Christopher @ Benni v. Joy V.V., K.S.R.T.C. and New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939 AGAINST THE AWARD IN OPMV 1332/2011 of MACT ALAPPUZHA DATED 31-03-2017 APPELLANT(S)/PETITIONER CHRISTOPHER @ BENNI, S/O. XAVIER, MANGIYIL VEEDU, MANGALAM WARD, KANJIRAMCHIRA P.O., ALAPPUZHA. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL SRI.RAJAN G. GEORGE RESPONDENT(S)/RESPONDENTS : 1. JOY V.V., S/O. VALSALAN V. J., VARPURAYIDATHIL VEEDU, WARD VII, KODUNGALLOOR P.O., THRISSUR-680664. 2. K. S. R. T. C., REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM-695001. 3. NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, ALAPPUZHA-688001. R3 BY ADV. SRI.JOY JOSEPH (MANAYATHU) SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal,J.** ==================================== M.A.C.A.No.3677/2017 ==================================== Dated this the 7[th] day of March, 2018. ## **JUDGMENT** 1.The appellant is the petitioner/claimant in O.P.(MV)No.1332/2011 on the files of the Motor Accidents Claims Tribunal, Alappuzha. The aforesaid original petition was filed by him, under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries suffered by him, in a road traffic accident. According to him, on 29.8.2011, at about 5.45 p.m., while he was sitting in a motor cycle, resting his leg on the ground, the offending KSRTC bus, driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent Maca3677/2017 ## -:2:- dashed against the motor cycle and he was thrown down, causing serious injuries, which resulted in the amputation of one of his legs below the knee. The accident was caused by the rash and negligent driving of the KSRTC bus, by the first respondent. He claimed `11,00,000/as compensation from the respondents. - 2.The respondents opposed the said application, disputing the quantum of compensation and the cause of accident, but admitted the coverage of the insurance policy. After considering the evidence on record, the Tribunal passed the impugned award, granting `9,03,960/-, as compensation to the appellant. The inadequacy and correctness of the quantum of compensation are assailed in this appeal. - 3.Heard the learned counsel for the appellant and Maca3677/2017 ## -:3:- the learned counsel for the respondents. - 4.The sum and substance of the argument advanced by the learned counsel for the appellant is that the monthly income and the quantum of compensation determined by the Tribunal, under the heads, compensation for permanent disability and loss of earnings, pain and sufferings, loss of amenities, are inadequate and require enhancement. - 5.Per contra, the learned counsel for the inusrance company advanced arguments, to justify the quantum of compensation determined under the aforesaid heads. According to the learned counsel, the monthly income determined by the Tribunal is just and reasonable, in the absence of convincing evidence, to prove the exact income of the appellant. Maca3677/2017 ## -:4:- 6.The point to be considered is, whether the Tribunal is justified in determining the monthly income and the quantum of compensation, under the aforesaid heads of claim. 7.According to the appellant, he was a painting and polishing worker at the time of accident and he was earning a monthly income of `8,000/-. It is true that the FI statement given by his wife on the next day of the accident would show that the appellant was a spray painting worker and the same is not disputed by the insurance company. But, going by the impugned judgment, it could be seen that no evidence has been adduced, to prove his exact earnings per month. In the absence of evidence to prove the exact monthly income of the appellant, the Tribunal is justified in Maca3677/2017 ## -:5:- taking the monthly notional income. 8.Is the Tribunal justified in fixing `5,000/-, as the monthly notional income? In _**Ramachandrappra v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.**_ **[2011 (13) SCC 236],** the Supreme Court held that in the case of an accident that occurred in the year 2004, `3,500/- to `4,500/- can be taken as the monthly income, in the absence of convincing evidence to prove the exact income. In the instant case, the accident has occurred in the year 2011. Having regard to the long passage of five years after 2004 and the consequential decrease in the money value and the steep hike in the income of the labourers, the Tribunal is not justified in determining `5,000/-, as the monthly income and the monthly income would Maca3677/2017 ## -:6:- stand enhanced to `7,000/-. Consequently, the appellant is given `42,000/- (7,000 x 6), as compensation for loss of earnings for six months. 9.Indisputably, it has come out in evidence that his right leg below the knee was amputated and the medical board has issued Ext.A12 disability certificate, stating that he has disability at 70%. It is to be remembered that he is a painting worker, who usually works in a standing position. So, as rightly found by the Tribunal, he would find it difficult to work in future, after amputation. In the above view, loss of future prospects in the income at 30% has to be added towards the monthly income fixed above. So, for calculating the loss of permanent disability, his monthly income, Maca3677/2017 -:7:- including loss of future prospects, would stand fixed at `9,100/- (7,000+2,100). Consequently, the appellant is given `10,70,160/-, as compensation towards permanent disability (9,100 x 12 x 14 x 70/100). 10. Coming to compensation for pain and sufferings and loss of earning power, the appellant is given `50,000/- each. In view of the duration and nature of treatment and the disability certified by the Medical Board, the Tribunal is justified in granting `50,000/each, towards pain and sufferings and loss of amenities. The compensation granted under other heads are just and reasonable and there is no circumstance, warranting any interference in this appeal. Thus, the appellant is given an additional compensation of `3,17,760/-. All Maca3677/2017 ## -:8:- other findings and directions of the Tribunal would stand undisturbed and operative. It is needless to say, the entire compensation would carry interest, as stipulated by the Tribunal. The third respondent insurance company shall deposit the entire additional compensation within three months. The appellant is allowed to withdraw the additional compensation. 11. The MACA is disposed of accordingly. All the pending interlocutory applications will stand closed. Sd/- **K.Harilal, Judge** sl. ## //True copy// P.S. To Judge