RadhaKrishnan v. Thulasidas and The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940** **MACA.No. 263 of 2015 -------------------OP(MV) 991/2009 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,ALAPPUZHA. -----------** ## **APPELLANT/PETITIONER** **--------------------** **RADHAKRISHNAN, RADHAKRISHNA BHAVANAM,RAMAPURAM, KEERIKKADU P.O., ALAPPUZHA** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SMT.PARVATHY NAIR** ## **RESPONDENT/RESPONDENTS:** **----------------------** ## **1. THULASIDAS,** **THULASI BHAVANAM, KOTTAKKADAVU, KAYAMKULAM P.O, ALAPPUZHA - 688 001.** ## **2. THE NEW INDIA ASSURANCE CO.LTD,** **REP. BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA - 688 001.** **R2 BY ADVS. SRI.P.JAYASANKAR** **SRI.N.S.NAJEEB** **SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **9.07.2018** ## **K. VINOD CHANDRAN, J.** ## **---------------------------------M.A.C.A. No.263 of 2015 [C] ---------------------------------Dated this the 4[th] day of July, 2018** ## **JUDGMENT** The appellant, claimant before the Motor Accidents Claims Tribunal, suffered an accident on 26.09.2008 while riding a motor cycle, which was hit by a car driven by the 1[st] respondent. The Tribunal framed two issues regarding the negligence of the offending vehicle as also the quantum of compensation. The negligence was found on the offending vehicle in favour of the claimant and against the 1[st] respondent. The appeal is on the quantum. 2. The learned Counsel appearing for the appellant submits that the appellant was an LIC agent, which he had disclosed at the first instance **M.A.C.A. No.263 of 2015 [C]** **2** when the F.I. Statement was taken. The appellant was earning around Rs.20,000/- in a month, which was not believed by the Tribunal. The Tribunal has taken a notional income of Rs.5,000/-, which is **.** grossly inadequate The appellant was aged 41 years at the time of accident and the amount granted as compensation for loss of amenities is too low. It is also submitted that the Tribunal had gone behind the Certificate issued by the competent Medical Officer and reduced the permanent disability from 30% to 25%. 3. The learned Counsel would rely on the decision of the Hon'ble Supreme Court in _**Rajkumar v. Ajay Kumar [2011 (1) KLT 620 (SC)]**_ to contend that the Tribunal having noticed the medical evidence with respect to the disability, which was assessed at 30%, ought to have further considered the effect of such disability on the injured, **M.A.C.A. No.263 of 2015 [C]** **3** especially on the aspect of his continuing a vocation after the accident. The Tribunal has failed to consider the same, is the contention raised. The disability cannot be assessed merely on the basis of the medical certificate and the Tribunal should have endeavored to ascertain the effect the physical disability would have on the chosen avocation of the injured to compute the loss of earning capacity, as per the cited decision. The Tribunal not only failed to attempt such an evaluation but also reduced the percentage without any reasonable cause, argues learned Counsel. 4. The learned Standing Counsel for the Insurance Company submits that the appellant did not examine himself and only the Doctor was examined to prove the disability. It was argued that if at all the appellant had a contention that his capacity to work has been diminished then **M.A.C.A. No.263 of 2015 [C]** **4** necessarily there should have been evidence let in on that count. But for the appellant's assertion that he was an LIC agent, there was nothing produced to evidence even the employment. 5. Having read through _**Rajkumar**_ [supra] this Court is of the opinion that there can be no application of the aforesaid decision, considering the evidence led before the Tribunal. The Hon'ble Supreme Court did emphasise the need to determine the effect, a permanent disability has on the earning capacity of an injured, after ascertaining the actual extent of permanent disability on medical evidence. The manner in which the same has to be done was also explained in paragraph 10. The Tribunals were directed to ascertain as to what activities the claimant could carry on earlier and how it had been impaired after the accident for reason of the disability. In ascertaining such **M.A.C.A. No.263 of 2015 [C]** **5** diminution of earning capacity, necessarily the Tribunal would also have to ascertain the avocation, profession and nature of work carried on by the injured before the accident. In the present case the claimant did not mount the box and there is no evidence laid on that count. Without any evidence laid on that count, the Tribunal cannot look into the diminution of earning capacity by reason of the permanent disability, which alone has been proved by the medical evidence. Even the Doctor who issued the certificate was not examined on this specific aspect. In such circumstances, this Court does not think there could be any further consideration of diminution in earning capacity for reason of the permanent disability, especially when there is no evidence adduced on the employment carried on before the accident and the disability suffered on account of the accident. **M.A.C.A. No.263 of 2015 [C]** **6** 6. The Tribunal, having accepted the Medical Certificate, found that the disability can be only 25% considering the nature of injury. This Court is unable to accept such finding of the Tribunal, especially when the insurer did not cross-examine the Doctor on that aspect. There was a mere suggestion made that the disability is excessive. The learned Standing Counsel for the Insurance Company submitted that probably the Tribunal reduced the percentage of disability for reason of the Medical Certificate produced being of a single Doctor. The claimant did not file any application for sending the claim to a Medical Board, is the submission. To take such a ground, the Insurance Company should have first confronted the Doctor with his incapacity to make an objective assessment of the disability of the injured. This Court also does not find anything stated by the **7** ## **M.A.C.A. No.263 of 2015 [C]** Tribunal as to the reason for reducing the percentage of disability as certified by a qualified medical practitioner. Further _**Rajkumar**_ cited above, declared so : “ _If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability”(sic para 12)_ . The Tribunal did not so act and in such circumstances, this Court finds that the Tribunal ought not have gone behind the Certificate issued by the Medical Officer and reduced the disability. The permanent disability of the claimant as assessed by the Medical Officer has to be taken at 30%. 7. The further contention is with respect to the income of the claimant, which the claimant **M.A.C.A. No.263 of 2015 [C]** **8** asserts to be Rs.20,000/- per month being an LIC agent. However, there was absolutely nothing produced to prove the income or even prove such agency having been obtained by the claimant. In such circumstances, there cannot be any reliance placed on the mere assertion of the claimant. However, it is to be noticed that in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236]**_ the Hon'ble Supreme Court had fixed the income of a coolie at Rs.4,500/- in an accident which occurred in the year 2004. The present accident occurred in the year 2008. In such circumstances, this Court is of the opinion that the notional income can be fixed at Rs.7,500/- per month. 8. One other ground raised by the learned Counsel for the claimant is the meager loss of amenities granted, which was only Rs.15,000/-. The **M.A.C.A. No.263 of 2015 [C]** **9** Medical Certificate of the petitioner itself indicates that he had neurological complaints. The Medical Certificate of the claimant on a perusal would indicate that the claimant suffers from (i) moderate dysfunction in comprehension and production of language symbols, (ii) minimal weakness in right normal limb,(iii) sensory impairment in right side of the body and (iv) continued treatment with anti-epileptics. Definitely there is loss of amenities, which the petitioner has suffered and his age which is at 41 at the time of accident, persuades this Court to grant the claimant Rs.25,000/- for loss of amenities. On the above reasoning, the loss of earning will be re-fixed @ of Rs.7,500/- per month. The permanent disability will be calculated taking the income at Rs.7,500/- per month and the disability **M.A.C.A. No.263 of 2015 [C]** **10** at 30%. The loss of amenities would also stand enhanced to Rs.25,000/-. The Insurance Company shall deposit the amount within a period of three months from today with interest @ of 7.5% as granted by the Tribunal from the date of filing of the claim petition. The M.A.C.A. is allowed to the above extent. Parties to suffer their respective costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. To Judge sp/05/07/18