John K. George v. SASI M.K., Mal Akkal (?) etc. - National Insurance Company Ltd. (MACA No. 1266 of 2009) - High Court of Kerala (2019)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2019-02-06
Court Decision / Holding: The appeal would stand allowed.
Final Disposition: Appeal allowed; enhanced compensation in several heads; payment within two months with interest and costs to follow.

Parties to the Case

Appellants / Petitioners

John K. George

Respondents

SASI M.K.
P.A. Purushan
National Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri.K.K.Chandran Pillai
• Sri.A.S.Sajush Paul

Counsels for Respondents

• Sri.E.M.Joseph

Case Synopsis & Summary

John K. George, the appellant, challenges a Motor Accident Claims Tribunal award arising from a road collision on 21 April 2001, in which a tipper lorry allegedly driven rashly by the 1st respondent struck the claimant’s car. He sustained multiple injuries, was treated for ten days, and remained on bed rest for weeks. The Tribunal held negligence on the part of the tipper driver and held the policy-issuing insurer liable for compensation, though it did not allow all claimed items. The appellant seeks enhanced compensation on several heads, including medical expenses, loss of earnings, and pain and suffered, and questions the treatment of disability evidence and the adequacy of proof of disability Ext. A7. He contends there were undisclosed injuries (mandible fracture and acetabular fracture) evidenced in discharge summaries, and argues that the applicant’s income in 2001 should be higher (an advocate, Rs. 5,000 per month), citing Ramachandrappa to justify higher earnings. He also points to medical bills totaling Rs. 32,003.64 while only Rs. 19,384.14 was awarded, and asserts duplication in the first three bills. The respondents/insurer defend the Tribunal’s findings, arguing disability proof was insufficient and that the enhanced compensation is unwarranted. The High Court ultimately allows the appeal, enhancing several heads of compensation and directing payment within two months with interest and costs to follow.

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant contends that negligence was established and seeks enhanced compensation for undisclosed injuries (mandible fracture and acetabular fracture) evidenced in discharge summaries; he argues disability Ext.A7 should be proved with proper evidence and asserts the Tribunal erred by not fully admitting medical evidence and that the disability cannot be ignored. He relies on Ramachandrappa to justify treating an advocate’s income in 2001 as Rs.5,000 per month for computing compensation, citing higher medical expenses (Rs.32,003.64 billed; Rs.19,384.14 awarded) and claiming duplication in early bills; he asserts the Tribunal’s failure to consider all heads of damages (including loss of earnings, nourishment, pain and suffering) and seeks substantial enhancement and timely payment with interest.

Contentions of Respondents

Respondents contend that negligence was correctly found and disability proof was not established; Ext.A7 was marked but not proved due to lack of sufficient evidence; the Tribunal’s award on medical bills and earnings is acceptable and no basis to grant further enhancement; they argue that the evidence did not warrant reopening the award and that the insurer’s consent governed admissibility of Ext.A7; overall, they urge that the appeal should fail or be limited in scope, with costs borne by the appellant.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd.	[(2011) AIR SC 2951]	Positive	Cited to justify using an advocate’s income level in 2001 (Rs.5,000/month) for computing compensation, aligning with the principle that professional income may be treated reasonably for MACT claims.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940** ## **MACA.No. 1266 of 2009** **AGAINST THE AWARD IN OPMV 1552/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM DATED 16-08-2008** ## **APPELLANT/S:** **JOHN K.GEORGE AGED 54 YEARS S/O GEORGE, ADVOCATE, EF7/13, VASANT NAGAR,, PALARIVATTOM, KOCHI 682 025.** **BY ADVS. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL** ## **RESPONDENT/S:** |**1**|**SASI M.K.**| |---|---| ||**MALAYIL HOUSE, KADAYIRUPPU,, KOLENCHERRY,**| |**2**|**P.A. PURUSHAN S/O. AYYAPPAN**| ||**PARAKKANATTIL HOUSE,, THIRUMARADY P.O.,**| ||**KOOTHATTUKULAM.**| |**3**|**NATIONAL INSURANCE COMPANY LTD.**| ||**KOLENCHERRY, REPRESENTED BY IT, MANAGER,**| ||**KOLENCHERRY P.O..**| ||**BY ADV. SRI.E.M.JOSEPH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1266/2009 ::2:: ## **J U D G M E N T** **The appellant is the claimant before the Tribunal who suffered an accident on 21.04.2001. The appellant was driving his car when a tipper lorry driven by the 1[st] respondent allegedly in a rash and negligent manner hit the car. The accident is said to have rendered the appellant unconscious with bleeding injuries. He was taken to the Medical Mission Hospital Kolencherry where he underwent treatment till 30.04.2001, for a total of ten days. He was under bed rest for two months. The appellant alleges that he was continuing the treatment. The Tribunal found negligence on the tipper lorry which was properly insured. There was no allegation of violation of terms and conditions of policy. Hence the appeal survives for the enhancement of compensation.** **2. The injuries suffered by the appellant** MACA No.1266/2009 ::3:: **are as follows:** **1. laceration right forearm 2x2cm;** **2. laceration left forearm 3x2 cm** **3. laceration left wrist 2x2 cm** **4. laceration dorsal aspect of left hand tendons exposed** **5. laceration below lip 4x1 cm** **6. laceration below chin 5x2 cm** **7. Multiple abrasions on the face, right and left legs** **8. blunt injury abdomen** **3. Ext. A6 discharge summary shows that he had fracture mandible for which closed reduction was done. The appellant had also suffered undisplaced fracture on the acctabulam. Though the wound certificate does not show the said injuries, the wound certificate at Ext.A2 specifically shows multiple aberration on the face. Obviously the injury to the mandible would not have been noticed** MACA No.1266/2009 ::4:: **at that point. The hip bone fracture also was not noticed at the time of the initial admission to the hospital. The fact that these two fractures are seen in the discharge summary, definitely, indicates the appellant having suffered such injury.** **4. The further contention is with respect to the disability certificate issued by a Doctor from a private hospital, produced as Ext.A7. The disability however, was not proved. The learned Counsel would submit that only a proof affidavit was allowed to be filed and the Tribunal did not even permit evidence to be led. The Tribunal has specifically noticed in the award that Ext.A7 was marked, but, subject to proof. Marking of document by a proof affidavit on consent of the Insurance Company would not prove the contents of the document. Though the learned Counsel submitted that the Tribunal did not permit any evidence to be led,** MACA No.1266/2009 **==> picture [20 x 9] intentionally omitted <==** **this Court from the records, does not even see a witness list having been filed. Hence no credence can be placed on the said argument raised in appeal. The disability cannot at all be looked into.** **5. The appellant suffered hospitalisation for ten days and had bed rest for three weeks. Thereafter, the appellant also was not able to go for work for two months. The Tribunal granted two months loss of earning at an income of Rs.3500/per month. The appellant asserted that he is an Advocate practicing before the Courts at Ernakulam. However, nothing was produced to evidence his income. Considering the fact that the appellant is an Advocate practicing in this very Court, the profession he is engaged in can be accepted. But there was nothing to prove the monthly income. The accident occurred in the year 2001. The Hon'ble Supreme Court in** _**Ramachandrappa v. The Manager,**_ MACA No.1266/2009 ::6:: ## _**Royal Sundaram Alliance Insurance Company Ltd.**_ _**[(2011) AIR SC 2951],**_ **in the year 2004, found a coolie to have monthly income of Rs.4500/-. In such circumstance, an Advocate can be said to have a monthly income of Rs.5000/- in the year 2001. The learned Counsel for the appellant submits that the medical bills has not been granted in full. Though there were bills produced at Ext.A8 series totalling an amount of Rs.32,003.64, what is granted is only Rs.19,384.14. The award indicates that there is duplication of the first three bills. I have verified the bills and find that there should be granted a further amount of Rs.7,127/-. Hence the following enhancement shall be granted.** |**Sl.** **No.**|**Head of Claim**|**Amount awarded** **by the** **Tribunal** `|**Total amount** **after** **enhancement in** **appeal** `| |---|---|---|---| |**1**|**Medical expenses**|**19384**|**26511**| |**2**|**Transportation and** **damage to clothing**|**1000**|**1000**| |**3**|**Attendant expenses and**|**2000**|**2000**| MACA No.1266/2009 ::7:: ||**extra nourishment**||| |---|---|---|---| |**4**|**Shock pain and** **suffering**|**18000**|**25000**| |**5**|**Loss of earnings**|**7000**|**10000**| |**6**|**Loss of amenities and** **convenience**|**8000**|**8000**| ||**Total**|**55384**|**72511**| **6. The amounts awarded as above, after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and costs, if any, as awarded by the Tribunal. The appellant shall produce a copy of a cancelled cheque of the bank account in his name with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS to the said account, failing which the applicant-claimant can approach** **the Tribunal.** MACA No.1266/2009 ::8:: **The appeal would stand allowed. Parties** **are left to suffer their respective costs, in the** **appeal.** **Sd/-** **K. Vinod Chandran, Judge** **jma**

John K. George v. SASI M.K., Mal Akkal (?) etc. - National Insurance Company Ltd. (MACA No. 1266 of 2009)