National Insurance Company Limited v. Noushad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939** **MACA.No. 3401 of 2015 -------------------------** **AGAINST THE JUDGMENT IN OP(MV).506/2013 of MACT, PALA, DATED 19-05-2015** **APPELLANT/3RD RESPONDENT:** **--------------------------** **NATIONAL INSURANCE COMPANY LIMITED PALA, NOW REPRESENTED BY ITS MANAGER KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD KOCHI - 35.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT/PETITIONER:** **----------------------** **NOUSHAD S/O.ABDULLA, VRIKSHAVILASAM THOPPIL HOUSE, I WARD AMBALAPPUZHA N.PANCHAYATH, PIN - 688 320.** ## **BY ADV. SRI.T.J.MICHAEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2017, ALONG WITH CO. 37/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ami/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 in M.A.C.A.No.3401 of 2015 **-----------------------------------------------------------------------** Dated this the 14[th] day of July, 2017 ## **J U D G M E N T** ## Ravikumar, J. On consent of the learned counsel on both sides, the appeal and the cross-objection are taken up today for consideration. The captioned appeal is directed against the judgment and award dated 19.5.2015 passed by the Motor Accidents Claims Tribunal, Pala, in O.P.(MV)No.506/2013. The injured applicant, who is the respondent herein, is the cross objector. He filed the said claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained by him in a motor vehicle accident that occurred on 2.3.2013 at about 9.30 p.m. It resulted in permanent disability. On that fateful day, he was pedalling his bicycle through Kollam-Alappuzha public road. A Maruti car bearing registration No.KL-01/TC-56/2011 came from the opposite direction and knocked him down. Consequently, he M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-2-: sustained injuries and was immediately taken to Vandanam Medical College Hospital, Alappuzha. He remained there as an inpatient for a period of 143 days under different spells. It is in the said circumstances that he filed the aforesaid claim petition seeking a total compensation of Rs.16 lakhs. 2. Before the Tribunal, both sides did not adduce any oral evidence. On the side of the claimant, Exts.A1 to A27 were got marked and on the side of the respondents, a copy of the driving licence of the driver of the Maruti car, the 2[nd] respondent, was got marked as Ext.B1. 3. The Tribunal on a careful evaluation of the evidence on record and appreciating the rival contentions, passed the impugned award granting a compensation of Rs.12,78,800/-. This appeal has been preferred contending inter alia that the Tribunal had granted exorbitant amount of compensation. At the same time, it is to be noted that the cross objection has been filed by the claimant contending that he was deprived of just compensation. 4. We have heard the learned Senior counsel appearing for the appellant as also the learned counsel appearing for the M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-3-: respondent-the cross objector. 5. Admittedly, there is no dispute regarding the liability of the appellant to indemnify the insured owner of the offending vehicle. Hence, in the appeal, the main question to be decided is whether the compensation granted by the Tribunal is exorbitant, warranting an appellate interference. Certainly, subject to the answer to the said question, the contentions raised in the cross objection have to be considered. The other question that calls for consideration in this appeal is whether the order of the Tribunal directing the appellant to deposit the awarded amount within three months from the date of the award and to pay interest at the rate of 11% instead of 9%, from the date of petition, in case of failure to deposit the amount of compensation within the said stipulated time, could be sustained. 6. The learned Senior counsel appearing for the appellant contended that the assessment of permanent disability for the purpose of granting compensation for permanent disability, made by the Tribunal is in blatant violation of the dictum laid down by the Hon'ble Apex Court in **Raj Kumar v. Ajay Kumar** M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-4-: **[2011(1) KLT 620 (SC)]** . It is submitted by the learned Senior counsel that virtually no disability certificate, as such, was produced and proved before the Tribunal. Even in a case where a disability certificate is produced but not marked in accordance with law, in the light of the decision of the Apex Court in Raj Kumar's case (supra), it could not be acted upon, it is contended. Ext.A25, based on which the Tribunal assessed the compensation, is only a treatment certificate. That apart, the doctor who issued the said treatment certificate was not examined before the Tribunal. In short, it is contended that the Tribunal had deviated from the dictum laid down by the Apex Court in Rajkumar's case (supra) in the matter of assessment of extent of permanent disability for granting compensation therefor. It is further contended that despite the absence of any evidence regarding occupation and income at the relevant point of time, the Tribunal had notionally fixed the monthly income of the respondent/claimant for calculation purpose as Rs.10,000/-. It is submitted that a scanning of the impugned judgment would reveal that the foundation for such fixation is Exts.A22 and A23. The learned Senior counsel drew our attention to paragraph 12 M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-5-: of the impugned judgment. It is evident from the said paragraph that those documents were issued to the applicant about 23 years back. True that they would go to show that at the time of issuance of those documents, the applicant was working as a head-load worker. At the time of the accident, the applicant/the respondent herein was aged 50 years. It is thus obvious that the said identity cards were issued to the petitioner at a time when he was only about 27 years. Hence, it is submitted that the notional fixation of the monthly income for calculation purpose, based on such documents, invites interference. The further contention of the learned senior counsel is that the Tribunal had granted exorbitant amount of compensation under the head 'loss of amenities'. It is submitted that going by the dictum laid down by a Division Bench of this Court in **Jyni and others v. Raphel, P.T. and others [2016(2) KHC 870 (DB)]** , in which, one among us (Anil K. Narendran, J.) was a member, when compensation for nonpecuniary loss was assessed following the 'multiplier method', only conventional amounts can be granted towards the head like 'compensation for loss of amenities'. True that in that case the M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-6-: claim was for compensation for death and following the said method, what was assessed was the 'compensation for loss of dependency' and in this case, the compensation was assessed following the said method for 'permanent disability'. It is submitted that when the claimant had failed to establish the extent of permanent disability by adducing admissible evidence, the Tribunal ought not have granted an exorbitant amount of Rs.3 lakhs towards 'loss of amenities'. The appellant challenges the grant of an amount of Rs.1,00,000/- towards 'future treatment expenses', as well, on the ground of exorbitancy. Without any evidence establishing that the respondent had sustained permanent disability of 38%, the Tribunal had granted an amount of Rs.1 lakh towards future treatment expenses. That apart, it is submitted that after granting Rs.1 lakh towards future treatment expenses, the Tribunal had also awarded interest for the said amount, from the date of petition till realisation. It is taking up such contentions that the appellant assails the award on the ground of exorbitancy and seeks for scaling down the quantum of compensation. 7. Per contra, the learned counsel appearing for the M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-7-: respondent/cross objector contended that a perusal of the schedule of compensation given in the impugned judgment would reveal that the respondent was not justly compensated. It is the contention that based on the extent of disability incurred by the respondent/cross objector, the Tribunal ought to have assessed a higher degree of loss of earning power, especially after arriving at a conclusion that the respondent/claimant was a head-load worker at the relevant point of time. It is the submission that the evidence on record would reveal that the respondent had sustained comminuted displaced fracture on both bones of both legs. He had been an inpatient for a period of 148 days. However, it is submitted that Ext.A16 would reveal that even after a considerably long period of treatment, on review it was found that there was non-union of both bones of the right leg. In short, it is contended that it is a case where the compensation has to be enhanced and at any rate there is absolutely no justification for scaling down the quantum of compensation granted by the Tribunal. 8. We have given our anxious consideration to the rival contentions. In Rajkumar's case (supra), the Apex Court held M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-8-: that mere production of a disability certificate or discharge certificate would not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination with reference to the certificate. Furthermore, it is observed thus:- “...... There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants”. When after making such an observation, a law is laid down in the matter of assessment of permanent disability, it is bound to be followed in view of Article 141 of the Constitution of India. Evidently, in this case, the Tribunal had failed to follow the dictum laid down by the Hon'ble Apex Court. In this case, no disability certificate, as such, was produced to establish the extent of disability incurred by the respondent owing to the injuries sustained in the accident. The very basis of assessment of permanent disability is Ext.A25, which is a treatment certificate dated 13.4.2015. True that it would reveal that the respondent had incurred permanent disability to the tune of 38%. Paragraph 16 of the impugned judgment would M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-9-: reveal that the Tribunal had specifically taken note of the fact that though disability was shown in Ext.A25 treatment certificate as 38%, Ext.A25 was not proved before it. It is after making such an observation that the Tribunal had accepted the entire percentage of disability assessed thereunder. The sole reason assigned therein for accepting the entire percentage of disability certified under Ext.A25 is that the condition of the claimant was very pathetic. We are afraid that such a reason cannot be sustained for assessing the extent of permanent disability and to make the tort-reasons to pay a huge amount as compensation therefor, especially in the light of the decision of the Apex Court in Raj Kumar's case (supra). At the same time, we are not inclined to interfere with the assessment in toto and to deny compensation for disability to the respondent/claimant owing to the specific observations made by the Tribunal regarding the physical condition of the respondent-claimant when he was brought before it. Paragraph 14 would reveal that he was brought to the Tribunal in a wheel chair with bandages on both the legs. The fractures were not then, united. Ext.A13 treatment certificate would reveal that in the accident, the M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-10-: ## respondent-claimant sustained the following injury ; ## “Culminated displaced fracture both bones of both legs.” Ext.A25 is described as a treatment cum disability certificate. It would reveal that in the accident he had sustained abrasion and head injury with bilateral frontal lobe haematoma, as well. Thus, it can be taken that the nature of the injuries sustained in the accident is revealed from the medical records produced before the Tribunal and they would go to show that in the accident both bones of both legs of the respondent/claimant got fractured. The accident occurred on 2.3.2013. Evidently, an enquiry was conducted by the Tribunal after more than one year since the accident. The observations referred to hereinbefore would reveal that he was brought before the Tribunal in a wheel chair with bandages on both the legs and even at that point of time, his fractures were not united. How that fact was ascertained is not evident. Still, in such circumstances, if the Tribunal had decided to grant compensation for disability taking into account such aspects, we are of the view that such assessment cannot be interfered with in toto so as to deprive the claimant the entire amount of compensation granted for permanent disability. It is M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-11-: evident that both bones of both the legs were fractured in the accident and he was brought to the Tribunal, even after an year with bandages on both legs. In such circumstances, the proper course of action was to refer him before a Medical Board. Certainly, it is a case where the Tribunal could not be held to have committed an absolute illegality in granting compensation for permanent disability. But, at the same time, it cannot be a reason for assessing a higher degree of disability, especially after holding that Ext.A25 was not proved. Accepting the entire extent of disability of such a higher degree, viz., 38%, without proof of disability, in deviation of the dictum laid down in Raj Kumar's case (supra) cannot be sustained. At the same time, taking into account the aforesaid aspects, we are inclined to retain 20% as the permanent disability of the respondent for calculation purpose, taking into account the fact that both bones of both legs were fractured and both legs were seen bandaged even while he was brought before the Tribunal. 9. Now, the question is whether the notional fixation of the monthly income invites interference. True that for proving the occupation and income, the respondent had produced M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-12-: Exts.A22 and 23 which are copies of identity cards issued to him. Paragraph 12 of the impugned judgment itself would reveal that those identity cards were issued to the respondentclaimant about 23 years back, at a time when he was only aged about 27 years. The accident had occurred when he was aged 50 years. There is nothing on record which would indicate that he had been continuing as headload worker till such time. He ought to have adduced better evidence. It is to be noted that even he had not given evidence. At any rate, documents revealing the occupation of the injured, issued about 23 years back, cannot be the basis for deciding the occupation as also the income for the purpose of granting compensation for the injuries sustained in a motor vehicle accident that occurred on 2.3.2013. We have no hesitation to hold that Exts.A22 and A23 ought not have been taken by the Tribunal as the basis for fixing the compensation. In such circumstances, it can only be taken that the respondent had actually failed to adduce any evidence to support his averments regarding the occupation and income at the relevant period. The absence of documents or evidence to support the claim regarding occupation and income by itself M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-13-: cannot be a reason for denying the compensation otherwise due to the injured. This is because if evidence is there to show that owing to the injuries sustained in an accident, the injured had lost its bodily integrity, he is necessarily to be compensated for the same. In such circumstances, a guess work is to be done to determine the monthly income. We are of the considered view that the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , fixing the notional monthly income of a coolie, who met with a motor accident in the year 2004, at `4,500/-, can act as guidance for fixing the monthly income, for calculation purpose. The accident in question had occurred after about more than 8 years since the accident involved in Ramachandrappa's case (supra). Considering the lapse of time and comparing the price index and cost of living during 2004 and in 2013, we are of the view that the Tribunal cannot be found fault with in fixing the monthly income notionally as Rs.10,000/-. In such circumstances, we do not find any reason to interfere with the notional fixation of the monthly income as Rs.10,000/- for calculation purpose. M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-14-: Evidently, the multiplier was adopted with reference to the age of the respondent at the time of the accident. In such circumstances, a re-assessment of the compensation for disability has to be made by substituting the extent of the permanent disability. When the respondent was not incapacitated to do all kinds of works and when there is no evidence of the avocation in which he had been indulging during the relevant point of time, it is only reasonable to grant him compensation for disability, rather than for loss of earning power. On such re-assessment, the amount payable to the respondent for permanent disability will be Rs. **2,64,000** /- (10,000x12x11x 20/100) for permanent disability. 10. When compensation was assessed for permanent disability following the 'multiplier-multiplying method', towards 'loss of amenities', only a conventional amount could be granted. In this case, the Tribunal has granted an amount of Rs.3 lakhs under that head. As noticed hereinbefore, such an exorbitant amount was granted even without properly assessing the extent of permanent disability. So also, in the absence of proven extent of permanent disability, Rs.1 lakh was granted towards 'future M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-15-: treatment expenses'. Hence, we are of the view that there is substance in the contention of the appellant that the Tribunal has granted exorbitant sums of compensation under the said heads. Even though under normal circumstances only a conventional amount can be granted towards 'loss of amenities', we are of the view that a considerable deduction need not be required in this case to bring it within a reasonable compensation. This is because, the evidence on record would reveal that in the accident, the respondent had sustained fractures of both bones of both legs and he was brought before the Tribunal at the time of enquiry on a wheel chair and even at that point of time his both legs were seen bandaged. It is also a fact revealed from the records that he had been an inpatient for a period of 148 days. The impact of the injuries and the period of treatment underwent by the respondent-cross objector and his physical condition when he was brought before the Tribunal, as revealed from the impugned judgment, would constrain us to retain an amount of Rs.1,00,000/- as compensation for 'loss of amenities'. In the absence of proven extent of permanent disability, the Tribunal was not justified in M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-16-: granting an amount of Rs.1 lakh as future treatment expenses. At the same time, taking note of the fact that the respondent had sustained fracture of bones of both the legs and his condition when he was brought before the Tribunal, we are of the view that the Tribunal is justified in granting future treatment expenses. Even if it is taken that there was mal-union of the bones, the amount granted under the said head, has to be taken as excessive. In such circumstances, we are inclined to scale down the amount granted towards future treatment expenses to Rs.50,000/-. 11. Another question is also to be resolved in this case, viz., 'when an amount is granted towards 'future treatment expenses', whether it is permissible to order interest thereon from the date of petition?' This question is no longer res integra. In the decision in **Paul Varghese v. Shanveen (2016(3) KLT 961)** , a Division Bench of this Court held that in respect of compensation awarded towards 'future treatment expenses', the Tribunal should not award interest from the date of the claim petition and it could be ordered only from the date of award. In the light of the decision in **Paul Varghese** 's case M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-17-: (supra), we have no hesitation to hold that interest on amount granted towards 'expenses for future treatment' can be given only from the date of judgment. The judgment in question was pronounced by the Tribunal on 19.5.2015. Hence, the amount now fixed as future treatment expenses, viz., Rs.50,000/- will carry interest only from 19.5.2015 onwards. 12. The further grievance of the appellant is that after awarding interest at the rate of 9%, the Tribunal had ordered that in case of failure to deposit the amount awarded within 3 months from the date of award, the amount awarded would carry interest at the rate of 11%, from the date of the petition. The contention of the appellant is that when the rate of interest was fixed as 9%, there will be no justification for ordering an enhanced rate of interest, retrospectively from the date of the petition, in case of failure to deposit the amount awarded within the stipulated period. In the light of the decision in **National Insurance Co. Ltd. v. M.K.Moidy and others reported in (2011(4) KLJ 660)** , there would be no scope for retrospective enhancement of interest in case of default in payment of compensation within the stipulated time. It was held therein that M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-18-: it is impermissible to order retrospective enhancement of interest in case of default in payment of compensation within the time stipulated under the award. In other words, to issue order for payment of compensation at enhanced rate of interest than the interest originally fixed in case of default in effecting payment within the time stipulated, from the date of the petition till realisation, the Tribunal could award enhanced rate of interest only from the date of lapse of time stipulated for deposit and not retrospectively. In the said circumstances, the award of the Tribunal ordering payment of interest at the enhanced rate from the date of petition till realisation, is vacated. In view of the nature of the interference made by us, in regard to the assessment of compensation granted under different heads, we are not inclined to grant an order for retrospective enhancement of interest, for the default in payment of compensation within the time stipulated by the Tribunal. We will issue necessary direction in regard to payment of interest, hereafter, in this judgment. In short, in view of the interference with the impugned judgment and award on the aforesaid counts, it is bound to be modified by scaling down the amount of M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 :-19-: compensation granted under the heads specifically mentioned hereinbefore and also on the aforesaid aspects. Consequently, the impugned award will stand modified as regards compensation granted under the following heads:- The respondent will be entitled to get only an amount of Rs.2,64,000/- as compensation for 'loss of earning capacity' due to the disability sustained in the accident. The Tribunal had granted an amount of Rs.5,92,800/- under that head. We have found that the Tribunal had granted an amount of Rs.3 lakhs in excess under the head 'loss of amenities' and it will stand modified as Rs.1,00,000/-. We have also scaled down the amount granted towards 'future treatment' to Rs.50,000/-. Based on reduction of compensation under the aforesaid heads, the total compensation will stand scale down to Rs.7,00,000/- (12,78,8005,78,800). We have already mentioned that Rs.50,000/- granted towards future treatment expenses will carry interest only from 19.5.2015. The balance amount will carry interest from the date of petition till realisation at the rate of 9% from the date of petition till realisation. The appellant insurer shall deposit the said amount along with interest thereon within a period of two M.A.C.A.No.3401 of 2015 and Cross Objection No.37 of 2017 **==> picture [27 x 9] intentionally omitted <==** months from the date of receipt of certified copy of this judgment. Needless to say that the amount already deposited shall be given due credit while calculating the amount remaining to be paid. In view of the judgment in the appeal, the cross objection is dismissed. There will be no order as to costs in the appeal as also in the cross objection. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/24.7.17 //True copy// P.A.to Judge