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

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **SATURDAY, THE 16TH DAY OF SEPTEMBER 2017/25TH BHADRA, 1939** **MACA.No. 2213 of 2015 () -------------------------** **AGAINST THE AWARD IN OPMV 285/2008 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR DATED 31-1-2013** **APPELLANT(S)/PETITIONER: -----------------------** **ANILKUMAR** **S/O. DIVAKARAN, AJI BHAVAN, NEAR POLICODU JUNCTION, VALAKOM, KOLLAM DISTRICT.** **BY ADVS.SRI.K.SIJU SMT.S.SEETHA** **RESPONDENT(S)/1ST RESPONDENT: -----------------------------** **THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM - 695 001.** **BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPN. R BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2213 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of September, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** This appeal is directed against the judgment and award dated 31.01.2013 in OP(MV) 285/2008 passed by the Motor Accidents Claims Tribunal, Punalur. The injured petitioner is dissatisfied with and aggrieved by the quantum of compensation granted thereunder. He filed the said claim petition under Section 166 of the M.V.Act seeking a total compensation of Rs.2 lakhs. As per the impugned award, the tribunal granted Rs.1,61,908/- as compensation with interest at the rate of 7.5 % per annum from the date of petition till realisation. The petitioner seeks for enhancement of the said quantum of compensation. 2. We have heard the learned counsel for the appellant and also the learned Standing Counsel appearing for the respondent. 3. The evidence before the tribunal consists only of the documentary evidence on the side of the appellant viz M.A.C.A.No.2213 of 2015 2 Exts.A1 to 15. The accident which led to the filing of the said claim petition occurred on 27.9.2006 at about 6.45 pm. On that day the appellant was riding his motorcycle bearing registration No.KL 02 Z/2986 from south to north through Kottarakkara – Thiruvananthapuram M.C. Road. At the place of accident the motorcycle was hit down by a KSRTC bus bearing registration No.KL 15/5098, driven by the second respondent in the above said claim petition. On sustaining severe injuries, the petitioner was initially taken to Medical College Hospital, Thiruvananthapuram and from there he was shifted to Gokulam Medical College, Thiruvananthapuram. Altogether he had been an inpatient for a period of 40 days. The injury sustained in the accident resulted in permanent disability. 4. The learned counsel appearing for the appellant submitted that the tribunal failed to properly appreciate the evidence on record and it resulted in deprival of just compensation. In the claim petition it was averred that the deceased was working as a Mason and was earning Rs.10,000/- per month. According to the learned counsel for M.A.C.A.No.2213 of 2015 3 the appellant, it is the erroneous fixation of the monthly income as also the wrong assessment of the extent of disability that resulted in denial of due compensation under the head of compensation for permanent disability. The tribunal disregarded the averments in the claim petition in respect of the occupation and income and fixed the monthly income notionally as Rs.3,000/-, which according to the appellant is on a lower side. True that the appellant had not adduced any evidence to substantiate his averments regarding occupation and income. It is to be noticed that he had not even chosen to mount the box to give oral evidence. In such circumstances, we do not find fault with the tribunal in fixing the monthly income notionally. Nonetheless, we are of the view that the fixation of the monthly income as Rs.3,000/- invites interference. The appellant was aged 29 years at the time of the accident. The accident occurred on 27.9.2006. Taking into account the absence of any evidence regarding occupation and income, we are of the view that for the purpose of fixing the monthly income the decision of the Apex Court in **Ramachandrappa v. Manager,** M.A.C.A.No.2213 of 2015 4 ## **Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** can act as guidance. Taking into account the aforesaid aspects as also the aforesaid decision, the monthly income of the appellant for the calculation purpose can be safely fixed as Rs.6,000/-. The learned counsel for the appellant submitted that the assessment of permanent disability is also liable to be interfered with. The appellant sustained the following injuries going by Ext.A5 wound certificate: “lacerated wound over lateral side of right knee, exposing lower femur and right upper tibia, fracture tibial condyle (lateral) right, fracture femur condyle right and supra condylar fracture shaft of left humerus. Ext.A13 is the disability certificate. It is issued by Dr. R. Manoj Kumar who was then an Additional Professor of Orthopaedics in Medical College Hospital, Thiruvananthapuram. The said doctor was not examined before the tribunal. In such circumstances, we do not propose to interfere with the assessment of disability made by the tribunal for calculation purpose. With reference to the age of the appellant at the time of the accident, the tribunal has correctly identified the multiplier. In short, the M.A.C.A.No.2213 of 2015 5 compensation for permanent disability is to be reassessed solely by substituting the refixed monthly income viz Rs.6,000/-. In such circumstances, the appellant is entitled to get an additional compensation of Rs.97,920 [6000 x 12x16x17/100 – 97920]. For the purpose of calculating compensation for loss of earning, the tribunal took the period as four months. The learned counsel appearing for the appellant submitted that the period fixed by the tribunal is too short considering the nature of the injury and their impact. We had already referred to the injuries sustained by the appellant in the accident. The nature of the injuries as also the parts of the body on which such injuries were sustained were constrained us to uphold the contention of the learned counsel for the appellant. In such circumstances, we are inclined to fix the period for the aforesaid purpose as six months. In such circumstances, the appellant is entitled to get enhancement based on the refixation of the period of loss of earning as also the re-fixed monthly income. Consequently, the appellant is entitled to get an additional compensation of Rs.24,000/- [36000 – M.A.C.A.No.2213 of 2015 6 12000] thereunder. The tribunal granted reimbursement of the expenses for extra nourishment and bystander expenses at the rate of Rs.75/- per day and Rs.100/-, respectively, per day. Taking into account the year of the accident and the price index and cost of living at the relevant point of time, we are of the view that the rate of expenses for extra nourishment and towards bystander services ought to have been Rs.100/- and Rs.200/- respectively, per day. In that view of the the matter, the appellant is entitled to get Rs.1,000/- additionally towards extra nourishment and an amount of Rs.4,000/- additionally towards bystander expenses. The appellant had to suffer excruciating pain out of the injuries referred hereinbefore for a long period. In such circumstances, we are inclined to grant an amount of Rs.10,000/- additionally towards compensation for pain and suffering. Though the tribunal has granted compensation for permanent disability taking the extent of disability as 16%, no amount of compensation was granted under the head loss of amenities. Indisputably, we are inclined to grant an amount of Rs.25,000/- more. M.A.C.A.No.2213 of 2015 7 5. In the light of the enhancement made by us, the appellant is entitled to get a total enhanced compensation of Rs. Rs.1,61,920/- which is rounded off to Rs.1,62,000/-. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. But in the light of the order passed by this court on 5.9.2015 while condoning the delay in filing the appeal the appellant is not entitled to get interest for a period of 803 days. The respondent is directed to deposit the said amount along with interest within a period of three months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **JUDGE** Sd/- **C.T. RAVIKUMAR** **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/