Rajesh T.V. v Lal Krishna & others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 31[ST] DAY OF AUGUST 2021 / 9TH BHADRA, 1943** **MACA NO. 2029 OF 2018** **AGAINST THE AWARD DATED 08.02.2018 IN OPMV 1551/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER** RAJESH T.V, S/O.VELAYUDHAN, THUMBARATHUKUDI HOUSE, P.O.MAMBRA, WEST KORATTY, THRISSUR DISTRICT. BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENTS/RESPONDENTS** 1 LAL KRISHNA, S/O.MOHANAN KANNANCHEDATH HOUSE, KORATTY PADINJATTUMURI, MAMBRA P.O., THRISSUR DT.680 308. 2 SRUTHILAL, S/O. SUBBAYYAN, KOLKKUDY HOUSE WEST KORATTY, MAMBRA P.O., THRISSUR DT.680 308. 3 NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, THRISSUR- 680 001. BY ADV P.G. GANAPPAN **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**2**_ _**“C.R”**_ ## _**A. BADHARUDEEN, J.**_ ================================ M.A.C.A.No.2029 of 2018 ================================ Dated this the 31[st] day of August, 2021 ## _**JUDGMENT**_ This appeal is at the instance of the original petitioner in OP(MV) No.1551/2014, on the file of M.A.C.T, Irinjalakuda. Award dated 08.02.2018 is under challenge in this appeal, where the respondents before the Tribunal got arrayed as respondents 1 to 3. The parties in this appeal will be referred as to their status before the Tribunal. 2. The precise allegation is that the petitioner met with an accident on 27.06.2014 at 9 p.m while he was travelling as pillion rider on a motorcycle bearing Registration No.KL-64-4743 driven by the 2[nd] respondent in a rash and negligent manner through Pongam-Mambra public road. Attributing negligence against the 2[nd] respondent the rider of the motorcycle, the petitioner claimed compensation to the tune of Rs.5,02,500/- jointly from respondents 1 to 3. 3. Respondents 1 and 2 remained exparte before the court below. The 3[rd] respondent filed a written statement. Valid policy in relation to the alleged offending vehicle was admitted. But negligence attributed against the 2[nd] respondent was disputed and quantum of compensation was challenged. 4. The Tribunal adduced evidence confined to Exts.A1 to A13 marked on the side of the petitioner, Ext.B1 marked on the side of the respondents and Ext.X1 3 as court's exhibit. After analysing evidence, the Tribunal awarded compensation to the tune of Rs.2,03,900/- along with 8% interest per annum. 5. The learned counsel for the petitioner submitted that the Tribunal went wrong in fixing monthly income of the petitioner as Rs.6,000/-. According to the learned counsel for the petitioner, since the petitioner claimed to be a mason, his income ought to be fixed as Rs.15,000/- as claimed. However, the learned counsel conceded the fact that no evidence, either oral or documentary to support this contention was adduced. He urged that Rs.9,500/- as income ought to be fixed following the ratio in [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ . The learned counsel for the insurance company strongly disputed fixation of income of the petitioner as Rs.15,000/- holding him as a mason, without support of convincing and cogent evidence. 6. Going by the petition averments, the petitioner claiming to be a mason asserted his income as Rs.15,000/- per month. But no evidence including oral evidence adduced to support this contention. In view of the matter, the contention regarding his job as mason and income therefrom not proved at all. But following the ratio in _**Ramachandrappa's case** (supra_ ), Rs.9,500/- ought to be fixed as the monthly income for the purpose of calculating loss of earnings and loss of disability. Thus Rs.9,500/- is fixed as the monthly income of the petitioner. 7. Coming to the other challenge, according to the learned counsel for the petitioner though the disability of the petitioner was assessed as 13% by the Medical 4 Board, on reference to him by the Tribunal, the Tribunal reduced the same to 6%. He submitted further that in the decision reported in **[2011 (1) KLT 620],** _**Raj Kumar v. Ajay Kumar,**_ the Apex Court held that when disability assessed by the medical board is let in evidence, the same as such has to be accepted unless contra evidence to disbelieve the same is not forthcoming. 8. However, the learned counsel for the insurance company submitted that though 13% disability was assessed by the medical board, the Tribunal after elaborate discussion, as could be seen from paragraphs 9 and 10 of the award, reduced the same on the finding that assessment of disability based on the petitioner's difficulty in breathing as certified in Ext.A9 and Ext.X1 was liable to be accepted and the other assessment made by the medical board was probably towards wedge fracture unconnected with the accident. 9. While addressing this issue it could be noticed that as per Ext.A9 dated 26.06.2017 Dr.Jyothish issued disability certificate showing the disability of the petitioner as 14% wherein fracture (L) zygomatic arch with chewing difficulty is assessed at 6%, fracture nasal bone with breathing disability as 7% and fracture D8 spine with pain and paraspinal spasm is assessed as 4% and combining the above 3, 14% was assessed as disability. Coming to Ext.X1, the medical board disability certificate, 2 infirmities were considered while assessing 13% disability they are, viz., comminuted fracture of left zygomatic arch and nasal bone, (2) wedge compression of D8. But in Ext.X1, the limb disability on each head is not specifically shown. However, on perusal of Ext.A6 discharge summary, it could be 5 gathered that during his initial admission in the hospital after the accident, the following injuries were noted, viz., “ _Mild head injury, (2) D8 vertebra old compression fracture with strain_ .” So, going by Ext.A9, D8 vertebra compression fracture was existing at the time of accident. It is for this reason the Tribunal reduced the disability assessed by the medical board from 13% to 6%. 10. In _**Raj Kumar**_ 's case ( _supra_ ), highlighted by the learned counsel for the petitioner, it was held as under: _The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificate are given by duly constituted Medical Boards, they maybe accepted subject to evidence regarding the genuineness of such certificate. Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medicaly examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. 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._ Going by the ratio, disability certificate by the Medical Board can be accepted without insisting further proof thereof and without examining the Doctor generally. However, the Tribunal can insist for the evidence of the Doctor to act upon the same. On analysing the ratio of the above ruling, the same in no way suggest that disability certificate showing disability after the accident and before the accident if 6 clubbed together, the same as such is liable to be accepted on production of the disability certificate. If such a proposition is accepted, the corollary is that if a person having some disability even prior to the accident and the disability was increased in consequence of a motor accident, then the tortfeaser would become liable to compensate for the whole disability ignoring the disability already existed prior to the accident. Therefore, when the disability certificate produced itself would speak about assessment of disability in relation to a pre-existing injury borne out from records, the same must be excluded when considering disability for the purpose of determining loss of disability income. In the case on hand, the evidence discussed above would go to show that D8 vertebra fracture with strain was existing at the time of the accident and the same was also considered while assessing disability by the medical board in Ext.X1. In Ext.A9, 4% disability was specifically assessed in relation to D8 spine with pain and paraspinal spasm. Thus it has to be held that the Tribunal took a probable view to fix the disability as 6% excluding the disability assessed for the infirmity pre-existing. In fact, the said finding need not be interfered and therefore I am not inclined to disturb the disability at 6% as fixed by the Tribunal. 11. Another challenge raised in this case is inclusion of the petitioner in the age group of 35-40 by the Tribunal. The learned counsel for the petitioner would submit that if the petitioner would come in the age group of 35-40 as found by the Tribunal, then also the multiplier would be 16 instead of 15. The decision reported in _**Sarla**_ _**Verma v. Delhi Transport Corporation**_ [(2009) 6 SCC 121], has been 7 placed to buttress this argument. In _**Sarla Verma**_ 's case ( _supra_ ), persons in the age group of 31-35 years were given 16 as the multiplier; whereas persons in between 36-40 age group were given 15 as the multiplier. 12. The learned counsel for the insurance company would point out that since the petitioner not produced substantive proof to prove his age, the Tribunal given reliance on Exts.A3, A6 and A9 together and finally included the petitioner in the age group of 35-40. Going by the narration in para.11 of the award, as per Ext.A3 wound certificate, the age of the petitioner was shown as 32 years; as per Ext.A6 discharge summary his age is shown as 35 years. In Ext.A9 disability certificate issued after 3 years of the accident, his age was shown as 38 years. When his age stated in Ext.A3, A6 and A9 is given a probable analysis, then also it has to be held that the petitioner would come under the age group of 31-35 years and the proper multiplier to this group is 16 as per the table appended to _**Sarla Verma** 's case_ ( _supra_ ) Therefore, I refix the multiplier as `16'. 13. In view of the above discussion, the disability income fixed by the Tribunal required to be refixed as : 9500 X 12 X 16 X 6%= 1,09,440/-. 14. Coming to the loss of earnings granted by the Tribunal, the same also required to be modified @ Rs.9,500/- per month. Thus the same would come to Rs.9,500 X 6 = Rs.57,000/-, out of which Rs.24,000/- was granted by the Tribunal and the balance would come to Rs.33,000/- to be granted in excess. 15. The learned counsel for the petitioner canvassed increase under the head pain and sufferings after admitting the fact that the Tribunal granted 8 Rs.30,000/- as against the claim of Rs.25,000/-. Having considered the injuries, I am not inclined to increase any amount under this head. However, the contention raised by the learned counsel for the petitioner to increase the amount granted under the head loss of amenities can be considered since the Tribunal granted only Rs.20,000/- under the said head. Therefore, I am inclined to grant Rs.10,000/more under this head. ## 16. Accordingly, the award is modified as follows: |Sl<br>No.|Head of claim|Amount in Appeal<br>(Rs.)|Total amount after<br>enhancement| |---|---|---|---| |1|Loss of earnings|24000|57000 (9500 x 6<br>months)| |2|Transportation expenses|1500|1500| |3|Extra nourishment|2000|2000| |4|Damage to clothings|500|500| |5|Attendant expenses|1200|1200| |6|Medical expenses|70700|70700| |7|Pain and suffering|30000|30000| |8|Permanent disability|54000|109440| |9|Loss of amenities|20000|30000| ||||| ||Total|203900|300840| 17. In the result: a) This M.A.C.A is allowed in part; 9 b) Modified award passed to the tune of Rs.3,00,840/- (Rupees Three lakh eight hundred and forty only) to be paid by the 3[rd] respondent with 8% interest granted by the Triubunal and the amount shall be deposited by the insurance company being the indemnifier of the insured. - c) On deposit, the petitioner is at liberty to release the same forthwith. At the rate - d) Deposit, if any, already effected shall be adjusted. _Sd/-_ rtr/ - _**(A. BADHARUDEEN, JUDGE)**_