Reliance General Insurance Co. Ltd. v. Joseph Thomas (Babu) and Suresh, MACA No. 979/2016

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940** **MACA.No.979 of 2016** **AGAINST THE AWARD IN OPMV 87/2013 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL-I,** **(ADDL. DISTRICT JUDGE-I) PATHANAMTHITTA DATED 28-11-2015** ## **APPELLANT/2nd RESPONDENT:** **RELIANCE GENERAL INSURANCE CO.LTD KOCHI,REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANT:** **1 JOSEPH THOMAS (BABU) S/O.THOMAS KORAH, THAIPARAMPIL HOUSE,CHUMATHRA, KUTTAPUZHA P.O., THIRUVALLA,PIN-689 103** **2 SURESH S/O.THANKAPPAN, MANNATHU HOUSE, PARUTHIKAPPADI,KADAPARA, MANNAR P.O.,PIN-689 622.** **BY ADVS. SRI.S.SUBHASH CHAND SMT.DIVYA K.NAIR SMT.S.SIKKY SRI.P.C.SHIJIN SRI.P.HARIDAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2019, ALONG WITH CO.85/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.979/2016 & C.O.No.85/2017** 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940** **CROSS OBJECTION.No. 85 of 2017 IN MACA.NO.979/2016** **AGAINST THE AWARD IN OPMV 87/2013 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL-I,** **(ADDL. DISTRICT JUDGE-I) PATHANAMTHITTA DATED 28-11-2015** ## **CROSS APPELLANT/RESPONDENT NO.1 IN MACA:** **JOSEPH THOMAS (BABU) AGED 51 YEARS, S/O THOMAS KOARA, THAIPARAMBIL HOUSE, CHUMATHRA, KUTTAPUZHA P.O., THIRUVALLA REPRESENTED BY POWER OF ATTORNEY HOLDER, JIBIN JOSEPH, AGED 27 YEARS, S/O JOSEPH THOMAS, THAIPARAMBIL HOUSE, CHUMATHRA, KUTTAPUZHA P.O., THIRUVALLA.** **BY ADV. SRI.S.SUBHASH CHAND** ## **RESPONDENTS/APPELLANT IN MACA/RESPONDENT NO.2:** **1 M/S.RELIANCE GENERAL INSURANCE CO.LTD. VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHARA, KOCHI. 2 SURESH S/O THANKAPPAN, MANNATHU HOUSE, PARUTHIKAPPADI, KADAPARA, MANNAR P.O. BY ADVS. SMT.K.S.SANTHI SRI.P.HARIDAS** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2019, ALONG WITH MACA.979/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.979/2016 & C.O.No.85/2017** 3 ## **JUDGMENT** The appeal and the cross objection on hand are directed against the award dated 28.11.2015 of the Additional Motor Accidents Claims Tribunal-I, Pathanamthitta (for short 'the Tribunal) in O.P(MV) No.87/2013. The appeal is filed by the insurer, who was the 2[nd] respondent before the Tribunal and the cross objection was filed by the 1[st] respondent in the appeal, who was the injured/claimant before the Tribunal. 2. Sri.George Cherian, the learned Senior Counsel has advanced arguments on behalf of the appellant/insurer in the appeal and Sri.S.Subhash Chand, the learned counsel has advanced arguments on behalf of the 1[st] respondent in the appeal, who was the claimant before the Tribunal and vise versa respectively for the parties in the cross objection. 3. The challenge raised in the appeal as well as the cross objection was against the quantum arrived at by the Tribunal as compensation payable to the claimant. It is specifically contended by Sri.George Cherian, the learned counsel for the appellant that the Tribunal had fixed the monthly income of the claimant for the purpose of computation of compensation as Rs.10,000/- in the absence of any evidence adduced by the claimant to establish the same. It is also contended by the **MACA.No.979/2016 & C.O.No.85/2017** 4 learned counsel that the permanent disability of the claimant was assessed by the Medical Board as 30%, but, the Tribunal had taken 50% in consideration of the occupational disability, developed by the claimant after the sustainment of injuries in the accident. According to the learned counsel, consideration of 50% occupational disability is on the higher side and interference is called for. The learned counsel has also contended that Rs.1,00,000/- each arrived at by the Tribunal as compensation under the heads, attendant charges, future treatment expenses, pain and sufferings and loss of amenities and enjoyments in life are also on the higher side and those sums are required to be reduced by modification. The learned counsel has also contended that the multiplier of 13 adopted by the Tribunal is on the wrong side especially when evidence was not adduced by the claimant to establish his claim of age of 50 years as on date of accident. The learned counsel on behalf of the claimant has also contended that despite evidence adduced to establish, frequent visits by the claimant at the hospital for treatment purpose the Tribunal has awarded only a sum of Rs.3,000/- against the claim made by him for a sum of Rs.5,000/-. According to him, the amount claimed itself ought to have been awarded by the Tribunal under the head transportation expenses. The learned Senior counsel has also contended that an **MACA.No.979/2016 & C.O.No.85/2017** 5 addition of 25% to the monthly income adopted by the Tribunal in consideration of future prospects, is just and reasonable in the case of the claimant, in view of the direction issued by the Constitutional Bench of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi (2017(4) KLT 662 (SC).** But the Tribunal went wrong in adding 30% to the monthly income in consideration of future prospects. According to the learned Senior counsel, this Court needs to rectify the aforesaid errors in calculation by necessary interference. 4. Per contra, the learned counsel for the claimant in the cross objection has contended that the occupational disability of 50% adopted by the Tribunal is on the lower side. The claimant was produced before this Court to apprise about his present health condition. According to him, the claimant has established by producing Exts.A12 and A14 that he was getting monthly income of Rs.10,000/- and more and based on the said evidence that the Tribunal has fixed his monthly income as Rs.10,000/-. According to the learned counsel, the Medical Board has examined the claimant about 1 ½ years after the accident and 30% was assessed as his wholebody disability. Placing reliance on **Rekha Jain v. National Insurance Co.Ltd. (2013 KHC 4600) and Manjegowda N. v. Manager, United India Insurance Company Ltd. (2014 KHC 2427),** the learned **MACA.No.979/2016 & C.O.No.85/2017** 6 counsel pleaded for consideration of a higher percentage of disability than 50% fixed by the Tribunal. The learned counsel has also contended that the sums granted as compensation under the heads attendant charges, future treatment expenses, pain and suffering and loss of amenities and enjoyments in life being just and reasonable sums, interference is strictly uncalled for. According to him the multiplier of 13 adopted by the Tribunal being correct, interference is unwarranted. 5. The learned counsel on behalf of the claimant has also contended that despite evidence adduced to establish frequent visits of the claimant at the hospital, the Tribunal has awarded a sum of Rs.3,000/- against the claim made by him for a sum of Rs.5,000/- as compensation for transportation expenses. According to him Rs.5,000/- itself ought to have been awarded by the Tribunal in the context, under that head. 6. Before adverting to the rival contentions set forth as above, the facts involved in the case are dealt with in brief hereunder: The claimant had met with a motor accident at 4.30 pm on 4.12.2012, when a motorcycle bearing registration No.KL-27/C3417 hit against the motorcycle bearing registration No.KL-27/A206 ridden by him through Thiruvalla-Mavelikkara Public Road and serious injuries were caused to him. He was rushed to **MACA.No.979/2016 & C.O.No.85/2017** 7 St.Gregorius Mission Hospital, Parumala and had undergone several procedures as part of treatment. He had also expended a huge sum towards treatment. He had become permanently disabled due to injuries sustained in the accident and his disability was assessed by a Medical Board. Alleging that the accident was occurred due to rash and negligent riding of the motorcycle bearing registration No.KL-27-C-3417 by its rider and seeking for a total sum of Rs.25,00,000/- as compensation, claim petition as above was preferred by him before the Tribunal. The rider cum owner and insurer of the motorcycle were arrayed as respondents 1 and 2 in the claim petition. The 1[st] respondent remained ex-parte. The 2[nd] respondent had filed written statement before the Tribunal admitting insurance coverage for the allegedly offending motorcycle as on date of accident. It was contended in the written statement that the accident was occurred due to negligence of the claimant while riding the motorcycle. The pleas of the claimant regarding his age, occupation and income as on date, injuries sustained by him and disability caused to him following the accident were disputed. 7. Before the Tribunal, documentary evidence was adduced by the claimant as Exts.A1 to A15. On the side of the contesting 2[nd] respondent, the policy copy was produced and **MACA.No.979/2016 & C.O.No.85/2017** 8 marked in evidence as Ext.B1. Based on the evidence on record as above, the Tribunal had arrived at a finding of negligence on the part of the rider of the motorcycle bearing registration No.KL-27-C-3417. A sum of Rs.18,70,341/- was arrived at as the total compensation payable. The Tribunal had directed the 2[nd] respondent insurer to deposit the said amount with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation and proportionate costs of Rs.1,13,493/-. Challenging the quantum of compensation arrived at by the Tribunal respectively for its exorbitance and meagerness, the insurer and the claimant have approached this Court in the appeal and cross objection on hand canvassing for necessary intervention. 8. Firstly, the challenge of the learned counsel on the monthly income fixed by the Tribunal is considered. According to the learned Senior Counsel evidence of any nature was not adduced by the claimant to establish his occupation and monthly income. But, it is relevant to notice from a reading of the impugned award that Exts.A12 and A14 were marked in evidence by the claimant to establish his occupation and monthly income at the relevant time. Ext.A12 is a certificate issued from Kovoor Enterprises, Thiruvalla wherein one Mr.Paul Thomas has certified on 7.7.2014 that the claimant had worked with him as **MACA.No.979/2016 & C.O.No.85/2017** 9 an electrician-cum-plumber on contract basis for a period from 2.5.1985 till 3.12.2005 and that during the said period, he had proved himself as an efficient worker. It is also certified therein that in view of the injuries sustained in the motor accident and the disability caused to him consequently, he was constrained to give up his job. The surprising aspect was that Ext.A12 was not put into proof by examining its signatory. Therefore, though an attempt was made through production of Ext.A12 to establish the occupation of the claimant as an electrician-cum-plumber, it turned a futile exercise. 9. Ext.A1 is the FIR registered based on the first information statement tendered by the claimant at Pulikeezhu Police Station. The first information statement was lodged on 6.12.2012, two days after the accident, from St.Gregorius Mission Hospital, Parumala. The first information statement tendered by the claimant itself starts with a sentence that he is engaged in wiring and plumbing work, as on date. The statement being one given first in point of time after the accident without much delay, the claim of the claimant that he was an electrician and plumber as on date of accident is liable to be accepted. Ext.A14 is the statement of accounts certified and issued from State Bank of Travancore, Kuttapuzha. It is revealed therefrom that the claimant was maintaining an account with **MACA.No.979/2016 & C.O.No.85/2017** 10 State Bank of Travancore, Kuttupuzha Branch. The account statement relates to the period from November 2011 to November 2012 and it is evidenced therefrom that the claimant had credited sums above Rs.10,000/- into his account in each month. It is also evidenced that the cash was credited into his account by himself. Therefore, it has come out in evidence that the claimant was engaged in the work of an electrician cum plumber and was getting approximately Rs.10,000/- monthly. Therefore, the Tribunal cannot be found fault with for accepting the claim of the claimant that he was an electrician-cum-plumber and fixing his monthly income as Rs.10,000/-, relying on Exts.A12 and A14. This Court therefore, is declined to interfere with the aforesaid fixation of monthly income, by the Tribunal. 10. The contention of the learned Senior Counsel representing the insurer was that the Tribunal is unjustified in arriving at compensation for loss of earning for an extensive period than that was required. Discussion is made about the injuries sustained by the claimant in paragraph 7 of the impugned award mainly based on Ext.A7, the accident-register cum wound certificate issued from St.Gregorious Mission Hospital, Parumala and Exts.A8, A9 and A10 discharge summaries issued from Pushpagiri Medical College Hospital, Thiruvalla. From the description based on Ext.A7, it is **MACA.No.979/2016 & C.O.No.85/2017** 11 evidenced that the claimant had sustained multiple abrasions, 3x2 cm on right side of forehead, 3 x 3 cm on right knee and comminuted fracture of both bones of right leg. Ext.A7 was prepared from St.Gregorious Mission Hospital, Parumala whereto the claimant had been shifted for better management after the primary treatment. As per Ext.A8, the discharge summary issued from Pushpagiri Medical College Hospital, Thiruvalla, claimant was subjected to emergency fasciotomy,external fixator application under general anesthesia, wound debridement on the succeeding date of accident under general anesthesia, wound debridement and external fixator realignment and SSG on 10.12.2012, wound inspection and soleus flap cover and SSG on 12.12.2012, wound debridement with gastronemus flap cover on 31.12.2012, wound inspection and SSG on 3.1.2013 and external fixator realignment on 14.1.2013. 11. At the time of discharge from the hospital on 19.1.2013, severe tenderness with stretch pain, crepitus, deformity, swelling, abnormal mobility and delay in distal capillary refill were also noted. Dorsalis pedis and posterior tibial artery pulsation were reported as non-palpable. He was advised medication and review on 22.1.2013 in Ortho OPD for wound inspection. Ext.A9 relates to the second spell of **MACA.No.979/2016 & C.O.No.85/2017** 12 hospitalisation from 25.6.2013 till 27.8.2013. He was admitted with infected non-union of his right leg. The wound was debrided and he was subjected to saucerization of right tibia. Open reduction and internal fixation with IMIL was done on 11.7.2013. At the time of discharge, the flap was taken up well and healed but there was discharging sinus over the distal part of flap and wasting of muscles. There was considerable restriction in movements over right ankle and knee. At the time of discharge from the hospital the condition of the claimant was reported symptomatically better. The raw area found over the fracture site was required to be cleaned and dressed up regularly and that was advised. Medication was also directed and he was asked to review on 6.9.2013. As revealed from Ext.A10, the discharge summary relating to the third spell of hospitalisation, he was admitted at Pushpagiri Medical College Hospital, Thiruvalla on 7.4.2015 and discharged on 22.4.2015. The wound was noted as 1½ year old, fracture of both bones of right leg found united with intramedullary interlocking nail insitu, but infected. Implant exit was done on 9.4.2015. At the time of discharge he was in a stable state, but was advised to continue medication and review in Ortho OPD on 22.5.2015. 12. It is evidenced from the above that the claimant had sustained fracture to both bones of his right leg and undergone **MACA.No.979/2016 & C.O.No.85/2017** 13 several procedures during the course of treatment at the hospital. It is also disclosed that even after 1½ years of treatment, there was infection at the wound site and therefore cleaning and dressing was advised regularly. There is absolutely no evidence available to establish his condition after getting discharged from the hospital on 22.4.2015. 13. The claimant who appeared personally before the Court made this Court convince about his difficulty to move freely. The fracture site on personal examination by this Court was found to be in a highly infected state with puss oozing out therefrom. As on today, the claimant had completed sufferings for 8 years. The physical condition of the claimant as on date of examination is pathetic. With the swelling and infection at the injury site, his movements are restricted. Therefore, this Court has no hesitation to hold that Rs.1,00,000/-each granted under the heads attendant charges and future treatment expenses are just and reasonable. Considering that the physical condition of the claimant had been deteriorated a lot from his condition at the time when the award was passed, this Court finds it just to grant a hike in compensation payable for pain and suffering and discomforts and inconveniences by granting Rs.50,000/- each in addition to what have been granted under the respective heads. Ext.A11 is a certificate issued by the Medical Board assessing **MACA.No.979/2016 & C.O.No.85/2017** 14 the whole body disability of the claimant as 30%. The Medical Board arrived at the disability on the basis of the examination of claimant held on 25.2.2014 ie. after almost 1 ½ years of the accident as follows: - i) Partial union of fracture with implants insitu. - ii) Knee flection right-90% - iii) Partial ankylosis of right ankle joint. - iv) Discharging sinus on right leg. - v) Partial loss of bone from right tibia. - vi) Extensive unhealthy scar on the medial aspect of right - leg. 14. Undoubtedly wholebody disability was assessed by the Medical Board. The Tribunal had arrived at 50% as the occupational disability of the claimant after appreciating the evidence on record in total. It is true that the claimant had not mounted the box to depose about the difficulties and sufferings to which he was put to by the injuries sustained in the accident. He has also not stated anything to evidence that he has abandoned his job as an electrician cum plumber after the accident. The claimant caused his injuries examined by the Tribunal during trial and the Tribunal made a mention about the difficulties noticed by it. As stated earlier, at the time of examination of the claimant by this court, his condition was **MACA.No.979/2016 & C.O.No.85/2017** 15 noticed as worsened further than that was at the relevant time when he was examined by the Tribunal. In the opinion of this Court, with the difficulties the claimant is having at present, he will not be able to pursue with his job as an electrician cum plumber, which requires continuous mobilization and standing. This Court also noticed that with the restriction in movement due to non-union of fracture and infection at the fracture site, the claimant will not be able to attend any other job of like nature also. The learned counsel for the claimant in the cross objection has canvassed for taking 60% as the disability in the place of 50% taken by the Tribunal. This Court finds every justification in taking 60% in view of the discussion hereinabove made regarding his physical status as on date and is inclined to do so. 15. While calculating compensation under the head loss of earning power, the Tribunal had taken an addition of 30% to the monthly income in consideration of future prospects of the petitioner. In view of the Constitutional Bench decision in **. Pranay Sethi's** case supra, the Tribunal is unjustified in taking 30% addition to the monthly income in consideration of future prospects in the case of claimant aged 50 years at the relevant time of accident. The constitution Bench has directed that for victims aged 50 years, it is just and proper to add 25% to the **MACA.No.979/2016 & C.O.No.85/2017** 16 monthly income fixed, in consideration of future prospects. Therefore, the Tribunal is perfectly unjustified in adding 30% to the monthly income in consideration of future prospects and this Court is inclined to substitute the same by 25%. 16. With the fixation of monthly income confirmed by this Court as Rs.10,000/- and adding 25% towards future prospects, the monthly income liable to be considered for the purpose of calculation of compensation will be Rs.12,500/-(10,000+25% of 10,000/-). 17. Regarding the adoption of multiplier, though a dispute was raised by the learned counsel for the insurer in the appeal, this Court finds no reason to interfere with the same, since in Ext.A1, the first information statement itself the claimant has stated his age as 49 years. When calculation with the re-fixed annual income, multiplier as 13 and occupational disability as 60%, a sum of Rs.11,70,000/- is payable as compensation under the head of loss of earning power. The Tribunal had already awarded a sum of Rs.10,14,000/- under that head. Therefore, the claimant is entitled to get a sum of Rs.1,56,000/-( 11,70,00010,14,000) additionally under that head. Contention was also raised to modify the quantum of compensation awarded by the Tribunal under the head transportation expenses. Against a claim of Rs.5000/- the Tribunal had awarded Rs.3,000/- as **MACA.No.979/2016 & C.O.No.85/2017** 17 compensation under that head. In the light of the discussion made herein above, this court is inclined to grant Rs.5,000/- as claimed by the petitioner itself as compensation for transportation expenses. 18. In the re-fixation of compensation as above, the claimant is found entitled to get an additional sum of Rs.2,58,000/-.(Rupees Two Lakhs Fifty Eight Thousand only) (50,000+50,000+1,56,000+2000) The amount will carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. In the result, the appeal and the Cross Objection are allowed in part on the above terms. The appellant, the 2[nd] respondent before the Tribunal shall deposit the aforesaid sum found payable as compensation additionally with interest at the rate as directed, within a period of three months from the date of receipt of a copy of this judgment. No order as to cost. **Sd/-** **MARY JOSEPH JUDGE** ab