P.K. Varghese v. The Manager, Cholamandalam MS General Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 MACA NO. 821 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 27.12.2013 IN OPMV NO.79 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA ``` ## **`APPELLANT/PETITIONER:`** ``` P.K.VARGHESE S/O KURIAN VARGHESE, THAZHATHUPURACKAL HOUSE, MANARKADU KARA, MANARKADU VILLAGE, KOTTAYAM DIST., NOW RESIDING AT KOYIPURATHU HOUSE, THRIKKODITHANAM VILLAGE, MANILKANDASSERIL KARA, KOTTAYAM DIST. BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.MANU TOM ``` ## **`RESPONDENT/2 nd RESPONDENT :`** ``` THE MANAGER, CHOLAMANDALAM M.S.GENERAL INSURANCE CO. LTD. HEAD OFFICE, DARTE HOUSE, 2ND FLOOR, NSC BOAE ROAD, CHENNAI, PIN:600001. BY ADV P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.821 OF 2014 ``` ``` 2 ``` ## **`JUDGMENT`** ``` The appellant was the petitioner in OP(MV) No.79/2011 on the files of the Motor Accidents Claims Tribunal, Pala. The claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 14/05/2010. ``` ``` 2.The accident occurred when he was walking through Kottayam-Kumali road, he was knocked down by an autorickshaw bearing registration No.KL 34/5649 driven by the 1[st ]respondent in the claim petition. The said respondent was also the owner of the said autorickshaw and it was insured with the 2[nd] respondent, the respondent herein. The appellant claimed to be a driver by profession with a monthly income of Rs.8,000/-. Consequent to the injuries, he sustained physical disability, which prevented him from continuing the employment as a driver. The age of the appellant was 50 years. The claim petition was submitted in such circumstances seeking compensation. ``` ``` MACA No.821 OF 2014 ``` ``` 3 ``` ``` 3.The 2[nd] respondent in the claim petition alone contested the matter wherein they admitted the coverage of policy for the autorickshaw. However, it was contended that, the accident occurred due to the negligence of the appellant himself as he was walking through the road after consuming alcohol. The quantum of compensation claimed by them was also disputed by them. ``` ``` 4.To substantiate the claim, the appellant got himself examined as PW1 and as documentary evidence, Ext.A1 to A14 were marked. The Disability Certificate issued from the Medical College Hospital, Kottayam was marked as Ext.X1. No evidence was adduced by the respondents. ``` ``` 5.After considering all the materials, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent in the claim petition and since the vehicle was covered with a valid policy insured by the respondent herein, they were held liable to pay the compensation. The quantum of ``` ``` MACA No.821 OF 2014 ``` ``` 4 ``` ``` compensation was fixed as Rs.1,54,750/- and the said amount was directed to be deposited by the respondent herein with interest at the rate of 7.5% per annum from the date of petition till realisation within a period of three months from the date of the award. However, it was further ordered that in case the appellant fails to pay the amount within three months the interest shall be 9%. This appeal is submitted in suchcircumstancesseekingenhancementof compensation. ``` ``` 6.Heard Sri. Thomas Abraham (Nilakkappillil), learned counsel appearing for the appellant and Sri. Jacob Mathew, learned counsel appearing for the respondent/2[nd] respondent in the claim petition. ``` ``` 7.The learned counsel for the appellant submitted that the amount awarded by the Tribunal under various heads are grossly inadequate. He mainly challenges the quantum of compensation awarded under the head of disability. It was pointed out that even though a monthly income of Rs.8,000/- was claimed, the ``` ``` MACA No.821 OF 2014 ``` ``` 5 ``` ``` Tribunal accepted the monthly income as Rs.4,000/-. In addition to the same he also pointed out that even though the Medical Board certified the extent of disability as 43%, the Tribunal scaled down the percentage of disability to 20% without any justifiable reasons. He also pointed out that no future prospects were also taken into account despite the fact that the evidence on record would suggest that, he was unable to continue his avocation as a driver. ``` ``` 8.The learned counsel for the respondent opposed the said contentions by pointing out that a reasonable award has been awarded by the Tribunal and no interference is required. ``` ``` 9.I have carefully gone through the records. The crucial aspect to be considered is the compensationawardedtowardsdisabilityand consequential loss of earning capacity. As rightly pointed out by the learned counsel for the appellant, the Tribunal took the monthly income as Rs.4,000/- ``` ``` MACA No.821 OF 2014 ``` ``` 6 ``` ``` which appears to be very low considering the fact that the accident occurred in the year 2010. The appellant places reliance upon Ext.A12 and A14 to establish that he was a professional driver. The petitioner asserted that fact, while examined as PW1 as well. From the records it is seen that the avocation of the petitioner is not seriously challenged by the respondents. It is to be noted that even if the monthly income is calculated on the basis of the method of computation involved from the principles laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd[(2011) 13 SCC 236] it has to be fixed as Rs.4,500/- for an accident occurred in the year 2004 even in respect of an ordinary worker without any skills. The usual method that is adopted for determining the monthly income for the subsequent years is to make an addition of Rs.500/- each from year to year. When that method of assessment is adopted, the monthly income for accidents that occurred in the year 2010 could be fixed as ``` ``` MACA No.821 OF 2014 ``` ``` 7 ``` ``` Rs.7,500/-. It is to be noted that the said monthly income is ordinarily fixed for an unskilled worker. Here in this case, there is some evidence to show that he was a driver by profession and therefore a slightly higher monthly income than usually taken for an ordinary employee could be adopted. When the claim of the appellant regarding the monthly income as Rs.8,000/- is considered in that perspective, under no ``` ``` circumstances the same could be treated as unreasonable. Therefore, I am of the view that the said monthly income can be taken for the purpose of assessment of compensation. ``` ``` 10.The next aspect to be considered is the percentage of disability. Ext.X1 is the disability certificate issued by the Medical Board. In the said certificate, considering the nature of injuries and impact, the disability has been assessed by a panel of doctors as 43%. Apparently, the Tribunal did not accept the same, due to the reason that none of the doctors who are members of the Medical Board were ``` ``` MACA No.821 OF 2014 ``` ``` 8 ``` ``` examined. However, in Raj Kumar v. Ajay Kumar & Anr. [2011 (1) SCC 343] it was categorically observed that the examination of the doctor is not necessary in all the cases particularly when the same was issued by a Medical Board. Moreover, when a panel of competent doctors who are the members of a Medical Board constituted by following the procedure, make an assessment after examining the injured, the Tribunal cannot sit an appeal over such assessment as the expertise of such doctors cannot be substituted by the limited knowledge of the Tribunal on the medical field. Therefore, I am of the view that, unless there are serious discrepancies which is evident from the records, the percentage of disability certified by a Medical Board cannot be scaled down by the Tribunal. When going through the contents of the Ext.X1 disability certificate and the reasons for assessing the disability as 43%, it can be seen that the said disabilities are reflected in other medical records also. Therefore, the disability as certified in Ext.X1 ``` ``` MACA No.821 OF 2014 ``` ``` 9 ``` ``` resulting from the injuries referred to in other medical records is highly probable. Ext.A6 discharge certificate would indicate that the appellant sustained the following injuries. ``` ``` “Head injury, haemorrhagic contusion left parietal cortex, tentorial S.D.H., fracture of distal end of clavicle.” ``` ``` From the CT Scan report, it is seen that there is heamorrhagic contusion on the left high parietal region, minimal S.D.H. along with tentorial surface. ``` ``` 11.Thus, after considering the nature of injuries referred to in the aforesaid documents and the disability certificate, I deem it appropriate to accept the percentage of physical disability as 43%. ``` ``` 12.However, the next question that arises, is whether the assessment could be confined to the physical disability alone. It is evident from the records that, the nature of disability suffered by the appellant is such that it practically prevented him from pursuing avocation as a driver. He asserted the ``` ``` MACA No.821 OF 2014 ``` ## **`10`** ``` said fact when he was examined as PW1 as well. Moreover, in Ext A1 FIR also the appellant was described as a taxi driver. Therefore, this is a case in which the functional disability is to be taken into account for the purpose of assessing the loss of earning capacity. It is a well-settled position of Syed Sadiq & Ors. V. Divisional Manager, United India Insurance Co.Ltd [(2014)2 SCC 735], what is to be assessed for reckoning the compensation for loss of earning capacity is the impact of the injuries and the disabilities suffered by the victim, on the employment he was engaged in. Therefore, along with the nature of injuries and disabilities, the nature of the employment is also to be taken into account. From the materials, it is evident that the nature of injuries and disabilities would certainly prevent him from pursuing his avocation as a driver. Therefore, I find that this is a fit case in which functional disability ought to be taken into account. In the facts and circumstances of the case, I deem it appropriate to ``` ``` MACA No.821 OF 2014 ``` ``` 11 ``` ``` fix it as 63% by making an overall assessment. ``` ``` 13.Since the functional disability is as higher than 63% and it is found that the appellant was prevented from pursuing his employment as a driver, while assessing compensation, future prospects also should be taken into account. It has come out in evidence that, the appellant was aged 51 years at the time of the accident and therefore 10% of the monthly income has to be added towards future prospects. Thus while assessing the compensation with the above- revised criteria the amount to be awarded for disability and consequential loss of earning capacity comes to Rs.7,31,808/- [(8,000+10%)x12x11x63/100]. The amount already awarded by the Tribunal is Rs.1,05,600/-. Thus the additional compensation comes to Rs.6,26,208/-. ``` ``` 14.Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The Tribunal awarded compensation under this head, for a ``` ``` MACA No.821 OF 2014 ``` ``` 12 ``` ``` period of four months at the rate of Rs.4,000/- each. Thus, as I have revised the said monthly income as Rs.8,000/- a further amount of Rs.16,000/- is to be awarded and it is ordered accordingly. ``` ``` 15.When it comes to the question of compensation for the pain and suffering, it is seen that the Tribunal awarded Rs.25,000/-. Considering the serious nature of injuries, the period of treatment which he availed which includes 20 days of inpatient treatment and the treatment he availed even after the discharge, I deem it appropriate to grant a further sum of Rs.10,000/- under the said head. No amount is seen awarded towards loss of amenities. As observed above, the injuries sustained by the appellant had a huge impact on his professional life as well as personal life. The quality of his life is substantially deteriorated, consequent to the same. Therefore, denying compensation for loss of amenities and enjoyment in life would result in injustice to the appellant. In the facts and circumstances of the case, ``` ``` MACA No.821 OF 2014 ``` ``` 13 ``` ``` taking note of the serious nature of the injuries, the period of treatment, and the disability arising therefrom, I deem it appropriate to grant an amount of Rs.35,000/- under the said head. No amount is granted towards damage to clothing. Accordingly Rs.500/- is awarded. ``` ``` 16.While calculating compensation for bystander expenses the Tribunal considered only 7 days of hospitalisation in Medical College Hospital, Kottayam. It is evident from the records that subsequently he had undergone treatment in Bharath Matha Hospital, Kottayam, and the total period of hospitalisation comes to 20 days. Since the Tribunal awarded compensation only for 7 days. The appellant has to be granted compensation for the remaining 13 days which was omitted to be taken into account for assessing the compensation for bystander expenses. Accordingly, a further sum of Rs.2,600/- is awarded under the said head. Thus the total additional compensation is fixed as Rs.6,90,308/- (6,26,208 + 16,000 + 10,000 + 35,000 ``` ``` MACA No.821 OF 2014 ``` ``` 14 ``` ``` +2600). ``` ``` In the result, this appeal is allowed. The award dated 27/12/2013 passed by the Motor Accidents Claims Tribunal, Pala, in OP(MV) No.79/2011 is hereby modified by granting an additional compensation of Rs.6,90,308/- (Rupees Six lakhs Ninety Thousand Three Hundred and Eight only) and the said amount is directed to be deposited by the 2[nd] respondent- insurance company with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate cost. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` sms