A.T. Varghese v. Kerala State Road Transport Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **MACA NO. 3145 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 17/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** A.T.VARGHESE, S/O.THOMAS ALUKKA HOUSE, ANGAMALY. BY ADVS. SMT.RESHMI JACOB V.V.NANDAGOPAL NAMBIAR ## **RESPONDENT/S:** - 1 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, THIRUVANANTHAPRUAM. - 2 RATHI RAJAN, PLAMVILLA, PADAYATTIL HO7USE, ADOOR, PATHANAMTHITTA DISTRICT. - 3 NATIONAL INSURANCE CO.LTD - 57 THIRU-VI-KA-INDL.ESTATE,GUINDY P.O. - 4 HARIHARAN, S/O.RAMAN NAIR THATTATUKUDIYIL HOUSE, KARIKKODE KARA,, KARIKKODE VILLAGE. BY ADVS. SRI.P.C.CHACKO(PARATHANAM)-R1 ALEX ANTONY SEBASTIAN P.A.-R1 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3145 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.3145 of 2009** ## **====================== Dated this the 23[rd] March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.17/2004 on the file of the Motor Accident Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 5.7.2003. It was his case that, on the above said date, while he was travelling in a bus bearing registration No.KL-15/2495, owned by the first respondent and driven by the fourth respondent, along the Muvattupuzha – Thodupuzha road, another bus bearing registration No.KL-3/H 1056, owned by the second respondent and insured with the third 3 MACA No.3145 of 2009 respondent, hit the bus in which the appellant was travelling. The appellant sustained multiple injuries, including a comminuted fracture of the shaft of the left humerus. He was treated as an inpatient for a period of 9 days at the Little Flower Hospital, Angamaly. The appellant was working as Secretary and LIC agent and was earning a monthly income of Rs.5,000/-. Hence, the appellant had claimed a compensation of Rs.1,53,000/from the respondents. 3. The respondents 1 and 4 had filed a joint written statement contending that the accident occurred due to the negligence of the driver of the bus bearing registration No.KL-3/H 1056. The respondents 1 and 4 also disputed the age, income and occupation of the appellant. 4. The third respondent had filed a written statement contending that the accident occurred due to the negligence of the driver of the bus bearing 4 MACA No.3145 of 2009 registration No.KL-15/2495. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant had produced and marked Exts A1 to A6 in evidence. The respondents produced the copy of insurance policy certificate, which was marked as Ext B1. Exts X1 to X1(c) were marked as Court Exhibits. 6. The Tribunal, after analysing the pleadings and materials on record and taking note of Ext X1 (b) scene mahazar, arrived at a conclusion that the accident occurred due to the negligence of the drivers of both the buses. However, as the appellant had claimed compensation only from the first respondent, the Tribunal directed the respondents 1 and 4 to pay an amount of Rs.37,175/- with interest @ 8% per annum from the date of petition till the date of realization. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 5 MACA No.3145 of 2009 8. Heard; Smt.Reshmi Jacob, the learned counsel appearing for the appellant/petitioner, Sri.Alex Antony, the learned counsel appearing for the first respondent and Sri.Lal George, the learned counsel appearing for the third respondent/insurer. 9. The point that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. The Tribunal, on the basis of the Police records, arrived at the conclusion that the accident occurred due to the negligence of the drivers of both the buses. The owners or insurers of the buses have not come up in appeal. Hence, the finding of the Tribunal, that it is the respondents 1 and 4 are to pay the compensation amount, is confirmed. ## **Income** 11. The appellant had claimed that he was working 6 MACA No.3145 of 2009 as Secretary in Prison Fellowship India and was an LIC Agent and was drawing a monthly income of Rs.5,000/-. The appellant did not produce any material to substantiate his pleading. Accordingly, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2003, I refix the notional monthly income of the appellant at Rs.4,000/-. ## **Loss of earnings** 14. It is proved and established that the appellant was indisposed for a period of three months. 7 MACA No.3145 of 2009 15. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/-, I award him a further amount of **Rs.4,500/-** towards loss of earnings. ## **Pain and sufferings** 16. The appellant had claimed an amount of Rs.25,000/- under the head 'pain and sufferings'. The Tribunal has awarded an amount of Rs.12,000/- under the said head. 17. On a consideration of the fact that the appellant had sustained a fracture, that he was treated as an inpatient for a period of nine days and that he was indisposed for a period of three months, I hold that he is entitled to a further amount of **Rs.8,000/-** under the head ' pain and sufferings'. ## **Other heads of compensation** 18. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 8 MACA No.3145 of 2009 In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.12,500/-** (i.e., Rs.4,500/- towards loss of earnings + Rs.8,000/- towards pain and sufferings) with interest at the rate of 6% per annum on the enhanced compensation from the date of claim petition till the date of realization, after deducting interest for a period of 112 days (i.e., the period of delay in filing the appeal and as ordered by this Court on 19.11.2021 in C.M Appln No.1/2009), and a cost of Rs.3,000/-. The first respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant, in accordance with law. Sd/- sks/23.3.2022 **C.S.DIAS, JUDGE**