Sasi @ Sasindran v. T.G. Paul and Oriental Insurance Company Ltd.

**MACA NO. 1462 OF 2013** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 22ND DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 MACA NO. 1462 OF 2013** **AGAINST THE AWARD IN OPMV 1500/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR** ## **APPELLANT/PETITIONER:** SASI @ SASINDRAN AGED 49 YEARS S/O.NARAYANAN, POORATTUPARAMBIL HOUSE, KODAKARA,THRISSUR BY ADV SRI.T.N.MANOJ ## **RESPONDENTS/RESPONDENTS:** 1 T.G.PAUL MANAGING PARTNER , V C POLY POCKS, MUHAMA DESOM, ALAPPUZHA *2 JAYAN JAYESH S/O.KUNJUMON, VATTARACHIRA HOUSE, MUHAMMA DESOM, THANNIRMUKKAM VILLAGE, ALAPPUZHA DIST 688 001 **[DELETED]** 3 THE MANAGER ORIENTAL INSURANCE COMPALNY LTD, P N NO . 8,THODUPUZHA 685 584 **RESPONDENT No.2 DELETED** (R2 DELETED FROM PARTY ARRAY AS PER ORDER DATED 23/10/2019 IN IA.1/19 IN MACA1462/2013) BY ADV SRI.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON 22.09.2021 DELIVERED THE FOLLOWING: **MACA NO. 1462 OF 2013** **2** ## **T.R.RAVI, J.** ## **-------------------------------------M.A.C.A.No. 1462 of 2013 -----------------------------------------------** Dated this the 22[nd] day of September, 2021 ## **J U D G M E N T** The appellant, a toddy tapper, while riding his bicycle at about 6 AM on 04.04.2007, was hit by a pickup van driven in a rash and negligent manner, causing injuries to the appellant. The appellant was aged 38 years at the time of the accident and according to him, he was earning a sum of Rs.4,500/- per month from his avocation. He suffered a fracture of the right clavicle, fracture of upper half of D12 vertebra, multiple soft tissue injuries, lacerated wound over left parietal region 2x4 cms with haematoma, laceration mucosal aspect of lower lip, laceration over chin, loss of upper central incisor and aberrations over lower one third of right leg. Exhibit A2 discharge summary shows that he was an inpatient for 7 days in the Amrita Institute. Exhibit A4 is a Certificate issued by the employer of the appellant, stating that the appellant was on leave from 04.04.2007 till 03.10.2007. Exhibit A6 Income Certificate shows that the appellant received a sum of Rs.50,100/- as salary in the year 2006- **MACA NO. 1462 OF 2013** **3** 07. Exhibit A8 is the disability certificate which shows that the appellant had 20% permanent disability. The disability certificate is proved by PW2 who is the Doctor who issued the Certificate. PW2 specifically stated that the appellant will not be able to do the work of toddy tapping anymore. Exhibit A11 issued by the Kerala Toddy Workers Welfare Board shows that the appellant had quit his work on 31.01.2010. 2. The Tribunal awarded a sum of Rs. 1,69,490/- as compensation against a claim of Rs.9,00,000/- made by the appellant. In arriving at the compensation, the Tribunal did not grant any amount towards loss of earning, damage to clothing, loss of amenities and conveniences and loss of teeth which were claimed. The Tribunal considered the annual income of the appellant as Rs.50,100/- and fixed the compensation towards permanent disability on the basis of 20% disability. An amount of Rs.12,000/alone was granted towards a claim of Rs. 25,000/- for pain and suffering. 3. Heard Sri T.N.Manoj on behalf of the appellant and Sri Jacob Abraham on behalf of the 3[rd] respondent insurer. 4. The counsel for the appellant contended that the appellant had claimed that he had a monthly income of Rs.4,500/- and that no **MACA NO. 1462 OF 2013** **4** amount was granted towards loss of earning, despite the fact that the appellant had not been able to do any work after the accident. It is stated that the appellant was under treatment for about one year and even though 20% is the whole body disability, the functional disability as far as his acovation of toddy tapping was concerned, was 100%. Exhibit A11 is relied on to show that the appellant had to quit his job. It is further contended that there is no reason to reduce the amount of pain and suffering claimed and for denial of the claim for loss of teeth. It is also contended that there is no justification for not granting any amount towards loss of amenities, despite the fact that the injury was serious enough to cause a total inability to perform the avocation which he was performing till then. Relying on the decision of the Hon'ble Supreme Court in **Pappu Deo Yadav v. Naresh Kumar & Ors.** reported in **[AIR 2020 SC 4424],** it is contended that the appellant is entitled to additional amount towards future prospects. 5. The counsel for the insurer contended that the Disablity Certificate cannot be relied upon since it has been issued by a private doctor and that a Medical Board should have assessed the disability. It is submitted that the appellant had to be hospitalised only for 7 days and therefore the injury cannot be treated as a **MACA NO. 1462 OF 2013** **5** severe injury. Reliance is placed on the decision of the Apex Court in **Rajkumar v. Ajaykumar** reported in **[(2011) 1 SCC 343]** . 6. I have considered the contentions raised by the counsel on either side. Since the Tribunal has considered an annual income of Rs.50,100/- on the basis of Exhibit A6 Income Certificate, I am of the opinion that the said amount is reasonable. However, while assessing compensation for permanent disability, going by the decision in **Pappu Deo Yadav (supra)** the appellant is entitled to an increase of 40% towards future prospects. The appellant has given evidence to show that he has not been able to continue the work of toddy tapping. The fact that he will not be able to do the job has also been spoken to by PW2, the doctor who issued the disability Certificate. In the above circumstances, there is no justification for not granting any amount towards loss of earning. The appellant had produced Exhibit A4 certificate from the employer stating that the appellant was on leave from April to October, 2007, a period of 6 months. The appellant is hence found entitled to one half of his annual income towards loss of earning. The appellant has claimed reasonable amounts of Rs.1,000/-, Rs.10,000/- and Rs.8,000/under the heads damage to clothing, laws of amenities and conveniences and loss of teeth, which ought to have been granted by **MACA NO. 1462 OF 2013** **6** the Tribunal. 7. Regarding the question of disability, Exhibit A8 shows that the appellant has a whole body disability of 20%. The certificate also says that functionally the appellant has the difficulty to lift or carry weight with right hand, pull or push or throw or support with the right hand, to climb trees, to hang, to bend forward or sideways, to stand for long, to climb up and down, and to jump, run or walk for long. He has further stated that the appellant cannot perform the work of a Toddy Tapper. Even though PW2 was cross examined, there is nothing in the evidence to discredit the statements in the certificate. As such, there is considerable force in the contention of the appellant that in relation to the work that he was performing till then, which should be the criterion for assessing permanent disability, going by the decision of the Hon'ble Supreme Court in **Mohan Sony vs. Ram Avtar Tomar** , reported in **(2012) 2 SCC 267** , the appellant has 100% disability. However, the appellant was only 38 years old at the time of the accident and he had quit the job by 2010, as seen from Exhibit A11. It cannot be presumed that the appellant will not be able to find any other avocation in his future life. In the circumstances, I am of the opinion that the functional disability to be applied for arriving the compensation for permanent **MACA NO. 1462 OF 2013** **7** disability can be considered as 40%. The compensation payable to the appellant is hence reworked on the basis of the aforesaid findings and the same will be as shown in the table below: |Sl.<br>No.|Head of Claim|Amount<br>claimed (Rs)|Amount<br>awarded<br>(Rs)|Amount<br>awarded/modif<br>ied by this<br>Court| |---|---|---|---|---| |1|Loss of Earning|30,000/-|NIL|25,050/-| |2|Medical &<br>Miscellaneous|30,000/-|5,290/-|5,290/-| |3|Transportation<br>expenses|3,500/-|500/-|500/-| |4|Pain & suffering|25,000/-|12,000/-|25,000/-| |5|Permanent Disability|8,00,000/-|1,50,300/-|4,20,840/-| |6|Damage to clothing|1,000/-|NIL|1,000/-| |7|Extra nourishment|1,000/-|700/-|700/-| |8|Loss of amenities<br>and conveniences<br>etc.|10,000/-|NIL|10,000/-| |9|Loss of teeth|8,000/-|NIL|8,000/-| |10|Bystander's expenses|2,000/-|700/-|700/-| ||Total|9,10,500/-<br>limited to<br>Rs.9,00,000/-|1,69,490/-|**4,97,080/-**| 8. In the result, the appeal is allowed. The compensation granted by the Tribunal is enhanced by a further sum of ## **Rs.3,27,590/- (Rupees Three lakhs Twenty Seven Thousand** **Five Hundred and Ninety only)** with interest at 9% per annum on the enhanced compensation from 31.12.2008 till the date of **MACA NO. 1462 OF 2013** **8** realisation, with proportionate costs. The 3[rd] respondent shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law. Sd/Sd/- **T.R.RAVI JUDGE** dsn