Stanly George v. United India Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937 MACA.No. 2374 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1500/2009 of M.A.C.T., ERNAKULAM DATED 03-08-2012 APPELLANT(S):3[rd] RESPONDENT ----------------------------------- UNITED INDIA INSURANCE COMPANY LIMITED ERNAKULAM, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 'SHARANYA', HOSPITAL ROAD, KOCHI 11. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S):PETITIONER --------------------------------- STANLY GEORGE S/O.GEORGE, PADINJATTUMURI, CHIRAKKAKAM, VARAPUZHA P.O, ERNAKULAM DISTRICT, PIN 682 183. BY ADV. SRI.ANIL S.RAJ BY ADV. SMT.K.N.RAJANI BY ADV. SMT.ANILA PETER BY ADV. SRI.J.VIVEK GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** **========================== M.A.C.A. No.2374 OF 2012 ==========================** Dated this the 8[th] day of March, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is preferred by the insurer, the 3[rd] respondent in O.P. (MV).No.1500 of 2009 on the files of the Motor Accidents Claims Tribunal, Ernakulam. In this appeal, the petitioner alone is made as a party. The said claim petition was filed by the respondent herein seeking compensation for the injury sustained by him in a road accident that occurred at about 3.30 p.m on 27.04.2009. The accident which caused the claim petition is that on 27.04.2009, the respondent was standing near the median on Aluva-Ernakulam road at old Post Office Junction, Edappally to cross the road, a motor cycle bearing Reg.No.KL-7 AQ 3791 ridden by the 2[nd] respondent therein in a rash **M.A.C.A.2374/2012** 2 and negligent manner hit the respondent and he fell down on the road and sustained injuries. He was taken to Medical Trust Hospital, Ernakulam and he remained there as an inpatient for several days. Going by Ext.A2 wound certificate, he sustained the following injuries:- 1.Abrasions on the face and extremities; 2.Black eye left side; 3.Fracture of left zygoma and left temporal bone; 4.Acute subdural haematoma. The injuries sustained by him resulted in permanent disability. Hence, the respondent herein filed the claim petition under section 166 of the Motor Vehicles Act seeking a compensation of Rs.7 lakhs. As per the impugned judgment, the Tribunal awarded a total compensation of Rs.5,83,400/- with interest at the rate of 8% per annum from the date of petition till realisation. The schedule of compensation is as hereunder:- |**Heads**|**Amount**<br>**claimed**|**Amount**<br>**awarded**|| |---|---|---|---| |Loss of earnings|40000|18000|| |Partial loss of earnings|4000|0|| **M.A.C.A.2374/2012** 3 |**Heads**|**Amount**<br>**claimed**|**Amount**<br>**awarded**|| |---|---|---|---| |Transport to hospital and<br>back home|10000|2000|| |Extra nourishment|3000|3000|| |Damage to clothes and<br>articles|3000|1000|| |Medical expenses|300000|342000|Ext.A11<br>bills| |Bystander's expenses|15000|9000|| |Future treatment expenses||------|| |Compensation for pain and<br>sufferings|50000|30000|| |Compensation<br>for<br>continuing and permanent<br>disability and loss of<br>earning power|300000|158400|| |Compensation for loss of<br>amenities and enjoyment<br>in life|40000|20000|| |TOTAL||583400|| 2. The appellant-insurer assails the judgment and award on several grounds. It is the contention that the Tribunal ought to have found that the respondent was guilty of contributory negligence. According to the appellant, the manner in which he crossed the road alone had caused the accident. The other contention is that when the extent of permanent disability of the respondent (petitioner) was **M.A.C.A.2374/2012** 4 assessed by a duly constituted Medical Board consisting of 5 expert doctors as 30% under Ext.C1 disability certificate, there is absolutely no justification or reason for the Tribunal to fix the disability as 40% discarding the expert opinion. It is the further contention that the Tribunal has granted Rs.30,000/- as compensation for pain and sufferings and Rs.20,000/- as compensation for loss of amenities and they are on the higher side. 3. The schedule of compensation, as extracted above, would reveal that out of the total amount of compensation of Rs.5,83,400/-, the lion portion viz., Rs.3,42,000/- was granted as reimbursement of medical expenses. In other words, it would reveal that only an amount of Rs.2,41,400/- alone was granted as compensation to the respondent for the injuries sustained by him which resulted in permanent disability. The appellant would admit the fact that a duly constituted Medical Board, as per Ext.C1 disability certificate, assessed the permanent disability of the respondent as 30%. Thus, it is obvious that the respondent who incurred 30% permanent disability **M.A.C.A.2374/2012** 5 was virtually granted an amount of Rs.2,41,400/- only as compensation. Whether it can be taken as exorbitant amount of compensation as contended by the appellant? 4. Admittedly, the respondent was a pedestrian at the time of the accident. The owner and driver of the lorry that knocked down him had remained ex parte before the Tribunal and still, the appellant had not chosen to make them as parties in this appeal. Obviously, the appellant-insurer had not adduced any evidence, either oral or documentary, before the Tribunal. On the side of the respondent (petitioner), Exts.A1 to A13 were got marked. Ext.C1 is the disability certificate issued by the Medical Board and it is a court document. Ext.A1 is the copy of the FIR in the crime registered in connection with the accident in question, viz., crime No.3692/2009 at Kochi City Traffic Police Station. Ext.A3 is the charge sheet laid in that crime after investigation and the 2[nd] respondent before the Tribunal who was the driver of the aforesaid lorry, was arraigned as the accused therein. In the light of the decision of a Division Bench of this Court in **New** **M.A.C.A.2374/2012** 6 **India Assurance Co. Ltd. v. Pazhaniammal** reported in 2011 (3) KLT 648, production of a police charge sheet in a crime registered in connection with the accident concerned would be prima facie sufficient evidence of negligence in a claim filed under section 166 of the M.V.Act. The 2[nd] respondent driver had not chosen to enter appearance and rebut the same. The appellant insurer who alone contested the claim petition also failed to adduce any rebuttal evidence. How can the appellant, in such circumstances, assail the finding of the Tribunal that the accident had occurred solely due to the negligence of the 2[nd] respondent and canvass the position that the Tribunal ought to have held contributory negligence against the respondent (petitioner) who sustained injuries on being hit by the lorry when he was a foot passenger? We have no hesitation to hold the said contention as being wholly devoid of merits. Going by the evidence on record, the respondent was standing near the median, at the time of the accident. A driver must drive the vehicle with reasonable care and he is bound to anticipate any act which is **M.A.C.A.2374/2012** 7 reasonably foreseeable. He must also keep a good look out on the sides and in front of him and especially for pedestrians and others who have a similar right to use the road on which he drives his vehicle. There is absolutely no evidence showing that the respondent had crossed the road all of a sudden and thereby, made the second respondent absolutely impossible to control the vehicle to avoid the accident. In short, in view of the available evidence, there is absolutely no justifiable reason for the appellant even to allege contributory negligence against the respondent who was then a pedestrian. 5. Now, we will consider the question whether the assessment of the loss of earning power as 40% by the Tribunal in spite of Ext.C1 disability certificate carrying the assessment of whole body disability by a Medical Board as 30%, should be taken as ground for appellate interference in this case. Evidently, the appellant has no grievance against the assessment made by the Medical Board constituted at Government T. D. Medical College Hospital, Alappuzha and as per **M.A.C.A.2374/2012** 8 Ext.C1, the Board assessed the same as 30%. Obviously, the loss of earning capacity was not assessed or certified thereunder. Though it is certified that the respondent was found ambulant independently it was further found thereunder thus:- “Cognitive impairment present with severe recent memory impairment, occasional socially inappropriate behaviour. Mild weakness ® side. Neurological disability- mainly due to cognitive impairment of recent memory & socially appropriate (sic.inappropriate) behavior. When this be the impact of the injuries sustained to a person aged 56 years due to neurological disability, how can it be said that the Tribunal had gone wrong in taking 40% as the loss of earning power. Certainly, such a degree of neurological disability caused to a person aged 56 years would result in loss of earning power higher than the assessed extent of permanent disability. Even otherwise, the said assessment cannot be said to have resulted in assessment of exorbitant amount of compensation under the head loss of earning power. True that the petitioner had failed to adduce cogent evidence to establish **M.A.C.A.2374/2012** 9 his averments regarding occupation and income. While being examined as PW1, he had deposed in tune with his averments in the claim petition. Even otherwise, we are of the firm view that the Tribunal had fixed too lower an amount, notionally, as his monthly income. The accident in question occurred on 27.4.2009 and the respondent herein was then aged 56 years. There is nothing on record suggesting or indicating that he was not an able-bodied person prior to the accident. Even in respect of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court fixed the monthly income, notionally, for calculation purpose as Rs.4,500/-. In such circumstances, taking into account the year of the accident and the age of the respondent herein (petitioner therein), the claim of Rs.5,000/- as monthly income ought to have been accepted by the Tribunal and at any rate, in such circumstances, fixation of the monthly income as Rs.3,000/- only, has to be taken as an erroneous estimation. If the monthly income is taken as Rs.5,000/-, the multiplier is taken as '11' as correctly identified by the Tribunal and the extent of permanent **M.A.C.A.2374/2012** 10 disability is taken as 30% only, as certified under Ext.C1, the amount payable as compensation for permanent disability would be Rs.1,98,000/-. If that amount is deducted from Rs.2,41,400/-, the amount awarded over and above Rs.3,42,000/-, viz., the amount paid towards reimbursement of medical expenses, then it can be seen that under all other heads including compensation for 'loss of earnings', 'pain and sufferings', and for 'loss of amenities', only an amount of Rs.43,400/- was awarded by the Tribunal. It is pertinent to note even after finding that the respondent got neurological disability, no amount whatsoever was granted by the Tribunal towards 'future treatment expenses'. All the above circumstances and the provisions under section 168, M.V.Act mandating grant of 'just compensation' would constrain us to hold that what was granted by the Tribunal as per the impugned award cannot be taken as exorbitant compensation whereas it is only the just compensation commensurating with the injuries sustained by the respondent and their adverse impact on him. In view of the aforesaid discussion, we are of the considered **M.A.C.A.2374/2012** 11 view that this appeal lacks merits and it is liable to fail. Accordingly, it is dismissed. There is no order as to costs. **Sd/(JUDGE)** **C.T. RAVIKUMAR** **Sd/MARY JOSEPH (JUDGE)** vs **M.A.C.A.2374/2012** 12 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.2374/2012** 13