Abdul Kharim v. Manoj V.N., KSRTC and The New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 ``` ## **`MACA NO. 2352 OF 2014`** ``` AGAINST THE AWARD DATED 30.04.2014 IN O.P(M.V) NO.236/2012 OF ADDITIONAL ``` ``` DISTRICT & SESSIONS COURT - III, ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL – ``` ## **`III, PATHANAMTHITTA.`** ## **`APPELLANT/PETITIONER:`** ``` ABDUL KHARIM, S/O.MOHAMMAD KUNJU, NARAKATHANAM KUZHIYIL HOUSE,KULATHUR.P.O(VIA),VAIPUR,PATHANAMTHITTA. BY ADVS. SUSANTH SHAJI V.V.SHAJI ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1MANOJ V.N., S/O.NARAYANAN,VIRAPPIL HOUSE, VANNAPPURAM.P.O,THODUPUZHA,IDUKKI DISTRICT-688 580. 2MANAGING DIRECTOR, KSRTC, TRANSPORT BHAVAN,FORT, THIRUVANANTHAPURAM-695 023. 3THE NEW INDIA ASSURANCE CO.LTD PATHANAMTHITTA-689 645. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI (R3) SRI.ALEX ANTONY SEBASTIAN P.A., SC, KSRTC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2352 OF 2014 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 17[th] day of February, 2023. This appeal is filed challenging an award passed by Additional Motor Accidents Claims Tribunal-III, Pathanamthitta (For short, ‘the Tribunal’) in O.P(M.V) No.236/2012. The appellant is the petitioner before the Tribunal. He had met with a motor accident occurred on 15.04.2011 at about 10 p.m in Valancherry-Kottackal National Highway. The petitioner was travelling in an Ambassador car, which was dashed against a KSRTC bus bearing Registration No.KL-15-8923. The bus was driven by its driver in a rash and negligent manner and thereby the motor accident was occurred. `12,00,000/- was claimed as compensation. The driver, the owner and the insurer of the KSRTC bus were arrayed as respondent Nos.1 to 3 in the Original Petition. 2. 1[st] respondent did not turn up to contest the Original Petition and therefore, declared ex parte. 2[nd] and 3[rd] respondents filed written statement, contenting that the motor accident was occurred due to the rash and negligent driving of the car in which ``` MACA NO. 2352 OF 2014 ``` ``` 3 ``` the petitioner was travelling, by its driver and denying negligence on the part of 1[st] respondent. The 1[st] respondent was not holding a valid driving licence and the insured by permitting him to drive without a driving licence has violated the policy conditions. The compensation claimed is also challenged for the reason of its exorbitant nature. 3. This Original Petition was tried alongwith two other Original Petitions and a common award was passed. Challenge is raised against the common award by the petitioner alone. Evidence was adduced in common in all the three Original Petitions and it consist of Exts.A1 to A24 series. The petitioner herein was examined before the Tribunal as PW1. Respondents did not adduce any evidence. Based on the evidence adduced by the petitioners, the Tribunal arrived at a finding that the motor accident was occurred due to the rash and negligent driving of the KSRTC bus by the 1[st] respondent. The Tribunal had also found that the petitioner on account of the serious injuries sustained by him is entitled to get compensation and arrived at `8,05,473/-. Interest at the rate of 9% per annum from the date of filing of the Original Petition till the ``` MACA NO. 2352 OF 2014 ``` ``` 4 ``` date of realisation and proportionate cost of `49,600/- was also awarded. 4. According to Sri. Susanth Shaji, the learned counsel for the appellant, petitioner claimed to be a house driver at Saudi Arabia and earning `40,000/- as monthly income. According to him, despite raising a claim to that effect, the Tribunal fixed `6,000/- as his monthly income on a notional basis. According to him, inview of the assessment of compensation based on `6,000/as monthly income, compensation arrived at for loss of earning and permanent disability have fallen on the lower side. According to the learned counsel, the petitioner sustained serious injuries in the motor accident and had undergone several procedures as part of his treatment. According to him, the petitioner also mounted the witness box to depose as PW1 and has narrated all aspects of the injuries sustained and the treatment availed by him for that. According to him, he has landed at the hometown on leave and could not go back to join his work as a house driver immediately on account of the disability suffered by him due to the injuries sustained in the motor accident. According to him, he lost his job ``` MACA NO. 2352 OF 2014 ``` ``` 5 ``` for the reason. He canvassed for taking 100% as his loss of earning power. According to him, his disability was assessed as 39% by the Medical Board associated with Medical College Hospital, Kottayam but the Tribunal without assigning any cogent reasons, took 35% as his disability for the purpose of assessment of compensation. According to him, the Tribunal is highly unjustified in doing so and therefore, a re-assessment of compensation by considering 100% functional disability is warranted. 5. The learned counsel has also pointed out that towards pain and sufferings and loss of amenities and enjoyments in life also, the Tribunal has awarded only meagre sums as compensation and interference of this Court in the matter is required. He has also pointed out that towards transportation expenses, extra nourishment and bystander expenses also the Tribunal failed to award just and reasonable sums as compensation. According to him, towards damages to clothing, the Tribunal failed to award any sum as compensation. He canvassed for re-fixation and award of a modified sum as compensation by this Court. ``` MACA NO. 2352 OF 2014 ``` ``` 6 ``` 6. Rajkumar V. Ajaykumar [2011 (1) KLT 620 (SC)] was also relied on by him to substantiate his contentions. In order to rest his contention that a sum over and above `6,000/- is required to be considered by this Court as monthly income, he has also relied on Manusha Sreekumar and Others V. The United India Insurance Co,Ltd [AIR 2022 SC 5161] . The learned counsel has also sought for relying on the fixation of monthly income in Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] for fixation of a reasonable sum as the monthly income of the petitioner. 7. The learned counsel for the 3[rd] respondent has contended that evidence was not adduced by the petitioner before the Tribunal to establish his job and monthly income and therefore, the Tribunal has fixed the monthly income as `6,000/- notionally. According to her, interference with that fixation is totally unwarranted. The learned counsel has also contended that evidence was not adduced before the Tribunal by the petitioner to establish that he had lost his earning capacity in full following the injuries ``` MACA NO. 2352 OF 2014 ``` ``` 7 ``` sustained in the motor accident. Therefore, 100% canvassed to be considered for assessment of compensation for loss of earning power is only to be discarded. It is further pointed out by the learned counsel for the 3[rd] respondent that the compensation stands awarded by the Tribunal under various other heads are more than adequate and also proportionate to the injuries sustained and therefore, interference is totally un-warranted. 8. The petitioner claimed to be a house driver at Saudi Arabia. The appeal is once argued in part and in view of the argument advanced that the petitioner had lost his full earning capacity on account of the injuries sustained in the motor accident, this Court has directed production of the passport of the petitioner before it. Accordingly, the original passport was produced in the case on hand and it was marked in evidence as Ext.A25. The learned counsel canvassed on the basis of Ext.A25 that there was no endorsement in the passport to convince this Court that he had returned to Saudi Arabia after undergoing the treatment following the motor accident to join his work as a house driver there. According to him, the validity period of the passport is shown in ``` MACA NO. 2352 OF 2014 ``` ``` 8 ``` Ext.A25 as from 10.08.2007 till 09.08.2017. According to him, though the validity period of passport was there till 2017, in view of the injuries sustained in the motor accident in the year 2011, he had not joined his job as a house driver. This Court has gone through Ext.A25 and found that the validity period of the passport is correct as stated by the learned counsel. But Ext.A25 incorporates the visa, wherefrom the validity period was ascertained as, from 26.09.2007 till 28.09.2014. It was also discerned from it that the visa has only a validity period of three months. That may be the reason why he did not continue his job as a house driver at Saudi Arabia. Therefore, the loss of avocation as driver was not established by the petitioner as due to the injuries sustained by him in the motor accident. 9. Petitioner had produced the driving licence obtained from Saudi Arabia, to establish his avocation there as a house driver, which is marked in evidence as Ext.A10. This Court is convinced on a perusal of Ext.A10 that the petitioner had the authorisation to drive a vehicle at Saudi Arabia but the validity period was only for three months and therefore, the petitioner cannot be treated as employed for the entire period for which Ext.A25 stands issued. ``` MACA NO. 2352 OF 2014 ``` Therefore, as on date of the motor accident, the petitioner cannot be treated as a driver working abroad. Therefore the averment of the petitioner in the Original Petition and facts deposed while examined as PW1 that the accident was occurred while he was on leave does not appear to this Court true to facts. 10. Therefore, it is convinced that the petitioner was permitted by Ext.A25 to work as a house driver at Saudi Arabia only for a limited period of three months. `40,000/- pleaded as monthly income in the Original Petition is also not proved. In the above context, the Tribunal was constrained to fix `6,000/- as the monthly income on a notional basis. On the basis of Manusha Sreekumar supra the learned counsel also canvassed to fix a higher sum as the monthly income of the petitioner who was qualified as a driver. But, the factual situation in Manusha Sreekumar supra differs from the one on hand. The petitioners there, are none other than the legal representatives who had raised a claim in the Original Petition that the deceased was a Fish Vendor cum Driver. Since the deceased being a self employed person and incapable to establish the monthly income earned by him, the Apex Court had taken `15,000/- as his ``` MACA NO. 2352 OF 2014 ``` ``` 10 ``` monthly income. In the case on hand, as already stated, as per the pleadings of the petitioner itself, he was a house driver in a Gulf Country. It is indicated from Ext.A25 that he had visa only for three months and therefore he cannot be taken as permanently employed there as a house driver. Therefore, the monthly income fixed in Manusha Sreekumar supra cannot be adopted in the case on hand. In the above circumstances, `7,000/- is fixed as the monthly income. 11. The Medical Board had examined the petitioner and assessed 39% disability for him. The Tribunal took only a reduced percentage based on the version of PW1, that he was prevented only from doing the work as a driver. According to the Tribunal, the petitioner is capable to do works other than driving for earning income. The physical disability of the petitioner was assessed by the Medical Board as 39% and not the functioning disability. Therefore, this Court takes 39% assessed by the Medical Board itself for assessment of compensation for disability. The date of birth of the petitioner is shown in Ext.A10 as 30.05.1960. Therefore, 13 adopted by the Tribunal as the multiplier being correct is maintained. ``` MACA NO. 2352 OF 2014 ``` ``` 11 ``` 12. It is urged by the learned counsel for the petitioner that the petitioner had lost his capacity to work in full and compensation is required to be assessed by taking 100% as the loss of earning power. The learned counsel has relied on Raj Kumar supra. The reasons stated by the Apex Court in Raj Kumar supra for assessing 100% loss of earning power is different from what was submitted by the learned counsel for the petitioner. The Apex Court has stated that inorder to be eligible for a compensation for 100% loss of earning power, the victim of the accident must adduce oral evidence that he has lost his capacity to work in the profession in which he was working at the time of accident and also prevented from doing any other work. 13. In the case on hand, the petitioner as PW1 deposed that he lost his capacity to work abroad as a house driver and therefore he did not join the work. The only medical evidence that has come on record is Ext.A14. None of the doctors who were instrumental in issuing Ext.A14 was examined. Therefore, medical evidence has not come on record to the effect that the petitioner was prevented from doing the work he was attending at the time of the motor accident ``` MACA NO. 2352 OF 2014 ``` ``` 12 ``` and other jobs also. Thus, the argument of the learned counsel that the petitioner is entitled to get compensation for loss of his earning power at 100%, is discarded as totally untenable. 14. It is noticed from the medical documents on record that the petitioner had undergone several procedures as part of treatment. Thus, he was not in a position to do any job atleast for a period of ten months. Therefore, this Court is inclined to take a period of ten months for assessment of compensation for loss of earning. When compensation for loss of earning is reassessed based on `7,000/-, the re-fixed monthly income and period as ten months, the petitioner will get `70,000/- (`7,000/- x 10) as compensation. `36,000/- stands awarded by the Tribunal, when adjusted against, the petitioner will get `34,000/- as additional compensation. Towards transportation expenses, extra nourishment and bystander expenses, the sums stand awarded by the Tribunal as compensation being adequate and reasonable, this Court is declined to enhance those. 15. Towards damages to clothing, the Tribunal failed to award any compensation and therefore, this Court awards `1,000/-. ``` MACA NO. 2352 OF 2014 ``` ``` 13 ``` Towards pain and suffering, the sum stands awarded being on the lower side, this Court enhances it to `50,000/-. Therefore the petitioner will get `15,000/- (`50,000/- `35,000/-) as additional compensation. As compensation towards loss of amenities and inconveniences, the sum stands awarded by the Tribunal being a reasonable sum, this Court is declined to interfere with. 16. Loss of dependency when assessed afresh on the basis of the monthly income re-fixed as `7,000/-, 13 adopted as the multiplier and 39% as the disability, `4,25,880/- (`7,000/- x 12 x 13 x 39/100) is arrived at. `3,27,600/- stands awarded by the Tribunal, when deducted from the sum now arrived at, the petitioner will get `98,280/- (`4,25,880/- - `3,27,600/-) as additional compensation. 17. In the manner of re-assessment as above, the petitioner will get `1,48,280 (Rupees One Lakh Forty Eight Thousand Two Hundred and Eighty) (`34,000/- + `1,000/- + `15,000/- + `98,280/-) as total additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal had ``` MACA NO. 2352 OF 2014 ``` fixed liability upon the 3[rd] respondent, being the insurer of the KSRTC bus and in the absence of any challenge against, this Court is inclined to maintain that. Therefore, 3[rd] respondent, the insurer of the K.S.R.T.C bus is directed to pay the additional compensation awarded with interest fixed, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA stands allowed accordingly. **`Sd/-`** MARY JOSEPH JUDGE JJ