PRADEEP v. P.V.MATHAI @ MATHEW; THOMAS, S/O PORINCU KANJIRAPARAMBIL (H); UNITED INDIA INSURANCE CO. LTD. (Respondents)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY &** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930** **MACA.NO. 1492 OF 2006()** **------------------------------------** **OPMV.90/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** **....................** ## **APPELLANT(S): APPELLANT/PETITIONER** **---------------------------------------------------------** **PRADEEP, S/O.KRISHNAN KUTTY NAIR, VALLIKUNNATH HOUSE, MANKOMPU, ALLEPPEY.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT(S) - RESPONDENTS:** **--------------------------------------------** ## **1. P.V.MATHAI @ MATHEW,** **PUTHOOR HOUSE, VELLAPPAYA, P.O.THRISSUR.** **2. THOMAS, S/O.PORINCU KANJIRAPARAMBIL (H), KUTTOOR.P.O., THRISSUR DISTRICT.** ## **3. THE MANAGER,** **UNITED INDIA INSURANCE CO. LTD., THRISSUR.** ## **ADV. SRI.P.V.JYOTHI PRASAD FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B. KOSHY & THOMAS P.JOSEPH, JJ.** = = = = = = = = = = = = = = = = = = = = = = = = = = **M.A.C.A. No.1492 of 2006** = = = = = = = = = = = = = = = = = = = = = = = = = = = **Dated this the 28[th] day of November, 2008 J U D G M E N T** ---------------------- ## **Koshy, J.** Appellant-claimant sustained injuries at the age of 22 in a motor accident. Tribunal found in the impugned award that the accident occurred due to the negligence of the driver of the vehicle insured with the third respondent. But against a claim of Rs.12,00,000/- only Rs.4,20,137/- was awarded with interest at the rate of 6% per annum. Insurance coverage of the vehicle was admitted. No appeal is filed by the respondents. Only dispute is regarding the quantum of compensation. 2. It is the contention of the appellant that he cannot do anything with the right hand. After considering the medical certificate, discharge summary and disability certificate Tribunal observed as follows: “.....He produced Exts.A14 and A15 discharge summary and Ext.A16 disability certificate, X-ray of his hand and other documents to prove that the injuries sustained to him. It is seen from the above ## **M.A.C.A. No.1492 of 2006** ## **-: 2 :-** documents that the petitioner sustained injuries such as severe crush injury, fracture of ulnar, sensory nerve action potential amplitude and sensory conduction velocities were low, the right ulnar motor coduction velocity was low, the amplitude of right ADM was sub normal, the right median and ulnar sensory never action potential were absent. The right APB was inexcitable, the compound muscle action potential amplitude of right extensor indicis were low. The petitioner produced a disability certificate which was marked as Ext.A16. It was issued by Dr.C.P. Johny who assessed 60% permanent disability. It is seen from Ext.A16 that he has sustained the following functional disabilities such as unable to write with right hand since he is right handed person, unable to attend personal needs without the help of others, his right arm apparently appears to remain hanging down from the shoulder joint, his right hand just remain for cosmetic appearance but no functional capacity, nothing can be done with right hand, unable to oppose the fingers and to pinch, unable to pick up, hold and carry objects with right hand, unable to raise objects above the head with right hand. The person who issued the disability certificate ## **M.A.C.A. No.1492 of 2006** ## **-: 3 :-** was examined to prove the same. P.W.2 deposed that he assessed 60% permanent disability since the right hand of the petitioner became useless. He has also deposed that he was not able to lift his right hand. He is trooping one. The learned counsel for the 3[rd] respondent has enquired that if the petitioner can do some work with the right hand the percentage of disability will not be less. Answer given by P.W2 was at the time of examination he was unable to use to his right hand. He assessed 60% disability”. Appellant was discharged from the Army due to this disability. Therefore according to him he has 100% loss of earning capacity. Physical disability is different from loss of earning capacity. Even though provisions of the Workmen's Compensation Act, 1923 cannot as such be taken into account in claims under Section 166 of the Motor Vehicles Act, the first schedule of the above Act was framed after scientific study. Partial disablement and total disability are defined in Section 2(g) of the above Act which reads as follows: (g) Partial disablement means, where the disablement is of a temporary ## **M.A.C.A. No.1492 of 2006** ## **-: 4 :-** nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the **disablement** is of a **permanent** nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time, provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement”. Section 4(1)(c) of the above Act reads as follows: “4(1) Amount of compensation.-(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- (c ) Where permanent (i) in the case of partial disablement an injury specified result from injury in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity ## **M.A.C.A. No.1492 of 2006** ## **-: 5 :-** caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury”. Under Schedule I Part II of WCC Act items 1 to 4 reads as follows: |“Sl.|No.|Description of injury|Percentage of loss| |---|---|---|---| ||||of earning capacity| ||1.|Amputation through|| |||shoulder joint|90| ||2.|Amputation below shoulder|| |||with stump less than 20.32 cms|| |||from tip of acromion|80| ||3.|Amputation from 20.32 cms from|| |||tip of acromion to less than 11.43 cms|| |||below tip of olecranon|70| ||4.|Loss of a hand or of the thumb|| |||and four fingers of one hand or|| |||amputation from 11.43 cms below|| |||tip of olecranon|60”| Similar percentage of loss of earning capacity is provided in the second ## **M.A.C.A. No.1492 of 2006** ## **-: 6 :-** schedule of the ESI Act. But here injury sustained is not a schedule injury. Hence Tribunal has to depend on medical certificate. 3. Even though Tribunal has considered the functional disability, the 60% disability certified by the Doctor and proved by the Doctor by giving oral evidence as P.W.2 was not accepted by the Tribunal and it was reduced to 40%. We are of the opinion that except for cogent reasons, the Tribunal cannot reduce the same. If the Tribunal has any doubt, claimant could be sent for examination by Medical Board. Apart from the fractures, the appellant suffered nerve injury which cannot be retrieved. According to the appellant even now he cannot do anything with the right hand. On the facts of the case, we are of the view that the appellant should be sent to a Medical Board attached to the Medical College Hospital, Trivandrum for assessment of the disability. It is also submitted that at the time of accident his monthly income was Rs.4,000/-. It is further contended that if he would have continued in employment he would have got 10 times of the present monthly income. It is also contended that he would have got regular promotions, grade promotions, increments, etc. He lost everything in life. 4. Tribunal has not assessed income taking into consideration his future prospects. Tribunal cannot also predict ## **M.A.C.A. No.1492 of 2006** ## **-: 7 :-** future prospects. But at the same time some amount should taken as future prospects while calculating the compensation. In this connection we refer to the decision of the Apex Court in **General Manager, Kerala S.R.T.C. v. Susamma Thomas** (1994) 2 SCC 176, **Sarala Disxit v. Balwant Yadav** (1996) 3 SCC 179 and **Oriental Insurance Co. Ltd. v. Jasheban** (2008 AIR SCW 2393). Appellant can also adduce evidence before the Tribunal regarding the future prospects if he would have continued in employment. Tribunal has to fix a reasonable monthly income considering the salary he was receiving at the time of accident. It is also contended that after the award also the appellant continued treatment. He produced medical bills along with I.A. No.3272 of 2008. We are of the view that this matter also should be taken into account by the Tribunal. In this connection we also refer to the decision of the Apex Court in **Nagappa v. Gurudayal Singh** (AIR 2003 SC 674) wherein it was held by the Apex Court that expenses incurred by the claimant after filing of the claim also should be considered by the Tribunal. In the above circumstances, the appeal is allowed. The award passed by the Tribunal regarding quantum is set aside and we ## **M.A.C.A. No.1492 of 2006** ## **-: 8 :-** remand the case for recalculation of the quantum of compensation. Both sides can adduce further evidence, if any. Since the case is remanded only for the purpose of re-fixing the quantum of compensation at the instance of the claimant, the amount awarded should be deposited. Question of interest also should be reconsidered by the Tribunal as it was contended that the 6% interest awarded is too low. The bank rate of interest at the time of passing the award was 7.5% per annum. The registry is directed to send back the medical bills produced by the appellant along with I.A. No.3272 of 2008 to the Tribunal for consideration. Parties are directed to appear before the Tribunal on 2.2.2009. ## **J.B. KOSHY, JUDGE.** ## **THOMAS P.JOSEPH, JUDGE.** vsv