrator of Baby Memorial Hospital, Kozhikode was examined as PW2 and the Doctor who had treated the petitioner was examined as PW1. Exts.A1 to A17 and Exts.X1 and C1 were also marked in evidence from the side of the petitioner. The 3[rd] respondent, the appellant in MACA No.3415/17 failed to adduce either oral or documentary evidence before the Tribunal. 6. On appreciation of the entire evidence on record, the Tribunal found the 2[nd] respondent, the driver of the lorry rash and negligent in driving the same and the petitioner entitled to get compensation. The Tribunal had also arrived at a total sum of Rs.13,80,050/- as the compensation payable and issued direction to the 3[rd] respondent insurer of the offending vehicle to deposit the same with interest at the rate of 9% per annum, except for the amount awarded towards future treatment, from the date of **MACA Nos.2373/2017 & 3415/2017** **6** the claim petition till the date of realisation. The petitioner is aggrieved by the inadequacy in the quantum of compensation so awarded by the Tribunal and seeking for a modification by way of enhancement, MACA No.2373/17 was filed. Aggrieved by repulsion of the plea on contributory negligence and against the exorbitance in the quantum of compensation arrived at by the Tribunal under various heads, the 3[rd] respondent has also approached this Court in appeal filed as MACA No.3415/17. 7. In the backdrop of the rival contentions so advanced, this Court has ventured to appreciate the entire evidence to see whether the Tribunal went in error while arriving at the quantum of compensation as per the impugned award. 8. The monthly income was notionally fixed by the Tribunal as Rs.5,000/-for the purpose of calculation of compensation. Exts. A8 and A9 are documents marked in evidence from the side of the petitioner to establish his membership under the Kerala Construction Workers' Welfare Board. Those documents would disclose that the petitioner's membership under the Board was from 24.09.1972 and it will be valid till 24.09.2032. Ext.A10 is the **MACA Nos.2373/2017 & 3415/2017** **7** professional tax receipt and Ext.A11 is the receipt for payment of licence fee. It is disclosed from Ext.A11 that the petitioner had obtained a licence from Kottiyur Grama Panchayat for making furniture and its sale. From Ext.A10, it is disclosed that the petitioner had paid professional tax in the year 2006. The claim of the petitioner as revealed from the claim petition filed before the Tribunal was that he was conducting a shop at Chunkakunnu for making and selling furniture. As stated earlier, it is established from Exts.A8 and A9 that the petitioner was a member of the Kerala Construction Workers' Welfare Board. There is absolutely no materials available in evidence to establish that the petitioner had paid professional tax for years that succeed 2006 and renewal of licence after 2004. Therefore, it is not possible to take a view from the evidence available that the petitioner is maintaining the shop of furniture even as on date. The only evidence available is regarding his membership in the Kerala Construction Workers' Welfare Board. There is nothing on record to establish the monthly income of Rs.40,000/- as claimed by the petitioner in the claim petition. In the aforesaid circumstances, the Tribunal was **MACA Nos.2373/2017 & 3415/2017** **8** constrained to fix Rs.5,000/- notionally as the monthly income of the petitioner for the purpose of calculation of compensation. In the view of this Court, with the materials available in evidence as Exts.A8 and A9, the Tribunal is highly unjustified in fixing the monthly income as Rs.5,000/- for the purpose of calculation of compensation payable towards loss of earning and loss of disability. As disclosed from the documentary evidence such as Exts.A3, A4, A5 and X1, the petitioner had sustained multiple fractures on his right femur, compartment syndrome on right thigh, vascular injury on right leg, fracture on right shoulder and a fracture on right hand. As part of treatment, he had undergone exploration of femoral vessels (Right), decompression of right thigh, fasciotomy, external fixator for right femur, Tibial traction, repeated wound debridement, Open reduction and internal fixation for right femur and Split Thickness skin grafting. He had undergone inpatient treatment at Baby Memorial Hospital, Kozhikode and also at Thejasvini Hospital, Mangalore for a total period of 67 days. He had reviews on 17 occasions. In the backdrop, the Tribunal has calculated loss of earning for one year. **MACA Nos.2373/2017 & 3415/2017** **9** 9. The contention of the learned counsel for the appellant in MACA No.3415/2017 was that the period of one year taken by the Tribunal for calculation of compensation for loss of earning is an excessive period. In view of the discussion hereinabove made regarding the nature of injuries sustained and the treatment procedures undergone by him for an extensive period of 67 days, this Court finds every justification for the Tribunal in considering loss of earning for a period of one year. Therefore, the plea of the learned Senior Counsel for the appellant in MACA No.3415/2017 canvassing for a modification of the period from one year to a duration shorter than that stands repelled. 10. In the light of the discussions made above, this Court is inclined to take Rs.7,500/- as the monthly income for the purpose of calculation of compensation and when the quantum is re-fixed with the modified monthly income of Rs.7,500/- and for a period of one year, the total amount payable under the head loss of earning will be to Rs.90,000/-(7500 x 12). It is found from the impugned award that the Tribunal has awarded a sum of Rs.60,000/- under the head. When that amount is deducted from **MACA Nos.2373/2017 & 3415/2017** **10** the amount arrived at now, the amount payable in addition under the head loss of earning will be Rs.30,000/-. Under the head transportation expenses, on the basis of Ext.A15 the Tribunal has awarded a sum of Rs.92,150/- as compensation. The learned counsel for the appellant in MACA No.2373/17 has sought for enhancement of the same. This Court is declined to act in accordance with the arguments advanced by the learned counsel for the reason that Ext.A15 as such has been considered by the Tribunal and the entire amount covered by that has been awarded as compensation under the head transportation expenses. There is no dispute from either counsel regarding the quantum of compensation payable under the head extra nourishment and bystander expenses and for the reason, this Court is not liable to look into those. 11. The impugned award was attacked by the learned counsel for the 3[rd] respondent, the appellant in MACA No.3415/17, for the reason that Rs.1,50,000/- and Rs.1,00,000/- awarded respectively under the heads pain and suffering and loss of amenities and enjoyments in life are on the higher side and a **MACA Nos.2373/2017 & 3415/2017** **11** modification by reduction is required in interference. The injuries caused to the petitioner and the treatment procedures to which he was subjected to and the period for which it lasted have already been dealt with in detail. Therefore, this Court finds justification in the grant of Rs.1,50,000/- as compensation under the head pain and suffering and Rs.1,00,000/- towards loss of amenities and enjoyments in life. The contention of the learned counsel for the appellant in MACA No.3415/17 seeking for reduction of the aforesaid sums is repelled for the reason. 12. The last and final argument advanced by the learned counsel for the appellant in MACA No.3415/17 was that though a certificate assessing the disability of the petitioner by the Medical Board was produced and marked in evidence as Ext.C1 and the disability was certified therein by the Medical Board as 24%, the Tribunal has taken a higher percentage of 50% as the disability, which according to the learned Senior Counsel is unjust and improper. Accordingly, interference was sought. 13. On the contrary, the learned counsel for the appellant in MACA No.2373/17 has contended that the Tribunal has taken 50% **MACA Nos.2373/2017 & 3415/2017** ## **12** as the occupational disability of the petitioner and being a Carpenter and having been sustained serious injuries in the accident, there is every justification for the Tribunal in considering 50% disability for the purpose of arriving at compensation for loss of earning power. Accordingly, he pleads for maintaining that consideration. 14. Ext.C1 is the certificate wherein the whole body physical disability of the petitioner was assessed and certified by the Medical Board as 24%. Though the doctor who had treated him was examined by the petitioner as PW1, his evidence turned of no help to the petitioner. A perusal of Ext.C1 would reveal that the Medical Board had considered the deformity of the thigh and certain other aspects for the purpose of fixation of disability as 24%. In **Raj Kumar v. Ajay Kumar and another** [2011(1) SCC 343], the Apex Court has issued principles, the third among which is relevant in the context and is extracted herein below : **==> picture [262 x 11] intentionally omitted <==** (iii) the doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of **MACA Nos.2373/2017 & 3415/2017** **13** 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.” Therefore, the Tribunal has been empowered by the Apex Court in fixing the loss of earning capacity and directed to assess the same based on the evidence available before it in its entirety. It is established from the evidence on record that the petitioner was engaged in carpentry work. But he has not mounted the box to depose that he was doing work of carpentry on his own or getting it done through someone else. Evidence was not tendered by him to establish his difficulties in pursuing with his occupation in view of the injuries sustained in the accident. Exts.A4 and A5 are discharge summaries issued from Baby Memorial Hospital, Kozhikode and Thejasvini Hospital, Mangalore wherefrom the petitioner had availed treatment after the accident. Those documents indicate that the petitioner had sustained grievous injuries in the accident. The second spell of treatment at Thejasvini Hospital, Mangalore was after a period of four months from the date of accident and that was for non-union following the infection developed at the fracture site. Since non-union was **MACA Nos.2373/2017 & 3415/2017** **14** reported and the petitioner had to undergo treatment for that, for about 4 months after the initial treatment undergone by him, he may find it difficult to pursue with his occupation. What was assessed by the medical board in Ext.C1 is the whole body physical disability. The Medical Board has not considered the loss of earning capacity of the petitioner. In view of **Raj Kumar** 's case (supra), the Tribunal alone is empowered to fix loss of earning capacity or occupational disability by considering the entire evidence on record. Even while considering the entire evidence on record, this Court could not find justification for the Tribunal, in fixing 50% as the loss of earning capacity or occupational disability of the petitioner. The fixation of 50% appears to this Court on the higher side in the backdrop of the evidence available on record. Therefore, this Court is inclined to accept the argument of the learned counsel for the appellant in MACA No.3415/17 and to reduce the percentage of occupational disability or loss of earning capacity by 30%. 15. In the re-fixation of the quantum of compensation towards disability and loss of earning power by taking the **MACA Nos.2373/2017 & 3415/2017** **15** modified monthly income as Rs.7,500/- and the occupational disability as 30%, the total amount payable under the head disability would come to Rs.4,05,000/-(7500 x 12 x 15 x 30%). The Tribunal has awarded a sum of Rs.4,50,000/- under the head, therefore there would be a reduction from the compensation already awarded by the Tribunal by Rs.45,000/- (4,50,000 - 4,05,000). Eventhough a finding on contributory negligence was sought, basis for arriving at the same is not found from the evidence on record and therefore, the argument is discarded. In view of the discussion as hereinabove made, both MACA Nos.3415/17 and 2373/17 are allowed in part. In the re-fixation of the compensation in the respective appeals in the above manner, there will be a reduction of Rs.15,000/-(13,80,500 - 13,65,000) from the total amount arrived at by the Tribunal as compensation in the impugned award. Therefore, the petitioner is entitled only to get a total sum of **Rs.13,65,000/-** (Rupees Thirteen lakhs sixty five thousand only) as compensation. The said amount would carry interest (9% per annum) for the period and costs, as directed by the Tribunal in the impugned award. **MACA Nos.2373/2017 & 3415/2017** **16** The 3[rd] respondent insurer/appellant in MACA No.3415/17 shall deposit the aforesaid sum with interest as directed and costs within a period of two months from the date of receipt of a copy of this judgment. The parties to these appeals shall bear their respective costs. Sd/- **MARY JOSEPH JUDGE** **ttb**