J. Mary v. The Managing Director, KSRTC

1 MACA No.1683 of 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943 MACA NO. 1683 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 260/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD** **APPELLANT/S:** J.MARY, AGED 51 YEARS W/O.JOY, KADAKKAL VEEDU, ERUMAKOLLY,, MEPPADI. BY ADV SMT.CELINE JOSEPH ## **RESPONDENT/S:** THE MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM, (R.C.OWNER OF THE VEHICLE BEARING NO.TP 452 KSRTC BUS). BY ADVS. SRI.P.C.CHACKO, STANDING COUNSEL, KERALA STATE ROAD TRANSPORT CORPN. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1683 of 2010 ## **C.S DIAS,J.** **--------------------------MACA No.1683 of 2010 ----------------------------Dated this the 2[nd] day of July, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) 260/2004 on the file of the Motor Accidents Claims Tribunal, Kalpetta, Wayanad. The respondent in the appeal was the second respondent in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 1.2.2004, while the petitioner was travelling in a bus bearing registration No.TP 452 owned by the second respondent- Corporation, when the bus reached Madakkimala, Wayanad, it hit on an electric post and overturned. The petitioner sustained 3 MACA No.1683 of 2010 injuries and was treated at Leo Hospital, Kalpetta and, thereafter, at the Medical College Hospital, Calicut. She was treated as inpatient from 2.2.2004 to 9.2.2004. She sustained a mild diffused cerebral edema and depressed fracture left parietal region. She was indisposed for a period of one year. The petitioner was a coolie worker in a Tea Estate and earning a monthly income of Rs.4,000/-. The accident occurred solely on account of the negligence of the first respondent, who drove the bus in a rash and negligent manner. The petitioner claimed compensation from the respondents, which she quantified at Rs.4,47,000/-, but limited to Rs.1,50,000/-. 3. The respondents filed written-statements, inter alia, contending that while the first respondent attempted to save the life of a pedestrian, who recklessly crossed the road, the vehicle moved to the extreme side of the road and hit against an electric post. Therefore, there was no 4 MACA No.1683 of 2010 negligence on the part of the first respondent. The amount of compensation claimed under different heads was excessive. 4. The appellant was examined as PW1 and Exts A1 to A7 were marked in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioner to realise an amount of Rs.29,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate costs from the second respondent. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard the learned counsel appearing for the appellant/ petitioner and the learned counsel appearing for the respondent/second respondent – Corporation. 5 MACA No.1683 of 2010 8. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 9. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that 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. 10. Exts A1 FIR, A2 scene mahazar and A5 AMVI report substantiates that the accident occurred on account of the negligence of the first respondent who drove the bus in a rash and negligent manner and hit against an electric 6 MACA No.1683 of 2010 post. Admittedly, the bus belonged to the second respondent – Corporation. Therefore, the second respondent is vicariously liable to pay compensation to the appellant. 11. Although the appellant had contended that she had suffered permanent disability on account of the accident, she failed to produce a disability certificate. Hence, the Tribunal rightly disallowed the claim for compensation due to loss of disability. 12. The appellant had claimed that she was a coolie worker in a Tea Estate and drawing a monthly income of Rs.4,000/-. However, the Tribunal fixed her notional income 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 7 MACA No.1683 of 2010 Rs.4,500/- per month. 14. In light of the ratio laid down in the aforecited decision and the fact that the appellant had claimed that she was earning a monthly income of Rs.4,000/- per month, I refix her income at Rs.4,000/-. 15. It is on record that the appellant was incapacitated for a period of three months as fixed by the Tribunal. Therefore, I enhance the compensation under the head 'loss of earnings' in view of the refixation of her notional income by a further amount of **Rs.3,000/-** , i.e., **Rs.12,000/-,** instead of Rs.9,000/- fixed by the Tribunal. 16. The appellant had claimed compensation under the head 'pain and sufferings' at Rs.50,000/-. However, the Tribunal only awarded an amount of Rs.15,000/-. 17. Taking into account the fact that the appellant had suffered a head injury as well as fractures and that she was hospitalized in two hospitals for a period of 8 days as an 8 MACA No.1683 of 2010 inpatient and was incapacitated for a period of three months, I am of the firm opinion that the appellant is entitled for enhancement of compensation by a further amount of **Rs.10,000/-** under the head 'pain and sufferings'. 18. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited precedents, I am of the firm opinion that the appellant is entitled for enhancement of compensation, as discussed above, by a further amount of Rs.13,000/-. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.13,000/- (Rupees Thirteen Thousand only) with interest on the enhanced compensation at the rate of 7.5% per 9 MACA No.1683 of 2010 annum from the date of claim petition till the date of realisation, after deducting the period of 250 days, i.e., the period of delay in preferring the appeal and as ordered by this Court on 4.12.2019 in C.M Appln 2128/2010, and proportionate costs. The respondent/second respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal together with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall release the enhanced compensation to the appellant, in accordance with law. **sd/-** Sks/2.7.2021 **C.S.DIAS, JUDGE**