K.M.RADHAKRISHNAN v. K.S.PRASANTH, SUNIL and NATIONAL INSURANCE CO. LTD.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-07-14
Court Decision / Holding: Appeal allowed in part. Enhanced compensation of Rs. 30,724 with interest at 7% per annum on the enhanced amount from the date of petition till deposit, plus proportionate costs. The 3rd respondent shall deposit the enhanced compensation before the Tribunal within two months from receipt of a certified copy, and the Tribunal shall disburse it in accordance with law.
Final Disposition: Appeal allowed in part; enhanced compensation awarded and directed deposit/disbursement.

Parties to the Case

Appellants / Petitioners

K.M. RADHAKRISHNAN

Respondents

K.S. Prasanth
Sunil
National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.V. Chandramohan

Counsels for Respondents

• Sri Joe Kalliath

Case Synopsis & Summary

The appellant, K.M. Radhakrishnan, challenged the Motor Accidents Claims Tribunal, Irinjalakuda’s award of Rs. 74,800 in OP(MV) 1938/2004 for injuries from a road traffic accident on 7 September 2003 when a tempo traveler (KL-9/M 6347) driven by the 2nd respondent collided with a shop. The appellant, a high school teacher and social worker, claimed Rs. 2,65,500 in compensation, supported by medical evidence (Exts. A3–A6) and salary certificates. The Tribunal found the 1st and 2nd respondents ex parte, while the 3rd respondent insurer appeared but did not file a written statement. The Tribunal awarded the amount and directed payment to the appellant. On appeal, the principal challenge was the Tribunal’s rejection of Ext. A6 (a disability certificate) on the ground that the author was not examined; relying on Rajkumar v Ajaykumar (2011) 1 KLT 620 SC, the High Court held that mere production of a disability certificate is insufficient unless the author is examined and that disability assessment may be done through a medical board. The court, however, enhanced several heads (loss of earnings, pain and sufferings, loss of amenities, future treatment) and total compensation to Rs. 1,05,524, with Rs. 30,724 extra and 7% interest; directions issued for deposit and disbursement by the Tribunal.

Legal Doctrines & Maxims

Disability certificates require examination of the author or medical board; doctrine from Rajkumar v Ajaykumar (2011) 1 KLT 620 SC is applicable to disability certifications.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext. A6 proves 20% disability; the Tribunal erred in rejecting Ext. A6 solely for lack of examination of the author; relying on Rajkumar v Ajaykumar (2011) 1 KLT 620 SC, disability should be evaluated with examination of the author or via a medical board. He asserts that the Tribunal erred in fixing income (Rs. 9,224) and in deducting casual leave; hospitalization lasted 28 days, so loss of earnings for 28 days should be allowed; he seeks enhanced compensation for pain and suffering (Rs. 25,000), loss of amenities (Rs. 10,000), and future treatment (Rs. 10,000). The appellant also requests appropriate deposit and prompt disbursement of the enhanced amount.

Contentions of Respondents

The respondents argue that Ext. A6 cannot be relied upon without examination of its author; the Tribunal’s approach reflects the law cited by the Supreme Court; the existing award on other heads was just and needs minimal or no enhancement; the insurer contends that the appeal should be dismissed or limited to adjustments within reason.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rajkumar v Ajaykumar	(2011) 1 KLT 620 SC	Positive	The court relies on Rajkumar v Ajaykumar to hold that a disability certificate cannot be used in isolation without examination of its author (or medical-board-verified assessment).

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** **MACA NO. 2264 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1938/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA, THRISSUR** ## **APPELLANT/S:** K.M.RADHAKRISHNAN, S/O KANNOLI MADHAVAN, KURUMBILAVU, CHIRAKKAL CENTRE, THRISSUR DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/RESPONDENTS:** 1 K.S.PRASANTH, S/O NELLIKKATHODY SETHUMADHAVAN,, KADAKKURUSSI, KANNADI, PALAKKAD DISTRICT. 2 SUNIL, S/O THANDIYAKKAL PADMANABHAN, CHIRAKKAL, KURUMPILAVU,, THRISSUR DISTRICT. 3 NATIONAL INSURANCE CO. LTD., BRANCH IV,930, SATHY ROAD, COIMBATORE. BY ADV SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2264 OF 2009 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1938 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal are the respondents before the Tribunal. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 7.9.2003, while the appellant was travelling in a tempo traveler bearing Reg.No.KL-9/M 6347 driven by the 2[nd] respondent, due to the rash and negligent driving of the vehicle by the 2[nd] respondent, the vehicle skidded on the road and hit the shop building. The appellant sustained injuries in the accident. The appellant was a High School Teacher and a social worker by profession; and earning a monthly income of Rs.20,000/-. The vehicle was owned by the 1[st] respondent and insured with the **MACA NO. 2264 OF 2009 3** 3[rd] respondent. The appellant claimed a total compensation of Rs.2,65,500/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. Even though the 3[rd] respondent entered appearance, the 3[rd] respondent did not file a written statement. 4. The appellant produced and marked Exts.A1 to A8 in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.74,800/- with interest @ 7 % per annum from the date of petition till the date of realization. The 3[rd] respondent was directed to pay the compensation amount. 6. Dissatisfied with the quantum of compensation **MACA NO. 2264 OF 2009 4** awarded by the Tribunal, the petitioner is in appeal. 7. Heard, the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent/Insurance Company. 8. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. The principal area of dispute in this appeal is that, even though Ext.A6 disability certificate was produced and marked in evidence, the Tribunal refused to accept Ext.A6 and fix the disability of the appellant at 20%, for the reason that the author of the certificate was not examined. 10. It is no longer _res integra_ in view of the law laid down by the Hon’ble Supreme Court in _**Rajkumar**_ **MACA NO. 2264 OF 2009 5** _**v. Ajaykumar (2011) 1 KLT 620 SC),**_ that the mere production of a disability certificate is insufficient unless the author of the certificate is examined. The other course available to an injured is to get his disability assessed through a duly constituted medical board. 11. In light of the ratio in the aforecited decision, I am of the firm opinion that the course adopted by the Tribunal in rejecting Ext.A6, for the want of proof, is correct and does not warrant any interference. 12. The appellant had claimed that he was a High School Teacher and a social worker by profession. He claimed he was drawing a monthly salary of Rs.10,000/and another Rs.10,000/- from other sources. The appellant had only produced Ext.A7 leave and salary certificate to prove his income. The Tribunal acting upon Ext.A7 fixed the income of the appellant at **MACA NO. 2264 OF 2009 6** Rs.9,224/-. Although the Tribunal found that the appellant was hospitalized for a period of 28 days, awarded loss of earnings only for a period of 21 days taking into account that the appellant had 8 days casual leave. This, according to me, is erroneous and unsustainable in law because it was only on account of the accident and the appellant was incapacitated for a period of 28 days, he had to avail 8 days casual leave. This was not on account of the fault of the appellant. Hence, I hold that the appellant is entitled for loss of earnings for a period of 28 days and that the deduction of Rs.2,724/- from the total amount awarded for loss of earnings is to be awarded to the appellant. Therefore, I enhance the loss of earnings by a further amount of Rs.2724/-. ## **Pain and sufferings** **MACA NO. 2264 OF 2009 7** 13. The appellant had claimed an amount of Rs.25,000/- under the head pain and sufferings. The Tribunal awarded only an amount of Rs.12,000/- under the said head. 14. Taking into account the injuries sustained by the appellant, as established by Ext.A3 wound certificate, Ext.A4 discharge certificate and Ext.A6 certificate and the fact that he was disability hospitalized for a period of 28 days and had to go for review, physiotherapy and surgery for removal of implant, I am of the definite opinion that the appellant is entitled for enhancement of compensation under the head 'pain and sufferings' as sought for in the claim petition at Rs.25,000/-, i.e., an enhancement of Rs.13,000/-. ## **Loss of amenities** **MACA NO. 2264 OF 2009 8** 15. The appellant had sought for a consolidated amount of Rs.1,35,000/- including compensation for loss of amenities and compensation for continuing permanent disability. The Tribunal awarded only an amount of Rs.5,000/- as compensation for 'loss of amenities'. Taking into consideration the factors already mentioned under the head 'pain and sufferings', I hold that the appellant is entitled for a further amount of Rs.5,000/- under the head 'loss of amenities'. ## **Future treatment** 16. The appellant had sought for an amount of Rs.15,000/- for future treatment. He had produced Ext.A8 medical certificate, wherein it is stated that the appellant would require other surgery for removal of the implant which would cost him an amount of Rs.15,000/-. Taking note of the certification made in Ext.A8 and **MACA NO. 2264 OF 2009 9** considering the factors already discussed above, I hold that the appellant is entitled for a further amount of Rs.10,000/- under the head 'future treatment'. 17. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 18. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decision, I am of the considered opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount Awarded by the Tribunal (in Rs.)|Amounts modified and recalculated by this Court| |---|---|---| |Loss of earnings|6,500/-|9,224/-| **MACA NO. 2264 OF 2009 10** |Transportation|1,000/-|1,000/-| |---|---|---| |Bystander Expenses|1,800/-|1,800/-| |Medical expenses|38,500/-|38,500/-| |Pain and sufferings|12,000/-|25,000/-| |Loss of amenities|5,000/-|10,000/-| |Physical disability|10,000/-|10,000/-| |Future treatment|--|10,000/-| |Total|74,800/-|1,05,524/-| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.30,724/- with interest at the rate of Rs.7% per annum on the enhanced compensation from the date of petition till the date of deposit along with proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of **MACA NO. 2264 OF 2009 11** two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm