Gracious George v. N.U. Sivadasan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940** ## **MACA.No. 523 of 2016** **AGAINST THE AWARD IN O.P(MV) 41/2013 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 30-09-2015** ## **APPELLANT/CLAIMANT:** **GRACIOUS GEORGE AGED 25 YEARS S/O.GEORGE, PARAMBATH HOUSE, VADAYAMPADI P.O, CHOONDI KARA, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT** ## **BY ADV. SRI.BABU PAUL** ## **RESPONDENTS/RESPONDENTS:** - **1 N.U.SIVADASAN S/O. UNNI, NANTHIPULATH HOUSE, THIRUMARADY P.O, MUVATTUPPUZHA PIN 686 662** - **2 THE MANAGING DIRECTOR K.S.R.T.C FORT, THIRUVANANTHAPURAM PIN 695 023** - **3 M/S. NEW INDIA ASSURANCE CO.LTD REPRESENTED BY MANAGER, THIRUVANANTHAPURAM DIVISIONAL OFFICE II,THIRUVANANTHAPURAM PIN 695 023** **BY ADVS. SRI.M.JACOB MURICKAN, SC FOR R3 SRI.P.C.CHACKO, SC FOR R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 523 of 2016 2 ## **JUDGMENT** This appeal is directed against the award dated 30.09.2015 in О.Р. (MV) No.41/2013 of the Motor Accidents Claims Tribunal, Muvattupuzha (for short 'the Tribunal'). 2. The petitioner is the appellant herein. He met with a motor accident at 4.15 PM on 17.07.2012, while riding a motorcycle bearing Reg. No. KL-40/F-4326, through KochiMadura National Highway. A K.S.R.T.C Bus bearing Reg. No. KL- 15/9553, dashed against his motorcycle due to rash and negligent driving by its driver and thereby he sustained serious injuries in the accident. He was a 4[th] semester Engineering student at P.E.S College of Engineering, Mandia, Karnataka. Alleging that the accident was occurred due to rash and negligent driving of K.S.R.T.C Bus by its driver, claim petition as above was filed seeking for a total sum of Rs.45,00,000/- as compensation. The driver, owner and the insurer of the K.S.R.T.C Bus were arrayed as respondents in the claim petition. MACA.No. 523 of 2016 3 3. The driver and owner of the K.S.R.Т.С Bus had filed joint written statement before the Tribunal admitting that the vehicle was insured with the third respondent at the relevant time of accident. Contentions were also raised that negligence was totally absent for the driver of the K.S.R.T.C Bus is causing the accident and that accident was occurred due to sole negligence on the part of the petitioner. The age, occupation and monthly income of the petitioner were denied and the compensation claimed was also disputed for the reason of its exorbitance. 4. The third respondent, the insurer had filed written statement before the Tribunal contending that the accident was occurred due to negligence of the petitioner. The age, occupation and monthly income of the petitioner were denied. The quantum of compensation claimed was disputed alleging it as excessive. However, the insurance coverage of the vehicle at the relevant time was admitted. MACA.No. 523 of 2016 4 5. The trial in the claim petition was held before the Tribunal. The petitioner himself mounted the box and deposed as PW1 and a witness was also examined as PW2. Exts. A1 to A18 series were also marked. 6. On appreciation of evidence adduced by the petitioner, the Tribunal found the first respondent, who was driving the K.S.R.T.C Bus at the relevant time, rash and negligent and responsible for the accident. The Tribunal had also found the petitioner entitled to get compensation from the respondent and fixed the same as Rs.20,50,967/- rounded off to Rs.20,51,000/-. Challenging the compensation fixed by the Tribunal in the manner as aforesaid, the captioned appeal is preferred by the petitioner seeking enhancement. 7. Sri. Babu Paul and Sri. Jacob Muricken, the learned counsel advanced arguments respectively on behalf of the appellant and the 3[rd] respondent, insurer. Though the first and second respondents were served with notice in the appeal, they did not turn up. Sri. Babu Paul, the learned counsel has MACA.No. 523 of 2016 5 pleaded that the Tribunal failed to appreciate the evidence in its proper perspective and arrived at compensation payable under different heads unjustly and unreasonably. Eventhough compensation was claimed by the petitioner under heads such as loss of marriage prospects and future treatment expenses, the Tribunal failed to award any sum under those heads and therefore is highly unjustified in doing so. Secondly it was contented by the learned counsel that though compensation was awarded by the Tribunal under the heads pain and suffering, loss of amenities and enjoyments in life, bystander expenses, treatment expenses and transportation expenses, the sums awarded as compensation under each heads are on the lower side. According to the learned counsel, the Tribunal is highly unjustified in doing so and interference is necessary to enhance those to reasonable sums. Thirdly it was contended by the learned counsel that multiplicand in the case was taken by the Tribunal by fixing the notional income of Rs.7,000/- as the monthly income. The learned counsel has relied on a MACA.No. 523 of 2016 6 judgment of a Division Bench of this court in W.P (C) No. 19147 of 2015 to contend that Rs.12,000/- is a reasonable sum to be fixed as monthly income to arrive at just compensation in the case on hand. According to him, the decision relied on by him was a case wherein compensation for disability was arrived at by the Division Bench in the case of death of a 4[th] semester B.Tech student of S.C.M.S College of Engineering and Technology, Karukutty taking Rs.12,000/- as the monthly income. According to him, in the light of the decision cited supra, the petitioner being a 4[th] semester B.Tech student, this court is perfectly justified in fixing Rs.12,000/- as the monthly income in the case on hand. Raising contentions as above, the learned counsel canvassed for a modification of the compensation by enhancement. 5. Per contra, Sri. Jacob Muricken has contented that the Tribunal has appreciated the evidence on record correctly and properly and arrived at just and reasonable compensation and therefore interference is uncalled for. MACA.No. 523 of 2016 7 6. Bearing the rival contentions advanced by either parties in mind, the evidence on record is appreciated. The petitioner has mounted the box and deposed as PW1. He has categorically deposed about the occurrence, negligence of the driver of the K.S.R.T.C Bus, the injury sustained by him, the procedures undergone by him as part of treatment, the expenditure incurred for treatment and disability on account of amputation of his left leg, below the knee, following the accident. The accident and negligence were disputed by the respondent. Therefore, the petitioner had examined a witness on his side as PW2 to establish occurrence and negligent driving of the K.S.R.T.C Bus by its driver as the cause for it. The Tribunal found from the aforesaid evidence that the driver of the K.S.R.T.C Bus was negligent. A glance at the impugned award would reveal that the monthly income for the purpose of calculation of compensation for disability was fixed by the Tribunal notionally as Rs.7,000/-. It is true that the petitioner was a 4[th] semester student of Engineering at the relevant time MACA.No. 523 of 2016 8 of accident. In view of the decision cited supra, this court finds justification in taking Rs. 12,000/- as the monthly income for calculation purpose. It is relevant to notice that in the decision cited supra, the Division Bench had relied on _**B. Ramulamma and others v. Venkatesh Bus Union and another [2011 ACJ**_ **1702]** wherein a Division Bench of the Andhra Pradesh High Court has taken Rs.12,000/- as the monthly income while arriving at compensation for dependency in the case of death of an young man aged 22 years, doing his final year in B.Tech Degree. It is also relevant to notice that a challenge was raised by the insurer therein before the Apex Court against fixation of Rs.12,000/- as the monthly income by the High Court, but it was not interferred with. Therefore, this court is perfectly justified in fixing Rs.12,000/- as the monthly income of the petitioner in the case on hand for arriving at compensation for disability and accordingly do so. The victim being aged 22 years, 18 is the correct multiplier and the Tribunal is erred in adopting 17. MACA.No. 523 of 2016 9 The compensation for disability when calculated with the multiplicand as Rs.1,44,000/- (Rs.12,000x12), the multiplier as 18, and the disability as 70%, the amount payable as compensation will be Rs.18,14,400/- (Rs.12000 x 12 x1 8x 70/100). Therefore a sum of Rs.8,14,800/- (18,14,400 - 9,99,600) will be payable under the head permanent disability additionally. It is relevant to notice that the Tribunal had considered Ext.A10 series of medical bills alone while fixing Rs.8,80,117/- as the compensation payable towards medical expenses. The documentary evidence adduced by the petitioner before the Tribunal takes in Ext.A18 series of medical bills for Rs.814/- also, which have not been taken into account by the Tribunal while granting compensation under the head treatment expenses. Therefore, this Court is inclined to grant Rs.814/- additionally under that head. It is certified by the medical practitioner in Ext.A13 that the implants laid at the fracture site of right leg of the petitioner needs to be removed and for that, an approximate MACA.No. 523 of 2016 **==> picture [16 x 8] intentionally omitted <==** cost of Rs.40,000/- is required. Eventhough Ext.A13 was marked in evidence, the Tribunal failed to describe anything about that in the impugned award. Therefore, this Court is inclined to award Rs.40,000/- towards expenses for removal of implants. Under the head transportation expenses the Tribunal has awarded only Rs.5,000/- though a claim for Rs.14,400/- was made and Ext.A11 series were produced to support the claim. In the impugned award there is total want of discussion regarding Ext.A11 series. The narration of the Tribunal in the impugned award would reveal that the petitioner had sustained serious injuries and availed inpatient treatment for a considerable period. Several follow ups in the hospital are also established from the documentary evidence on record. Since his left leg was amputated, the availing of service of a conveyance for attending the hospital for treatment cannot be ignored. Rs.5,000/- awarded by the Tribunal as compensation undoubtedly, is too low. As evidenced from Ext.A11 series MACA.No. 523 of 2016 11 Rs.14,400/- was spent towards transportation and when Rs.5,000/- already awarded by the Tribunal is adjusted against, Rs.9,400/- will be payable under that head additionally. As disclosed from the impugned award, only a sum of Rs.3,750/was awarded by the Tribunal under the head bystander expenses. The injuries sustained and the procedures of treatment availed are already dealt with in detail. The left leg having been amputated at the level of knee, the petitioner must have to depend on service of a bystander even for his daily pursuits. When viewed in that backdrop, the compensation of Rs.3,750/- awarded by the Tribunal under the head bystander expenses is on the lower side and this court in interference is inclined to grant Rs.16,250/- over and above the sum already awarded by the Tribunal. The amount awarded by the Tribunal under the head extra nourishment being Rs.2,500/-, this Court is inclined to modify the same by granting Rs.9,000/additionally. It is evidenced from the discussion of the Tribunal in the impugned award based on Ext.A5, Ext.A6 & Ext.A13 that MACA.No. 523 of 2016 12 the left leg of the petitioner was amputated and he had sustained type III A open fracture of right shaft of femur and type II open fracture of right patella in the accident. 13. The Tribunal has awarded a sum of Rs.60,000/- as compensation under head pain and suffering which according to the counsel for the respondent is on the higher side. The petitioner had sustained type III A open fracture right shaft of femur and type II open fracture right patella. As part of initial treatment, implants were laid. The petitioner had undergone inpatient treatment for 25 days. A sum of Rs.60,000/- was awarded by the Tribunal under the head pain and suffering. The amount being low and disproportionate to the sufferings of the petitioner, this Court is inclined to modify the same to Rs.80,000/-. Therefore, the petitioner will get Rs.20,000/under the head pain and suffering additionally. Under the head loss of amenities and enjoyments in life, the Tribunal has awarded only Rs.50,000/-, which undoubtedly is unjust and inadequate. The left leg of the petitioner having been MACA.No. 523 of 2016 13 amputated at the level of knee, it will take time for him to be adjusted with and walk comfortably with the aid of an artificial limb. It would take time to be adjusted with the reality of loss of his lower limb. Bearing those aspects in mind, this court is inclined to award a sum of Rs.50,000/- over and above Rs.50,000/- already awarded by the Tribunal under that head. The petitioner being a young man aged 22 years at the relevant time of accident and his left leg having been lost following the accident, it is unlikely for him to get a suitable marriage proposal. Though a claim of Rs.2,00,000/- was made as compensation under the aforesaid head, the Tribunal failed to grant any sum and therefore, this court finds it just and reasonable to grant Rs.50,000/- under the head. It is submitted by the learned counsel that the petitioner having been provided with an artificial limb, frequent repairs and corrections owing to that are inevitable and money is required for that. Therefore, this Court is inclined to award a sum of Rs.30,000/- on that count. MACA.No. 523 of 2016 14 15. In re-fixation as above, a sum of Rs.10,40,264/- is payable to the petitioner as compensation additionally. The amount will carry interest at the rate of 8% per annum from the date of the petition till the date of realisation. In the result, appeal is allowed in part. The sum awarded by the Tribunal in the impugned award is modified by enhancement to Rs.10,40,264/- [8,14,800 + 814 + 40,000 + 9,400 + 16,250 + 9,000 + 20,000 + 50,000 + 50,000 + 30,000] rounded off to **Rs.10,40,300/- (Rupees ten lakhs fourty thousand three hundred only).** Parties shall bear their respective costs. ## **Sd/-** **MARY JOSEPH** **JUDGE** Mn