IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 RSA.No. 21 of 2004() -------------------- AS.243/2000 of DISTRICT COURT,KOZHIKODE OS.60/1999 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/1ST RESPONDENT/DEFENDANT ------------------------------------------------------ NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, G.G.ROADE, KOZHIKODE. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT/ APPELLANT/PLAINTIFF : -------------------------------------------------------- P.P.BALAN, S/O. CHANDUKUTTY, AGED 46 YEARS, RESIDING AT PALAKKOTU PARAMBATH, KUNNAMANGALM POST, KUNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.21 OF 2004 --------------------------------------------- Dated 24th May, 2011 JUDGMENT Defendant National Insurance Company Ltd. in O.S.60/1999 on the file of Sub Court, Kozhikode filed this second appeal, challenging the decree granted by the District Judge in A.S.243/2000, reversing the judgment of the trial court. Appeal was admitted formulating the following substantial questions of law. 1) In the light of the contractual provisions contained in Ext.A1 contract of insurance, governing the right and liabilities of the parties, is the lower appellate court justified in coming to the conclusion that the plaintiff suffered total RSA 21/2004 2 disability incapacitating him from engaging himself in any sort of employment or occupation of any description whatsover ? 2) When the competent medical board consisting of five doctors of the Medical College Hospital, Kozhikode has assessed the percentage of permanent disability as 19%, is the lower appellate court justified in discarding it and in coming to the conclusion that the plaintiff has suffered total disability ? 2. Respondent, the plaintiff instituted the suit for realisation of Rs.1,00,000/- due under Ext.A1 policy of insurance, styled as Janatha Personal Accident and Gramin Accident Policy. Respondent was admittedly a coconut climber. Ext.A1 policy was for the period from 3/12/1996 to 2/12/1997. On 11/11/1997 respondent had fallen from a coconut tree and RSA 21/2004 3 sustained grievous injuries and was treated by PW2 the doctor at Medical College Hospital, Kozhikode, evidenced by Ext.X1 case records. Contending that the respondent is permanently disabled from engaging in any work, he claimed the insured sum provided in Ext.A1, by submitting Ext.A2 claim form. Along with Ext.A2 he submitted Ext.A3 disability certificate issued by PW2 Dr.Jayaprakash, Associate Professor of Orthopaedic, Medical College Hospital, Kozhikode. Appellant was referred to Dr.K.M.Varghese, Additional Director of Health Services, Superintendent, General Hospital, Kozhikode, who issued Ext.B3 certificate stating that respondent is totally incapacitated and is not able to any manual work like coconut climbing. Dissatisfied with the conflicting certificates, respondent was referred to Medical Board, Medical College RSA 21/2004 4 Hospital, Kozhikode. The Medical Board consisting of five doctors including DW2, Lecturer in Orthopaedic and expert doctors in Ophthalmology, ENT and Psychiatry, examined him and issued Ext.B4 certificate dated 3/8/1999 certifying that respondent is having an old fracture spine (L2 fracture) with mild fractures of plantar flexors and he is having 19% permanent disability. 3. Respondent instituted the suit contending that consequent to the injury sustained he is not in a position to do any work and therefore, he is entitled to get the insured sum under Ext.A1, with interest. Appellant resisted the suit contending that respondent is not entitled to the benefit as his disability assessed by the Medical Board is only 19% and even according to the doctor who issued Ext.B2 certificate permanent RSA 21/2004 5 disability is only 30% and as provided under the terms of Ext.A1 policy, respondent can claim insured sum only if he is permanently, totally and absolutely disabled from engaging in any work and therefore, he is not entitled to the decree. 4. Learned Sub Judge on the evidence of Pws.1 and 2, Dws.1 and 2 and Exts.A1 to A10, B1 to B5, X1 and X1(a) dismissed the suit holding that as respondent is not totally disabled from doing any work and under Ext.B4 certificate issued by the Medical Board he is having only 19% disability and so the respondent is not entitled to the decree sought for. 5. Respondent challenged the judgment before District Court, Kozhikode in A.S.243/2000. Learned District Judge on re- appreciation of the evidence found that as the RSA 21/2004 6 respondent is permanently and totally disabled from doing any work, he is entitled to the insured sum and decree was passed directing the appellant to pay Rs.1,00,000/- with interest at 8% per annum from 28/10/1998. The appeal is filed challenging the judgment. 6. Learned counsel appearing for the appellant vehemently argued that first appellate court was not justified in reversing the decree of the trial court in the light of the terms and conditions in Ext.A1 policy. Learned counsel argued that even though there are different types of policies by which an insured who sustained injuries could get compensation, Ext.A1 policy would enable the insured to claim the insured sum, only if consequent to the injuries, he sustained loss as provided under clauses (a), (b), (c) or (d) and respondent is only claiming under clause(d) RSA 21/2004 7 and if so, unless it is established that he is permanently, totally and absolutely disabled from being engaged or occupied in any employment, respondent is not entitled to the benefit provided under Ext.A1. Learned counsel argued that Ext.B4 disability certificate issued by the Medical Board consisting of five expert doctors, conclusively establish that percentage of disability is only 19% and therefore, respondent cannot claim that he is permanently and totally disabled from doing any work and therefore, the first appellate court should not have granted the decree. Learned counsel relying on the decision of the Division Bench of this court in Vanajakshan v. Joseph (2003 (2) KLT 462 (FB) argued that in spite of the restricted definition of total disablement in Workmen's Compensation Act, this court held that to RSA 21/2004 8 enable the workman to claim the benefit, he should be incapacitated from doing all work and not the work in which he was employed at the time of the accident and though the respondent is incapacitated from working as a coconut climber, he could be engaged in some other employment and therefore, the decree is to be set aside. 7. Learned counsel appearing for the respondent pointed out that respondent was examined as PW1 and he could not even enter the court hall and learned Sub Judge had to go out and examine him from the court varandha, because of the incapacity of the respondent to walk or stand and in such circumstances, it cannot be said that the respondent is not totally disabled from doing any work. Learned counsel also argued that percentage of the disability is not material, but the question RSA 21/2004 9 is whether consequent to the injuries sustained, respondent could engage in any work and though PW1 unambiguously deposed that he is not in a position to do any work, it was not challenged in cross examination and therefore, that case is to be taken as admitted. Learned counsel also pointed out that the evidence of DW2, the doctor who was one of the five members of the Medical Board who issued Ext.B4 certificate also establish that the respondent is not in a position to do any manual work and even DW1 who was examined on behalf of the appellant has no case that respondent could do any work and therefore, decree is perfectly correct and warrants no interference. 8. Ext.A1 the policy admittedly issued to the respondent by the appellant, establish that appellant had agreed to indemnify the insured sum if the insured sustained any bodily RSA 21/2004 10 injury resulting solely and directly from accidents caused by outward violent and visible means, provided the consequence are as provided under clause (a) to clause (d). The respondent has no case that clause (a) or (b) or (c) is attracted and we are only concerned with clause (d). 9. Clause (d) of Ext.A1 reads; “(d) If such injury shall within six calender months of its occurrence be the sole and direct cause of permanently totally and absolutely disabling the insured from engaging in being occupied with or giving attention to any employment or occupation of any description whatsoever the Sum insured stated in the Schedule.” RSA 21/2004 11 7. Clause (d) of Ext.A1 makes it absolutely clear that to indemnify the insured, the insured must sustain permanent, total and absolute disablement consequent to the injuries sustained within a period of six months prior to the claim. It is not the percentage of disability that is relevant. Even if the percentage of disability sustained is less than cent percentage, if consequent to the injuries sustained the insured is permanently, totally and absolutely disabled from engaging or being occupied in any employment or occupation of any description whatever, the appellant is liable to indemnify him for the insured sum. 11. The question is whether consequent to the injury sustained the respondent is totally and absolutely disabled from being engaged or occupied in any employment or RSA 21/2004 12 occupation of any description whatever. 12. Though Ext.B2 certificate of disability produced by the respondent along with Ext.A2 claim form issued by PW2 shows the percentage of disability is 30%, suspecting the correctness of the assessment the respondent was sent to Superintendent of General Hospital, Kozhikode by the appellant. The said doctor examined the respondent and issued Ext.B3 certificate to the effect that the respondent is totally incapacitated and “ is not able to do any manual work like coconut climbing”. Though respondent was sent to Medical Board, Medical College Hospital, Kozhikode and was examined by five members including DW2, Lecturer in Orthopaedic, the Medical Board was not directed to find out whether respondent was totally disabled from being engaged or occupied in any employment or RSA 21/2004 13 occupation. The Medical Board was only addressed to assess the percentage of disability. Under Ext.B4, percentage of disability was assessed at 19%. Though DW2 was examined, the evidence of DW2 does not show that the respondent is capable of doing any manual work. On the other hand, evidence of DW2 is that he is not in a position to do any normal manual work. There was not even a suggestion to DW2 that the respondent could be employed or engaged in any work, which he could have been the case before the accident. Though PW2 was examined, he did not give any evidence with regard to the capacity of the respondent to do any work consequent to the injuries. 13. Therefore, the only evidence with regard to the capacity or the disability of the respondent to be engaged or occupied in any RSA 21/2004 14 work or occupation, is the evidence of the respondent as PW1. It is to be born in mind that the respondent could not be examined inside the court hall because of his disabilities and therefore, his examination was conducted outside the court. That itself shows that the respondent was not in a position to walk, stand or sit at the time of examination. Though PW1 unambiguously deposed that he cannot sit or stand and cannot do any work, that evidence was not challenged at all. When the evidence of PW1 stands unchallenged, appellant is not entitled to contend that the evidence cannot be accepted. When the plaintiff has given evidence and the defendant had an opportunity to cross examine him and did not cross examine on that aspect. It can only be taken that the defendant is not challenging the said evidence. It may be that when the RSA 21/2004 15 respondent was physically present and was not in a position to stand, walk or sit, learned counsel thought it not proper to challenge the evidence of PW1 or to suggest that he is capable of being engaged in any work. In such circumstances, it is not open to the appellant now to contend, in the absence of any other evidence that the respondent is capable of doing some work and not totally and permanently disabled from doing any work. Even DW1 the officer who was examined on behalf of the appellant did not dare to depose that the respondent could engage in any employment or do any work. In the light of these evidence, I find no reason to interfere with the findings of the learned District Judge that the respondent is permanently, totally and absolutely disabled from being engaged or occupied in any employment or occupation. RSA 21/2004 16 Therefore, I find no reason to interfere with the decree granted in the light of the evidence on record, on the peculiar facts and circumstances of the case. Appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE. uj.