High Court of KeralaSingle Judge2024-04-02Appeal partly allowed; compensation enhanced; i...

Rajesh v. Prasad and Suresh Babu and The New India Assurance Company Limited

Case / Petition Number:MACA NO.38 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Sudha
Judgment Date: 2024-04-02
Court Decision / Holding: Appeal partly allowed; enhanced compensation by ₹20,000 (total ₹1,14,820); interest at 7.5% per annum from the date of petition till realization; insurer to deposit enhanced amount with costs before the Tribunal within 60 days; Tribunal to disburse the amount to the claimant on deposit.
Final Disposition: Appeal partly allowed; compensation enhanced; insurer directed to deposit within 60 days; Tribunal to disburse on deposit

Parties to the Case

Appellants / Petitioners

Rajesh (S/o Bhaskarern)

Respondents

Prasad (S/o Velayudhan)
Suresh Babu (S/o Ayyappan)
The New India Assurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• T.C.Suresh Menon
• Sri.P.S.Appu
• Sri.A.R.Nimod

Counsels for Respondents

• Sri.P.Jacob Mathew

Case Synopsis & Summary

This is a Motor Vehicles Act appeal under Section 173 of the Act, challenging an award of ₹94,820 with interest passed by the Motor Accidents Claims Tribunal, Thrissur, in O.P.(MV) No.211/2011, for injuries sustained by the claimant, Rajesh, in an auto-rickshaw accident on 10 October 2010. The Tribunal held the second respondent-driver negligent and would-be insurer liable, though it noted the auto-rickshaw lacked a valid permit and the driver’s license status might affect liability. The applicant contends the Tribunal erred in assessing disability and damages. Ext.A6 shows 11% whole-body disability, while the Tribunal fixed functional disability at 5% without adequate reasoning. Citing Raj Kumar v. Ajay Kumar, the judgment emphasizes that permanent disability does not automatically translate into loss of earning capacity; functional disability must reflect the claimant’s occupation and evidence, which may require cross-examination of medical witnesses. The respondent-insurer argues the fixation of disability is correct and that the disability certificate alone cannot prove the extent of functional disability without proper examination. The High Court partly allows the appeal, increasing non-pecuniary and other heads and ruling that compensation should be ₹1,14,820 with interest at 7.5% from the petition date, directing deposit within 60 days and prompt disbursement by the Tribunal. The verdict upholds liability on the driver and insurer while adjusting compensation in several heads.

Provisions of Law Cited

Motor Vehicles Act, 1988 - Section 173

Legal Doctrines & Maxims

Functional disability vs whole-body disability doctrine (loss of earning capacity is not always equal to permanent disability) as per Raj Kumar v. Ajay Kumar, 2011 (1) SCC 343
Cross-examination requirement for medical witnesses to rely on disability certificates

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext.A6 showing 11% whole-body disability should be treated as functional disability rather than mere whole-body percentage, and the Tribunal’s fixation at 5% warrants interference; he seeks enhanced compensation for loss of earning capacity, loss of amenities, pain and suffering, medical expenses, and related heads, supported by the disability certificate and evidence; he argues that cross-examination of the treating doctor is essential before relying on Ext.A6.

Contentions of Respondents

The respondents contend the Tribunal’s method is correct, relying on the principle that permanent disability does not automatically reflect loss of earning capacity; Ext.A6 cannot be taken as dispositive without cross-examination; the insurer’s liability is subject to proof of the driver’s license validity and vehicle permit issues, and the court should not substitute its own assessment where the evidence supports the Tribunal’s findings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Raj Kumar v. Ajay Kumar	[(2011) 1 SCC 343]	Positive	The court cites this decision to explain that permanent disability does not automatically equal loss of earning capacity and that functional disability must be assessed with reference to the circumstances of the claimant; it supports the approach of assessing disability on functional rather than whole-body terms.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ## **`MACA NO.38 OF 2019`** ``` AGAINST THE ORDER/JUDGMENT DATED 07.07.2018 IN OPMV NO.211 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT ``` # **`CASES, THRISSUR`** ## **`APPELLANT/PETITIONER:`** **==> picture [78 x 128] intentionally omitted <==** ``` RAJESH AGED 41 YEARS S/O.BHASKARAN, RESIDING AT CHALIPATTIL HOUSE, 7TH STONE DESOM, THRITHALOUR, VADANAPILLY VILLAGE, THRISSUR DISTRICT. ``` ``` BY ADVS. T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`PRASAD,`**| |---|---| ||**`S/O.VELAYUDHAN, RESIDING AT VATHEDATH HOUSE,`**| ||**`P.O.VADANAPILLY, THRISSUR-680614.`**| |**`2`**|**`SURESH BABU,`**| ||**`S/O.AYYAPPAN, RESIDING AT POOMALIL HOUSE,`**| ||**`THRITHALLUR P.O., THRISSUR-680619.`**| |**`3`**|**`THE NEW INDIA ASSURANCE COMPANY LIMITED,`**| ||**`TRIPRAYAR BRANCH, SSN SHOPPING COMPLEX, TEMPLE ROAD,`**| ||**`TRIPRAYAR, NATTIKA, THRISSUR-680566.`**| ||**`BY ADV SRI.P.JACOB MATHEW`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.38 OF 2019 ``` ``` 2 ``` ## **C.S. SUDHA, J.** **---------------------------------------------------M.A.C.A. No.38 of 2019 ---------------------------------------------------Dated this the 2[nd] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act), has been filed by the claimant in O.P.(MV) No.211/2011 on the file of the Motor Accidents Claims Tribunal, Thrissur, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 07/07/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 10/10/2010 at 09:00 a.m. he was travelling in an autorickshaw bearing Reg. No. KL-08-F-686 through the Thrissur-Vadanappilly public road and when he reached near the place by name Erav 6[th] stone, the driver of the autorickshaw in a rash and negligent manner abruptly took a turn towards the left, due to which the vehicle dashed against a wall. In the impact of the hit, the ``` MACA NO.38 OF 2019 ``` ``` 3 ``` petitioner was thrown out of the vehicle onto the road whereby he sustained serious injuries on his left hand. The first respondent owner, the second respondent driver and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the ₹ as petitioner. Hence the petitioner claimed an amount of 2 lakhs compensation under various heads. 3. Respondents 1 and 2 remained _ex parte_ . The third respondent filed written statement admitting the insurance coverage for the vehicle but contended that the autorickshaw had no valid permit and that the second respondent was not holding a valid driving licence at the time of the accident and so the third respondent was not liable to pay compensation to the petitioner. 4. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A10 were marked on the side of the petitioner. 5. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the second respondent resulting in the incident and hence awarded an amount of 94,820/- with interest @ 8% per annum from the date of₹ ``` MACA NO.38 OF 2019 ``` ``` 4 ``` the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 6. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 7. Heard both sides. 8. The learned counsel for the appellant challenges the Award of the Tribunal under the following heads – ## **Percentage of permanent disability** It is submitted that though Ext.A6 disability certificate dated 09.12.2016 issued by the Assistant Professor of Orthopedics, Govt. Medical College, Thrissur, shows that the petitioner has 11% permanent physical disability due to the injuries sustained in the accident, the Tribunal without giving any reasons has scaled down the percentage of disability and fixed it at 5%, which finding is without any logic and hence requires to be interfered with. _Per contra_ , it is submitted by the learned counsel for the 3[rd] respondent/insurer that the assessment has been done correctly by the Tribunal and that it requires ``` MACA NO.38 OF 2019 ``` ``` 5 ``` no interference. 8.1. The injuries noted in Ext.A2 wound certificate dated 10.10.2010 are- “ _Lacerated wound (L) Ankle Fracture left Radius. Fracture P1 left ring finger. (Injury is grievous in nature)”_ The doctor in Ext.A6 disability certificate has opined thus- “ _Sri.Rajesh has got 11 (eleven)% of permanent physical disability (whole body) with respect to his injuries sustained in the accident.”_ (Emphasis supplied). As held in **Raj Kumar v. Ajay Kumar, [(2011) 1 SCC 343]** , all injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity. The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal based on evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). ``` MACA NO.38 OF 2019 ``` ``` 6 ``` The doctor who treated the injured/claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only regarding the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education, and other factors. 8.2. It is true that the Tribunal has not given any reasons for fixing the disability at 5%. However, as held in **Raj Kumar** ( _Supra_ ), it is the functional disability that needs to be taken into account and not the whole-body disability. The doctor in Ext.A6 has opined that the petitioner has 11% whole body disability, which in the light of the aforesaid dictum cannot be taken to be the percentage of functional disability. In the light of the nature of injuries sustained by the petitioner; the nature of work of the petitioner, an electrician, and the whole-body disability assessed by the doctor, I find that the Tribunal was right in assessing the percentage of functional disability at 5%. ``` MACA NO.38 OF 2019 ``` ``` 7 ``` Another factor which needs to be noticed is that the doctor who issued Ext.A6 certificate was not examined before the Tribunal to prove the same. As held in **Rajkumar** ( _Supra_ ), 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 medically examined and assessed the extent of disability of the injured, is tendered for cross - examination with reference to the certificate. It is true that it has also been held that where the certificates are not contested by the respondent, they may be marked by consent, thereby dispensing with oral evidence. But even if Ext. A6 is taken into account, that does not prove the percentage of functional disability caused to the petitioner. That being the position, I find no infirmity in the percentage of disability fixed by the Tribunal as canvassed on behalf of the petitioner and hence calls for no interference on the said ground. 9. **Loss of amenities and enjoyment of life** - The learned counsel for the petitioner drew my attention to the fact that though **₹** 25,000/- was claimed under this head, no amount whatsoever has ``` MACA NO.38 OF 2019 ``` ``` 8 ``` been granted by the Tribunal. The petitioner is stated to be an electrician. The two fractures sustained by the petitioner were on his left hand, that is, the left lower radius, which is the wrist area and the other on the left 4th finger. This would certainly have affected the use or flexibility of the left hand. Considering the fact that the petitioner, an electrician, would certainly require both hands for carrying out his work, grant of an amount of 10,000 towards the aforesaid head would₹ be justified. 10. **Pain and suffering** - It is further submitted that though the petitioner had claimed **₹** 30,000/-, the Tribunal has awarded only an amount of **₹** 20,000/-, which finding also needs to be interfered with. In the light of the nature of injuries sustained, that is, two fractures on the left hand, I find that an amount of **₹** 30,000/- towards pain and suffering would be just compensation under this head. 11. The impugned Award is partly modified thus - |Sl. No.|Head of claim|Amount claimed|Amount awarded by Tribunal|Modified in appeal| |---|---|---|---|---| |1.|Loss of earning (Total)|30,000/- ₹|15,000/- ₹|15,000/- ₹ (No modification)| ``` MACA NO.38 OF 2019 ``` ``` 9 ``` |Sl. No.|Head of claim|Amount claimed|Amount awarded by Tribunal|Modified in appeal| |---|---|---|---|---| |2.|Medical expenses|25,000/- ₹|7,120/- ₹|7,120/- ₹ (No modification)| |3.|Bystander expenses|5,000/- ₹|1,200/- ₹|1,200/- ₹ (No modification)| |4.|Transportation expenses|3,000/- ₹|1,500/- ₹|1500/- ₹ (No modification)| |5.|Extra nourishment|5,000/- ₹|1,000/- ₹|1,000/- ₹ (No modification)| |6.|Damage to clothing etc.|1,000/- ₹|1,000/- ₹|1,000/- ₹ (No modification)| |7.|Pain and suffering|30,000/- ₹|20,000/- ₹|30,000/- ₹ (20,000+10,000)| |8.|Compensation for continuing or permanent disability|75,000/- ₹|48,000/- ₹|48,000/- ₹ (No modification)| |9.|Loss of amenities and enjoyment of life|25,000/- ₹|-|10,000/- ₹| |10.|Future treatment|10,000/- ₹|-|(No modification)| ||Total Claim Limits to|2,09,000/ ₹ 2,00,000/- ₹|94,820/- ₹|1,14,820/- ₹| In the result, the appeal is allowed in part by enhancing the ``` MACA NO.38 OF 2019 ``` ``` 10 ``` compensation by a further amount of ₹ **20,000** /- (total compensation ₹1,14,820/-, that is, 94,820/- granted by the Tribunal plus ₹ ₹20,000/granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S. SUDHA JUDGE** NP