Bindhu Rajendran v. The Managing Director, KSRTC, Trivandrum & The Branch Manager, New India Assurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944 ``` ## **`MACA NO. 1547 OF 2016`** ``` OPMV 1030/2009 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA / I ADDL. M.A.C.T. ``` ## **`APPELLANT/S:`** ``` BINDHU RAJENDRAN ``` ``` S/O. RAJENDRAN, KADACKAL HOUSE, PARAKODE P.O., ADOOR. ``` ``` BY ADV SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/S:`** ``` 1THE MANAGING DIRECTOR KSRTC BHAVAN, TRIVANDRUM-695023. 2BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LTD., ST.PETERS JUNCTION, PATHANAMTHITTA-689546. ``` ``` BY ADVS. ``` ``` SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION SRI.M.PREMCHAND SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. ``` ## **`OTHER PRESENT:`** ``` ALEX ANTONY SEBASTIAN.P.A -S.C, R1 M.PREMCHAND - S.C,R2. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1547 OF 2016 ``` -2- ## **JUDGMENT** (Dated this the 16[th] day of June 2022) Dissatisfied with the award of compensation in O.P. (M.V.) No.1030 of 2009 on the files of the Motor Accidents Claims Tribunal, Pathanamthitta, the petitioner has filed this appeal. 2. On 19.4.2009 at about 12.40 p.m., while the appellant was riding the scooter bearing Reg.No.KL/03/M/1735 through M.C. Road from AdoorKurampala, a KSRTC bus bearing Reg.No.KL-15-5783 in a rash and negligent manner and hit upon the scooter as a result of which, the appellant sustained serious injuries. Immediately she was taken to Medical College Hospital, Thiruvananthapuram and treated there as inpatient. The appellant contended that the accident happened due to the negligence on the part of the driver of the KSRTC bus. The first respondent is the registered owner of the bus and the vehicle was having a valid Insurance policy with the second respondent. The appellant was aged 33 years and was earning a monthly income of Rs.12,000/- by ## **`MACA NO. 1547 OF 2016`** -3- conducting a medical shop. 3. The second respondent filed a written statement contending that there was no negligence on the part of the KSRTC bus and the accident happened due to the negligence on the part of the appellant herself. The compensation claimed is exorbitant. 4. The Tribunal relying on Exts.A1 to A25 series, awarded a total compensation of Rs.3,00,000/- with 9% interest from the date of petition. 5. Heard. 6. The counsel for the appellant mainly submitted that though the Medical Board, as per Ext.A5 Disability certificate, assessed the permanent disability at 15%, the Tribunal reduced the same without any justification and fixed at 10%. Moreover, the income she claimed was Rs.12,000/- per month and though the Tribunal has found it as reasonable, fixed the monthly income only at Rs.8,000/-. 7. The counsel for the respondents submits that the award is perfectly in order and the Tribunal has awarded just compensation looking into the disability as well as ``` MACA NO. 1547 OF 2016 ``` -4- income. 8. Annexure – A5 is a permanent disability certificate issued by the District Hospital, Kozhencherry fixing disability at 15% after evaluating the appellant. The injuries sustained by the appellant are hemorrhagic contusions with adjacent edema in the right frontal lobe, small extra axial haemorrhage along the right frontal region with pneumocephalus, mildly displaced fracture of the front bone on right side, lacunar infarct in genu of left internal capsule, displaced fractures of the roof of the right orbit with displaced fragment at the superior aspect of the right orbit with mass effect due to brain parenchyma causing mild proptosis of right eye ball, mildly displaced fracture of the lateral wall and supra orbital ridge of the right orbit, pre septal edema on the right side, mildly displaced fracture of anterior and lateral wall of right maxillary sinus extending to floor of the right orbit. Moreover, she had partial loss of vision on right eye. The appellant is conducting a medical shop and she is having Diploma in Pharmacy with registration certificate. Though the Tribunal records in the ## **`MACA NO. 1547 OF 2016`** -5- order that the disability assessed as per Ext.A5 Disability Certificate at 15% is reasonable, without any reason fixed the same at 10%. The said reduction is illegal and improper, as the same is without any reasoning. Moreover, the Tribunal also finds that the income at Rs.12,000/- as claimed by the appellant is reasonable. Going by the decision in **v. Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236],** the notional income of the appellant can be taken as Rs.7,000/- as the accident happened in the year 2009. The appellant, being a qualified Pharmacist with Registration, who was actively conducting a Medical Shop, going by Ext.Nos.A16, A17 and A18 it can be seen that she was earning income. Though the Tribunal has reason to believe that the monthly income claimed is reasonable, brought down the same to Rs.8,000/-, which according to me is also improper. Taking into consideration of the injuries sustained and disability caused to the vision, I am inclined to accept the disability as 15% itself. Moreover, the income claimed by the appellant at Rs.12,000/- per ## **`MACA NO. 1547 OF 2016`** -6- month is reasonable taking into consideration of the above mentioned aspects. Hence, the disability compensation can be worked out as Rs.12,000 x 12 x 16 x 15/100 = 3,45,600/-. 9. The appellant contends that for loss of amenities the amount of Rs.50,000/- awarded is on the lower side, taking note of the injuries as well as the disability, I am of the opinion that the amount awarded is reasonable. Hence no enhancement is awarded on the said head. 10. With regard to the loss of earning, since the monthly income is taken as Rs.12,000/- loss of earning will be calculated as Rs.12,000 x 5 = Rs.60,000/- 11. Towards pain and sufferings, the appellant claimed Rs.2,00,000, but the Tribunal awarded only Rs.25,000/-. It is seen from Ext.A6 Discharge Card that she was inpatient in the Medical College Hospital from 19.4.2009 to 5.5.2009. She has undergone 16 days treatment inpatient and due to the injuries sustained she has suffered pain and sufferings. Hence, I am of the view that the amount of Rs.25,000/- awarded is slightly on the lower ``` MACA NO. 1547 OF 2016 ``` -7- side and enhanced the same to Rs.40,000/-. 12. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1.|Pain and sufferings|25,000/-|40,000/-| |2.|Loss of earnings|40,000/-|60,000/-| |3.|Compensation for loss of<br>earning capacity|1,53,600/-|3,45,600/-| ||Total|2,18,600/-|4,45,600/-| ||Amount enhanced – 4,45,600 – 2,18,600 =**2,27,000/-.**||| In the result, the appeal is allowed. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 7% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be ``` MACA NO. 1547 OF 2016 ``` -8- transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition. sd **BASANT BALAJI, JUDGE** _dl/_