The New India Assurance Co.Ltd vs Manoj.G. @ Manu on 17 March, 2012

[Cites 5, Cited by 0]

Kerala High Court

The New India Assurance Co.Ltd vs Manoj.G. @ Manu on 17 March, 2012

This appeal is directed against the judgment and award dated 17.3.2012 in O.P.(MV).No.1108 of 2005 passed by the Motor Accidents Claims Tribunal, Kottayam. The second respondent therein viz., the insurer of the offending vehicle involved in the accident is the appellant herein. The claimant/first respondent herein filed the claim petition seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 28.01.2005. He was a pedestrian at the time of the accident. While he was walking through the southern side of Changanacherry-Vazhoor road, a Maruthi car bearing Reg.No.KL-5M-9620 driven by the first respondent came M.A.C.A.1038/2012 2 from east-west direction and knocked him down. Consequently, he sustained serious injuries including fractures and head injury. Immediately, he was taken to Medical College Hospital, Kottayam and thereafter, to Carithas Hospital, Thellakom. He had been an inpatient initially from 28.01.2005 to 08.02.2005 at Medical College Hospital, Kottayam and thereafter, he remained as an inpatient from 8.2.2005 to 14.03.2005 at Amritha Institute of Medical Sciences and Research Centre, Ernakulam. It is in the said circumstances that he filed the claim petition.

2.On the side of the claimant, he got himself examined as PW1 besides getting examined Dr.Prakash Kamath as PW2. On the side of the respondents, no evidence, either oral or documentary, was adduced. Besides the oral evidence, the claimant has also adduced documentary evidence consisting of Exts.A1 to A23. The Tribunal, on evaluation of the evidence on record and appreciating the rival contentions, passed the impugned award for a total compensation of M.A.C.A.1038/2012 3 `24,23,005/- with interest @ 7.5% from the date of the petition till realisation along with a cost of `48,460/-. It is aggrieved by and dissatisfied with the aforesaid award that the insurer of the offending vehicle comes up with this appeal.

3.We have heard the learned counsel for the appellant and also the learned counsel for the first respondent.

4.The learned counsel for the appellant contended that the Tribunal lost sight of the fact that Dr.Prakash Kamath, while being examined as PW2, had not deposed about the percentage of permanent disability incurred by the first respondent/claimant. In short, the contention is that despite the absence of any evidence by an expert on the question of disability incurred by the first respondent, the Tribunal fixed the percentage of permanent disability as 60%. It is contended that in the absence of any expert evidence assessing the permanent disability of the claimant and especially, without assigning any reason M.A.C.A.1038/2012 4 for assessing 60% permanent disability, the Tribunal was not justified in assessing 60% disability and therefore, the impugned award warrants interference. It is also contended by the learned counsel that the Tribunal went wrong in fixing the monthly income of the appellant as `16,000/-. It is submitted that the first respondent/claimant had failed to adduce any evidence regarding his occupation and income though certain documents were produced in a bid to establish the said factors. Since such factors were not legally proved by examining the persons who issued such certificates, the Tribunal ought not have fixed the monthly income as `16,000/-, it is further contended. The learned counsel further contended that in the light of the decision in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)], the Tribunal went wrong in taking 16 as the multiplier. With reference to the age of the first respondent, the victim, the multiplier applicable in this case is 15. It is further contended that the Tribunal also went wrong in granting compensation for loss of earning power after granting compensation for permanent disability. M.A.C.A.1038/2012 5

5.The learned counsel for the first respondent/ claimant resisted the said contentions and submitted that no appellate interference is warranted in this case. It is submitted that the Tribunal only granted just compensation commensurate with the nature of the injuries sustained by the claimant in the accident. The learned counsel further contended that though the evidence of PW1 would reveal that due to the disfunctioning of left ventricle which would affect the life's span of the first respondent, the Tribunal had not granted any amount towards compensation for loss of expectancy in life. It is also contended that taking note of the serious injuries sustained by the first respondent, he would not be in a position to enjoy his life as before, the Tribunal ought to have granted compensation towards loss of amenities. That apart, it is contended that at the time of the accident, the claimant was aged only 40 years. The Tribunal ought to have considered the question regarding the addition to the income fixed for calculation purpose, reckoning the future prospects. It is submitted that, even if the contention of the first respondent that the grant of M.A.C.A.1038/2012 6 compensation for loss of earning power after granting compensation for permanent disability is accepted as having no force, no interference is required taking into account the aforesaid aspects and also the fact that the Tribunal has awarded only a just compensation.

6.Taking note of the rival contentions, we are of the view that, primarily, the question regarding the correctness or otherwise of assessment of permanent disability by the Tribunal has to be looked into. As noticed hereinbefore, the contention of the appellant is that no disability certificate as such was produced by the claimant before the Tribunal. The contention is that in the absence of any evidence from an expert assessing the permanent disability, the Tribunal ought not have assessed the permanent disability as if it is an expert in that field. The learned counsel also contended that no reason whatsoever has been assigned by the Tribunal for assessing the permanent disability of the claimant as 60%. To lend support to such contentions, the learned counsel relied on a Full Bench decision of M.A.C.A.1038/2012 7 this Court in Akhil v. Kerala State Road Transport Corporation [2015 (1) KLT 291 (FB)]. The learned counsel drew our attention to paragraph 10 of the said decision, more particularly, to the observation made by the Full Bench as hereunder:-

10. As already observed, the Motor Accidents Claims Tribunal, will always have some limits and limitations. Of course, if the Trial Judge finds the absolute necessity of such physical examination before ordering examination by a Medical Officer or Medical Board, the Tribunal can direct the party to be present in court for such examination. When there is no such absolute necessity, the Tribunal can go through the available documents including medical documents, showing the nature and consequence of the injury sustained by the claimant and also the possible degree and extent of the disability sustained by the claimant; physical or occupational. When the Tribunal finds the necessity of such examination by a Medical Board or Medical Officer on examination of the documents, the Tribunal can straight away direct such examination. Kalesh v. Sudheer (2010 (1) KLT 537) and Sundaran v. Shaju (2011 (3) KLT

904), have made it an onerous function that every Tribunal should examine the claimant physically whenever permanent disability is alleged by the claimant. This will create unpleasant situations in the administration of justice. The Tribunal, which personally and directly assessed the degree and extent of disability, may find himself in an M.A.C.A.1038/2012 8 embarrassing situation when contest comes regarding the nature and extent of the permanent disability alleged by the claimant. As already observed, the function of the Tribunal as expert of experts must be to assess and judge the assessment made by the expert in the field on the basis of the principles of theory and practice in the field. The Tribunal, claiming to be expert of experts cannot take over that function. Of course, the Tribunal can make such examination, for a prima facie satisfaction for the purpose of R.387 or for a just decision in the case. There can be situation where the claim of disability made by the claimant is false, or disability can even be pretended. When the court finds such possibilities on a consideration of the nature of the injuries and the possible consequences, the court can proceed to make such an assessment. But, it cannot be a compulsory practice or function in all the cases brought under the Motor Vehicles Act.

7.Relying on the said decision, the learned counsel for the appellant contended that it is only just and proper for a Claims Tribunal, while considering a claim of sustainment of permanent disability, to refer the claimant who claims to have suffered serious injuries and incurred a higher percentage of permanent to be examined by a duly constituted medical board. In other words, according to the M.A.C.A.1038/2012 9 learned counsel, in the absence of any proven medical records enabling the Tribunal to assess permanent disability, it would always be preferable to refer the claimant for being examined by a duly constituted medical board. The learned counsel for the first respondent submitted that when the medical records produced before the Tribunal reveal the factum of sustainment of permanent disability, the mere fact that the doctor who was examined before the Tribunal had not specifically deposed regarding the percentage of permanent disability or that the injured claimant was not referred for being examined by a duly constituted medical board cannot be a reason for interfering with the assessment of permanent disability made by the Tribunal. In other words, the learned counsel for the first respondent submitted that when the nature of the injuries sustained in an accident are capable of resulting in permanent disability, such reasons cannot divest the Tribunal the power to assess the permanent disability by assigning reasons therefor.

M.A.C.A.1038/2012 10

8.In the contextual situation, we are of the view that it will be apropos to refer to the decision of the Hon'ble Apex Court in Raj Kumar v. Ajay Kumar [2011 (1) KLT 620]. Paragraphs 16 to 18 of the said decision are worthy to be extracted in the contextual situation. They read thus:-

16. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favourable. This forces the injured claimants to approach 'professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that M.A.C.A.1038/2012 11 their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings.

Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses.

Assessment of compensation

17. In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons.

Firstly though the accident occurred in Delhi and M.A.C.A.1038/2012 12 the injured claimant was treated in a Delhi Hospital after the accident, as he hailed from Chirori Mandi in the neighbouring District of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the treatment in the place where he resided. Secondly the certificate has been issued by the Chief Medical Officer, Ghaziabad, on the assessment made by the Medical Board which also consisted of an Orthopaedic Surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate.

18. The Tribunal has proceeded on the basis that the permanent disability of the injured-claimant was 45% and the loss of his future earning capacity was also 45%. The Tribunal overlooked the fact that the disability certificate referred to 45% disability with reference to left lower limb and not in regard to the entire body. The said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capacity, as the disability would not have prevented him from carrying on his avocation as a cheese vendor, though it might impede in his smooth functioning. Normally, the absence of clear and sufficient evidence would have necessitated remand of the case for further evidence on this aspect. However, instead of remanding the matter for a finding on this issue, at this distance of time after nearly two decades, on the facts and circumstances, to do complete justice, we propose to assess the permanent functional disability of the body as M.A.C.A.1038/2012 13 25% and the loss of future earning capacity as 20%.

9.Even if the question relevant for consideration of the claim petition regarding permanent disability was not actually extracted by the learned counsel while examining the medical witness, it is the duty of the court to elicit such things which are required for a proper disposal of the claim petition, from the doctor. Evidently, the Hon'ble Apex Court held that the Tribunal has to take active role to ascertain the true and correct position regarding permanent disability for the purpose of assessing just compensation. It is evident from the said decision that if the doctor while giving evidence used medical terms, it is the duty of the Tribunal to instruct him to state in addition simple non-medical terms as relates the nature and effect of the injury. In the light of the said decision, there can be no doubt that it is the bounden duty of the Tribunal to take active role to ascertain the true and correct position regarding permanent disability wherever a claimant claims to have incurred permanent disability owing to the injuries sustained in an accident for the purpose of assessing just compensation and in that M.A.C.A.1038/2012 14 bid examined a doctor before the Claims Tribunal. Evidently, in paragraph 18 thereunder, the Hon'ble Apex Court has also sounded a word of caution. The instances of unscrupulous doctors who without treating the injured willing to give liberal disability certificates to help the claimants have to be borne in mind in the light of the observations made by the Hon'ble Apex Court. Going by the decision, mere production of a disability certificate could not be taken as a proof of existence of disability and certainly, the doctor who treated the concerned person who issued him medical certificate has to be examined. The question of referring a person for examination before a duly constituted medical board would arise only in a case where the Tribunal has not satisfied with the medical evidence produced by the claimant. Bearing in mind the decision of the Full Bench in Akhil's case and the decision of the Hon'ble Apex Court in Ajay Kumar's case, we are of the considered view that the Claims Tribunals have to be more careful while assessing permanent disability for assessing just compensation. Evidently, a Tribunal is M.A.C.A.1038/2012 15 not supposed to simply swallow the opinion of an expert who had not treated the person concerned. Even though it was issued by a person who treated the concerned person who claims to have incurred permanent disability while being examined such a doctor before the Tribunal, the Tribunal has to take an active role to ascertain the true and correct position i.e., how such percentage of disability was assessed by the said doctor. Such an exercise is all the more required in a case where the certificate was issued by a doctor who had not treated the injured claimant, but issued certificate after medically examining and assessing the disability of concerned person. The failure in discharging the bounden duty to play an active role to ascertain the true and correct position regarding the permanent disability, while assessing just compensation, despite the pronouncement of the judgment of the Hon'ble Apex Court in Ajay Kumar's case is only to be deprecated. In such circumstances, we are of the view that all Tribunals have to take care to scrupulously follow the dictum laid down by the Hon'ble Apex Court in the matter M.A.C.A.1038/2012 16 of the role to be played by the Claims Tribunals while assessing the permanent disability and for that purpose when a doctor is being examined before the Tribunal. As held hereinbefore, the Hon'ble Apex Court also sounded a caution while accepting the expert evidence of doctors who had not treated the claimant for whom he/she issued the disability certificate. In such contingencies, the Tribunals have to follow the procedures required in the light of the dictum laid down by the Hon'ble Apex Court, very particularly in paragraphs 16 to 18 of the aforesaid judgment. We may hasten to add that we are not holding that the Tribunal is not having any power to assess the permanent disability in a case where a disability certificate as such was not produced. If other medical records are available and the Tribunal is convinced on examining the person in court that the concerned person had actually sustained injuries resulting in permanent disability, after recording specific reasons for assessing compensation viz., for arriving at a specific percentage of permanent disability, it would be open to the Tribunal to assess the permanent M.A.C.A.1038/2012 17 disability for the purpose of granting compensation for disability or for loss of earning capacity. In that context, it is to be noted that the Hon'ble Apex Court also directed that the Tribunal should preferably equip with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Disability) and also keep in view of the First Schedule to the Workmen's Compensation Act, 1923.

10. We will now revert back to the case on hand. In this case, evidently, the claimant/first respondent produced Exts.A4 and A9 discharge summaries. We have already noted that the discharge summaries as well as the wound certificate would indicate the details and the nature of the injuries sustained by the claimant/first respondent in the accident. It is also to be noted that the claimant was examined as PW1 before the Tribunal. PW2 was the head of the Cardiology Department attached to Amritha Institute of Medical Sciences and Research Centre, Ernakulam. He treated the first M.A.C.A.1038/2012 18 respondent-claimant and noted traumatic left main dissection with moderate LV - dysfunction. He deposed that Echo-Cardiogram showed severe LV dysfunction, I.V. apical clot, pleural effusion 4 mm anterior to RV - 1.2 cm lateral LV and no tamponade. It was PW2 who issued Ext.A11 certificate. It would reveal that the first respondent was under treatment there from 8.2.2005 in connection with the injuries sustained in the road traffic accident occurred on 28.1.2005 and that in the accident he had sustained fracture maxilla and zygoma with traumatic left main coronary artery dissection causing extensive anterior wall MI, complicated by large I.V mural thrombus with thromboembolic CVA - thalamic hemorrhagic infarction. It would also reveal that PW1 had undergone successful PTCA + stenting of LMCA and proximal LAD on 10.3.2005 after stabilization. It would further reveal that he was advised not to assume his professional work and not to travel abroad. In that context, it is to be noted that indisputably, the first respondent was working abroad. The Tribunal categorically found that despite the M.A.C.A.1038/2012 19 cross-examination nothing was brought out to discredit the version of PW2 or to show that he had committed a mistake in Ext.A11 certificate. It is evident from the version of PW2 with Ext.A11 that the major disability of the first respondent is the left ventricular dysfunction. PW2 categorically deposed that it would reduce the life span of the first respondent. Taking note of the evidence of PW2 with Exts.A11 and A14, we are of the considered view that the Tribunal cannot be found fault with in holding that the injuries sustained by the first respondent in the accident ultimately resulted in permanent disability. Taking note of the nature of the injuries and its impact on the vital part of his body that is, on heart, we have no hesitation to hold that the assessment of permanent disability by the Tribunal as 60% invites no interference. It is also to be noted that PW2 categorically deposed that left ventricular dysfunction would reduce the life span of the first respondent. It is also evident that the first respondent could not travel abroad to continue his employment. A scanning of the schedule of compensation attached to the impugned M.A.C.A.1038/2012 20 award would reveal that taking note of the permanent, disability the Tribunal granted an amount of `18,43,200/- taking the percentage of permanent disability of the first respondent as 60% and for that purpose his monthly income was fixed as `16,000/-. Considering the question of sustainability of the fixation of monthly income as `16,000/- evidently, the contention of the appellant is that Ext.A19 employment and salary certificate was not properly proved before the Tribunal. Evidently, the fact that the first respondent was working abroad and he met with the accident while he came back home on leave are not in dispute. True that, his employment and income were not properly proved. As noticed hereinbefore, the Tribunal took his monthly income as `16,000/-. Therefore, the question to be considered is whether the income fixed by the Tribunal could be sustained ? The appellant was aged 40 years at the time of the accident. He was a Diploma Holder in Mechanical Engineering. The fact that he is a Diploma holder is evident from Ext.A20. When a person is qualified and eligible to be appointed as a Mechanical M.A.C.A.1038/2012 21 Engineer, as is obvious from Ext.A20, and when it is evident that he is actually employed, even taking into account the standard prevalent in this country his monthly income could be fixed as `12,000/-. Taking note of the fact that he was aged only 40 years on the date of the accident, we are of the view that while fixing the monthly income for the aforesaid purpose an addition also has to be made to the income fixed reckoning his future prospects. In the absence of evidence to the effect that the claimant concerned was a salaried person or that he was a self employed person or a person with fixed wages, the question is whether such persons are entitled to get such addition and if so, what should be the percentage of addition that could be made ? We got little doubt with respect to the fact that even in respect of such persons the cost of living, price index etc. cannot be said to have no effect or impact. They will also have reflection in the lives of persons belonging to such category as well. No doubt, taking into account such aspects persons belonging to such categories will also be constrained to claim increase in their wage/salary. In other words, it M.A.C.A.1038/2012 22 cannot be said that their income will remain static despite such aspects. In such circumstances, we are of the view that it would only be proper to make an addition of 30% of the income in the case of a person aged 40 years and incurred a very high degree of permanent disability and failed to prove occupation and income. On such calculation, the income to be reckoned for the aforesaid purpose is `15,600/-. True that, in this case, the Tribunal fixed the monthly income at `16,000/-. Since the difference is negligible that cannot be taken as a reason for interfering with the monthly income fixed by the Tribunal in the matter of calculation of compensation for permanent disability. As regards the multiplier adopted by the Tribunal, the contention of the appellant is that instead of taking the multiplier as `15' the Tribunal took it as `16'. Considering the age of the appellant and in the light of the decision of the Hon'ble Apex Court in Sarla Verma's case, the multiplier applicable in this case is `15'. In short, the contention that the multiplier was wrongly identified is having force and it is to be sustained.

M.A.C.A.1038/2012 23

11.A re-assessment with changed multiplier would definitely reduce the quantum of compensation under the head `permanent disability'. The learned counsel for the appellant is also justified in contending that having granted compensation for permanent disability, the Tribunal ought not to have granted compensation for loss of earning power in addition. As against a claim of `3,50,000/-, the Tribunal granted an amount of 1,00,000/- for loss of earning ` power. Though the method of assessment is, certainly, held to be wrong the question is whether the impugned judgment invites appellate interference on that sole score. But, we are of the view that to decide the question whether it actually invites interference, we will have to consider certain other aspects as well. We have already found that the evidence of PW2 with Ext.A11 certificate would reveal that the injuries sustained by the appellant resulted in left ventricular dysfunction which is capable of reducing his life span. It is also to be noted that though the first respondent had claimed an amount of M.A.C.A.1038/2012 24 `1,50,000/- towards loss of amenities, no amount was granted by the Tribunal. In the contextual situation, it is to be noted that compensation for loss of expectation of life is to be awarded when expectation of life is shortened as a result of the injuries and they are to be assessed by putting a money value on the prospective balance of happiness in the years that the injured might have otherwise lived. On the other hand, for loss of amenities of life which is a separate head of damage, it is to be awarded when the injured is deprived of the period he lives of the ordinary experiences and enjoyment of life. In such circumstances, in the light of the evidence on record, we have no hesitation to hold that the first respondent ought to have been granted compensation under the head `loss of expectation of life' and then separately on the other head `compensation for loss of amenities'. Taking into account the fact that the Tribunal had failed to grant compensation separately under those heads we are of the view that despite the fact that the Tribunal has granted compensation for loss of earning power after granting compensation for permanent disability M.A.C.A.1038/2012 25 and further that for granting compensation for permanent disability instead of taking the multiplier `15', `16' was taken, we are of the considered view that they are not sufficient grounds warranting interference with the compensation awarded as per the impugned award, in the facts and circumstances obtained in this case. The compensation awarded to the first respondent as per the impugned award, taking note of the injuries sustained by him, is nothing but a just compensation. Evidently, the purpose of an enquiry in an application under Section 166 of the Motor Vehicles Act is for granting just compensation. When once it is found that what is granted to the claimant after conducting the enquiry is a just compensation we are of the view that the reasons as aforementioned cannot be taken as reasons to scale down the compensation awarded as per the impugned award even while upholding the contention regarding the irregularity and impropriety crept in the matter of adjudicating the quantum of compensation. The long and short of the discussion is that the impugned award of the Tribunal warrants no M.A.C.A.1038/2012 26 appellate interference.

The appeal is liable to fail and accordingly, it is dismissed.

Sd/-

C.T. RAVIKUMAR (JUDGE) Sd/-

                                     K.P.JYOTHINDRANATH
                                               (JUDGE)

spc/ TKS

M.A.C.A.1038/2012    27




                        C.T. RAVIKUMAR, J.




                        JUDGMENT

                        September,2010

M.A.C.A.1038/2012    28

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