Anilkumar v. M.K. Sanilkumar, The Managing Director KSRTC, and New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 ``` ``` MACA NO. 626 OF 2023 ``` ``` AGAINST THE AWARD DATED 04.08.2022 IN O.P(M.V) NO.178/2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANT/PETITIONER:`** ``` ANILKUMAR, AGED 43 YEARS, S/O.GANGADHARAN, SIVAMANGALAM, CLAPPANA, KOLLAM, PIN – 691 583 BY ADVS.SRI.R.REJI SRI.M.V.THAMBAN SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 3:`** ``` 1M.K.SANILKUMAR S/O.KUNJAPPAN, MOOLAKUNNEL VEEDU, KOTHALAKARAYIL, KOORAPPADA, KOTTAYAM, PIN - 686502 2THE MANAGING DIRECTOR KSRTC, KSRTC FORT, THIRUVANANTHAPURAM, PIN - 695023 3NEW INDIA ASSURANCE CO-LTD REPRESENTED BY ITS MANAGER, KRISHNASWAMY AVENUE, CONVENT ROAD, KOLLAM -691001. BY ADVS.SRI.ALEX ANTONY SEBASTIAN P.A. SRI.RENIL ANTO KANDAMKULATHY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.626 of 2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 14[th] day of December, 2023** The appeal on hand is originated from an award passed by Motor Accident Claims Tribunal, Kollam (for short ‘the Tribunal’) on 04.08.2022 in O.P.(M.V.) No.178/2019. The appellant is the petitioner in the Original Petition. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The petitioner met with a motor accident at about 2.30 pm on 16.06.2018. He was riding a Motorcycle bearing Registration No.KL 23 K 2361, from north to south through Kollam-Alappuzha National Highway and when reached near Oachira Junction, a KSRTC Bus bearing Registration No.KL 15 ``` M.A.C.A.No.626 of 2023 ``` ``` 3 ``` A 785 driven by its driver in a rash and negligent manner knocked him down. He sustained serious injuries and was taken to Valiyath Hospital, Karunagappally. He was referred therefrom to KIMS Hospital, Thiruvanathapuram. He was later shifted to Parabrahma Speciality Hospital & Research Centre, Oachira, Hestia Hospital, Kochi and finally to Lisie Hospital, Ernakulam. The treatment was continued for a considerably long time. He had sustained brain injury and multiple facial fractures in the motor accident and availed in-patient treatment for four different spells. He was residing at Kollam. On account of the injuries sustained to his brain in the motor accident, he developed hemiparesis (one sided paralysis). 4. He claimed to be a painter by profession having ₹15,000/- as monthly income. But, he failed ``` M.A.C.A.No.626 of 2023 ``` ``` 4 ``` to adduce any evidence to establish those aspects. The Tribunal fixed ₹12,000/- as his monthly income on a notional basis and calculated compensation on its basis. The learned counsel for the petitioner canvassed for enhancing the monthly income. 5. In the absence of a challenge raised against the claim of the petitioner that he was a painter, the Tribunal opted to consider him so. The motor accident being occurred in the year 2018, this Court also finds ₹12,000/- fixed as monthly income reasonable and to maintain that. 6. The Tribunal calculated compensation for loss of earning for 10 months. Petitioner is established to have undergone treatment for a long duration, loss of earning can be considered for one year at least. Thus a sum of ₹1,44,000/- (₹12,000/-x 12) is arrived at. ₹1,20,000/- stood awarded by the Tribunal when adjusted against, the petitioner will get ₹24,000/- ``` M.A.C.A.No.626 of 2023 ``` ``` 5 ``` (₹1,44,000/- - ₹1,20,000/-) as additional compensation under that head. As already stated, petitioner was residing at Kollam and was constrained to avail treatment from different hospitals located at different places. His treatment ultimately was at Lisie Hospital, Ernakulam. Taking all these aspects into consideration, this Court is inclined to grant ₹10,000/more towards transportation expenses. 7. As compensation towards extra nourishment, the amount stood awarded by the Tribunal being inadequate, this Court is inclined to grant ₹15,000/more. As compensation towards bystander expenses, the Tribunal has awarded ₹36,000/- by taking ₹300/per day. This Court finds it appropriate to rely on **Kajal vs. Jagdish Chand and others** [(2020) 4 SCC 413] where multiplier method was adopted by the Apex Court for calculation of compensation for bystander expenses. ₹500/- is taken as the monthly ``` M.A.C.A.No.626 of 2023 ``` ``` 6 ``` sum payable towards bystander expenses. The multiplier adopted by the Tribunal was 15 and that being correct is maintained. When compensation for bystander expenses is calculated in multiplier method, ₹90,000/- (₹500/- x 12 x 15) is arrived at. ₹36,000/stood awarded by the Tribunal when adjusted against, the petitioner will get ₹54,000/- (₹90,000/- - ₹36,000/-) as additional compensation under that head. 8. The learned counsel for the petitioner canvassed for considering 100% disability in his case for the reason that his one side has been totally paralysed. 9. The learned counsel for the 3[rd] respondent contended that the Medical Board has certified his disability as 62% after examining him. According to him, the reason for assessment of disability is also stated in Ext.X1 issued by the Medical Board. ``` M.A.C.A.No.626 of 2023 ``` ``` 7 ``` Therefore, there is no justification in considering 100% as the occupational disability of the petitioner and awarding compensation on its basis. 10. It is noticed from Ext.X1 that the petitioner developed hemiparesis following the motor accident. It has been certified by the Medical Board in Ext.X1 that the petitioner requires the assistance of a person throughout his life. Since consideration of the occupation of the petitioner as painter was not challenged by the 3[rd] respondent, this Court is inclined to maintain that. Therefore petitioner as a painter may not be able to do painting or else to be engaged in any other work, in view of the paralysis of one side of his body. Moreover, the Medical Board itself has noted that the petitioner requires the assistance of a bystander throughout his life. In the above circumstances, though the physical disability of the petitioner was assessed by the Medical Board and ``` M.A.C.A.No.626 of 2023 ``` ``` 8 ``` certified in Ext.X1 as 62%, this court is inclined to take a judicial notice that the petitioner who has been a man whose one side is paralysed, will not be able to do the work as a painter or any other work that requires special skill. Even if he has opted to do any other job, he may not be able to do it properly personally. In the above circumstances, this court is inclined to accept the argument advanced by the learned counsel for the petitioner and to consider 100% as the occupational disability of the petitioner. 11. The learned counsel for the petitioner canvassed for an addition to the monthly income, in consideration of loss of future prospects of the petitioner. Since this Court has decided to take 100% as the occupational disability of the petitioner, is declined to add any sum towards the monthly income in consideration of loss of future prospects. ``` M.A.C.A.No.626 of 2023 ``` ``` 9 ``` 12. When compensation for permanent disability is calculated afresh with the monthly income maintained as ₹12,000/- and 100% as the occupational disability, ₹21,60,000/- (₹12,000/- x 12 x 15 x 100/100) is arrived at. ₹13,39,200/- stood awarded by the Tribunal when adjusted against, the petitioner will get ₹8,20,800/- (₹21,60,000/- - ₹13,39,200/-) as additional compensation towards permanent disability. This Court is also inclined to award ₹1,00,000/- as compensation towards future treatment. 13. In the above manner of re-fixation of compensation, the petitioner will get ₹10,23,800/(₹24,000/- + ₹10,000/- + ₹15,000/- + + ₹54,000/₹8,20,000/- + ₹1,00,000/-) (Rupees Ten lakhs twenty three thousand eight hundred only) as additional compensation, which 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. 3[rd] respondent ``` M.A.C.A.No.626 of 2023 ``` ``` 10 ``` being the insurer, shall deposit the additional compensation with interest fixed as above, excluding 27 days of delay occurred in filing the appeal on hand, within two months from the date on which a certified copy of this judgment is received. The disbursal of the amount in favour of the petitioner shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB