IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 SA.No. 484 of 2001() ---------------- AS.20/1998 OF II ADDL. SUB COURT, KOZHIKODE OS.362/1996 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-I .................. APPELLANT :- RESPONDENT :- PLAINTIFF : --------------------------------------------------------------- C. PURUSHOTHAMAN NAIR, S/O. GOPALAN ERADI, SOBHA NIVAS, MANALODI THAZHENILAM, P.O. KARANTHUR, KURUVATTOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN RESPONDENT :- APPELLANT :- DEFENDANT : ------------------------------------------------------------------ SENIOR DIVISIONAL MANAGER, L.I.C. OF INDIA, JEEVAN PRAKASH, KOZHIKODE. BY ADV. SRI.S.EASWARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 484 of 2001() -2- ORDER ON I.A. NO. 1597/2006 IN SA. NO. 484/2001 DISMISSED 16/06/2011 SD/- HARUN-UL-RASHID, JUDGE //TRUE COPY// P.S. TO JUDGE Mn HARUN-UL-RASHID,J. ------------------------------- S.A. NO.484 OF 2009 ------------------------------- DATED THIS THE 16TH DAY OF JUNE, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: i) Whether the term total and permanent disablement stipulated in Ext.P1 policy connotes total disability to do any work? ii) Whether the interpretation to the term total and permanent disability given by the appellate Court is in consonance with the principles laid down by this Hon'ble Court as well as the Hon'ble Supreme Court. iii) Whether the insurance company can refuse the benefit of the policy on the ground that the earning capacity of the appellant was reduced only by 31.5% and not 100%? iv) Whether the appellate court has appreciated the evidence and construed the provisions of law properly and correctly? 2. The plaintiff in O.S.No.362/1996 on the file of the -2- S.A.No.410/2001 additional Munsiff-I Court, Kozhikode is the appellant herein. The appeal is directed against the judgment and decree in A.S.No.20/1998 on the file of the II Additional Sub Court, Kozhikode. The respondent herein is the Senior Divisional Manager, LIC of India, Kozhikode. The suit was filed for a decree for realisation of a sum of `15,250/- from the LIC, being the policy amount of the plaintiff. According to the plaintiff, he sustained a fracture of femur while he was working as a packer in Bata shoe company. According to him, the injury sustained resulted in permanent and total disability and he was unable to do any work thereafter. He was compelled to resign the job and undergoing treatment for all these years since the date of the accident. The suit was filed for claiming a sum assured `15,250/-, as the defendant failed to disburse the policy amount. The suit was resisted contending that the plaintiff has no permanent disability as required in the policy condition. 3. Ext.A1 is the policy of insurance. Clause 10 of the -3- S.A.No.410/2001 policy stipulates that the disability of the life assured must be disability which is the result of an accident and must be total and permanent and such that there is neither then nor at any time thereafter any work occupation or profession that the life assured can very sufficiently do or follow to earn or obtain any wages, compensation or profit. 4. The trial court considered the rival contentions of the parties, after appreciating the oral and documentary evidence adduced by the parties. The plaintiff was examined as PW1. Exts.A1 to A11 were marked on his side. The defendant did not adduce any oral evidence. Ext.B1 is the only document produced on his side. The trial court examined the question as to whether the plaintiff is entitled to get the policy amount as claimed. It is an admitted fact that the plaintiff suffered major injuries in an accident occurred on 6/4/1994. Ext.A4 is the application submitted requesting the defendant to extend the benefits under Ext.A1 policy. The trial court observed that Exts.A2 and A3 will show that -4- S.A.No.410/2001 the plaintiff had regularly paid the premium. The trial court also considered the question as to whether there is any justification for not submitting the application within 120 days. Relying on clause 10 of Ext.A1 policy the defendant contended that the accident should be reported within 120 days failing which the plaintiff is not entitled to claim the benefit. This question was considered by the trial court. After considering the facts and circumstances and referring to the letter dated 20/7/94 admittedly received by the defendant, the trial court held that this is a fit case where the delay caused in filing the application for getting the benefit can be condoned. This Court accepts the view expressed by the trial court for rejecting the contention on the ground of delay. Other contention raised by the defendant is that the disability caused to the plaintiff is not a permanent one. In Ext.A5 certificate, it is certified that the plaintiff suffered from provisional disability of 31.5% that means, the permanent disability was not assessed at the time of issuing Ext.A5. The trial court further found that Ext.A6 -5- S.A.No.410/2001 will show that the Doctors were not able to correctly ascertain the percentage of disability, because the treatment is continuing. The trial court also noticed that the Doctors have categorically stated that due to the fracture there is shortening of one inch in the left femur. The trial court also on facts held that the Doctors who had issued Ext.A6, cannot be blamed for non-ascertaining the permanent disability, because the treatment is continuing. 5. The learned counsel for the appellant submits that due to permanent disability the plaintiff never had occasioned to act after the date of accident and that he is totally and permanently disabled from doing any act till this date. The trial court, on an evaluation Exts.A6 to A8, further held that after the issuance of Ext.A5 certificate also there was a complaint of non-union of the fractured femur and hence again the plates were removed and the fractured portion was united with the help of plates. PW1 tendered evidence stating that the treatment is still continuing and he cannot walk independently without a walking stick. He testified before the -6- S.A.No.410/2001 court below that his disability is total land permanent and he was prevented permanently from doing any work from the date of the accident. The testimony of the plaintiff was not seriously challenged by the defendant in chief examination. Moreover, nothing has been brought out in cross-examination to discredit the testimony of PW1 that his disability is total and permanent. In these circumstances, there is no justification for the plaintiff for not producing any certificate which certifies total and permanent disability. The plaintiff was under treatment even as on the date when he mounted the box and the Doctor was not in a position to issue any certificate certifying the total and permanent disability. The evidence tendered by the plaintiff shall be given due weight in support of the contention regarding total and permanent disability. 6. Exts.A5 and A6 will go to show that the Doctors were not able to correctly ascertain the percentage of disability for the reason that the treatment of the plaintiff is still continuing. The Doctors had categorically stated that due to the fracture there is -7- S.A.No.410/2001 shortening of 1 inch in the left femur. The trial court, on the basis of the evidence, facts and circumstances, observed that the Doctor, who had issued Ext.A6, cannot be blamed for non-ascertaining the permanent disability because the treatment is continuing. The trial court, relying on Exts.A6 to A8 also found that there was a complaint of non-union of fractured femur, after the issuance of Ext.A5 certificate. The evidence would show that plates were removed and the fractured portion was united with the help of plates. PW1 testified before the court below that his treatment is still continuing and he cannot walk independently without a walking stick. The court below further held that as per Mibride's Scale the fracture and non-union of femur for a packer will definitely cause permanent disability. Therefore, the finding of the trial court that the plaintiff had suffered permanent disability due to the accident is supported by evidence. The trial court rightly observed that if the defendant had any doubt regarding the percentage of disability, they ought to have referred the matter -8- S.A.No.410/2001 before the Board of Doctors and that in the policy condition also there is a provision for ascertaining the percentage of disability at the cost of the defendant. The contention of the defendant that after the accident, the plaintiff had continued in service till 30/8/1995 was also examined by the trial court in detail. The trial court relied on Ext.P11 to conclude that the employer had certified that the plaintiff had not worked after the accident and he is not able to do work. Plaintiff had resigned from the Company on 30/8/1995. The court below also rightly observed that the defendant cannot insist that a person who had sustained any injury should immediately resign. The trial court found that there is nothing wrong in the plaintiff's resignation on 30/8/1995. On the basis of the aforesaid reasons, the trial court granted a decree allowing the plaintiff to realise an amount of `15,250/- from the defendant with interest at the rate of 12% per annum. 7. The Lower Appellate Court disagree with the reasonings and findings of the trial court. The Appellate Court held -9- S.A.No.410/2001 that the loss of earning capacity is assessed at 31.5% and that as far as the walking is concerned, the disability may be permanent, that does not mean that he has got permanent disability. The Appellate Court also observed that the plaintiff may be able to do work in sitting posture. For these reasons, the Lower Appellate Court relied on Ext.A5 certificate to conclude that the accident did not conform to the policy conditions. In fact, the evidence tendered by the plaintiff was not examined in the correct perspective. Ext.A5 certifies the disability provisionally. The very fact that the appellant/plaintiff was under treatment for a long period after the accident, was not appreciated by the Appellate Court. The Appellate Court did not consider the fact that Ext.A5 certificate is provisional and there was no occasion for issuing a certificate certifying the percentage of disability. However, the fact remains is that the plaintiff is not in a position to walk nor he can do any work. The observation of the Appellate Court that the plaintiff may be able to do any work in sitting posture is without any basis. It has -10- S.A.No.410/2001 come out in evidence that the plaintiff was unable to walk. Provisional assessment of disability is at 31.5%. Permanent disability is yet to be assessed. It is a fact that the plaintiff is not doing any work. All these circumstances would show that the plaintiff is not in a position to do any work and in that respect, his disability is total and permanent. The materials on record would show that the accident resulted in total and permanent disability and the injured cannot earn any wages or compensation then or afterwards. The Lower Appellate Court agree with the findings of the trial court regarding the delay in filing the claim petition and upheld the finding of the trial court that the delay is liable to be condoned. 8. On going through the observations and findings of the Lower Appellate Court and on the basis of the materials on record, this Court is of the view that the reversal of the findings is wrong and unsustainable and the judgment and decree passed by the trial court shall be restored. The learned counsel for the -11- S.A.No.410/2001 respondent pointed out that the policy attained majority and the company had disbursed the maturity benefit to the plaintiff. Therefore, the learned counsel submits that item No.3 in the decreetal portion that the plaintiff is also entitled to get the entire benefit accrued on him as per the policy conditions of Ext.A1 policy may be deleted. In view of the fact that the policy attained maturity and the Company already disbursed the maturity benefits, the said direction is liable to be deleted. 9. The lower Appellate Court failed to consider the issues properly and correctly which resulted in passing of erroneous judgment. In the facts and circumstances discussed above, this Court is of the view that Appellate Court has seriously wrong in holding that the disability of the plaintiff is not total and permanent. The Appellate Court misread and misunderstood the relevant policy conditions and Ext.A5 medical report and held that the plaintiff is not permanently disabled and hence he is not entitled to the benefit of ExtA1 policy. It is to be noted by the court below that the total -12- S.A.No.410/2001 and permanent disability caused to the plaintiff disabled him from doing any work and hence his disability is total and permanent. The Lower Appellate has not considered the facts and circumstances which are considered elaborately by the trial court and the same resulted in reversal. In the result, the judgment of the trial court is restored. Item No.3 in the decreetal portion is deleted. The plaintiff is entitled to realise his costs incurred before this Court and the Appellate Court. HARUN-UL-RASHID, Judge. kcv. -13- S.A.No.410/2001