Dixon, T.C. vs Kerala State Road Transport Corporation & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943 MACA NO. 1867 OF 2010** # **AGAINST THE AWARD IN OP(MV)NO. 262/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM** ## **APPELLANT/APPLICANT:** **DIXON, T.C.47/166, NEAR ST.THOMAS COMMUNITY HALL,POONTHURA PO, THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENTS:** - **1 K.ERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTEDF BY ITS MANAGING DIRECTOR,, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM.-695001** - **2 SUBARIYAR PITCHA, T.C.1270 POONTHURA PO,THIRUVANANTHAPURAM.-695026** - **3 NATIONAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS MANAGER, BRANCH II, 2ND FLOOR,, K.K.BUILDINGS, ARISTO JUNCTION,THIRUVANANTHAPURAM.-695008** **BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 1867 of 2010 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No.1867 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.262 of 2004 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents before the Tribunal. 2. The concise facts in the claim petition, relevant for the determination of the appeal, are: on 07.12.2003, while the appellant was travelling in an autorickshaw bearing registration No.KL 01/AA 4391, a KSRTC Bus bearing registration No.KL 15/1132 (offending vehicle) driven in a rash and negligent manner hit the autorickshaw. The appellant sustained serious injuries including a fracture. The offending vehicle was owned by the 1[st] respondent. The 2[nd] MACA No. 1867 of 2010 _3_ respondent was the owner of the autorickshaw and the 3[rd] respondent was the insurer of the autorickshaw. The appellant claimed that he was 21 years of age; and also a Fisherman by profession and earning a monthly income of Rs.5,000/-. Hence, the appellant claimed compensation from the respondents at Rs.1,85,000/, which was limited to Rs.1,25,000/- 3. The 1[st] respondent filed a written statement contending that the amount of compensation claimed by the appellant was on the higher side. It was also contended that the accident occurred on account of the negligence on the part of the driver of the autorickshaw. 4. The 2[nd] respondent did not contest the proceedings and was set ex-parte. 5. The 3[rd] respondent – insurer of the MACA No. 1867 of 2010 _4_ autorickshaw - filed a written statement admitting that the autorickshaw had a valid insurance policy. Nevertheless, it was stated that the accident occurred on account of the negligence on the part of the driver of the offending vehicle. 6. The appellant produced and marked Exts.A1 to A6 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.25,300/- from the 1[st] respondent. The 2[nd] and 3[rd] respondents were exonerated. 8. Dissatisfied with the quantum of compensation the petitioner/appellant is in appeal. 9. Heard Sri.R.T.Pradeep, the learned counsel for the appellant/petitioner, Sri.P.C.Chacko, the MACA No. 1867 of 2010 _5_ learned counsel appearing for the 1[st] respondent and Smt. Raji T.Bhaskar, the learned counsel appearing for the 3[rd] respondent-insurance company. 10. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. When this appeal was taken up for consideration before this Court on 08.07.2021, the learned counsel appearing for the appellant submitted that, although the appellant had produced Ex.A6 disability certificate issued by the Associate Professor of the Medical College Hospital, Thiruvananthapuram, the same was rejected by the Tribunal due to non-examination of the Doctor who issued the said certificate. He prayed that the be assessed a appellant's disability by duly MACA No. 1867 of 2010 _6_ constituted Medical Board and, thereafter, the case may be heard. 12. Taking into consideration the fact that the accident occurred as early as on 07.12.2003 and that the appellant is a Fisherman by profession and Ext.A6 disability certificate was issued by the Associate Professor of the Medical College Hospital, Thiruvananthapuram, is already on record, I deemed it fit to direct the appellant to be present before this Court so that the disability stated in Ext.A6 can be verified and ascertained by this Court, before deciding whether, at this distance of time, the appellant should be referred to a duly constituted Medical Board. 13. In compliance with the direction of the Court, the appellant appeared before this Court today, and I have personally interacted with the appellant. I MACA No. 1867 of 2010 _7_ have seen the right hand of the appellant, which is very much in the same position as certified in Ext.A6. The appellant cannot move three of his fingers. The appellant told this Court that he cannot draw the fishing net while going for trawling. So he now goes for a work only as a helper. 14. Taking note of the disability that the appellant has on his right hand and the findings in Ext.A6 disability certificate, I am of the considered opinion that the functional disability of the appellant is to be fixed at 20% as per the ratio in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)]. Accordingly, I fix the functional disability of the appellant at 20% as the appellant is disabled to function as a Fisherman, but only as a helper in a fishing boat. ## **Notional income** 15. The appellant had claimed that he was a MACA No. 1867 of 2010 _8_ Fisherman earning a monthly income of Rs.5,000/- . The Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. 16. 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. 17. Following the ratio in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I re-fix the notional income of the appellant at Rs.4,000/- per month. ## **Loss of earnings** 18. It is that the who a proved appellant Fisherman and sustained serious injuries on his right hand, as can be seen from Ext.A6 disability certificate and Ext.A4 wound certificate. The appellant has MACA No. 1867 of 2010 _9_ stated that he was totally indisposed for a period of seven months and he could not carry on his avocation. 19. In view of the fact that the appellant was indisposed for a period of seven months and his notional income has been re-fixed at Rs.4,000/- I hold that the appellant is entitled for compensation for 'loss of earnings' at Rs.28,000/-, instead of Rs.3,000/awarded by the Tribunal. ## **Loss due to disability** 20. In the light of the fixation of disability of the appellant at 20% and he being 21 years on the date of accident, the relevant multiplier is '18. In view of the re-fixation of the notional income at Rs.4,000/- per month, I re-fix the compensation for 'loss due to disability' at Rs.1,72,800/- ## **Loss of amenities** 21. The appellant had claimed an amount of MACA No. 1867 of 2010 _10_ Rs.30,000/- as compensation for 'loss of amenities'. Taking note of the injuries that the appellant had sustained, as evident from Ext.A4 wound certificate and Ext.A6 disability certificate, and the fact that he was indisposed for a period of seven months, I award a nominal amount of Rs.10,000/- under the head 'loss of amenities'. ## **Other heads of claim** 22. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 23. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for MACA No. 1867 of 2010 _11_ ## easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|3,000/-|28,000/-| |2|Transport to hospital|500/-|500/-| |3|Damages to clothing|500/-|500/-| |4|Bye-stander expenses|300/-|300/-| |5|Expenses for extra nourishment|500/-|500/-| |6|Medical expenses|500/-|500/-| |7|Compensation for pain and<br>sufferings|10,000/-|10,000/-| |8|Compensation for loss of<br>amenities|10,000/-|10,000/-| |9|Loss due to disability|nil|1,72,800/-| |||25,300/-|2,23,100/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.1,97,800/- with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit and proportionate costs. The 1[st] respondent shall deposit the enhanced compensation awarded in this appeal with interest and proportionate costs before the Tribunal within a MACA No. 1867 of 2010 _12_ period of three months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 26.07.2021**