George Kurian Iyvelikuzhiyil v. M.R. Sadasivan Pillai and K.S.R.T.C.

1 MACA No.685 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943 MACA NO. 685 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 170/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/S:** GEORGE KURIAN IYVELIKUZHIYIL HOUSE,KAKKUDUMON.P.O,ATHIKKAYAM VILLAGE,RANNY TALUK. BY ADVS. SRI.T.K.KOSHY SRI.SABU.I.KOSHY SMT.V.V.RISANI ## **RESPONDENT/S:** 1 M.R.SADASIVAN PILLAI S/O.RAGHAVAN PILLAI,MUNDAKKAL THAZHAVETTIL HOUSE,CHERUNARAGOM,CHENAPPADY KARA,ERUMELY VILLAGE.686 721 2 MANAGING DIRECTOR K.S.R.T.C,FORT,THIRUVANANTHAPURAM.695001 BY ADVS. SRI.P.C.CHACKO(PARATHANAM) ALEX ANTONY SEBASTIAN P.A. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.685 of 2012 ## **C.S.DIAS, J. ====================== MACA No.685 of 2012** ## **====================== Dated this the 31st day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.170/2004 on the file of the Motor Accident Claims Tribunal, Pathanamthitta. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the 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 15.1.2004. It was his case that, on the above said date, while he was riding a motorcycle bearing registration No.KL-3/J 4021 along the Mannarakulanji – Ranni public road, a bus bearing registration No.KL-15/4698, driven by the first respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant and the 3 MACA No.685 of 2012 pillion rider sustained serious injuries. The appellant was treated as an inpatient for a period of 2 days. The appellant was a painter by profession and was earning a monthly income of Rs.6,000/-. The bus was owned by the second respondent. Hence, the appellant claimed a compensation of Rs.1,70,500/- from the respondents, which claim was limited to Rs.70,500/-. 3. The pillion rider of the motorcycle also filed OP(MV) 172/2004 before the same Tribunal, against the respondents, seeking compensation. 4. The second respondent had filed separate written statements in both the claim petitions. It was contended that the accident occurred due to the negligence of the rider of the motorcycle – the appellant. 5. The Tribunal consolidated and jointly tried the two claim petitions. 6. The appellant and the other petitioner produced and marked Exts A1 to A11 in evidence. The 4 MACA No.685 of 2012 respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition, in part, by permitting the appellant to recover from the second respondent an amount of Rs.25,670/- with interest and proportionate cost. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Sri.T.K Koshy, the learned counsel appearing for the appellant/petitioner and Sri.Alex Antony, the learned counsel appearing for the second respondent/owner. 10. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A5 final report filed by the Ranni Police in 5 MACA No.685 of 2012 crime No.22/2004 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the second respondent was the owner of the offending bus. The respondents have not let in any evidence to discredit Ext A5 final report. Therefore, the second respondent is vicariously liable to pay the compensation amount arising out of the accident. ## **Notional Income** 12. The appellant had claimed that he was a painter by profession and was earning a monthly income of Rs.6,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 13. 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. 6 MACA No.685 of 2012 14. Following the yardstick in the above-cited decision and considering the fact that the accident occurred in the year 2004, I refix the notional monthly income of the appellant at Rs.4,500/-. ## **Loss of earnings** 15. In view of the refixation of the notional monthly income of the appellant at Rs.4,500/- and considering the fact that he was indisposed for a period of three months as found by the Tribunal, I award him a further amount of **Rs.4,500/-** under the head 'loss of earnings' ## **Pain and sufferings and Loss of amenities** 16. The appellant had claimed an amount of Rs.30,000/- under the head 'pain and sufferings' and Rs.20,000/- under the head 'loss of amenities'. The Tribunal has awarded only an amount of Rs.10,000/- and Rs.2,500/-, respectively, under the above two heads. 17. Even though the appellant had claimed an amount of Rs.50,000/- towards compensation for loss due 7 ## MACA No.685 of 2012 to disability, the Tribunal refused to award any compensation under the said head, as there was no proper evidence to prove that the appellant has suffered any disability. 18. Nonetheless, taking note of the fact that the appellant had suffered a fracture of left radius lower end and has partial ankylosis of left wrist and has difficulty in carrying weights, I am of the view that the appellant is entitled to further amounts of **Rs.10,000/-** each under the heads 'pain and sufferings' and 'loss of amenities'. ## **Other heads of compensation** 19. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **Rs.24,500/-** (Rupees Twenty Four Thousand Five Hundred only) (i.e. Rs.4,500/- towards loss of earnings 8 MACA No.685 of 2012 + Rs.10,000/- each under the heads 'pain and sufferings' and 'loss of amenities') with interest at the rate of 7.5% per annum on the enhanced compensation from the date of claim petition till the date of realisation and a cost of Rs.5,000/-. The second respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant /petitioner, in accordance with law. Sd/- sks/31.1.2022 **C.S.DIAS, JUDGE**