Joshy K.M. v. Abdul Latheef and others and The National Insurance Company Limited

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943 ``` ## `MACA NO. 2310 OF 2012` ``` AGAINST THE AWARD DATED 23.02.2012 IN OP(MV)NO.1771/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/PETITIONER:` ``` JOSHY K.M., AGED 49 YEARS, S/O. LATE MADHAVAN, KOCHANCHERIL HOUSE, S.D.PURAM COLONY, PALLURUTHY P.O., ERNAKULAM. ``` ``` BY ADVS.SRI.ANIL S.RAJ SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.SAJEN THAMPAN SMT.K.N.RAJANI ``` ## `RESPONDENTS/ RESPONDENTS 1 TO 3:` ``` 1C.A.ABDUL LATHEEF, S/O. ABDUL KHADER, CHENNOTH HOUSE, THAIKKATTUKARA P.O., ALUVA-683106. ``` - `2 P.T.PRABHAKARAN, S/O. KRISHNAN, PARATHOTTUNGAL HOUSE, PULINCHODE, ALUVA, PIN-683106.` - `3 THE NATIONAL INSURANCE COMPANY LIMITED COCHIN DIVISIONAL OFFICE, AJAY VIHAR, M.G.ROAD, COCHIN-16.` ## `BY ADV SRI.E.M.JOSEPH` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2310/2012 -:2:- Dated this the 4[th] day of January,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1771/2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 19.04.2008. It was his case that, on the above date, while he was riding his motorcycle bearing registration No.KL-7/AK-4888 along the Thoppumpady-Thevara road, a bus bearing registration No.KL-7/AN-8388(bus), driven by the second respondent in a rash and negligent manner, overtook the motorcycle of the appellant and hit the motorcycle. The appellant fell down and sustained serious injuries, including Cervical cord contusion with Quadriparesis, Posterior disc protrusions at C3-C4 to M.A.C.A.No.2310/2012 -:3:- C5-C6 with posterior osteophytosis, degenerative vertebral body changes with posterior subluxation C4 over C5 and multilevel disc dessications with reduced disc height at C4-C5. He was initially treated at the Medical Trust Hospital, Ernakulam and at the General Hospital, Ernakulam. The bus was owned by the first respondent and insured with the third respondent. The appellant was employed as a leading Fireman in the Cochin Port Trust, West Island. He was drawing a monthly salary of Rs.14,700/-. Hence, the appellant claimed compensation of Rs.4,11,100/- from the respondents, which was limited to Rs.2,50,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement admitting that the bus had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the appellant. The third respondent also disputed the age, M.A.C.A.No.2310/2012 -:4:- ## income and occupation of the appellant. 5. The Tribunal referred the appellant to the Medical Board of the Medical College Hospital, Alappuzha. The Medical Board as per Ext.X1, certified that the appellant has a ‘permanent partial disability’ of 30%, on the basis of Cervical spine injury. 6. The appellant produced and marked Exts.A1 to A15 in evidence. The respondent did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover an amount of Rs.1,62,603/- from the third respondent with interest and proportionate cost. 8. Dissatisfied with the quantum of compensation, the petitioner is in appeal. 9. Heard; Smt.K.N. Rajani, the learned counsel appearing for the appellant/petitioner, Sri. E.M.Joseph,the learned counsel appearing for the M.A.C.A.No.2310/2012 -:5:- third respondent/insurer. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability:** 11. Ext.A6 chargesheet filed by the Cochin City Traffic Police in Crime No.3767/2008 proves that the accident had occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the bus. The respondents have not let in any evidence to the contrary to discredit Ext.A6 chargesheet. The third respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. M.A.C.A.No.2310/2012 -:6:- ## **Income:** 12. The appellant had claimed that he was employed as the leading Fireman in the Cochin Port Trust, West Island. He produced Ext.A13 leave and salary details to substantiate his assertions in the claim petition. 13. As per Ext.A13, the appellant had drawn a salary of Rs.15,199/- in the month of March,2008. The appellant’s employer has also certified in Ext.A13 that he had availed an earned leave for 20 days and half-paid leave for 95 days during the period from 19.04.2008 to 11.08.2008. 14. The Tribunal, on the basis of Ext.A13 awarded the appellant an amount of Rs.34,198/towards ‘loss of earnings’. I find the said amount to be reasonable and just. ## **Loss due to Disability:** 15. At the instance of the appellant, the Tribunal referred him to a duly constituted Medical board of M.A.C.A.No.2310/2012 -:7:- the Medical College Hospital, Alappuzha. The Medical Board, as per Ext.X1 certified that the appellant has a ‘permanent partial disability’ of 30% on the basis of cervical spine injury. Nonetheless, the Tribunal, on the basis of Ext.A8 MRI Scan report and after seeing the appellant, arrived at a conclusion that the assessment made by the Medical Board in Ext.X1 cannot be accepted, and consequentially fixed the permanent disability of the appellant at 10%. Strangely, the Tribunal did not award any amount as compensation for loss due to disability, on the ground that the appellant was employed as a leading Fireman in the Cochin Port Trust, and therefore, had no loss due to income. 16. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, if the Tribunal/Court is dissatisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal/Court M.A.C.A.No.2310/2012 -:8:- to refer the injured/claimant to a duly constituted Medical Board. 17. In the present case, on the basis of the direction issued by the Tribunal, the appellant was referred to a duly constituted Medical Board, which issued Ext.X1 certifying that the appellant has a permanent partial disability of 30%. 18. Without any demur or protest or written objection being filed by the respondents, the Tribunal marked Ext.X1 in evidence. Nevertheless, merely on the basis of the assertion made by the learned counsel appearing for the third respondent and after seeing the appellant, the Tribunal concluded that the appellant does not have any permanent disability. 19. In **Union of India And Anr. vs. Talwinder Singh** [(2012) 5 SCC 480], the Hon’ble Supreme Court has succinctly held that courts should not ordinarily interfere or substitute with the opinion of experts, and that it is always be safe for the courts to leave the M.A.C.A.No.2310/2012 -:9:- decision to experts who are more familiar with the problems they face than for the courts to express its opinion in general. 20. In the case at hand, if the Tribunal was dissatisfied with Ext.X1, it was the duty of the Tribunal to have set aside Ext.X1 and then referred the appellant to another Medical Board. Without resorting to the above procedure, the Tribunal has perfunctorily, on the basis of conjunctures and surmises, arrived at the conclusion, which is nothing but perverse and wrong, and against the directions of the Hon’ble Supreme Court in **Rajkumar** (supra). 21. Therefore, I set aside the finding of the Tribunal and accept Ext.X1 in its entirety and fix the functional disability of the appellant, as certified in Ext.X1, at 30%. 22. It is a fact that the appellant was permanently employed in the Cochin Port Trust. In **Puttamma v. K.L.Narayana Reddy & Anr.** [2014(1) M.A.C.A.No.2310/2012 -:10:- KLT 738], followed by the law laid down in **N. Jayasree and Ors. Cholamandalam MS General Insurance Co. Ltd.** [(2021) SCC Online 6967] the Hon’ble Supreme Court has held that the Tribunals/Courts should not adopt the split multiplier method, without any cogent reasons. In the instant case, as the appellant was in service of the Cochin Port Trust, and he had another 15 years of service, I find cogent reasons to adopt the split multiplier method, and award the appellant compensation for loss due to disability after he attains the age of superannuation of 60 years. Thus, I am inclined to fix the notional monthly income of the appellant at Rs.12,500/-, on the basis of the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236]. 23. Hence, I hold that the appellant would be entitled for compensation for loss due to disability after he attains the age of 60. Thus, the multiplier to M.A.C.A.No.2310/2012 -:11:- be adopted is ‘9’, in view of the ratio laid down in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)]. 24. Taking into account the above mentioned factors; namely the notional monthly income of the appellant at Rs.12,500/-, his functional disability at 30% and the multiplier at ‘9’, I award him an amount of Rs.4,05,000/- towards ‘loss due to disability’. 25. With respect to the other heads of compensation namely; 'medical expenses', 'miscellaneous expenses’, compensation for ‘pain and sufferings’, compensation for ‘loss of amenities’ and ‘bystander expenses’, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part by awarding the appellant compensation under the head ‘loss due to disability’ by an amount of **Rs.4,05,000/-** with interest on the said amount at the rate of 8% per annum from the date of petition till the date of deposit, M.A.C.A.No.2310/2012 -:12:- after deducting interest for a period of 65 days i.e., the period of delay in preferring this appeal and as directed by this Court on 06.10.2021 in C.M.Appln.No.1/2012, and a cost of Rs.15,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/04.01.22 //True copy/ P.A.To Judge