Kerala High Court
Vishnu vs S.Balamurugan on 10 October, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 527 OF 2021
AGAINST THE COMMON AWARD DATED 08.09.2020 IN O.P.(M.V.)
NO.1505 OF 2013 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL III, THIRUVANANTHAPURAM
APPELLANT/PETITIONER:
VISHNU
AGED 25 YEARS
S/O BHASKARAN, PACHIKKODE, CHANILKARA VEEDU,
VAZHIMUKKU, ATHIYANOOR VILLAGE,
THIRUVANANTHAPURAM-695501.
BY ADVS.
A.R.NIMOD
SRI.M.A.AUGUSTINE
RESPONDENTS/RESPONDENTS:
1 S.BALAMURUGAN
S/O.A.SAKTHIVEL, NO.4C.B.C.ROAD, PONMARI NAGAR,
VENKATACHALAPURAM,MADURAI-625011
(OWNER OF THE BUS BEARING NO.TN-59-AM-9996)
2 THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD, MALANKARA BUILDING,
PALAYAM, THIRUVANANTHAPURAM-695034
(POLICY ISSUED FROM MADURAI BRANCH),
(INSURER OF BUS BEARING REGISTRATION TN-59/AM-9996.
POLICY NO.090200/31/12/01/00006466)
BY ADV
SMT.S.JAYASREE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 10.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 527 OF 2021 -2-
2024:KER:75615
JUDGMENT
The claimant in O.P.(M.V.) No.1505 of 2013 on the file of the Additional Motor Accident Claims Tribunal III, Thiruvananthapuram is the appellant. Two claim petitions arising out of one single accident were tried jointly in the trial court. The appellant is the claimant in O.P.(M.V.) No.1505 of 2013. He was riding a motorcycle along the Vizhinjam - Kovalam Public Road on 28.04.2013 and when he reached at Vijaya Bank at Vizhinjam, a tourist bus bearing Registration No.TN 59 AM 9996 knocked him down. As a result, the claimant fell down and sustained injury. According to the claimant - appellant, the accident occurred due to rash and negligent driving of the offending vehicle. The insurance company entered appearance and contested the claimant and denied the allegation that the accident was caused due to rash and negligent driving of the MACA NO. 527 OF 2021 -3- 2024:KER:75615 driver of the offending vehicle. On behalf of the claimants Exts.A1 to A21 were marked. On behalf of the insurance company, Ext.B1 copy of the insurance policy was marked. Parties did not adduce any oral evidence. Based on the materials and pleadings on record the tribunal proceeded to grant the compensation as follows:
"
Sl.N Head of Claim Amount Amount Basic vital o. claimed (in awarded details in a Rs.) (in Rs.) nut shell 1 Loss of earning 42,000 35000 7,000 x 1month 2 Transportaion 5,000 3000 expenses 3 Extra nourishment 3,000 17,000 250 x 68 days 4 Damage to clothing 1,000 1000 5 Medical expenses 10,000 16,000 Ext.A21 series medical bills 6 Bystander's 3,000 7000 250 x 68 days expenses MACA NO. 527 OF 2021 -4- 2024:KER:75615 7 Pain and sufferings 50,000 75,000 8 Loss of amenities 200,000 120960 and enjoyment in life 9 Permanent 4,00,000 362880 disability Total 6,47,840/- Rs.6,48,000/-
with 8%
Rounded interest per
to annum from
6,48,000/- 13.05.15 till
realization
"
While awarding the aforesaid compensation, the tribunal fixed the income as Rs.7,000/-. However, the point of dispute revolves on the fixation of percentage of disability. Ext.A15 Disability Certificate issued by the Directorate of Medical Education Department of General Surgeory, Medical College, Thiruvananthapuram on 18.10.2016 revealed that the claimant had suffered 30% of disability and accordingly the tribunal took the aforesaid disability as 24% and accordingly calculated MACA NO. 527 OF 2021 -5- 2024:KER:75615 the compensation. It is this part of the finding which is seriously impugned in the present appeal.
2. Heard Sri.Nimod A.R., learned counsel appearing for the appellant and Smt.S.Jayasree, learned Standing Counsel appearing for the insurance company.
3. The learned counsel for the appellant placed copy of the Disability Certificate for perusal of this Court. On perusal of the Disability Certificate, reveals that the claimant had suffered the following injuries:
"1. Traumatic head injury.
2. Haemorrhagic contusion
3. intraventricular bleed
4. Diffuse axonal injury grade III
5. Rt ear bleed
6. Rt branchial plexus injury
7. Rt hemiparesis Lt leg.
8. Total paralysis Lt. Arm grade power.
9. Pre-ganglion nerve root avulsion involving C6, C7, C8, T1 nerve MACA NO. 527 OF 2021 -6- 2024:KER:75615 roots Rt side."
4. On examination of the Permanent Disability Certificate of the Associate Professor, Department of Surgery, Govt.Medical College, Thiruvananthapuram found that he has following disabilities:
"1. Walking gait
2. Paralysis of Rt leg.
3. Complete paralysis of Rt.arm with muscle wasting
4. Difficulty in talking
5. Inability of walk or stand
6. Always require two bystanders for help for walking and for primary needs.
7. Facial nerve palsy Rt side
8. Extensive muscle wasting of Rt side of body.
9. The above disabilities are permanent and irrecoverable."
5. After finding the nature of disability, the Doctor proceeded to assess 30% of disability for the MACA NO. 527 OF 2021 -7- 2024:KER:75615 appellant. The most intriguing part of the Certificate, according to the learned counsel for the appellant is that, after noticing that the claimant has suffered paralysis on the right leg, complete paralysis of right arm with muscle wasting, difficulty in talking, inability of walk or stand and always require two bystanders for walking and for primary needs, under what circumstances the Doctor fixed 30% of whole body disability remains to be seen. It is also noted that there is extensive muscle wasting on the right side of the body and the above disabilities are permanent and irrecoverable. It is to be noted that as per the averments in the claim statement the claimant was a sales man working in a private firm and because of this injury, the claimant is not able to do any job for running his livelihood.
6. The facts so presented before this Court are not only desolated but also this Court fails to comprehend how the Doctor who examined the claimant MACA NO. 527 OF 2021 -8- 2024:KER:75615 could assess only 30% of permanent disability. It is to be noted that after referring to the Mc Bride's scale and the unified definitions for assessing the percentage of disability by the Government of India, the Doctor had specifically held that the claimant had 100% disability from two years. Pertinently, the claimant was examined on 18.10.2016 whereas the accident occurred on 28.04.2013.
7. In this context, this Court also take notice of the contention of the learned counsel for the insurance company that if the claimant and a case that he had suffered disability of higher percentage, then he ought to have filed an application before the tribunal for an examination by the Medical Board. The learned counsel further submitted that the claimant - appellant had not subjected himself to the examination of the Medical Board, it cannot be possible for this Court to assess the percentage of disability on a higher side and therefore MACA NO. 527 OF 2021 -9- 2024:KER:75615 necessarily the appellant has to be referred to the Medical Board either at least at this stage of appeal.
8. No doubt the learned counsel for the insurance company is justified in contending that if the claimant had any dispute regarding the percentage of disability, then he ought to have made an application for referring his case for examination by the Medical Board. However, having said so, this Court cannot ignore the fact that even without an application the tribunal could have referred the claimant to the Medical Board in terms of provisions contained under Rule 387 of the Motor Vehicles Rules, 1989.
9. Admittedly, the said recourse was not done by the tribunal. The pertinent question before this Court would be as to whether having fixed 30% disability under Ext.A15 Certificate, whether it would be possible for this Court to enhance the percentage of disability and hold that the appellant has 100% functional disability. There MACA NO. 527 OF 2021 -10- 2024:KER:75615 cannot be any doubt with regard to the power of this Court to enhance the percentage of disability while considering the appeal, in the light of the principles laid down by the Honourable Supreme Court in Rekha Jain Vs. National Insurance Company Limited (2013 (8) SCC 389) and also the judgment of the Supreme Court in Sarnam Singh Vs. Shriram General Insurance Company Limited (2023 ACJ 1450). In Rekh Jain (supra), the Supreme Court was considering the question as to whether the Court or tribunal could fix the functional disability of the claimant based on their vocation. After considering the plethora of the judgment on this point, the Supreme Court held that the fixation of percentage of functional disability has to be done in relation to the avocation of the claimants.
10. In a claim arising under the provisions of the Employees Compensation Act, 1923 the Supreme Court again considered this question in Chandramma Vs. MACA NO. 527 OF 2021 -11- 2024:KER:75615 Manager, Regional Office, NCC Limited and Another (2023 (2) SCC 144). In the aforesaid case, the Honourable Apex Court even considering the fact that the claimant was a labourer who was assessed having 20% disability and considering the nature of disability which had a serious impact on the avocation carried out by the claimant therein, assessed the functional disability at 100%.
11. Keeping in mind these statutory principles, this Court cannot fathom the reason as to how even after finding that the claimant had suffered a paralysis of right leg, complete paralysis of right arm with muscle wasting, inability to walk or stand, always requiring two bystanders for help for walking and for primary needs, extensive muscle wasting on the right side of the body, and the disabilities being permanent and irrevocable, the Doctor could fix the disability at 30%. It passes one's comprehension as to how in those overwhelming facts, MACA NO. 527 OF 2021 -12- 2024:KER:75615 the tribunal could still reduce the disability and fix it as 24%. Therefore, the non-application of mind on the part of the tribunal is written large in the impugned award. In the totality of the facts and circumstances of the case, this Court has no doubt in its mind that the award requires the interference to that extend.
12. Accordingly, the appeal stands allowed. It is declared that the disability on the appellant is liable to be fixed at 100%. The compensation to which the appellant is entitled to be re-calculated on this basis.
13. As a result of the above, the compensation under the head permanent disability is thus re-worked, which would be as follows:
7000 + (7000x 40%) = 9800 9800 x12x18 = 2116800 - 362880 = 17,53,920/- Thus, a total amount of Rs.17,53,920/- (Rupees Seventeen lakh fifty three thousand nine hundred and twenty only) is awarded as enhanced compensation. The MACA NO. 527 OF 2021 -13- 2024:KER:75615 said amount shall carry interest at 8% per annum from the date of the application till realization. The appellant would also be entitled for proportionate costs in the case. The claimant shall furnish the details of the bank account to the insurance company for transfer of the amount. The appeal is ordered accordingly.
Sd/-
EASWARAN S. JUDGE vv