The Oriental Insurance Company Limited v. Akhil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 4TH DAY OF AUGUST 2017 / 13TH SRAVANA, 1939 MACA.No. 1049 of 2011 AGAINST THE AWARD IN OPMV 311/2008 of M.A.C.T., KOLLAM DATED 25-02-2011 APPELLANT(S)/ADDL.4TH RESPONDENT THE ORIENTAL INSURANCE COMPANY LIMITED, KOLLAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S)/PETITIONER: AKHIL, S/O. ASOKAN, AKHALYA BHAVAN, NEDUMPANA, KOLLAM-691 001. R1 BY ADV. SRI.S.M.ALTHAF THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.** -----------------------------------------------M.A.C.A.No.1049 of 2011 ---------------------------------------------Dated this the 4[th] day of August, 2017 ## **JUDGMENT** ## C.T.Ravikumar, J. This appeal is directed against the award dated 25.02.2011 in O.P.(MV) No.311 of 2008 passed by the Motor Accidents Claims Tribunal, Kollam. The appellant, insurer of the offending vehicle involved in the accident, was the 4[th] respondent therein. The respondent herein was the petitioner therein. He filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 25.12.2007 at about 7.45 pm. While he was riding his motorcycle bearing registration No.KL-2V-1713 through Kannanalloor-Kollam road and reached near Kaniyamthode, the offending vehicle, which is a bus bearing registration No.KL-2W-1407, driven by the 2[nd] respondent dashed against his motorcycle. The petitioner sustained grievous injuries and thereupon he was taken to hospital. Under two spells, he remained as inpatient for a period of 23 days. It is in the said circumstances that the claim petition **M.A.C.A.No.1049/11** **2** was filed under Section 166 of the Motor Vehicles Act. Before the Tribunal, the only evidence available was the documentary evidence on the side of the appellant, consisting of Exts.A1 to A10 series. The Tribunal on appreciating the rival contentions as also the evidence on record passed the impugned award, as mentioned above. It is seeking enhancement of the quantum of compensation that this appeal has been preferred. 2. Heard. 3. The grievance of the appellant is that the Tribunal went wrong in finding that the injuries sustained by the appellant resulted in permanent disability. This contention is based on the fact that the appellant did not produce any medical evidence to establish that the injuries sustained by him ultimately resulted in permanent disability. It is therefore, contended that when there was absolutely no evidence before the Tribunal to establish that the injuries sustained by him resulted in permanent disability, the Tribunal ought not to have granted compensation for permanent disability. The other contention is that the Tribunal went wrong in directing the appellant to pay interest @ 9% per annum from the date of award till the date of realization in case of failure to deposit the **M.A.C.A.No.1049/11** **3** amount awarded within the time for its deposit. It is submitted that in the light of the decision of a Division Bench of this Court in **National Insurance Company v. N.K.Moidu and others** reported in **2011 (4) KHC 756,** the respondent/petitioner was entitled to get penal interest only from the date of fixed for payment under the award, viz., only after three months from the date of receipt of copy of the award, in this case. 4. The learned counsel for the respondent/petitioner in claim petition submitted that the Tribunal cannot be said to have committed a patent error in granting compensation for permanent disability to the petitioner. It is submitted by the learned counsel that since it is a social welfare legislation, when the Tribunal found that the petitioner had actually sustained permanent disability owing to the injuries sustained and assessed the same, interference is not warranted. The learned counsel drew our attention to the following recital in paragraph 9 of the impugned judgment: “seeing the petitioner before the court, going through the medical records and after hearing both sides, his disability is taken as 18%”. The learned counsel submits that the aforesaid recital in the impugned judgment itself, would reveal that the Tribunal had the opportunity to see **M.A.C.A.No.1049/11** **4** and assess the disability of the petitioner with the aid of the medical records and that apart, both sides were heard on that issue. In such circumstances, it is submitted that the appellant is not justified in challenging the assessment of permanent disability made by the Tribunal. That apart, it is contended by the learned counsel that the Tribunal went wrong in fixing the monthly income of the injured petitioner. In the claim petition, it was specifically averred that the appellant was aged 19 years and he was a JCB operator. He claimed that his monthly income as 6,000/-. Taking into account the fact that at the time of₹ accident he was aged only 19 years and the accident had occurred on 25.12.2007, there was no justification for the Tribunal to fix the monthly income so meagerly. To buttress the said contention, learned counsel relied on a decision of the Hon'ble Apex Court in **Ramchandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.** reported in **AIR** **2011 SC 2951** . In the said decision, in respect of koolee, who met with an accident in the year 2004, the monthly income was fixed by the Apex Court as 4,500/-. The contention is that in₹ such circumstances, there was absolutely no reason for not accepting claim of monthly income made by the petitioner. **M.A.C.A.No.1049/11** **5** 5. Having given our anxious consideration to the rival contentions, we are of the view that there is substance in the contentions raised by the appellant regarding the error crept in the matter of assessment of permanent disability. While considering the sustainability of the said contention, it is only appropriate to refer to decision of the Honourable Apex Court in **Raj Kumar v. Ajay Kumar** reported in **2011 (1) KLT 620** . In the said decision Apex Court held that mere production of a disability certificate or discharge certificate could not be taken as proof of extent of disability stated therein, unless the Doctor who treated the claimant or who examined and assessed the extent of disability, is tendered for cross examination. In the said circumstances, and especially taking into account the fact that a high degree of disability was taken into account for the purpose of granting compensation by the Tribunal in the case on hand, without production of any disability certificate by the petitioner, we have no hesitation to hold that the said assessment made by the Tribunal invites interference. But from the impugned judgment it is evident that the Tribunal had the opportunity to see the person and assess his physical state pursuant to the sustainment of the injuries, with the aid of the **M.A.C.A.No.1049/11** **6** medical records. Evidently, it was done after hearing both sides. The question is whether it can be said to be a finding totally outside the scope of its power? Necessarily, it is the bounden duty of a Claims Tribunal, in the light of the provisions under Section 168 of the Motor Vehicles Act, to grant just compensation to an injured commensurate with the injuries sustained by him. When the Tribunal on seeing the person and on going through the medical records and thereafter hearing both sides ultimately arrived at a conclusion that the petitioner had sustained some degree of permanent disability, it cannot be said to be perverse finding or a finding beyond jurisdiction. We may hasten to add in the light of the decision of the Hon'ble Apex Court in Raj Kumar's case (supra) it is always advisable to arrive at a decision on the question of permanent disability with the aid of disability certificate. If it is not a disability certificate issued by a duly constituted Medical Board, it is only proper to insist for proving the same, in accordance with law. Granting or assessing a higher degree of permanent disability and making the insurer to compensate petitioner even in the absence of disability certificate or getting the permanent disability assessed by a competent doctor or Board cannot be appreciated. In this case, **M.A.C.A.No.1049/11** **7** Ext.A6 certificate would reveal that the petitioner/1[st] respondent sustained following injuries: - “1. Deformity (R) leg infrapatellar region with open injury8x3x1cm. 2. Deformity (R) forearm with swelling. 3. Lacerated injury (R) foot on dorsum - 1x1/2 cm. 4. Abrasion (R) side of forehead 1 x ½ cm. 5. Abrasion (L) side of forehead 1 x ½ cm. 6. Deep linear abrasion (R) arm-3x1x0.5cm. 7. Multiple abrasions on chest. 8. Abrasion (R) cheek - 2x2cm. 9. Abrasion (R) forehead - 2x2cm 1x1 cm. 10. Abrasion (L) cheek 2x2 cm 1x1 cm.” 6. It is also evident that the X-ray would reveal that the petitioner sustained fracture on both bones (radius and ulna), fracture on both bone (tibia and fibula) and fracture of olecranon (R) ulna. Ext.A7 discharge card would reveal that on diagnosis it was found that he had sustained aforementioned fractures. In the judgment the Tribunal vividly explained the nature of the treatment undergone by the petitioner. It would reveal that he had undergone treatment for segmental fracture, fracture of tibia, fracture of olecranon and fracture of both lower and upper limbs. In the said circumstances, we are of the considered view that the Tribunal cannot be said to have committed patent error **M.A.C.A.No.1049/11** **8** in holding that the injuries sustained by the petitioner ultimately resulted in permanent disability. But at the same time in the light of the decision of the Apex Court in Rajkumar's case, we are of the view that Tribunal ought not to have assessed a higher degree of disability, which in this case 18% and made the tort feasor to pay compensation therefor. We have already adverted to the injuries sustained by the petitioner in the accident. They would go to show that he had sustained fracture on five bones. Taking into account the facts as above, we are of the view that despite the failure on the part of the injured-petitioner to produce certificate of disability we are inclined to take the extent of permanent disability as 5% for calculation purpose. The next question is whether, while fixing compensation for permanent disability, the Tribunal had committed error in fixing notional income. In the claim petition it was averred that the petitioner was aged 19 years and he was earning 5,000/- per month. It is₹ also stated therein that he was JCB operator. At the same time, it is evident that he had not produced any evidence to establish his averments regarding occupation and income. In such circumstances, the Tribunal was perfectly justified in fixing his monthly income notionally. Then the question is whether the **M.A.C.A.No.1049/11** **9** Tribunal was justified in fixing monthly income only as 5,000/-.₹ The accident occurred on 25.12.2007 and the Tribunal fixed monthly income only as 3,000/-. In the above said situation, it₹ is only appropriate to refer to decision of the Honourable Apex Court in **Ramchandrappa's case** (supra). In that case, in respect of coolee who met with accident in the year 2004, Apex Court had fixed the monthly income notionally as 4,500/-. The₹ accident in question had occurred about three years thereafter. In such circumstances, we are of the considered view that there was absolutely no justification for the Tribunal in fixing the monthly income only as 3,000/-. In other words, the fixation of₹ the monthly income by the Tribunal is too meagre. Taking into account the aforesaid facts, we are of the considered view that the compensation for permanent disability can be re-calculated, taking the monthly income notionally as 5,000/- and the₹ percentage of disability as 5%. There is no dispute with respect of the identification of the multiplier. The multiplier was identified by the Tribunal with reference to the age of the insurer. He was aged 19 years at the time of the accident and therefore, it was rightly taken as '18'. If an assessment was made referring the aforesaid case as mentioned herein before, **M.A.C.A.No.1049/11** **10** the amount payable for permanent disability would be 54,000/-₹ (5000x12x5x18/100). As against the said amount that was actually awarded by the Tribunal was 1,16,640/-. Hence, under₹ the said head the respondent herein viz., the petitioner is entitled to get only an amount of Rs.62,640/-. The Tribunal has also granted ₹38,880/as compensation towards loss of amenities. Evidently, compensation under the said head was fixed as such, taking into account the disability as 18%. Since we have interfered with the assessment of the disability, the amount of compensation granted under the head loss of amenities is also to be scaled down. In such circumstances, we are of the view that an amount of 20,000/- is grantable under₹ the said head. Since we have already held that the Tribunal had fixed the monthly income meagrely and accordingly fixed it as ₹5,000/-, the appellant is entitled to get higher amount of compensation for loss of earnings. He was granted 18,000/-,₹ reckoning monthly income as 3,000/- and fixing the period of₹ loss of earning as six months. There is no reason for interfering with the period of loss of earning fixed by the Tribunal. Taking into account the monthly income fixed by us, for the said period the first respondent is entitled to an amount of 12,000/-₹ **M.A.C.A.No.1049/11** **11** additionally. Petitioner had been inpatient for a period of 23 days. Taking into account year of the accident and the cost of living at the relevant point of time, we are of the view that the Tribunal ought to have granted reimbursement towards extra nourishment expenses at the rate of 100/- per day and towards₹ bystander expenses at the rate of 200/- per day. On such₹ estimation he is entitled to an amount of 3,000/- towards extra₹ nourishment and 2,000/- towards the bystander expenses, in₹ addition to what was already granted by the Tribunal under those heads. Towards pain and sufferings Tribunal had granted an amount of 20,000/-. We have already adverted to the nature₹ of the injuries sustained by the petitioner. In such circumstances, we are inclined to grant an amount of 25,000/-.₹ Reckoning the upward modifications and reductions made, as above, under various heads the award passed by the Tribunal for ₹2,21,411/-, requires downward modification. We do so. The impugned award stands modified by scaling down the quantum of compensation from 2,21,411/-₹ to 1,64,191/-,₹ which is rounded as to 1,64,200/-.₹ 7. Now, the question is regarding the sustainability of the challenge made by the appellant against the direction by the **M.A.C.A.No.1049/11** **12** Tribunal to grant interest for the amount awarded @ 9%, in case of its failure to satisfy the award amount within three months from the date of of award at the rate of 7.5% from the date of petition till realisation. The Tribunal had directed that in case of failure to pay the amount awarded within a period of three months, the awarded amount would carry interest @9% per annum from the date of award. As noticed earlier the contention of the appellant is that the impugned award grating interest @9%, from the date of award cannot be sustained in the light of decision of this Court in **N.K.Moidu's** case. When a time limit is fixed for effecting payment of the amount awarded and penal consequence is attached to the failure to comply with the direction, the liability to pay penal interest would commence only from the date of expiry of the period for satisfying the award. In such circumstances, in the light of the decision in **Moidu's case,** the order to pay penal interest at the rate of 9% per annum would and should take its effect from the date of expiry of the period of three months from the date of receipt of a copy of the judgment and award passed by the Tribunal. The learned senior counsel appearing for the appellant submits that pursuant to an order of this Court in this appeal, the appellant **M.A.C.A.No.1049/11** **13** had already deposited certain amount in discharge of its liability to satisfy the award. If so, the Tribunal shall take into account the amount already deposited by the appellant while quantifying the amount remaining to be paid for ultimately discharging the liability under the impugned award in terms of the modification made as per this judgment. Appeal stands disposed of as above. No costs. Sd/- ## **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** DG