George K.I. v. Managing Director, Transport Corporation, Trivandrum and Jayan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943 MACA NO.379 OF 2010** **AGAINST THE JUDGMENT DATED 23.09.2009 IN O.P.(MV) NO.1726/2005 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA.** **APPELLANT:** **GEORGE K.I., KANNAMKUNNI HOUSE, BEHIND DHANYA HOSPITAL, POTTA, MUKUNDAPURAM TALUK, THRISSU DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT:** **1 MANAGING DIRECTOR, TRANSPORT CORPORATION, TRIVANDRUM. 2 JAYAN, S/O.KUNJAKKAN, KANNOLY HOUSE, ETTUMANA P.O., URAKAM VILLAGE.** **BY ADVS. SRI.JOY GEORGE, SC, K.S.R.T.C. ALEX ANTONY SEBASTIAN P.A.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.379 OF 2010** -2- **C.S. DIAS, J. ----------------------------------------------------MACA No.379 of 2010 ----------------------------------------------------Dated this the 17[th] day of January, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1726/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a 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 11.07.2005. It was his case that, on the aforesaid date, while he was wheeling his bicycle along the Thrissur-Ernakulam NH, a bus bearing registration No.KL-15/4574, driven by the second respondent in a rash and negligent manner, hit the bicycle of the appellant. The appellant was thrown on to the road and he sustained serious injuries. He was treated to St.James ## **MACA NO.379 OF 2010** -3- Hospital, Chalakkudy and West Fort High Tec Hospital, Thrissur for a period of 14 days. The appellant had sustained a fracture of the left temporal region, diffuse cerebral oedema and fracture of the left clavicle. The appellant was a contractor by profession and earning a monthly income of Rs.4,000/-. The bus was owned by the first respondent. Hence, the appellant claimed a compensation of Rs.2,69,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondents 1 and 2 had filed separate written statements. They contended that the accident occurred due to the negligence of the appellant. The first respondent also contended that the compensation claimed was excessive. 4. The appellant produced and marked Exts.A1 to A8 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analyzing the pleadings and **MACA NO.379 OF 2010** -4- materials on record, allowed the claim petition in part, by permitting the appellant to realise from the respondents an amount of Rs.59,400/- with interest and cost. The first respondent was directed to pay the compensation amount. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal. 7. Heard; Sri. P.V.Baby, learned counsel appearing for the appellant/petitioner and Sri. Alex Antony, learned counsel appearing for the first respondent/owner of the bus. 8. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability.** 9. Exhibit A2 charge sheet filed by the Chalakkudy police in Crime No.414 of 2005 proves the fact that the accident occurred due to the negligence of the second ## **MACA NO.379 OF 2010** -5- respondent. Indisputably, the first respondent was the owner and the second respondent was the driver of the bus. The respondents have not let in any evidence to discredit Ext.A2 charge sheet. Therefore, the respondents are liable to pay the compensation amount. Since the first respondent was the owner of the bus, the first respondent is vicariously liable to pay the compensation amount. ## **Income of the deceased.** 10. The appellant had claimed that he was a building contractor by profession. Initially, it was typed that the appellant was earning a monthly income of Rs.8,000/-. However, on a perusal of the claim petition, it is seen that the appellant had corrected his income as Rs.4,000/- per month. The Tribunal, for the want of material, fixed the notional monthly income of the appellant at Rs.2,000/-. 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** ## **MACA NO.379 OF 2010** -6- **[(2011) 13 SCC 236]** , the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 12. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the appellant at Rs.5,000/-. ## **Loss of earnings** 13. The appellant had sustained three fractures. The Tribunal has found that the appellant was indisposed for a period of three months. I confirm the said finding. Nevertheless, in view of the re-fixation of notional monthly income of the appellant at Rs.5,000/-, I award him an amount of Rs.15,000/- towards loss of earnings, instead of Rs.6,000/- awarded by the Tribunal. ## **Disability** 14. The appellant had contended that he had suffered a permanent disability. In order to substantiate ## **MACA NO.379 OF 2010** -7- his assertion, he had produced Ext.A7 disability certificate issued by the consultant Neuro Surgeon of Aswini Hospital, Thrissur. The Doctor had certified that the appellant has 5% permanent disability due to frequent headache, memory loss and difficult in walking. It is also certified that the appellant has the risk of epilepsy. Nonetheless, the Tribunal declined to accept Ext.A7 for the reason that the Doctor who issued the said certificate was not examined. 15. In **Rajkumar v. Ajay Kumar [2011 (1) KLT 620 SC],** the Honourable Supreme Court has categorically held that in case the Tribunal is not satisfied with the disability certificate produced before him, it is imperative for the Tribunal to refer the injured/claimant to a duly constituted medical board. It is also observed that what needs to be looked into an injury/claimant was the functional disability of the injured/claimant. 16. In the instant case, the appellant had produced ## **MACA NO.379 OF 2010** -8- and marked Ext.A7 disability certificate. The said certificate was marked without any objection or protest from the respondents. Again, in **Rajkumar v. Ajay Kumar (supra),** it is observed that if a disability certificate is accepted with the consent of the parties, the same can be accepted in evidence. 17. As Ext.A7 was accepted in evidence without any objection from the respondents and that the fact the Tribunal did not refer the appellant to a duly constituted medical board, I accept the disability assessed in Ext.A7. Therefore, the appellant's functional disability is fixed at 5%. ## **Multiplier** 18. The appellant was aged 49 years on the date of the accident. In the light of the law laid down in _**Sarla Verma and others V. Delhi Transport Corporation**_ _**[(2009) 6 SCC 121],**_ the relevant multiplier is '13'. **MACA NO.379 OF 2010** -9- ## **Loss due to disability** 19. Taking into account the above mentioned factors, the monthly income of the appellant at Rs.5,000/-, his functional disability at 5% and multiplier at 13, I award him an amount of Rs.39,000/- towards loss due to dependency. ## **Bystander expenses and loss of amenities** 20. Even though the appellant had claimed an amount of Rs.1,000/- towards 'extra nourishment' and Rs.3,000/- towards 'bystander expenses', the Tribunal awarded only an amount of Rs.1,400/- under the head 'bystander expenses'. It is proved and established that the appellant was treated as inpatient for a period of 14 days in two hospitals. Taking note of the fact that the accident occurred in the year 2005, I award the appellant an amount of Rs.300/- per day for a period of 14 days for 'bystander expenses', which works out to Rs.4,200/-, and Rs.150 per day for a period of 14 days for 'extra **MACA NO.379 OF 2010** -10- nourishment', which amounts to Rs.2,100/-. ## **Loss of amenities** 21. The appellant had claimed an amount of Rs.10,000/- towards 'loss of amenities'. The Tribunal has awarded only an amount of Rs.5,000/-. Taking into account of the fact that the appellant was treated as an inpatient for a period of 14 days, that he was indisposed for a period of three months and that he has suffered functional disability at 5%, I award him a further amount of Rs.5,000/- under the head 'loss of amenities'. 22. With respect to the compensation awarded under the heads pain and sufferings, medical expenses and transportation expenses, I find the same to be reasonable and just. 23. On a re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified **MACA NO.379 OF 2010** -11- and recalculated above and given under the table for easy ## reference. |**Sl.**<br>**No**|**Head of claim**|**Amount awarded**<br>**by**<br>**the**<br>**Tribunal(Rs.)**|**Amount**<br>**modified**<br>**and**<br>**recalculated by**<br>**this Court (Rs.)**| |---|---|---|---| |1.|Loss of earnings|6,000/-|15,000/-| |2.|Transportation expenses|500/-|500/-| |3.|Bystander expenses|1,400/-|4,200/-| |4.|Extra nourishment|-|2,100/-| |5.|Medical expenses|29,500/-|29,500/-| |6.|Pain and sufferings|17,000/-|17,000/-| |7.|Loss of amenities|5,000/-|10,000/-| |8.|Loss due to disability|-|39,000/-| ||**Total**|**59,400/-**|**1,17,300/-**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.57,900/- with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, and a cost of Rs.5,000/-. The first **MACA NO.379 OF 2010** -12- respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr