Ittoop v. K.C. Vijayan and Kerala State Road Transport Corporation

## **XZASIN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 MACA NO. 2420 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 1886/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM** ## **APPELLANT/PETITIONER:** **ITTOOP, AGED 71 YEARS, S/O.MATHAI, MATTAMANA HOUSE, PRALAYAKKADU KARA, VENGOOR WEST VILLAGE.** **BY ADV SRI.K.SUNILKUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 K.C.VIJAYAN S/O.CHANDRASEKHARAN, KIZHAKKEVEETTIL HOUSE, CHENGARA KARA,, PATTIMATTOM PO.** **2 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.JOY GEORGE, SC, K.S.R.T.C.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2420 of 2009 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 2420 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV)No.1886 of 2003 on the file of the Motor Accidents Claims Tribunal, Perumbavur. 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 07.09.2003 while the appellant and his wife were riding on the Scooter bearing registration No.KL 07/AA 4201 to visit the Kuruppampadi Church, a Bus bearing registration No.KL 15/4170 (offending vehicle) driven by the 1[st] respondent in a rash and MACA.No.2420 of 2009 _3_ negligent manner hit the Scooter. Both the appellant and his wife sustained serious injuries. The appellant's wife succumbed to the injuries. The 2[nd] respondent – Corporation was the owner of the offending vehicle. The appellant was aged 65 years and was a retired employee. He was having a monthly income of Rs.4,500/-. The appellant was treated at the MOSCMM Hospital Kolenchery, and, thereafter, at the Jubilee Mission Hospital, Thrissur. The appellant sustained a segmental fracture on the left femur, 1 to 5 rib left side chest with laceration of lungs. The appellant claimed an amount of Rs.10,70,000/- as compensation from the respondents, but limited the same to Rs.5,00,000/- 3. The respondents 1 and 2 filed a joint written statement refuting the allegations in the claim petition. It was contended that the accident occurred MACA.No.2420 of 2009 _4_ solely on account of the negligence on the part of the appellant. Eventhough, the 1[st] respondent applied the brake of the offending vehicle, the Bus skidded and hit on the electric post on the lift side the road, but the appellant did not stop the vehicle and hit on the Bus. It was in such circumstances that the accident occurred. 4. The appellant and his children also filed OP(MV)No.1885 of 2003 before the same Tribunal, seeking compensation on account of the death of the appellant's wife. The Tribunal consolidated and jointly tried the original petitions. 5. The Doctor who treated the appellant was examined as PW1 and Exts.A1 to A12 were marked through the appellant. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition MACA.No.2420 of 2009 _5_ filed by the appellant, in part, by permitting the appellant to recover an amount of Rs.75,250/- with interest at the rate of 7% per annum from the date of petition till the date of realisation. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner/appellant is in appeal. 8. Heard the learned Counsel appearing for the appellant and the learned Senior Counsel appearing for the 2[nd] respondent. 9. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that MACA.No.2420 of 2009 _6_ Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A3 final report filed by the Kuruppampadi police after investigation proves that the accident occurred solely on account of the negligence of the 1[st] respondent. The 1[st] respondent was the driver of the 2[nd] respondent Corporation. Therefore, the 2[nd] respondent is vicariously liable to pay the compensation on account of the injury sustained by the appellant in the accident. 12. The appellant had claimed that he was a MACA.No.2420 of 2009 _7_ retired employee and getting an income of Rs.4,500/per month. The Tribunal fixed the notional income of the deceased at Rs.2,000/- per month. 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. ## **Notional income** 14. Following the parameters laid down in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I hold that the appellant's notional income can safely be fixed at Rs.4,000/- per month. Hence, I re-fix the appellant's notional income at Rs.4,000/- per month. 15. As Ext.A9 treatment certificate and per Ext.A11 wound certificate, it is seen that the appellant MACA.No.2420 of 2009 **==> picture [7 x 9] intentionally omitted <==** had sustained fractures on his ribs and that he was hospitalized for a period of 46 days from 07.09.2003 to 23.10.2003. Ext.A9 stands corroborated by the evidence of PW1. Therefore, it can easily be inferred, and as held by the Tribunal, that the appellant was incapacitated for a period of four months. ## **Loss of earnings** 16. in view of the re-fixation of the notional income of the appellant at Rs.4,000/- per month and the fact that he was incapacitated for a period of four months, I re- fix the compensation under the head 'loss of earnings' at Rs.16,000/-, instead of Rs.8,000/awarded by the Tribunal. ## **Byestander expenses** 17. It is proved through Ext.A9, that the appellant was treated as an in-patient for a period of 46 days. The Tribunal has awarded only an amount of MACA.No.2420 of 2009 _9_ Rs.2,000/-towards attendant charges / bystander expenses, which according to me is on the lower side. Considering the fact that the accident occurred in the year 2003, I hold that the appellant is entitled for byestander expenses at Rs.200/- per day for a period of 46 days i.e. an amount of Rs.9,200/-, namely an enhancement of Rs.7,200/- ## **Loss due to dependency** 18. In view of the re-fixation of the notional income of the appellant at Rs.4,000/- and taking the multiplier at '7', and the disability at 5% as fixed by the Tribunal, I re-fix the compensation under the head 'loss due to disability' at Rs.16,800/-, instead of Rs.6,000/- awarded by the Tribunal. i.e. an enhancement of Rs.10,800/-. 19. With respect to the other heads of compensation, I find that the Tribunal has awarded MACA.No.2420 of 2009 _10_ reasonable and just compensation. 20. On an overall re-appreciation of the pleadings and materials on record, I am of the opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above, i.e., a further amount of Rs.8,000/- under the head 'loss of earnings', Rs.7,200/- under the head 'bye-stander expenses' and Rs.10,800/- under the head 'loss due to disability', totalling to an amount of Rs.26,000/- In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.26,000/- with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting 265 days, that is the period of delay in preferring the appeal, as ordered by this Court on 07.04.2021 in MACA.No.2420 of 2009 _11_ C.M.Appl.No.2857 of 2009, and proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation awarded in this appeal with interest and proportionate before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** dlk 11.07.2021