Kerala High Court
Thomas Joseph vs Biju Mathew on 27 March, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 27TH 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 27th day of March 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.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
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
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
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.
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.
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
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
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 co-
ordinated 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.
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)
(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
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
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. Head of claim Amount Amount Modified in
No. claimed awarded by appeal
Tribunal
1. Loss of earning ₹70,000/- ₹27,000/- ₹31,500/-
[₹10,500/- x
3(M)]
2. Partial loss of - - -
earning (No
modification)
3. Transport to ₹10,000/- ₹15,000/- ₹15,000/-
hospitals (No
modification)
4. Extra nourishment ₹5,000/- - ₹ 1,500/-
5. Damages ₹15,000/- - -
(damages (No
sustained to the modification)
motorcycle of the
petitioner)
6. Damage to - ₹750/- ₹750/-
clothing (No
modification)
7. Medical expenses ₹2,50,000/- ₹1,42,500/- ₹1,42,500/-
Bystander's ₹2,400/- ₹2,400/-
expenses (No
modification)
8. Compensation for ₹30,000/- ₹15,000/- ₹15,000/-
pain and sufferings (No
modification)
9. Compensation for ₹3,00,000/- - -
continuing of (No
permanent modification)
disability
10. Compensation for ₹1,00,000/- - -
loss of earning (No
power/amenities modification)
11. Compensation for - ₹50,000/- ₹50,000/-
loss of amenities
and conveniences (No
of life modification)
Total ₹7,80,000/ ₹2,52,650/- ₹2,58,650/-
Claim
Limited to
Amount Awarded ₹5,00,000/-
[ * 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
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
