MACA Nos.125 & 271 of 2018 (OPMV 1570/2010), High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 ``` ## **`MACA NO. 125 OF 2018`** ``` OPMV 1570/2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL , MAVELIKKARA`** ## **`APPELLANT/S:`** ``` BHAGYADEV, BHAGYA VIHAR, CHERIYAZHEEKKAL P.O.,VELLANATHURUTHU, KARUNAGAPPALLY, NOW RESIDING AT VAZHAYIL VEEDU, PATTOOR P.O.,NOORANADU. ``` ``` BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL ``` ## **`RESPONDENT/S:`** - `1 CHINNA THAMBI @ CHINNA SWAMY NATTANKOVIL PATTI, RAKKANPATTI P.O., KULATHALAI TALUK, DISTRICT KARUR, TAMIL NADU.` - `2 MS. BALAMURUGAN AGENCIES SHOP NO.18, NEW BUS STAND COMPLEX,MAIN ROAD, PERUNDURAI TAHSIL,TAMIL NADU- 638052.` - `3 RELIANCE GENERAL INSURANCE CO. LTD. REPRESENTED BY ITS AREA OFFICE, XL/3599, IVTH FLOOR, ELIZABETH ALEXANDER MEMORIAL BUILDING, SHANMUGHAM ROAD, MARINE DRIVE, COCHIN-682031. ADV. P. JACOB MATHEW-R3` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2023, ALONG WITH MACA NO.271/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.125 & 271 of 2018 : 2 : ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 ``` ## **`MACA NO. 271 OF 2018`** ``` OPMV 1570/2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL , MAVELIKKARA`** ## **`APPELLANT/S:`** ``` RELIANCE GENERAL INSURANCE COMPANY LIMITED KOCHI NOW REPRESENTED BY ITS LEGAL-CLAIMS MANAGER, REGIONAL OFFICE, KOCHI - 682 020. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENT/S:`** ``` BHAGYADEV BHAGYA VIHAR, CHERIYAZHEEKAL P.O., VELLANATHURUTHU, KARUNAGAPALLY, NOW RESIDING AT VAZHAYIL VEEDU, PATTOOR P.O., NOORANADU, PIN - 690 529. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2023 ALONG WITH MACA NO.125/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.125 & 271 of 2018 : 3 : ## JUDGMENT These appeals arise from OP(MV) No.1570/2010 on the files of the Additional Motor Accident Claims Tribunal, Mavelikkara. M.A.C.A. No.271/2018 was filed by the 3[rd] respondent insurer challenging the quantum of compensation whereas M.A.C.A. No.175/2018 was filed by the claimant therein, seeking enhancement of compensation. For the sake of convenience, the parties herein are referred to as per their respective ranks in the claim petition. 2. The aforesaid claim petition was submitted by the claimant seeking compensation for the injuries sustained to him in a motor accident that occurred on 09.01.2010. The accident occurred when the motorcycle ridden by the claimant was hit by a mini lorry bearing registration No.TN 56 A 2040 came from the opposite side. The said lorry was driven by the 1[st] respondent, owned by the 2[nd] respondent and was insured with the 3[rd] respondent in the claim petition. M.A.C.A. Nos.125 & 271 of 2018 : 4 : 3. According to the claimant, he was a student aged 20 years at the time of the accident. Consequent to the injuries, he suffered permanent disablement, which was certified by the medical board as 64%. The compensation of Rs.11,50,000/- was sought in such circumstances. 4. The 3[rd] respondent insurance company filed a written statement submitting the coverage of policy in respect of the lorry but disputed the liability on various grounds. The negligence and the quantum of compensation were also disputed by them. 5. The evidence in this case consists of Exts.A1 to A12 and Ext.X1 from the side of the claimant. No evidence was adduced from the side of the respondents. 6. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the mini lorry and being the insurer of the said vehicle, the 3[rd] respondent in the claim petition was held liable to pay the compensation. The quantum of compensation was fixed as Rs.11,51,195/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till the date of realisation within a period M.A.C.A. Nos.125 & 271 of 2018 : 5 : of 90 days. It was further ordered that if the said amount was not deposited within 90 days from the date of award, the said amount would carry interest at the rate of 12% per annum. This award is challenged by the insurance company as well as the claimant. 7. Heard Sri. P.J. Joe Paul, The learned counsel appearing for the claimant and Sri. Mathews Jacob, learned senior counsel appearing for the 3[rd] respondent insurance company. 8. The main contest in this appeal from either side is relating to the quantum of compensation, mainly on the head of disability. It is discernible from Ext. X1 that the Medical Board certified the percentage of disability of the petitioner as 64%, but the tribunal had taken only 20%. The learned counsel for the appellant would contend that there was no justification on the part of the tribunal in scaling down the percentage of disability certified by the Medical Board, which consists of a panel of experts. The learned counsel appearing for the insurance company would contend that no interference is required as a detailed discussion has been made by the tribunal explaining the reasons for not accepting the certification made by the Medical Board in Ext.X1 M.A.C.A. Nos.125 & 271 of 2018 : 6 : and the scaling down of the percentage of disability. Therefore, no interference is required, as the said reasons are legally sustainable, contends the learned counsel for the 3[rd] respondent. 9. After carefully going through the materials placed on record, I find some force in the contention put forward by the learned counsel for the petitioner. I have gone through Ext.X1 certificate as well. In the said certificate, 40% psychiatric disability has been certified. One of the reasons for discarding the percentage of disability certified in Ext.X1 was that the certificate does not show the scale adopted by the Medical Board to assess permanent disability. The learned counsel for the petitioner points out that, as far as the assessment of psychiatric disablement is concerned, it was made by applying the scale known as IDEAS- Indian Disability Evaluation and Assessment Scale. The term ‘IDEAS’ is specifically mentioned in the said certificate. It is also to be noted that the said certificate was issued by a panel of doctors consisting of a neurologist, orthopaedic doctor, psychiatrist, and ophthalmologist. Each of the said Doctors has assessed the disability and certified the total percentage of disability as 64%. It is apparent that the tribunal M.A.C.A. Nos.125 & 271 of 2018 : 7 : has rejected the assessment made by the said experts and arrived at its own conclusion by scaling down to 20%. The question of the acceptability of the medical certificate was considered in detail by the Hon’ble Supreme Court in Raj Kumar v. Ajay Kumar [2011(1) KLT 620], and as per the observations therein, the percentage of disability certified by the Medical Board cannot be discarded under normal circumstances. The said decision was followed in several decisions including K. Janardhanan Nair and others [2021 (5) KHC 305] rendered by this Court. 11. As per the principles laid down in the decisions above, it is to be concluded that once a competent body of expert Doctors certified the percentage of disability, it was not for the tribunal to scale down the percentage certified therein by sitting in appeal on the assessment made. From the X1 certificate, it is discernible that an assessment was made by the competent and expert Doctors using their expertise and the tribunal, being not an expert with regard to the said subject, ought not to have interfered with the certification made therein. Moreover, it is seen from the Ext.X1 certificate that 40% of psychiatric disability has been M.A.C.A. Nos.125 & 271 of 2018 : 8 : assessed. As the appellant is a young man aged 20 years, who has a long career ahead, 40% psychiatric disability is something which would affect his future prospects very severely, and therefore calculating the loss of earning power ignoring such a serious disability is not in the interest of justice. Thus, after considering all the relevant aspects, I am of the view that the percentage of disability as certified in Ext.X1, which is 64%, can be accepted. 12. The next aspect relates to the petitioner's monthly income. In the claim petition, no amount was claimed as monthly income, presumably because he was a student. The learned counsel for the appellant brought the attention of this Court to the decision of this Court in Mekala v. Malathi M. and another [2014(11)SCC178] wherein in respect of a plus one student, the monthly income of Rs.10000/- was taken. The accident, in that case, occurred in the year 2005. In this case, as far as the petitioner is concerned, he was a Diploma holder in Fire and Safety and was expected to obtain very good employment based on his qualifications. Therefore, in the factual background of this case and also in the light of the decision of the Hon’ble Supreme M.A.C.A. Nos.125 & 271 of 2018 : 9 : Court in Mekala’ s case cited supra, I deem it appropriate to fix the monthly income as Rs.10,000/-. 13. Considering the fact that the appellant had sustained a physical disability of 64% at the young age of 20 years, future prospects ought to be taken into consideration, which is 40%. Thus, while assessing the compensation in the above criteria, the amount would come to Rs.19,35,360/-[(10000 + 40%) x 12 x 18 x 64%). The amount already awarded by the tribunal is Rs.2,16,000/-. Therefore, the additional amount under this head would be Rs.17,19,360/. In addition to that, the amount awarded by the tribunal for pain and suffering appears to be on the lower side. The amount awarded is Rs.25,000/- whereas the appellant had already undergone inpatient treatment for 90 days. The medical records would indicate that he had undergone prolonged treatment for the injuries, and it resulted in physical disablement as well. Therefore, a further sum of Rs.15,000/- is granted under this head. Thus, the total additional compensation in this case is fixed at Rs.17,34,360/-. In the light of the aforesaid observations findings, both these appeals are disposed of, modifying the award dated M.A.C.A. Nos.125 & 271 of 2018 : 10 : 26.09.2017 in OP(MV) No.1570/2010 passed by the Additional Motor Accidents Claims Tribunal Mavelikkara, by granting an additional compensation of Rs.17,34,360/- (Rupees seventeen lakhs thirty four thousand three hundred and sixty only) and the 3[rd] respondent in the claim petition is directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till realisation. The tribunal has awarded interest at the rate of 12% if the amount was not deposited within a period of 90 days. However, I am of the view that such kind of imposition of interest would amount to penal interest, which is not justifiable. Therefore, it is ordered that the interest payable for the entire compensation, including the amount awarded by the tribunal as well as this Court, shall be 7.5% from the date of petition till realisation. Sd/ZIYAD RAHMAN A.A. JUDGE ncd