ANILKUMAR v. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 31[ST] DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 MACA NO. 2719 OF 2017 ``` ``` AGAINST THE AWARD DATED 07.12.2016 IN OP(MV) NO.106/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL ``` ## **`APPELLANT:`** ``` ANILKUMAR, NOW AGED 46 YEARS, S/O.MANIYAN, KUNNUMPURATHU VEEDU,KOCHUVILA P.O., KANNANKODE, PERINGAMALA, THIRUVANANTHAPURAM DISTRICT. ``` ``` BY ADVS. SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN ``` ## **`RESPONDENTS:`** ``` 1THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM DIST, PIN-695001. 2AJAYAKUMAR, S/O.SANKARAKURUP, MATTATHIL, S.L.PURAM P.O., ALAPPUZHA, PIN-688523. ``` ``` BY ADVS. SRI.P.C.CHACKO - SC SRI.ALEX ANTONY SEBASTIAN-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2719/17 2 ## **`JUDGMENT`** The appellant was involved in a road accident on 19.11.2008 – when the motor cycle he was riding, was knocked down by a bus owned by the Kerala State Road Transport Corporation (KSRTC), thus sustaining grievous injuries. On the allegation that the offending bus was driven in a rash and negligent manner, he filed OP(MV) No.106/2009 before the Motor Accidents Claims Tribunal, Attingal (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.4,16,000/-; but which has been allowed only to an extent of Rs.2,32,474/-. He assails this amount as being inadequate. 2. Sri.R.Anil Kumar – learned counsel for the appellant, argued that, reckoning of notional income in favour of his client by the learned Tribunal is illegal because he had led evidence to establish that he was a Carpenter, earning Rs.5,000/- per month. He added that, similarly, the learned Tribunal has erred in reckoning the period of in-patient treatment of his client as being 64 days only because the said period has been taken without MACA 2719/17 3 reckoning Exts.A1 and A5 to A9 Discharge Summaries, which establish a further 22 days of hospitalisation. He pointed out that the amounts granted under the heads ‘Bystander’s Expenses’, ‘Extra Nourishment’, ‘Pain and Suffering’ and ‘Loss of Amenities’ are, in any case, so exiguous and inadequate, that it bears no rational nexus to the severity of the injuries and the trauma suffered by his client. He thus prayed that this Appeal be allowed. 3. In response, Sri.Alex Antony Sebastian – learned Standing Counsel for the KSRTC, argued that the compensation awarded by the Tribunal is without any error, particularly because the accident happened in the year 2008; and thus prayed that this Appeal be dismissed. 4. I have considered the afore rival contentions on the touchstone of the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 5. Upfront, there is great force in the submission of Sri.R.Anil Kumar, that the learned Tribunal has erred in fixing the MACA 2719/17 4 notional income of the appellant to be a mere Rs.4,000/-. This is because, going by the standardization postulated by the Honourable Supreme Court in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], it has been declared that even in the case of a person whose income is otherwise unascertainable, or who was working as a ‘Coolie’, in the year 2008 – when the accident occurred – the minimum figure to be adopted is Rs.6,500/-. Since the appellant has claimed only Rs.5,000/-, asserting that he is a Carpenter, said figure certainly ought to have been adopted. 6. That said, there is a controversy as to how many days the appellant had to suffer as an in-patient. The learned Tribunal has reckoned it as 64 days, but as rightly argued by Sri.Anil Kumar, Exts.A1 and A5 to A9 series of Discharge Summaries show that he had to suffer a total of 83 days of hospitalisation. 7. That being said, the learned Tribunal has awarded only Rs.2,000/- and Rs.9,600/- under the heads ‘Extra Nourishment’ and ‘Bystander’s Expenses’ respectively. It is needless to say that this is extremely low and I, therefore, propose to revise them at MACA 2719/17 5 the rate of Rs.250/- and Rs.350/- per day respectively. 8. Coming to the compensation awarded by the learned Tribunal under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’, one will have to first examine the medical evidence to see the severity of injuries sustained by the appellant. Exts.A1 and A5 to A9 series of Discharge Summaries, read along with Ext.A11 Disability Certificate, establish that the appellant has suffered ‘fracture both bones right leg and fracture femur right leg’ (sic). He had to endure long period of treatment and the Doctor who had issued Ext.A11 – Disability Certificate has recorded that the appellant suffered ‘shortening of right leg, limbing gait, crutches for walking, right knee frozen with restricted mobility and chronic infection with pus discharge, the knee and fracture site’ (sic), even at the time of examination, which was many months after the accident. 9. The afore being so, the appellant has a further case that his percentile of disability ought not to have been reduced to 14%, when the Disability Certificate records it to be 15%. However, the Tribunal has correctly found that the said Certificate MACA 2719/17 6 has not been issued by a validly constituted Medical Board, but by a Doctor and, therefore, made the small reduction. I do not, therefore, propose to modify it in any manner. 10. It is without doubt that the injuries sustained by the appellant are severe and that the treatment he had to endure would have given him great amount of trauma, pain and stress. In such perspective, I have no doubt that the compensation awarded by the Tribunal under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’ requires to be enhanced; and I propose the same to be Rs.50,000/- and Rs.40,000/- respectively. I am persuaded to do so also because, the fractures suffered by the appellant would have taken some time to unite, but since the Disability Certificate shows that he has 15% permanent disability, there is a mild amount of malunion also exhibited. 11. As far as compensation under the head ‘Loss of Earnings’ is concerned, when the notional income of the appellant is revised as Rs.5,000/-, it will certainly require to be escalated; but the question is whether the period of eight months reckoned by the Tribunal is sufficient or not. In this regard, Exts.A1 and A5 MACA 2719/17 7 to A9 Discharge Summaries show the period of treatment undergone by the appellant. The accident was on 19.11.2008, while the last of the Discharge Summaries - namely Ext.A9, was issued on 20.03.2012. During this period, as I have already said above, the appellant was under treatment for 83 days as an inpatient. Though there is no specific input to establish whether the appellant had been totally incapacitated to work during the roughly four year period covered by the Discharge Summaries, it can be safely assumed that the trauma and stress associated with his injuries and treatment would have kept him away from such at least for a period of one year. I propose to adopt this period for reckoning ‘Loss of Earnings’. In the afore circumstances, this Appeal is partly allowed with the following directions: a) The compensation awarded by the Tribunal under the head ‘Permanent Disability’ is enhanced to Rs.1,26,000/-, from Rs.1,00,800/- granted by the Tribunal, reckoning the notional income of the appellant to be Rs.5,000/- per month and his percentile of disability to be 14%, as correctly reckoned by the MACA 2719/17 8 ## learned Tribunal. b) The compensation under the head ‘Pain and Suffering’ is enhanced to Rs.50,000/-, from Rs.25,000/- as awarded by the Tribunal. c) The compensation under the head ‘Loss of Amenities’ is enhanced to Rs.40,000/-, from Rs.26,000/- granted by the Tribunal. d) The compensation under the head ‘Extra Nourishment’ is enhanced to Rs.20,750/- from Rs.2,000/-, reckoning Rs.250/- as the per day expenses, for 83 days of hospitalisation e) The compensation under the head ‘Bystander’s Expenses’ is enhanced to Rs.29,050/- from Rs.9,600/-, reckoning Rs.350/- as per day expenses, for 83 days of hospitalisation. f) The compensation under the head ‘Loss of Earnings’ is enhanced to Rs.60,000/- from Rs.32,000/-, reckoning the notional income of the appellant to be Rs.5,000/-, for a period of 12 months. g) In all other heads, the findings of the Tribunal will remain unaltered. MACA 2719/17 9 Consequently, the appellant will be at liberty to recover the full compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8%, (reducing it from 9% granted by the Tribunal, in view of the escalation granted by this Court), from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ```