The Oriental Insurance Company Ltd. v Vishnu S. SASI

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938 MACA.No. 992 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 841/2009 of MACT, PALA DATED 09-02-2012 APPELLANT(S)/3RD RESPONDENT: --------------------------- THE ORIENTAL INSURANCE COMPANY LTD., KOTTAYAM, 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: ------------------------- VISHNU.S.SASI, S/O.SASI, PALAMATTOM HOUSE, MULAMPALAM BHAGOM, MUNDAKAYAM.P.O, PIN-686515. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-05-2016, ALONG WITH MACA. 1694/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ. ========================== M.A.C.A. Nos.992 & 1694 OF 2012 ==========================** Dated this the 19[th] day of May, 2016 ## **JUDGMENT** ## **Ravikumar, J.** Both these appeals arise from the judgment and award dated 9.2.2012 in O.P.(MV).No.841 of 2009 passed by the Motor Accidents Claims Tribunal, Pala. The former appeal has been preferred by the insurer of the offending vehicle involved in the accident on being aggrieved by the fixation of the permanent disability by the Tribunal ignoring the fact that the claimant had failed to get examined himself or to examine the doctor who issued Ext.A6 medical certificate. The latter appeal has been preferred by the injured-claimant dissatisfied with the quantum of compensation granted under the impugned award and seeking its enhancement. For the sake of convenience, the parties **M.A.C.A.992 & 1694/2012** 2 are referred to hereinafter in this judgment in accordance with their status in O.P.(MV).No.841/2009, unless otherwise specifically mentioned. 2.The circumstances that led to the filing of the above mentioned claim petitions, in succinct, are as follows:- On 29.05.2009, the petitioner was riding his motor cycle bearing Reg.No.KL-5/Y-2173 in the direction of Mundakayam Tourist Bangalow. At about 9 p.m, when he reached in front of it, the offending vehicle, viz., a jeep bearing Reg.No.KL-6/A 6565, driven by the first respondent, coming from the opposite direction dashed on his motor cycle and consequently, the petitioner sustained injuries. He was taken to a local hospital and after giving first aid, he was referred to Mary Queens Hospital, Kanjirappally where he remained as an inpatient from 30.5.2009 to 4.6.2009. Both bones of his right leg were fractured in the accident. He has incurred a permanent disability of 12% as a result of the accident, going by Ext.A6 certificate. **M.A.C.A.992 & 1694/2012** 3 3.To establish his claim for a total compensation of `2,00,000/-, made in the claim petition filed under section 166 of the Motor Vehicles Act, the petitioner got marked Exts.A1 to A6, before the Tribunal. Both sides did not adduce any oral evidence and in fact, on the side of the respondents, no documentary evidence was also let in. The Tribunal, on evaluation of the evidence on record and appreciating the arguments advanced, passed the impugned award granting a total compensation of `1,56,383/- with interest @ 7.5% per annum from the date of the petition till realisation along with a cost of `3,000/-. As noticed hereinbefore, the captioned appeals have been filed on being aggrieved by the said judgment and award respectively by the third respondent and the petitioner. 4.We have heard the learned senior counsel Adv.Sri.Mathews Jacob appearing for the third respondent who is the appellant in the former appeal and Adv.Sri.Abraham Mathew appearing for the petitioner/ the appellant in the latter appeal. In the former appeal, the **M.A.C.A.992 & 1694/2012** 4 petitioner alone was made party and in the latter appeal, though the driver and the owner of the offending vehicle were made parties, notice to them was dispensed with, by this Court as per order dated 29.9.2015 as the insurance policy stands admitted by the third respondent. 5.The learned senior counsel appearing for the third respondent, the appellant in the former appeal contended that the Tribunal went wrong in assessing permanent disability for the purpose of arriving at the compensation for reduction in earning capacity. The learned senior counsel further contended that the petitioner had not chosen to adduce any oral evidence and in fact, the doctor who issued Ext.A6 medical certificate was also not examined. In such circumstances, the Tribunal ought not have accepted Ext.A6 medical certificate as an evidence on the part of the petitioner for having incurred permanent disability and at any rate, accepted the entire percentage of disability as certified under Ext.A6 for the purpose of assessing the compensation for **M.A.C.A.992 & 1694/2012** 5 permanent disability. It is contended by the learned counsel that, the petitioner is a Computer Operator. In such circumstances, the nature of permanent disability would not have and could not have caused any reduction in the earning capacity of the petitioner and further that the Tribunal had erred in fixing the percentage of reduction in earning capacity, even if it is taken that the disability had adversely affected his earning capacity. The learned senior counsel further contended that the compensation granted by the Tribunal under different heads are on the higher side as can be seen from the schedule of compensation given in the impugned judgment and hence, appellate interference is not called for. The learned counsel for the petitioner/the appellant in the latter appeal resisted all such contentions and submitted that the Tribunal has correctly assessed the percentage of permanent disability, but failed to compensate the petitioner appropriately under the said head as also on all other grounds and therefore, the petitioner is entitled to get enhancement of the quantum of compensation. In the light of the contentions thus **M.A.C.A.992 & 1694/2012** 6 raised by the learned counsel on both sides, we are of the view that it will only be appropriate to consider the rival contentions jointly. 6.The learned counsel for the claimant contended that taking into account the fact that in the accident both bones of the right leg of the claimant were fractured, even in the absence of his examination and the doctor who issued Ext.A6 certificate, the Tribunal cannot be found fault with in accepting the entire percentage of disability certified under Ext.A6. As noticed hereinbefore, it is also contended by the learned senior counsel that the monthly income was fixed notionally by the Tribunal on the lower side ignoring the specific averments in the claim petition to the effect that the petitioner was working as Computer Operator and was earning a monthly income of `7,500/-. The evidence on record would undoubtedly reveal that despite taking up such contentions regarding occupation and income, the petitioner had not chosen to adduce any evidence to establish such averments. Therefore, we are of the view that the Tribunal cannot be **M.A.C.A.992 & 1694/2012** 7 found fault with, in fixing the monthly income notionally for the purpose of computing the compensation payable to the petitioner. At the same time, the question is whether fixation of the monthly income as ` 4,500/- requires appellate interference. In this context, it is pertinent to note that the petitioner was aged only 20 years on the day of the accident. Obviously, the Tribunal fixed the monthly income of the appellant notionally at `4,500/-. For considering the question whether such fixation invites appellate interference, it is only apposite to refer to the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** That was a case where the Hon'ble Apex Court, in respect of a coolie who met with an accident in the year 2004, fixed his monthly income notionally at `4,500/- for calculation purpose. Taking into account the age of the appellant and also the year of the accident viz., 2009, we do not find any justification in fixing the compensation lower than the said amount fixed by the Apex Court in **Ramachandrappa** 's case and according to us, taking into account the age of the petitioner and **M.A.C.A.992 & 1694/2012** 8 the date of the accident, the monthly income ought to have been fixed as ` 5,000/-. Accordingly, we fix the monthly income of the petitioner notionally at `5,000/-. The learned counsel appearing for the appellant/petitioner submitted that the Tribunal wrongly identified the multiplier as 16. It is submitted that in the light of the decision of the Hon'ble Apex Court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** the multiplier ought to have been 18 taking into account the fact that the appellant was only aged 20 years on the day of the accident. In the light of the decision in **Sarla Verma** 's case, we ween that there is substance in the said contention. Going by the decision in **Sarla Verma** 's case, multiplier ought to have been fixed as 18 with reference to the age of the appellant. Accordingly, we fix the multiplier as 18. As regards the fixation of permanent disability while the insurer contended that the Tribunal went wrong in accepting the entire percentage of permanent disability certified under Ext.A6 for the purpose of determining the percentage of reduction in earning capacity, the learned counsel for the petitioner contended that the **M.A.C.A.992 & 1694/2012** 9 Tribunal has correctly accepted the entire percentage of permanent disability certified thereunder. But before considering the said question, the issue whether the appellant is entitled to get compensation under the head reduction in earning capacity or whether he is entitled to get compensation for permanent disability has to be considered. Going by the contention of the appellant, he was working as a Computer Operator. True that he had not adduced any evidence to establish the same. But at the same time, if he is a person engaged in such avocation, owing to the nature of permanent disability incurred by him as certified under Ext.A6, it could not be said that it would cause any reduction in his earning capacity. But at the same time, it is a fact that in the accident both bones of his right leg got fractured. In such circumstances, we are of the considered view that non-examination of the petitioner-injured or the non-examination of the doctor who issued Ext.A6 certificate could not have been a reason for assessing the permanent disability when the medical records would go to show that both the bones of his right leg got fractured in **M.A.C.A.992 & 1694/2012** 10 the accident and when the Tribunal on getting convinced of the fact that he had incurred disability held that the accident had resulted in permanent disability. True that, in the light of the decision in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620],** the learned counsel is justified in contending that the entire percentage ought not have been accepted blindly for the purpose of assessing the percentage of reduction in earning capacity. A scanning of the impugned judgment would reveal that there is absolute absence of any discussion as to why the entire percentage of disability certified under Ext.A6 was taken into account by the Tribunal and that too, for the purpose of calculating compensation for the reduction in earning capacity. We have already found that going by the nature of the contentions taken up by the petitioner in the claim petition and taking into account the nature of the injuries sustained by him in the accident, it cannot be said that owing to the accident any reduction in his earning capacity had occurred, especially taking into account his version that he was a Computer Operator. But at the same time, considering the fact that **M.A.C.A.992 & 1694/2012** 11 both bones of the petitioner got fractured in the accident, we are of the view that 10% of permanent disability can be taken into account for the purpose of computing compensation. We have already found that the Tribunal went wrong in identifying the multiplier as 16 and it ought to have been fixed as 18. In the light of the fixation of the monthly income notionally at `5,000/- and taking into account the fact that with reference to his age, the multiplier ought to have been fixed as 18 and that the percentage of permanent disability is 10%, the compensation payable for the permanent disability incurred by him has to be assessed. In the light of the aforesaid circumstances, taking into account the aforesaid factors, the appellant is entitled to get an amount of `1,08,000/- under the said head (5000x12x18x10/100). As noticed hereinbefore, the Tribunal has granted an amount of `1,03,680/- under the head 'reduction in earning capacity'. After deducting the amount already granted by the Tribunal the appellant is entitled to get an amount of `4,320/- for the permanent disability incurred by him in the accident. In view of the fact that we have fixed **M.A.C.A.992 & 1694/2012** 12 the monthly income of the appellant notionally at `5,000/- he is entitled to get enhancement in compensation for loss of earnings, as well. Evidently, the Tribunal took the period of loss of earning only as three months. However, taking note of the fact that in the accident both bones of his leg were got fractured, we are of the view that the period of loss of earnings ought to have been taken as 4 months. The Tribunal granted an amount of `13,500/- taking the monthly income as ` 4,500/- and taking the period as three months. After deducting the said amount granted by the Tribunal, the appellant would be entitled to get `6,500/- additionally under that head, in the circumstances. Towards pain and suffering the appellant claimed an amount of `50,000/- and the Tribunal granted an amount of `8,000/-. Taking into account the injuries sustained and the nature of the injuries and the period of his treatment, we are of the view that the amount granted by the Tribunal under the head pain and suffering is too low. The petitioner must have experienced excruciating pain and discomforture owing to the injuries sustained by him. Taking into **M.A.C.A.992 & 1694/2012** 13 account such circumstances, we are of the view that the appellant is entitled to get an amount of `20,000/- towards pain and suffering. After deducting the amount already granted by the Tribunal viz., `8,000/-, the petitioner would be entitled to get an amount of `12,000/- more under that head. Towards loss of amenities, the petitioner claimed an amount of `50,000/-, but the Tribunal granted only an amount of `7,000/-. Taking into account the injuries sustained by the petitioner, it is evident that he must have experienced great hardships and discomforture. At any rate, he might not be able to enjoy his life as before. In such circumstances, we are of the view that the petitioner is entitled to get `3,000/- more under the said head. In the light of the discussions as above, the appellant is entitled to get an enhanced amount of `25,820/- rounded off to `26,000/- over and above the amount covered by the impugned award. The enhanced amount will carry interest at 8% per annum from the date of the petition till realisation. In the light of the above discussions, the former appeal is allowed only to the extent it raised challenge against **M.A.C.A.992 & 1694/2012** 14 the fixation of the permanent disability by the Tribunal and that too, only to the extent mentioned hereinbefore. In all other respects the said appeal stands dismissed. The latter appeal is allowed as above and the claimant is found entitled to get `26,000/- as enhanced compensation. The third respondent shall deposit the enhanced amount within a period of two months from the date of receipt of a copy of this judgment. In case of failure to pay the amount within the stipulated time, it will carry interest @ 9% from the date of the petition. There will be no order as to costs. ## **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** ## **K. P. JYOTHINDRANATH (JUDGE)** **spc/** # **M.A.C.A.992 & 1694/2012** 15 **M.A.C.A.992 & 1694/2012** 16 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **M.A.C.A.992 & 1694/2012** 17