Kerala High Court
C.G.Sura vs Kabeerkhan on 5 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TH
FRIDAY, THE 5 DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
MACA NO. 3945 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 18.05.2019 IN OPMV NO.743 OF 2017
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/PETITIONER:
C.G.SURA,
AGED 49 YEARS
S/O GOPALAN @ GOPALAKRISHNAN, CHENNATTU HOUSE,
ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT, PIN-686 673.
BY ADVS.
T.K.KOSHY
SMT.V.V.RISANI
RESPONDENTS/RESPONDENTS 1 TO 3:
1 KABEERKHAN,
S/O BAVA RAWTHER, POTTEKANDATHIL HOUSE,
NEAR NGO QUARTERS, MOOVATTUPUZHA,
ERNAKULAM DISTRICT, PIN-686 661.
2 AKHIL BABU,
PANTHANTAZIKAM HOUSE, VALATHUNGAL P.O, ERAVIPURAM
VILLAGE, KOLLAM , PIN-691 018.
3 THE NEW INDIA ASSURANCE CO LTD,
HIGH RANGE JN, KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN-686 691.
SRI.LAL K JOSEPH
SMT.M.HEMALATHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
M.A.C.A. No.3945 of 2019
C.S.SUDHA, J.
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M.A.C.A. No.3945 of 2019
----------------------------------------------------
Dated this the 5th day of April, 2024
JUDGMENT
This appeal under Section 173 of the Motor Vehicles Act,
1988 (the Act) has been filed by the claimant in O.P.(MV)
No.743/2017 on the file of the Motor Accidents Claims Tribunal,
Muvattupuzha, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 18/05/2019. 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 17/06/2017 at 3:30 p.m.,
he was riding motorcycle bearing registration No.KL-17/Q 6094
along the MC road and when he reached the place by name
Kavumkara near E.E.C. market junction, a heavy goods vehicle, a
tipper, bearing registration No.KL-17/P-1681 driven by the 2nd
respondent in a rash and negligent manner knocked him down and
ran over his right leg causing serious injuries to him. The 1 st
respondent owner, the 2nd respondent driver and the 3rd respondent
insurer of the offending vehicle are jointly and severally liable to
compensate the petitioner. Hence, the petitioner claimed an amount
of ₹5,50,000/- as compensation under various heads.
3. Respondents 1 and 2 remained ex parte. The third
respondent insurer filed written statement admitting the insurance
policy of the vehicle but denying the liability.
4. Before the Tribunal, no oral evidence was adduced by
either side. Exts.A1 to A12 were marked on the side of the
petitioner. Ext.B1 was marked on the side of the 3 rd respondent.
Ext.C1, the disability certificate issued by the Medical Board, Taluk
Head Quarters Hospital, Kothamangalam, has also been marked.
5. The Tribunal on a consideration of the documentary
evidence and after hearing both sides, found negligence on the part
of the second respondent resulting in the accident and hence awarded
an amount of ₹2,96,000/- with interest @ 7% 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 challenges
the Award of the Tribunal under the following heads-
Notional income
It is submitted by the learned counsel for the petitioner that
Exts.A10 and A11, the income tax returns of the petitioner, clearly
proves his annual income. However, the Tribunal has wrongly
rejected the same. The petitioner relies on the decision of the Apex
Court in United India Insurance Co. Ltd. v. Indiro Devi, AIR
2018 SC 3107 to canvas the point that income tax returns are the
best evidence that can be adduced by the petitioner to establish his
income. Per contra, it is submitted by the learned counsel for the 3 rd
respondent-insurer that Exts.A10 and A11 documents have been
made to suit the contentions of the petitioner in the case and that they
do not reflect the actual income of the petitioner. It is also pointed
out that the income of the petitioner, which is the commission
received by him as the collection agent of the Kerala State Financial
Corporation (KSFE) would vary from month to month depending on
the number of subscribers he is able to canvass for the KSFE and so
a fixed amount cannot be taken as commission for all the months.
8.1. The marking of Exts.A10 and A11 income tax returns had
been objected to by the 3rd respondent insurer when the same was
attempted to be brought in evidence and hence the same was marked
subject to the objections raised. As per Exts.A10 and A11, the
annual income of the petitioner from the commission received is
stated to be ₹2,73,762/- and ₹2,83,245/- respectively. None of the
officials of the KSFE were examined to prove the commission that
had been received by the petitioner. It was submitted by the learned
counsel for the petitioner that once the documents are marked and
admitted in evidence, they stand proved and hence there is no embargo
on relying on the same. I disagree. It is well settled that mere
production and marking of a document as exhibit by the court cannot
be held to be due proof of its contents. Its execution has to be proved
by admissible evidence that is by the 'evidence of those persons who
can vouchsafe for the truth of the facts in issue'. The situation is,
however, different where the documents are produced, they are
admitted by the opposite party, signatures on them are also admitted
and they are marked thereafter as exhibits by the court. (See
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003 KHC
1695: 2003 (8) SCC 745; Sait Tarajee Khimchand v. Yelamarti
Satyam, 1972 KHC 723: 1972 (4) SCC 562; Narbada Devi Gupta
v. Birendra Kumar Jaiswal, 2003 KHC 1695: 2003 (8) SCC 745;
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 KHC
6268 :2023 KHC OnLine 6268: 2023 LiveLaw (SC) 211).
8.2. Further, as held by the Apex court in Harendra Rai
v. State of Bihar, 2023 KHC 6782: 2023 INSC 738, at the stage of
evidence, when any document / paper is formally produced for being
treated as a piece of evidence, the Court looks at two basic aspects.
Firstly, the existence of the document on the Court's record and,
secondly, the proof of its execution or its contents being sufficiently
deposed to by a witness having requisite knowledge thereof,
whereafter, the document in question is marked as exhibit. At the
stage of exhibiting any document as a piece of evidence, the truth of
what is stated in the document is not considered. It is left open to
final evaluation at the trial after cross - examination, and the entire
testimony of the witness about the existence and contents of the
document is weighed in conjunction with various other factors
emerging during a trial. At the final evaluation stage, the trial court
concludes whether the document speaks the truth and decides what
weight to give it for final decision. In other words, its evidentiary
value is analysed by the Courts at the time of final judgment. In this
view of the matter, the marking of a piece of evidence as 'exhibit' at
the stage of evidence in a trial proceeding is only for the purpose of
identification of evidence adduced in the trial and for the
convenience of the Court and other stakeholders to get a clear picture
of what is being produced as evidence in a trial proceeding. That
being the position, Exts.A10 and A11 cannot be relied on.
8.3. It is pointed out by the learned counsel for the 3rd
respondent-insurer that if at all this Court finds that the notional
income fixed by the Tribunal needs to be modified, the dictum in
Ramachandrappa v. Manager, Royal Sundaram Allian. Co. Ltd,
(2011) 13 SCC 236 can be relied on. As Exts.A10 and A11 have not
been proved, they cannot be relied on. Therefore, in the absence of
evidence to prove income, the dictum in Ramachandrappa (Supra)
can be followed coupled with a hike of ₹ 500/- every year. The
incident took place on 17/06/2017 and hence the notional income of
the petitioner in the year 2017 is fixed at ₹11,000/- per month.
9. Loss of earnings- It is submitted by the learned counsel
for the petitioner that not only was the petitioner hospitalized for a
period of 9 days, that is, from 17/06/2017 to 26/06/2017, he also had
to undergo a surgery on his right leg, which has not been taken into
consideration by the Tribunal. He submits that a period of at least
four months was required to recover during which period there was
loss of earnings. In the light of the injuries and the surgery
undergone, four months seem to be quite a reasonable period and
hence, I find that the petitioner is entitled to loss of earnings for a
period of four months at the rate of ₹11,000/- per month, that is,
₹44,000/-.
10. Attendant expenses- It is pointed out that the accident
took place in the year 2017 and therefore, the attendant charges at
the rate of ₹300/- granted by the Tribunal is low. The attendant
expenses at the rate of ₹400/- for a period of 9 days is granted,
considering the fact that the petitioner had to undergo a surgery also.
11. Pain and suffering- It is further pointed out by the
learned counsel for the petitioner that the Tribunal had taken into
account only the nature of injuries sustained by the petitioner and
omitted to take note of the fact that the petitioner had also undergone
a surgery, which was quite painful. Therefore, the amount of
₹20,000/- granted is too meagre. In the light of the injuries sustained
by the petitioner, that is, a fracture and the fact that he had to
undergo a surgery and an implant, an amount of ₹50,000/- would be
a reasonable amount under this head.
12. Permanent disability/loss of future prospects/earning
power- It is pointed out that as per Ext.C1 disability certificate, the
petitioner is stated to have sustained disability of 26%. However, the
Tribunal without giving any reasons scaled down the disability to
10%. The petitioner has developed 'foot drop syndrome', pursuant to
the sustaining the accident. This has considerably affected the
discharge of his duties as a collection agent who has to travel
extensively in connection with his work. In the light of the nature of
his work, there is certainly loss of future earnings and hence the
Tribunal was wrong in not granting compensation under this head,
goes the argument. On the other hand, the learned counsel for the 3 rd
respondent-insurer submitted that the percentage of disability noted
in Ext.C1 is on the higher side and hence, the Tribunal was justified
in reducing the percentage of disability to 10%.
12.1. The opinion of the Medical Board in Ext.C1 reads -
"....... found that he is Orthopedics handicapped
by delayed union right tibia with implant in situ
with foot drop (right) the Permanent Disability is
26% (Twenty Six percentage)
Belong to MID category."
The certificate does not make it clear as to whether it is a whole-
body disability or functional disability or whether disability of 26%
has been caused to a particular limb. At the bottom of the certificate,
it is also stated that the disability is less than 40% and that it is mid
category. As held in Rajkumar v. Ajay Kumar, (2011) 1 SCC
343, where the claimant suffers a permanent disability because of the
injuries, the assessment of compensation under the head of loss of
future earnings, would depend upon the effect and impact of such
permanent disability on his earning capacity. What needs to be
assessed by the Tribunal is the effect of the permanent disability on
the earning capacity of the injured. The doctor who treated an
injured / claimant or who examined him subsequently to assess the
extent of his permanent disability can give evidence only regarding
the extent of permanent disability. The loss of earning capacity is
something that will have to be assessed by the Tribunal with
reference to the evidence in entirety. The manner in which the effect
of permanent disability on the actual earning capacity has to be
ascertained has been explained thus- the effect of the permanent
disability on the actual earning capacity involves three steps- (i) the
Tribunal has to first ascertain what activities the claimant could carry
on in spite of the permanent disability and what he could not do as a
result of the permanent ability (this is also relevant for awarding
compensation under the head of loss of amenities of life). (ii) to
ascertain his avocation, profession, and nature of work before the
accident, as also his age. (iii) to find out whether (a) the claimant is
totally disabled from earning any kind of livelihood, or (b) whether
in spite of the permanent disability, the claimant could still
effectively carry on the activities and functions, which he was earlier
carrying on, or (c) whether he was prevented or restricted from
discharging his previous activities and functions, but could carry on
some other or lesser scale of activities and functions so that he
continues to earn or can continue to earn his livelihood. For example,
if the left hand of a claimant is amputated, the permanent physical or
functional disablement may be assessed around 60%. If the claimant
was a driver or a carpenter, the actual loss of earning capacity may
virtually be hundred percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a clerk in
Government service, the loss of his left hand may not result in loss
of employment and he may still be continued as a clerk as he could
perform his clerical functions; and in that event the loss of earning
capacity will not be 100% as in the case of a driver or carpenter, nor
60% which is the actual physical disability, but far less. In fact, there
may not be any need to award any compensation under the head of
'loss of future earnings', if the claimant continues in Government
service, though he may be awarded compensation under the head of
loss of amenities as a consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but may not be found
suitable for discharging the duties attached to the post or job which
he was earlier holding, on account of his disability, and may
therefore be shifted to some other suitable but lesser post with lesser
emoluments, in which case there should be a limited award under the
head of loss of future earning capacity, taking note of the reduced
earning capacity. It may be noted that when compensation is
awarded by treating the loss of future earning capacity as 100% (or
even anything more than 50%), the need to award compensation
separately under the head of loss of amenities or loss of expectation
of life may disappear and as a result, only a token or nominal amount
may have to be awarded under the head of loss of amenities or loss
of expectation of life, as otherwise there may be a duplication in the
award of compensation.
12.2. No evidence has been brought in to prove that pursuant
to the accident the work of the petitioner has suffered. This could
have been proved by examining any of the officials of the KSFE to
show that the rate of Commission received by him has come down.
In the absence of any such evidence, I find that the percentage of
disability of 10% fixed by the Tribunal is appropriate.
13. Loss of amenities and enjoyment in life- The amount of
₹15,000/- awarded under this head is also challenged. In the light of
the fact that the petitioner had to undergo a surgery and as he was
hospitalized for a period of 9 days, an amount of ₹20,000/- towards
loss of amenities and enjoyment in life would be reasonable, out of
which ₹15,000 has already been granted by the tribunal.
14. The impugned Award is partly modified thus -
Sl. Head of Amount Amount Modified in appeal
No. claim claimed awarded by
Tribunal
1. Loss of ₹1,20,000/- ₹27,000/- ₹44,000/-
earnings for [11,000 x 4
a period of 6 months]
months (27,000+17,000)
of earnings (No modification)
3. Transport to ₹3,500/- ₹3,000/- ₹3,000/-
hospital (No modification)
4. Extra ₹4,000/- ₹4,000/- ₹4,000/-
nourishment (No modification)
5. Damage to ₹1,000/- ₹1,000/- ₹1,000/-
clothing (No modification)
6. Medical ₹60,000/- ₹82,835.50/- ₹82,835.50/-
expenses (No modification)
7. Attendant ₹6,500/- ₹2,700/- ₹3,600/-
expenses (400 x 9 days)
(2,700+900)
8. Pain and ₹75,000/- ₹20,000/- ₹50,000/-
sufferings (20,000+30,000)
9. Continuing ₹1,50,000/- ₹1,40,400/- ₹1,40,400/-
and (No modification)
permanent
disability
earning (No modification)
power
11. Loss of ₹50,000/- ₹15,000/- ₹20,000/-
amenities (15,000+5,000)
and
enjoyment in
life
Total ₹5,80,000/- ₹2,95,935.50/ ₹3,48,835.50/-
-
Claim is ₹5,50,000/-
limited to
In the result, the appeal is allowed in part by enhancing the
compensation by a further amount of ₹52,900/- (total compensation
₹3,48,835.50/-, that is, ₹2,95,935.50/- granted by the Tribunal +
₹52,900/-granted in appeal) with interest at the rate of 7.5% per
annum from 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
NP
