D. Subhash S/o. Damodharan vs C. Harikumar and The Managing Director, Kerala State Road Transport Corporation

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **MACA NO. 2062 OF 2013** **AGAINST THE AWARD DATED 18.05.2010 IN OPMV 110/2007 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER:** **D.SUBHASH S/O. DAMODHARAN, AGED 46 YEARS, SUBHASH VILLA, MUTHUKULAM NORTH, CHOOLATHERUVU P.O., ALAPPUZHA DISTRICT, PIN:690 506. BY ADV SRI.B.RENJITHKUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 C.HARIKUMAR, CHUNDAMUGAL PUTHEN VEENDU, AYOOR, EDAMULLACKAL VILLAGE, KOLLAM DISTRICT-691 001. 2 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-695 001. BY ADVS. ALEX ANTONY SEBASTIAN P.A.-R2 SRI.K.SIJU-R1** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2062 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (M.V) No.110/2007 on the file of Motor Accidents Claims Tribunal, Mavelikkara (In short 'Tribunal'). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injury sustained by the appellant/claimant in an accident occurred on 04.10.2006 at about 4.50 p.m. near Mercy hospital at Valakam, due to hit with K.S.R.T.C. bus bearing Reg.No.KL.15-4392, while he was riding his motorcycle. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent, the driver of K.S.R.T.C. bus. Total compensation of Rs.7,47,500/- has been claimed. 2.Before the Tribunal, 2nd respondent filed written statement denying the rashness and negligence on the part of the 1st respondent. The claimant was put to strict proof regarding the averments in the claim petition with regard to the age, income and occupation. It is also contended that the accident happened due to the rash and negligent driving of the claimant himself, the rider of motorcycle. M.A.C.A No. 2062 of 2013 **3** 3. Exts. A1 to A16 marked from the side of the appellant/claimant. No evidence was adduced from the side of the respondents. On evaluating the pleadings and facts and circumstances, Tribunal found that accident happened due to the rash and negligent driving of the 1st respondent and hence 2nd respondent is directed to pay the amount. Tribunal awarded a total compensation of Rs.1,87,550/- under various heads together with interest at the rate of 7.5% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant approaches this Court in appeal for various grounds stated in the memorandum of appeal. Adv.P.A.Antony Sebastian, the Standing Counsel appeared on behalf of the 2[nd] respondent. 5. Heard the learned counsel for the appellant/claimant and the learned Standing Counsel for the 2[nd] respondent. Lower court records were called for and perused. 6. Appellant/claimant (herein after be referred as claimant) claims to be Mason and monthly income claimed is Rs.7,000/-. To prove his occupation, Ext.A14 copy of member ship card issued from Construction Worker's Welfare Fund Board has been produced. M.A.C.A No. 2062 of 2013 **4** Claimant also affirmed in the affidavit that his occupation is Mason. During cross examination, no question was put challenging the occupation of the claimant. 7. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. 8. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** ' **s case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. 9. In the present case, being a Mason and in view of the dictum laid down in the above decisions, I am of the view that income of the claimant can be taken as **Rs.6,000/-** per month. 10. In _**Raj kumar v. Ajay Kumar and Another**_ (2011 (1) SCC 343 = 2010 KHC 5021) the apex court has elaborately discussed the general principle relating to compensation in injury M.A.C.A No. 2062 of 2013 **5** cases. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed in detail. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 11. In case of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:- Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 12. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of M.A.C.A No. 2062 of 2013 **6** expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 13. Claimant produced Exts.A7 to A13 documents to prove the prolonged treatment undergone by him. The injuries sustained by the claimant is as follows: 1. Left frontal bone fracture. ## 2. Left frontal region contusion. 3. Fracture left zeugmatic complex. 4. Type II compound fracture femur right. 5. Type I compound fracture both bone right leg. 6. Abrasions both leg and head injury. 14. Ext.A8 the discharge card would prove that he had undergone inpatient treatment from 04.10.2006 to 11.11.2006. It would show that initially he was treated in neurosurgery ICU. Thereafter, he was shifted to ortho ward. Ext.A10 is the copy of treatment record issued from Medical College Hospital where he had undergone 37 days of inpatient treatment. Ext.A9 is the disability certificate issued by the Assistant Professor of Orthopedics, Medical M.A.C.A No. 2062 of 2013 **7** College Hospital, Thiruvananthapuram. It would reveal that he had undergone inpatient treatment from 04.10.2006 to 11.11.2006. Head injury was managed conservatively by the neurosurgeons and both the fractures were managed conservatively by plaster immobilization. The patient continued follow up neuro and ortho treatment from Medical College Hospital, Thiruvananthapuram. With regard to the disability, the learned counsel for the claimant would contend that the disability certificate issued by the Doctor attached to Department of Orthopedics, Government Medical College Hospital, Thiruvananthapuram. The patient also had out patient psychiatry treatment for post traumatic organic mood disorder. The patient had physiotherapy also for the stiffness of major joints of (r) lower limb. The Doctor noted the following problems; 1. The patient appears very much depressed and inactive due to the mental trauma. 2. The patient walks with limping. 3. The patient is able to walk only with the help of a walking stick. 4. Pain and weakness of (r) lower limb on wight bearing. 5. One inch shortening of (r) leg and half inch shortening of (r) femur. 6. Partial ankylosis of (r) ankle with motion limited to arc from 90 M.A.C.A No. 2062 of 2013 **8** degree angle to 105 degree plantar flexion. 7. Patial analosis of (r) knee joint with motion limited to arc from 180 degree line to 80 degree flexion. 8. X-rays of (r) femur and (r) leg dated 22.05.2008 show malunion of the fracture tibia in 20 degree lateral angulation. The fracture shaft of femur appears malunited in 10 degree angulation, with excessive callus. 9. Difficulty to squat. 10. Loss of memory and recurrent head ache secondary to the head injury. 15. In view of Ext.A9 and in the light of other relevant materials, Tribunal taken permanent disability of the claimant at 13% for the reason that the Doctor who issued the disability certificate was not examined. Ext.A9 disability certificate has been marked without any objection. As per **Raj Kumar v. (supra)** , if Tribunal is not satisfied with the treatment records produced by the claimant, it ought to have referred the patient to a Medical Board. Without doing that, Tribunal unilaterally fixed the disability at 13% does not seems to be proper especially in view of the serious nature of injuries and treatment undergone by the claimant. Hence, I am of the considered M.A.C.A No. 2062 of 2013 **9** view that 24% permanent disability assessed by the Doctor attached to the Medical College Hospital wherein the injured had undergone inpatient treatment can be taken as permanent whole body disability of the claimant. 16. In view of the nature of injuries and treatment undergone by the claimant, 6 months loss of earning can be awarded. Therefore, the claimant is entitled to get Rs.6,000 x 6 = 36,000/- towards loss of earning. Deducting the amount already awarded, the balance would be **Rs.18,000/-** (36,000-18,000). 17. Towards bystander expenses, Tribunal awarded Rs.3,600/-. It has come out that he had undergone inpatient treatment for 37 days and the accident was in the year 2006. Towards by stander expense, the claimant is entitled to get Rs.200/per day. Hence under the head of by stander expense, the claimant is entitled to get 200x37=Rs.7,400/- **.** Deducting the amount already awarded, the balance would be **Rs.3,800/-** (7,400-3,600). Towards extra nourishment, Rs.2,500/- was awarded by the Tribunal. It has come out that he had undergone 37 days inpatient treatment and he sustained serious head injuries and fracture on frontal bone fracture as well as compound fracture femur right. Hence, Rs.5,000/- can be M.A.C.A No. 2062 of 2013 **10** awarded towards extra nourishment. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.2,500/-** (5,0002,500). Claimant was 40 years old at the time of accident. Suitable multiplier to be adopted as per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** is '15'. So, towards permanent disability, the claimant is entitled to get 6,000x12x15x24/100=2,59,200/- **.** Deducting the amount already awarded, the balance would be **Rs.1,89,000/-** (2,59,200-70,200). Towards pain and suffering, Rs.25,000/- was awarded by the Tribunal. In view of the period of treatment as well as injuries sustained by the claimant, an amount of Rs.30,000/- can be awarded towards pain and suffering. Deducting the amount already awarded, the balance would be **Rs.5,000/-** (30,000-25,000). Towards loss of amenities, only Rs.5,000/- was awarded by the Tribunal. Taking into account the fact that injuries sustained by the claimant involve fracture of both bone right leg, I am of the view that Rs.15,000/- can be awarded towards loss of amenities. Deducting the amount already awarded, the balance would be **Rs.10,000/-** (15,000-5,000). Hence, the claimant is entitled M.A.C.A No. 2062 of 2013 **11** to get enhanced compensation of **Rs.2,28,300/-** (1,89,000+10,000+5,000+2,500+3,800+18,000). 18. In the result, claimant is allowed to realize enhanced compensation of **Rs.2,28,300/-** (Two lakhs twenty eight thousand three hundred only) in this appeal, which will carry interest at the rate of 7.5% per annum from the date of petition till realization. Respondent No.2 is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 19. The appeal has been filed with a petition to condone delay of 1149 days. While condoning the delay by order dated 05.01.2022 in CMA.No.1/2013 (CMA.No.2530/2013), it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 1149 days is excluded. The disbursement of the amount to the claimants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank M.A.C.A No. 2062 of 2013 **12** Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal with copy to the Standing Counsel for insurer within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs. **M.R.ANITHA JUDGE** rps/