Joseph v. Sunil Kumar and Oriental Insurance 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 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937 MACA.No. 2696 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 941/2008 of MACT, IRINJALAKUDA APPELLANT(S)/PETITIONER: ------------------------------- JOSEPH S/O. KUNJUVARKEY, VADAKKAN'S HOUSE, PERAMBRA P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS : -------------------------------------- ## 1. SUNIL KUMAR S/O.NARAYANAN, KUROOLI HOUSE, KODUNGA VELIKULANGARA P.O., THRISSUR DISTRICT-680 693. ## 2. ORIENTAL INSURANCE CO. LTD. CHALAKKUDY-680 307. R2 BY ADV. SRI.P.V.JYOTHI PRASAD BY SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH JJ.** ## **--------------------------------------------M.A.C.A.No. 2696 OF 2012** **---------------------------------------------** Dated this the 12[th ] day of January, 2016 ## **JUDGMENT** _Mary Joseph, J._ The appellant, the injured in a motor vehicle accident occurred on 5.4.2008 at 6 p.m near Chalakudy has approached this Court challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Irinjalakuda (for short 'the Tribunal') on the ground that it is highly inadequate. 2. The facts necessary for the disposal of this appeal are summarised as follows:- On 5.4.2008 at 6 p.m, while the appellant was riding a motor cycle bearing Reg.No.KL-45-3029 through Chalakudy Old Tramway, a goods carriage bearing Reg.No.KL-9/C 2212 belongs to the first respondent, due to his driving in a rash and negligent manner, hit the motor cycle and caused the accident. The appellant/petitioner had sustained serious injuries in the motor accident and was treated at **MACA.2696/2012** 2 St.James Hospital, Chalakudy. He was then aged 43 years and was earning a monthly income of `11,000/- from his job at Apollo Tyres Limited, Perambra. Arraying the owner-cum-driver of the goods vehicle as the first respondent and its insurer as the second respondent, the claim petition was filed as O.P.(MV) No.941/2008 before the Tribunal claiming `2,00,000/- as compensation. 3. The first respondent did not turn up to contest the claim petition before the Tribunal and was declared ex parte. The second respondent filed written statement raising contentions that the accident was occurred due to the rashness and negligence on the part of the appellant/petitioner himself, that the first respondent was carefully driving the goods carriage at the relevant time and that the compensation claimed by the appellant under various heads is excessive. 3. Before the Tribunal, the petitioner had let in documentary evidence as Exts.A1 to A11. The doctor who has assessed his disability and his employer respectively were examined as Pws.1 and 2. Case sheet relating to the treatment also got marked as **MACA.2696/2012** 3 Ext.X1. On the side of the respondent, the insurance policy was marked as Ext.B1. The Tribunal, on appreciation of the evidence and after evaluating the rival arguments advanced from either side, arrived at `91,332/- as compensation, passed award to that effect and directed the second respondent to deposit the same with interest at the rate of 7.5% per annum from the date of the claim petition till realisation and proportionate costs. The Tribunal has also arrived at 10% contribution to the accident by the petitioner due to his negligence based solely on the reporting of 'smell of alcohol' in the Accident Register cum Wound Certificate marked in evidence as Ext.A4. Aggrieved by the award that the appellant has approached this Court seeking interference on the twin grounds projected by him. 4.Sri.A.N.Santhosh and Sri.P.V.Jyothiprasad, the respective counsel appearing for the appellant and the second respondent were heard in detail. The evidence on record is re-appreciated on the basis of the specific contentions put forth. **MACA.2696/2012** 4 5. The learned counsel invited our attention to the impugned award to make us convince about the error committed by the Tribunal while appreciating the evidence adduced from the side of the appellant. It is also contended by the learned counsel that the Tribunal ought not to have fixed contributory negligence upon him on the sole reason of the entry in Ext.A4 as 'smell of alcohol'. According to him, the said finding of the Tribunal is totally a perverse one, liable to be interfered with and reversed. 6. Per contra, the learned counsel for the second respondent submitted that the assessment of compensation by the Tribunal was correct in all respects and do not call for interference. According to him, the finding of the Tribunal as to contribution of 10% negligence was well-founded on the report of the doctor in Ext.A4 regarding 'smell of alcohol' and is sustainable. 7. We have perused the impugned award and found therefrom that the Tribunal had awarded `59,967/- as compensation towards loss of earning, `15,613/- as compensation towards medical and miscellaneous expenses, `500/- towards transportation expenses, **MACA.2696/2012** 5 `10,000/- towards pain and suffering, `200/- towards extra nourishment, `15,000/- towards loss of amenities and inconveniences and `200/- towards bystander expenses. Accordingly, the Tribunal has awarded a total compensation of `1,01,480/- and found the appellant's entitlement only to `91,332/after deducting 10% from the total sum arrived at based on its finding of 10% contribution to the accident by his own negligence. 8. There was no challenge before the Tribunal with regard to the age of the appellant and therefore, the age is taken by the Tribunal as 43, based on the claim of the appellant itself. Evidently, the monthly income was proved through a certificate issued from Apollo Tyres Ltd., Perambra wherein he was working and marked in evidence as Ext.A9. Therefore, there is every justification for the Tribunal in taking `11,000/- as the monthly income of the appellant. It can be seen from Exts.A4 and A5, the wound certificate and the discharge summary respectively that the appellant had sustained fracture on right calcaneum and right medial malleolus. As revealed from Ext.A5 the discharge summary, the petitioner had undergone **MACA.2696/2012** 6 open reduction and internal fixation during the course of inpatient treatment. It is further revealed from the medical documents on record that the petitioner had a second spell of hospitalisation for removal of the implants. In Ext.A7, the disability certificate marked in evidence before the Tribunal, the permanent disability of the appellant is certified as 10% and his loss of earning capacity as 25%. The doctor, who issued Ext.A7 disability certificate, was examined as PW1. But, evidence was tendered by the appellant to the effect that he continues in his employment even after the accident. The Tribunal declined to grant compensation under the head disability on the following reasoning:- “............ _The petitioner is 43 years old and according to him, he is still working. So there is no case for the petitioner that due to the disability he suffered any reduction in income. Unless petitioner shows that the disability has an impact on his earning capacity and thereby reduced his income compensation could not be allowed_ . ..............” Admittedly of the appellant, he is continuing his job at Apollo Tyres Ltd. even after the accident. **MACA.2696/2012** 7 9.The Tribunal has awarded `59,967/- as compensation towards loss of earning considering the period of treatment and absence from work as evidenced from Ext.A9 certificate issued by the employer of the petitioner and therefore, interference is uncalled for. Satisfactory compensation was awarded under the head medical and miscellaneous expenses based on medical bills marked in evidence as Ext.A8. Therefore, that factum also does not invite any interference. With regard to transportation expenses, an amount of `1,000/- was claimed by the petitioner/appellant. But the Tribunal was pleased to grant only `500/-, which is on the lower side. Therefore, we are inclined to grant `1000/-, the sum as such claimed by the petitioner. Under the head pain and suffering, the Tribunal granted only a sum of `10,000/- though a claim for `25,000/- was made. On account of the fractures sustained by the appellant on his right calcaneum and medial malleolus, and due to laying of implants at the fracture site in an operation, he must have sustained pain and he needs to be adequately compensated. In view of those aspects, we are of the considered opinion to grant `25,000/- **MACA.2696/2012** 8 the sum as such claimed by the petitioner under the head pain and suffering as it appears to us reasonable. A look at the impugned award reveals that no sum was granted as compensation under the head damages to clothing. Rs.1000/- being a reasonable sum, we are inclined to award he same. Towards exta nourishment, the Tribunal has awarded only `200/-. We see force in the argument of the learned counsel for the appellant that the amount awarded is on the lower side and therefore, `1000/-, the sum as per the claim of the petitioner is awarded. Towards loss of amenities, the Tribunal has awarded only `15,000/- against a claim of `50,000/-. In the nature of the injuries sustained by the petitioner and the procedures undergone by him and the time taken to get it cured, we cannot shut our eyes to the discomforts and inconveniences to which he was put to. The Tribunal though taken note of that, had awarded only a meagre sum. In our considered opinion, enhancement of the same is required and therefore, we are inclined to award `10,000/additionally. There was no challenge with respect to the inpatient treatment of the petitioner for 9 days. `250/- per day appears to us a **MACA.2696/2012** 9 reasonable sum and therefore, we are inclined to award `2250/- (`250/- x 9 days) under the head. Since a sum of `200/- is already awarded by the Tribunal, the appellant is entitled now for `2050/additionally. 10. Going by the impugned award, it is seen that the Tribunal has declined compensation to the appellant under the head permanent disability despite the production of Ext.A7 certificate. A reading of the impugned award would disclose the reason for denial of compensation for disability as the appellant's continuance in job. However, it is urged by the learned counsel on the basis of Ext.A7 that the petitioner has some permanent disability and therefore, at least the compensation as envisaged under section 140 of the Motor Vehicles Act, 1988 (for short 'the Act') could be granted to him. In this connection, it is apposite to quote section 140(2) of the Act as hereunder:- ## _“_ _**140. Liability to pay compensation in certain cases on the principle of no fault** .--_ _(1) xxx xxxxx xxxxxxxx_ _(2)The amount of compensation which shall be payable under sub-section (1) in respect of the_ **MACA.2696/2012** 10 _death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees._ ” 11.The learned counsel further submitted that the permanent disability assessed by PW1 in Ext.A7 would come under the category (b) of section 142 of the Act. According to him, the petitioner has sustained destruction of the powers of his limb and therefore, he is entitled to get compensation of `25,000/- as envisaged under section 140 of the Act. In this connection, it is pertinent to note down the grounds under which permanent disability of 10% was arrived at by PW1. In Ext.A7, the following are the findings on the basis of which 10% permanent disability was assessed by the medical practitioner. a) Limitation of dorsiflexion of right ankle of 20% and plantar flexion of 20%, inversion of 10% and eversion of 20% due to soft tissue fibrosis and adhesion at fracture site with resultant partial ankylosis of right ankle and subtalar joint. b)Weakness of plantar flexion of 15% and dorsiflexion of right ankle of 15%, **MACA.2696/2012** 11 inversion and eversion of 15% each due to injuries to muscle tenderness units at fracture site. c) Tenderness on fracture sites of heel pad with heel pad wasting. 12. It could be gathered from the aforesaid observation in Ext.A7 that the petitioner has limitation in movements of his limb (leg). It is not discernible from Ext.A7 that the petitioner has destruction or permanent impairment of powers of any member or joint. Destruction or permanent impairment of powers of any member or joint means permanent impairment or total destruction of any member or joint by virtue of which use of the same was prevented. In this connection, it is pertinent to extract the dictum in **United India Insurance Co. Ltd. v. Thomas [2000(1) KLT 516]** wherein a Division Bench of this Court held:- “11. The Tribunal has lost sight of the nature of the liability under S. 140. It is a 'no fault liability'. A reading of S. 140 together with S. 142 would clearly show that it is not any injury for which the owner of the vehicle or its insured should be made liable without even proving negligence. Such liability would arise only in case of death or very serious permanent disablement as defined under S. 142. The word **MACA.2696/2012** 12 "member" is used in clause (a) to mean a limb. Privation of the sight of either eye or the hearing of either ear are equated with privation of any member or joint under clause(a). This would clearly indicate the high degree of disablement contemplated by the Statute. When we come to clause (b), what is provided is destruction or permanent impairing of the powers of any member or joint. It would mean that even if an injured is not deprived of any member or joint, he will be treated as having suffered permanent if the power of any member or joint is permanently destroyed.................” Therefore, it could be safely concluded on the basis of the dictum laid down in **Thomas's case** (supra) that even if the injured has no destruction of any member or joint he would be treated as having sufficient permanent disablement, if the power of any member or joint is permanently destroyed. In this case, it cannot be said with precision that due to the injuries sustained by the petitioner, he has been totally deprived of movements of his leg. The argument advanced by the learned counsel will not sustain contextually and therefore, is discarded. 13. The learned counsel urged that the Tribunal ought to have granted compensation for permanent disability/loss of earning **MACA.2696/2012** 13 power after retirement of the petitioner by adopting the notional income of Rs.3000/- as the multiplicand and the multiplier with reference to the age of the petitioner. The argument of the learned counsel in our view is tenable and we are inclined to consider that. Ext.A7 was produced by the petitioner and the doctor, who had issued the same was also examined as PW1. It is discernible from Ext.A7 and the testimony of PW1 that the disability of 10% was assessed by the doctor, not with reference to the job the petitioner was doing at the relevant time of accident. Such being the background,there is absolutely no justification in considering 10% disability as such for reckoning the compensation. Contextually, 5% is reasonable and that is considered. Computation when by taking the multiplicand factor as Rs.3000/- and the multiplier factor as '9', the appellant would get Rs.16,200/- additionally (Rs.3000 x 12x9x5/100). 14.With regard to the argument of the learned counsel for the appellant that the Tribunal has erred in taking contributory negligence, it is pertinent to have a look at section 185 of the Act. It **MACA.2696/2012** 14 reads:- **185.Driving by a drunken person or by a person under the influence of drugs.--** Whoever, while driving, or attempting to drive, a motor vehicle,-- (a) has, in his blood, alcohol exceeding 30mg per 100ml of blood detected in a test by a breath analyser, or (b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both. 15. Dual circumstances are contemplated under section 185 of the Act for finding a person guilty for drunken driving. He must be found to have been under the influence of alcohol to the extent incapacitating him to control the vehicle properly in either of the two tests envisaged under Section 185 of the Act. In the case on hand the petitioner was not subjected to any of the tests. Materials were not available before the Tribunal to arrive at a finding of contributory negligence on the part of the petitioner. But the Tribunal had arrived at contributory negligence of 10% to the **MACA.2696/2012** 15 petitioner on the sole endorsement of 'smell of alcohol' in Ext.A4 wound certificate. The petitioner was not subjected to examination for detection of the percentage of alcohol as envisaged in Section 185 of the Act. What was reported in Ext.A4 was that smell of alcohol was experienced by the doctor who examined the petitioner. That alone is not a sufficient factor to attribute negligence to him. The reasoning of the Tribunal for finding contributory negligence was 'smell of alcohol' as noted by the doctor in Ext.A4 at the time of his examination initially and that would not sustain in view of the dictum laid down by a Division Bench of this Court in **Jose v. United Insurance Company Ltd. [2015(4) KLT 706]** to the following effect:- “The entry made by the doctor in the wound certificate that smell of alcohol was present in the breath of the appellant cannot be a reason for finding that he was under the influence of alcohol rendering him unable to keep himself proper and stale and contributing to the cause of accident.” 16.In the said circumstances, we have no hesitation to hold that the findings of the Tribunal that there was 10% contributory **MACA.2696/2012** 16 negligence to the accident by the petitioner is perverse. Therefore, we are inclined to interfere with and set it aside. 17. In the event of the reversal of the finding of 10% contributory negligence by us, the petitioner would get the entire amount awarded by the Tribunal as per the impugned award. Therefore, the petitioner would get `10,148/- additionally. 18. We have already dealt with the various heads under which the Tribunal failed to grant adequate compensation and arrived at the compensation payable additionally under the respective heads, which are shown specifically in the table hereinbelow:- |**_sl.no_**|**_Head of claim_**|**_Amt.awarded by_**<br>**_the Tribunal_**|**_Amt.awarded_**<br>**_by this Court_**| |---|---|---|---| |**_1_**|**_Permanent disability/Loss of earning_**<br>**_power_**|**_59967_**|**_16200_**| |**_2_**|**_Medical and Miscellaneous_**|**_15613_**|**_--_**| |**_3_**|**_Transportation Expenses_**|**_500_**|**_500_**| |**_4_**|**_Pain and suffering_**|**_10000_**|**_15000_**| |**_5_**|**_Damage to clothing_**|**_-_**|**_1000_**| |**_6_**|**_Extra nourishment_**|**_200_**|**_800_**| |**_8_**|**_Loss of amenities and convenience_**<br>**_etc._**|**_15000_**|**_10000_**| |**_9_**|**_Bystander expenses_**|**_200_**|**_2050_**| ||**_By way of reversal of finding of 10%_**<br>**_contributory negligence on the side of_**<br>**_the appellant_**|**_---_**|`10,148/-<br>(1,01,480-91,332)| ||**_Total_**|**_1,01,480_**|**_55,698/- (rounded off_**<br>**_to_**`55,700/-)| 19. Since the finding of 10% contributory negligence is **MACA.2696/2012** 17 reversed by us, the petitioner would be entitled to get the total sum arrived at as such and interest thereon at the rate as fixed by the Tribunal as per the impugned award. Therefore, the appellant would get `55,698/- rounded off to ` _55,700/- (_ ` _45,550/- +_ ` _10,148/-),_ in addition. In the result, this appeal is allowed. The petitioner is entitled to get `55,700/- additionally and it would carry interest @ 8% per annum from the date of the claim petition till realisation. The second respondent is directed to deposit the said sum with interest as aforesaid within three months from the date of receipt of a copy of this judgment. In case of any default, the second respondent is liable to pay interest @ 9% per annum for the said sum awarded from the date of petition till realisation. ## **Sd/-** ## **C.T. RAVIKUMAR, JUDGE** ## **Sd/-** **MARY JOSEPH, JUDGE spc/** **MACA.2696/2012** 18 **MACA.2696/2012** 19