The New India Assurance Company Ltd v Sunilkumar S/o Sukumaran, Sunil Bhavan, Perumpuzha P.O, UliyanadU, Punukkannoor, Kottenkara, Quilon 691504; Santosh Kumar S/o Madhavan Pillai, Thekkevila Puthen Veedu, Kadavoor, NavaiKulam, Thiruvananthapuram 695603; Anil Kumar S/o Gopinadhan Pillai, Anandhu Bhavan, Chirakkarathazham, NavaiKulam, Thiruvananthapuram 695603

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943** ## **MACA NO. 1741 OF 2013** **CHALLENGING THE AWARD DATED 17.04.2012 PASSED IN OPMV 939/2005 OF** **II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/3RD RESPONDENT IN OP (MV) NO.939/05** THE NEW INDIA ASSURANCE COMPANY LTD KOLLAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KADAMKULATHY TOWERS, M.G ROAD, ERNAKULAM BY ADV SRI.LAL GEORGE ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2 IN OP(MV) NO.939/05:** 1 SUNILKUMAR S/O SUKUMARAN, SUNIL BHAVAN, PERUMPUZHA P.O, ULIYANADU, PUNUKKANNOOR, KOTTENKARA, QUILON 691504 2 SANTHOSH KUMAR S/O MADHAVAN PILLAI, THEKKEVILA PUTHEN VEEDU, KADAVOOR, NAVAIKULAM, THIRUVANANTHAPURAM 695603 3 ANIL KUMAR S/O GOPINADHAN PILLAI, ANANDU BHAVAN, CHIRAKKARATHAZHAM, NAVAIKULAM, THIRUVANANTHA 695603 BY ADVS. SMT.P.LISSY JOSE. SRI.S.SANTHOSH KUMAR ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 03.02.2022, THE COURT ON 21.02.2022 DELIVERED THE FOLLOWING:** M.A.C.A No. 1741 of 2013 **2** ## **M.R.ANITHA, J.** ## **----------------------------------------M.A.C.A No. 1741 of 2013** **------------------------------------------** Dated this the 21[st] day of February, 2022 ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.939/2005 on the file of 2[nd] additional Motor Accidents Claims Tribunal, Kollam. Appellant is the 3[rd] respondent in O.P.M.V No.939/2005, insurer of the vehicle No.KL01 E 3854 motor cycle, ridden by the 3[rd] respondent. 2. 1[st] respondent is the claimant before the Tribunal. It is alleged that on 02.07.2004 at about 10.15 p.m., while the 1[st] respondent/claimant (here in after be referred as claimant) was riding the motor cycle bearing Registration No.KBV 4492, he was knocked down by the motorcycle bearing Registration No.KL01 E M.A.C.A No. 1741 of 2013 **3** 3854 ridden by the 3[rd] respondent, thereby the claimant sustained serious injuries. Hence 1[st] respondent filed claim petition seeking for a total compensation of Rs.1,00,000/- under various heads. 3. Before the Tribunal, the respondents 2 and 3 remained ex parte. The appellant herein, 3[rd] respondent the insurer filed written statement admitting the policy coverage and denying the liability and also disputed the amount of compensation claimed by the claimant under various heads. 4. There was no oral evidence. Exts.A1 to A10 were marked from the side of the claimant. 5. On evaluation of the pleadings as well as the materials produced from the side of the claimant, the Tribunal awarded a total compensation of Rs.97,479/under various heads, together with interest at the rate of 7.5% per annum from the date of petition, i.e, 07.11.2005. The appellant/3rd respondent is held liable M.A.C.A No. 1741 of 2013 **4** to make the payment. 6. Aggrieved by the award passed, appellant/3[rd] respondent/insurer came up in appeal challenging the award under various grounds stated in the memorandum of appeal. 1[st] respondent/claimant appeared through counsel. Service completed as against 2[nd] and 3[rd] respondent but there was no appearance. Lower court records were called for and perused. Heard both sides. 7. The only point argued by the learned counsel for the appellant is with respect to the award of permanent disability at 8% by the Tribunal without support of any medical certificate issued by any doctors or Medical Board. According to the learned counsel, there is no disability certificate and claimant was also not examined to substantiate the claim with respect to the disability. Arbitrarily the Tribunal has fixed the disability at 8% and that is not sustainable in law. That M.A.C.A No. 1741 of 2013 **5** is the only point argued. 8. The learned counsel for the 1[st] respondent/claimant on the other hand contended that the Tribunal rightly fixed the disability at 8% by looking at the medical records produced from the side of the petitioner including the wound certificate. Only nominal amount has been awarded in view of the grievous nature of the injuries sustained by the petitioner. Hence no interference is called for. 9. In **Raj Kumar v. Ajay Kumar and Another : 2011(1) SCC 343 : 2011(1) KLT 620 : 2011(1) SCC (Cri) 1161 : 2010 KHC 5021** , the Apex Court dealt with the general principles relating to compensation in injury cases. In paragraph 5 the heads under which compensation is awarded in personal injury cases under the head of pecuniary damages (special damages) and non-pecuniary damages (General Damages) have been enumerated which are extracted M.A.C.A No. 1741 of 2013 **6** ## as follows: _“Pecuniary damages (Special Damages)_ _(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure._ _(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:_ _(a) Loss of earning during the period of treatment;_ _(b) Loss of future earnings on account of permanent disability._ _(iii) Future medical expenses._ _Non-pecuniary damages (General Damages)_ _(iv) Damages for pain, suffering and trauma as a consequence of the injuries._ - _(v) Loss of amenities (and/or loss of prospects of marriage)._ - _(vi) Loss of expectation of life (shortening of normal longevity).”_ 10. Further, it is stated that in routine personal injury cases compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical M.A.C.A No. 1741 of 2013 **7** evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities and loss of expectation of life. In paragraph 9, while dealing with assessment of permanent disability and its extent, it has been held that the Tribunal should consider and decide with reference to evidence (1) whether the disablement is permanent or temporary (2) if the disablement is permanent whether it is permanent total disablement or permanent partial disablement, (3) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. It is also provided that after the Tribunal ascertains the actual extent of permanent disability of the claimant M.A.C.A No. 1741 of 2013 **8** based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. In paragraph No.12, the mode of acceptance of expert evidence of doctors and the disability certificate have been discussed and it has been found that Tribunal should 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. Instances of unscrupulous doctors without treating the injured readily giving liberal disability certificates to help the claimants also has been taken note of. It is further held that where the disability certificates are given by duly constituted medical boards, they may be accepted subject to evidence regarding the genuineness of such certificates. It is also held therein that the Tribunal may invariably make it a point to require the evidence of a doctor who M.A.C.A No. 1741 of 2013 **9** treated the injured or who assessed permanent disability. The 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 or assessed the extent of disability of claimant is tendered for crossexamination with reference to the certificate. It is also held that 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. 11. In **Karunakaran @ Kannan v. Abdul Rasheed & Others : 2015 (5) KHC 355** , the Full Bench of this Court has taken a view that there is no hard and fast rule in all cases that invariably the doctor should be examined in order to accept permanent M.A.C.A No. 1741 of 2013 **10** disability certificate issued by him. 12. In **Manikantan v. Janardhanan Nair and** **Others : 2020(5) KHC 305** , a learned Single Judge deprecated the procedure adopted by the Tribunal in scaling down the percentage of disability at 12% in the disability certificate to 8%. 13. In the present case, without the production of any disability certificate whatsoever by the claimant, the Tribunal evaluated Exts.A6 to A8 medical records and noted that claimant had sustained injury to his left knee and he underwent in-patient treatment for eleven days and undergone a surgery to the right knee. It is further found that medical records show that the claimant have MCL, ACL, PCL and medial meniscus injury to his right knee. So the Tribunal, taking note of the fact that ligaments of right knee have sustained serious injury, held that there will be 8% disability affecting his future income. So, without the aid of any M.A.C.A No. 1741 of 2013 **11** disability certificate issued by any doctor who treated him or by any doctor assessing the disability and producing the certificate, the Tribunal on a guess work, fixed 8% disability, which cannot, at any moment, be accepted as has been rightly contended by the learned counsel for the insurer. Hence compensation of Rs.48,960/- awarded towards loss of earning due to permanent disability on the basis of 8% permanent disability fixed by the Tribunal, cannot be sustained. 14. In this context, the learned counsel for the claimant would submit that an opportunity should be given to the claimant to get the disability assessed and produce the disability certificate. In view of the treatment records and the nature of injuries seem to have been sustained by the claimant, this Court is also of the view that an opportunity should be given to the claimant to prove the disability sustained. So, for the purpose of awarding a just compensation I also deem it M.A.C.A No. 1741 of 2013 **12** fit to give an opportunity to the claimant/first respondent to prove the disability. Both sides also can explore the possibility of a settlment. In the result, the impugned award in the aspect of fixing permanent disability at 8% and awarding loss of earning to the claimant alone is hereby set aside and the case is remanded to the 2[nd] Additional Motor Accidents Claims Tribunal, Kollam for fresh consideration and the respondent/claimant is given an opportunity to get the disability assessed and produce the certificate before the Tribunal. Thereafter, Tribunal shall dispose of the matter in accordance with law within a period of four months from the date of receipt of copy of this judgment since the case is of the year 2005. ## **M.R.ANITHA, JUDGE** rps/jsr