IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 SA.No. 170 of 1996 --------------------------------- AS.122/1992 of ADDL. DISTRICT COURT, PARAVUR OS.193/1989 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------------ NATIONAL INSURANCE COMPANY, PRASAD BUILDINGS, BRIDGE ROAD, ALWAYE, NOW AT URUMPATH BUILDINGS, RAILWAY STATION ROAD, REPRESENTED BY ITS ASST. MANAGER, REGIONAL OFFICE, MUTHOOT TOWERS, M.G. ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE SRI.A.AUGUSTINE RESPONDENT/RESPONDENT/PLAINTIFF: ---------------------------------------------------------- ISHA, W/O. MOHAMEDALI, KOCHIYAMPARAMBU VEEDU, KAITHARAM MURI, KOTTUVALLY VILLAGE, N. PARUR TALUK. ADV. SRI.K.G. VIJAYAN MANNALY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.6.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ----------------------------------------------- S.A. NO. 170 OF 1996 C ----------------------------------------------- Dated this the 3rd June, 2009 JUDGMENT Appellant is the defendant in a Suit filed by the respondent for a decree for money on the strength of the terms of the Janatha Accident Policy issued by the appellant, while the respondent was employed as a worker in a Coconut Fiber Ginning Mill. The respondent instituted the Suit alleging that she was injured and handicapped while working in the Mill. She claimed the assured sum of Rs.15,000/= with interest at 12 per cent per year. The trial court raised appropriate Issues. The respondent examined herself as PW1. An employee of the appellant was examined as DW1. Exts.A1 to A4 were marked. The trial court took the view that the case of the respondent falls under Clause (c) of Ext.A1 Insurance Policy and passed a Decree for Rs.7,500/= with 12 per cent interest per annum. The appellant preferred an appeal, being dissatisfied with the same. S.A.NO.170/96 2 The first appellate court proceeded to take the view that the case of the respondent can be brought under Clause (d) of the Insurance Policy. The appellant has filed this Second Appeal, purporting to raise the following substantial questions of law: “(1) On the facts and circumstances of the case, is the lower appellate court justified in allowing the Suit, permitting the plaintiff to recover Rs.15,000/= which was declined by the trial court, at the instance of an appeal filed by the defendant ? (2) Are the courts below justified in relying on Ext.A2 medical certificate for decreeing the Suit, where Ext.A2 medical certificate was not proved in accordance with law ? (3) On the facts and circumstances of the case, whether Ext.B1 personal Accident Insurance Policy takes in accidents connected with employment or which arise during the course of employment and if so, whether the claim made before the Workmen's Compensation Commissioner for the very same cause of action would disentitle him to claim the benefits of the personal accident insurance policy ?” S.A.NO.170/96 3 2. I heard the learned counsel for the appellant and the respondent. In order to appreciate the questions, it is necessary to extract the clauses in Ext.A1 including clause (d) as under: “(a) If such injury shall within six calendar months of its occurrence be the sole and direct cause of the death of the insured, the capital sum insured stated in the schedule. The amount payable under this clause shall be paid to the nominee shown in the schedule. (b) If such injury shall within six calendar months of occurrence be the sole and direct cause of the total and irrecoverable loss of sigh of both eyes or of the actual loss by physical separation of two entire hands or two entire feet or of one entire hand and one entire foot or of such loss of sight of one eye and such loss of one entire hand or one entire foot the capital sum insured stated in the schedule. (c) If such injury shall within six calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight one eye or of the actual loss by physical separation of one entire hand or one entire foot fifty per cent S.A.NO.170/96 4 (50 per cent) of the capital sum insured stated in the schedule. (d) If such injury shall within six calendar 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.” 3. The trial court came to the conclusion that the appropriate clause is clause (c). The appellant maintained the first appeal taking the stand that the respondent is not entitled to the benefit of clause (c). In this Appeal also, the learned counsel for the appellant is emphatic that the case of the respondent will not fall under clause (c) for the reason that clause (c) will not apply, unless there is actual loss by physical separation of one entire hand or one entire foot. Admittedly, in the facts of this case, it cannot apply, as there is no loss of one entire hand, as what is lost is the thumb and the index fingers which were completely lost. Also, the three fingers were deformed and S.A.NO.170/96 5 became functionless. The provision in clause (c) does not merely use the words “actual loss of one entire hand”. The words “by physical separation” are specifically incorporated in clause (c). Therefore, even if it could be said that because of the loss of the fingers as aforesaid, there is virtually loss of the left hand, it may not suffice as the clause unambiguously requires physical separation of the entire hand. Admittedly, it is no one's case that such an event has happened. Thereafter, clause (d) fell for consideration. The first appellate court took the following view: “6. Now the crucial question is if the disability caused due to injury sustained by the respondent/plaintiff would not come under condition (c), whether it will come under condition (d). In order to attract that condition the injury should 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.” As already stated, the respondent/plaintiff has been found to S.A.NO.170/96 6 be unfit to do any employment or work because of the non-function of the left hand after accident. There cannot be any dispute that injury sustained by the respondent/plaintiff within six calendar months of its occurrence was the sole and direct cause of her disability. As regards the question whether the injury caused permanent and absolute disability, the best evidence is Ext.A2 medical certificate and the evidence of respondent/plaintiff herself. I am of the opinion that it should be accepted without demour. In view of this finding, the respondent/plaintiff is entitled for the entire assured sum of Rs.15,000/= from the appellant Insurance Company under Condition (a) in Ext.A1 Policy. Point answered accordingly.” 4. Learned counsel for the appellant would contend that in an Appeal filed by the defendant, there being no appeal filed by the plaintiff, it is not open to the first appellate court to pass a decree for Rs.15,000/= which is the entire sum covered by clause (d) of Ext.A1. She would submit that though a Certificate was produced, the Doctor who is alleged to have S.A.NO.170/96 7 issued, was not examined and, therefore, the Certificate could not be said to have been proved and therefore, the finding entered by the first appellate court was without any evidence. Learned counsel appearing on behalf of the respondent would submit that the Award is only to be supported and that the respondent is now aged fiftynine and she cannot do any work. 5. As far as the question whether the first appellate court could have passed a decree for Rs.15,000/= as against Rs.7,500/= granted by the trial court is concerned, I would think that it is not as if the appellate court is without power under Order 41 Rule 33. It is to be noted that the respondent had instituted a Suit for recovery of Rs.15,000/=. Therefore, it is not as if in the Suit, the claim was for Rs.7,500/=. Herein, the claim was for Rs.15,000/=. On an interpretation of the clause, the trial court took the view that clause (c) is attracted. The Insurance Company took up the matter in appeal, apparently taking the stand that no amount is payable as compensation under the policy. In such an appeal, on an interpretation of the clause, S.A.NO.170/96 8 when the appellate court came to the conclusion that clause (d) is applicable and it could not possibly award any compensation under clause (c), I would think, particularly in the facts of this case, when the respondent was 34 year old woman worker in a Mill, whose life is blighted by the unfortunate accident in which she virtually lost the use of every finger of the left hand, two by severance and three by deformity, I would think that the appellant has not made out a case for interference in the limited jurisdiction under Section 100. It is also not to be overlooked that there is evidence of the respondent that she is unable to do any work. It is true that the Doctor was not examined. No doubt, the document was marked through the respondent. The appellant did not object to the same. Whatever that be, it cannot be said that that there is total want of evidence to the effect thqt the respondent is unable to do any work, as is contemplated in clause (d). The view taken by the appellate court is a possible view. A view which is a possible view, cannot be characterised as a perverse view. A view which has the support of some S.A.NO.170/96 9 evidence, also cannot be characterised as a perverse finding, warranting interference in Second Appeal. In the light of the facts as aforesaid, there is no merit in the Appeal and it is dismissed. However, the parties are to bear their respective costs in this Second Appeal. Sd/= K.M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge S.A.NO.170/96 10 K.M.JOSEPH, J. S.A.NO.170 OF 1996 C JUDGDMENT 3rd June, 2009.