Thomas Joseph v. Biju Mathew and others (MACA No. 341 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 MACA NO. 341 OF 2019** **AGAINST THE AWARD IN O.P.MV NO.227/2017 DATED 28.11.2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/APPLICANT:** **THOMAS JOSEPH AGED 49 YEARS S/O. JOSEPH, VADAYATTUKUNNEL HOSUE, VELLARIKUNDU P.O., PARAPPA VIA, KASARAGODE-671 533. BY ADVS. SUBHASH CYRIAC SMTSHEEBA JOSEPH SRI.S.SREEJITH (S-3453)** ## **RESPONDENTS/RESPONDENTS:** - **1 BIJU MATHEW AGED 47 YEARS S/O MATHAI, ORAPPANGAL HOUSE, NOOTTAR, RAJAPURAM P.O., PIN-671 532, KASARAGODE DISTRICT.** - **2 DERIC JOSE ORAPPANGAL HOSUE, PEROLE, NILESHWAR P.O., KASARAGODE DISTRICT-671 314.** - **3 THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LTD., 1ST FLOOR, CITY PLAZA, MARKET JUNCTION, NILESHWAR, KASARAGODE DISTRICT, 671 314.** **BY ADV SRI.A.C.DEVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **M.A.C.A.No.341 of 2019** ## **C.S.SUDHA, J.** **-----------------------------------M.A.C.A.No.341 of 2019 ---------------------------------------------------Dated this the 27[th] day of March 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P. (MV)No.227/2017 on the file of the Motor Accidents Claims Tribunal, Kasaragod, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 28/11/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 28/09/2016 at about 01:30 p.m., while he was riding motor cycle bearing No.KL-60 E- 2494 through Kanhagad – Panathur State highway and when he reached the place by name Rajapuram, a jeep bearing registration No.KL-14-A6858 driven by the first respondent in a rash and 3 ## **M.A.C.A.No.341 of 2019** negligent manner, abruptly took a turn to the right without giving any signal as a result of which the jeep hit the motorcycle resulting in causing serious injuries to the petitioner. The first respondent driver, the second respondent owner and the third respondent insurer of the offending vehicle are jointly and severally liable to compensate the petitioner. Hence the petitioner claimed an amount of ₹5 lakhs as compensation under various heads. 3. The first and the second respondents filed written statements denying any negligence on the part of the driver of the jeep. The third respondent/insurer admitted that the offending vehicle had a valid insurance policy at the time of the incident. It was however alleged that the incident occurred due to the negligence of the petitioner when he tried to overtake the jeep. 4. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A11 series were marked on the side of the petitioner. The medical certificate issued by the District Disability Board, District Hospital, Kanhagad has been marked as Ext.X1. 5. The Tribunal on a consideration of the documentary 4 ## **M.A.C.A.No.341 of 2019** evidence and after hearing both sides, found negligence on the part of the first respondent resulting in the incident and hence awarded an amount of ₹2,52,650/- with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the petitioner has come up in appeal. 6. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 7. Heard both sides. 8. The learned counsel for the petitioner/injured submitted that though the petitioner had produced Ext.A7 certificate dated 20/12/2016 to prove his income, the Tribunal without considering the same fixed the monthly income of the petitioner at ₹9,000/-, which is incorrect and wrong and therefore the said finding requires to be interfered with. _Per contra_ , it is submitted by the learned counsel for the respondent that the income has been properly assessed and that the finding requires no interference. 9. The petitioner is stated to have been a Field Executive 5 ## **M.A.C.A.No.341 of 2019** of 'Niravath Jubily Chits' when the incident took place on 28/09/2016. As per Ext.A7 certificate, the monthly income of the petitioner is stated to be ₹14,000/-. The learned counsel for the petitioner submitted that when the document was marked in evidence, the same was never objected to by the respondent and so at this stage, the document cannot be objected to and that this court can base its finding on the document. Mere marking of a document will not prove its contents. Ext.A7 is seen issued by the Branch Manager, Vellarikundu, Niravath Jubily Chits India Pvt. Ltd. But he was not examined to prove Ext.A7. In the said circumstance the Tribunal rightly declined to rely on Ext.A7, which finding calls for no interference. 10. In the absence of any other evidence or precedent(s) cited to prove the income of the petitioner, the dictum in **Ramachandrappa v. Manager, Royal Sundaram Allian. Co. Ltd, (2011) 13 SCC 236,** can be followed. Thus, the monthly income of the petitioner can be fixed at ₹10,500/- per month. To that extent the Award requires interference. 6 ## **M.A.C.A.No.341 of 2019** 11. It is submitted by the learned counsel for the petitioner that though the petitioner had produced Ext.X1 disability certificate issued by the Medical Board, which shows that the petitioner had 52% permanent disability , the Tribunal ignored the same and failed to grant any compensation for the disability caused on the ground that the petitioner not being a manual labourer, the disability noted would not materially affect his earning power. This finding, according to the petitioner, is wrong because the petitioner, a field executive, has to travel extensively which travel can only be in a vehicle like a two-wheeler, as he was at the time of the incident. The injuries caused have resulted in a disability of 52% of the left upper limb due to which it is quite difficult for the petitioner to travel around in a two-wheeler, which has considerably affected his future prospects and hence compensation ought to have been granted by the Tribunal, goes the argument. Reference was made to **Sarnan Singh v. Shriram General Insurance Company Ltd., AIR 2023 SC 3601** to substantiate this argument. 7 ## **M.A.C.A.No.341 of 2019** 12. In **Sarnan Singh** ( _Supra_ ), it has been held that any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person who suffered the disability. That was a case where the injured had suffered injuries in a road accident due to which his right lower limb had to be amputated. The disability certificate showed his permanent physical disability at 85% with a further note that the condition was not likely to improve, and no further reassessment was required. The injured was working as a gun man in a hotel. The Apex court taking into account the fact that the injured had been terminated from his employment and also taking into account the fact that the petitioner in future would be unable to perform the duty of a gun man, confirmed the findings of the Tribunal to the effect that there was loss of earning capacity of 100% and held that the Appellate Court was in error in reducing the loss of earning capacity to 80%. 13. It is true that physical disability resulting from an accident has to be judged with reference to the nature of work 8 ## **M.A.C.A.No.341 of 2019** being performed by the person who suffered the disability. The injuries sustained by the petitioner, who was 48 years old at the time of the incident, noted in Ext.A4 wound certificate dated 28/09/2016 are - _“(1) Supraspinatus tendon full thickness rupture (L) side_ _(1.2) Abrasion 2 x 1 cm over dorsum of (L) hand Initially treated at ACME, Pariyaram.”_ ## Ext.X1 certificate dated 13/06/2018 issued by the Chairman, District Medical Board, Kanhangad states thus - _“Supraspinatus tendon tear (left) shoulder and underwent Arthroscopic Rotator cuff repair left shoulder on 06/10/2016. Now he has got limitation of range of movements of Left shoulder joint, Left elbow joint, partially affected the co-ordinated activities of Left upper limb. His left hand functions within normal limit. The permanent locomotor impairment 52% (Fifty two percent) in relation to his left lower limb_ .” (Emphasis supplied) Going by the petitioner’s case, the impairment is of his left upper limb. But Ext.X1 says that the permanent locomotor impairment 9 ## **M.A.C.A.No.341 of 2019** of 52% is of his left lower limb. The doctor who issued the disability certificate was not examined to prove Ext.X1. Mere production of a disability certificate is not proof of the extent of disability stated therein unless the doctor is tendered for cross examination with reference to the certificate. It is true that where certificates are not contested by the respondents and they are marked on consent, oral evidence can be dispensed with. [See **Raj Kumar v. Ajay kumar** , **(2011) 1 SCC 343]** . But in the present case in the light of the aforesaid discrepancy in Ext. X1, the doctor ought to have been examined to clarify the discrepancy. Moreover, even if Ext.X1 is accepted _in toto_ , the same does not help the petitioner because it says that though the petitioner has got limitation of range of movements of left shoulder joint, left elbow joint and that the injuries have partially affected the coordinated activities of the left upper limb, his left hand functions are within normal limits. Therefore there is no material on record to show that there has been loss of earning capacity of the petitioner. 10 ## **M.A.C.A.No.341 of 2019** 14. There is yet another reason why the petitioner cannot be granted compensation under this head. In **Raj Kumar** ( _Supra_ ) which has been followed by a three-judge bench in **Anthony Swami v. M.D., KSRTC (2020)7 SCC 161,** the Apex Court has explained the heads under which compensation can be awarded in personal injury cases. They are- 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 of: - (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) 11 ## **M.A.C.A.No.341 of 2019** - (iv) Damages for pain, suffering and trauma because of the injuries. (v) Loss of amenities (and / or loss of prospects of marriage). - (vi) Loss of expectation of life (shortening of normal longevity). It has been held that in routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv), that is, expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure; loss of earning during the period of treatment and damages for pain, suffering and trauma due to the injuries. It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi), that is, relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and / or loss of prospects of marriage) and loss of expectation of 12 ## **M.A.C.A.No.341 of 2019** life. The case of the petitioner apparently does not call for invoking clauses (ii)(b), (iii), (v) and (vi) aforementioned. Compensation has been awarded under heads (i), (ii)(a) and (iv), that is, expenses relating to treatment, hospitalization, medicines, transportation, miscellaneous expenditure, loss of earning during the period of treatment and damages for pain, suffering and trauma due to the injuries. It is true that though ₹5,000/- was sought towards extra nourishment, nothing has been granted by the Tribunal. In the facts and circumstances of the case, I think an amount of ₹1,500/-towards this head would be adequate. 15. It is also submitted by the learned counsel for the petitioner that the amount of ₹15,000/- granted for pain and suffering is too low. My attention was drawn to paragraph 8 of the impugned Award in which the Tribunal has recorded that the petitioner who was present before the Tribunal on 02/11/2018 reported restricted left shoulder joint movements due to pain and stiffness. Referring to this it was argued that even after two years of the date of the incident, the petitioner continued to have pain 13 ## **M.A.C.A.No.341 of 2019** and stiffness due to the injuries sustained in the incident and therefore, the amount of ₹15,000/- granted towards pain and suffering is too meager amount and hence the same needs to be increased to at least ₹30,000/-. In the light of the injuries sustained to which I have already adverted to above, I find that the amount of ₹15,000/- granted by the Tribunal towards pain and suffering is adequate. ## 16. The impugned Award is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified<br>in<br>appeal| |---|---|---|---|---| |1.|Loss of earning|₹70,000/-|₹27,000/-|₹31,500/-<br>[₹10,500/- x<br>3(M)]| |2.|Partial loss of<br>earning|-|-|-<br>(No<br>modification)| |3.|Transport<br>to<br>hospitals|₹10,000/-|₹15,000/-|₹15,000/-<br>(No<br>modification)| |4.|Extra nourishment|₹5,000/-|-|₹ 1,500/-| |5.|Damages<br>(damages<br>sustained to the<br>motorcycle of the<br>petitioner)|₹15,000/-|-|-<br>(No<br>modification)| 14 ## **M.A.C.A.No.341 of 2019** |6.|Damage<br>to<br>clothing|-|₹750/-|₹750/-<br>(No<br>modification)| |---|---|---|---|---| |7.|Medical expenses<br>Bystander's<br>expenses|₹2,50,000/-|₹1,42,500/-<br>₹2,400/-|₹1,42,500/-<br>₹2,400/-<br>(No<br>modification)| |8.|Compensation for<br>pain and sufferings|₹30,000/-|₹15,000/-|₹15,000/-<br>(No<br>modification)| |9.|Compensation for<br>continuing<br>of<br>permanent<br>disability|₹3,00,000/-|-|-<br>(No<br>modification)| |10.|Compensation for<br>loss of earning<br>power/amenities|₹1,00,000/-|-|-<br>(No<br>modification)| |11.|Compensation for<br>loss of amenities<br>and conveniences<br>of life|-|₹50,000/-|₹50,000/-<br>(No<br>modification)| ||Total<br>Claim<br>Limited to<br>Amount Awarded|₹7,80,000/<br>₹5,00,000/-|₹2,52,650/-|₹2,58,650/-| ## [ * M – Month] In the result, the appeal is allowed in part by enhancing the compensation by a further amount of ₹6,000/- (total compensation ₹2,58,650/-, that is, ₹2,52,650//- granted by the Tribunal + ₹6000/- granted in appeal) with interest at the rate of 7.5% per annum from 15 ## **M.A.C.A.No.341 of 2019** the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the petitioner/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **Sd/C.S. SUDHA JUDGE** Jms