Jayan S/o Madhavan Palliyil v. The Managing Director, KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.328 OF 2010** **AGAINST THE AWARD IN O.P.M.V 1648/2005 DATED 27-08-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT:** **JAYAN S/O MADHAVAN PALLIYIL HOUSE POOPATHY DESOM MALA VILLAGE.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT:** **1 THE MANAGING DIRECTOR, KSRTC THIRUVANANTHAPURAM.** **R1 BY SRI.JOY GEORGE, SC, K.S.R.T.C. R1 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR SC KSRTC R1 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SC KSRTC R1 BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2021, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:** MACA.No.328 OF 2010 2 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 328 of 2010 ------------------------------------------ Dated this the 5[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellant is the claimant/injured in O.P.(M.V). No.1648/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. Above claim petition was filed by the appellant under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in a motor accident. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this:- On 11.08.2005, the petitioner sustained injuries in a motor accident at Aloor, in which a motor cycle bearing Registration No. KL.7/N-8349 and a KSRTC Bus bearing Registration No. KL-15/3658, driven by the 2[nd] respondent are involved. The petitioner was the pillion rider of the above motor cycle. According ``` MACA.No.328 OF 2010 3 ``` the petitioner, the accident occurred because of the rash and negligent driving of the driver of the KSRTC Bus. The above OP.(M.V) was tried along with O.P(M.V). No. 1649/2005 which is filed by the rider of the motor cycle. ``` ``` 3. To substantiate the case, Exhibit A1 to A12 were marked on the side of the claimant. After going through the pleadings and documents, the Tribunal granted an amount of Rs. 53,300/- (Rupees Fifty Three Thousand and Three Hundred Only) to the petitioner as compensation with interest at the rate of 7% p.a., from the date of application till realisation. Aggrieved by the quantum of compensation, this appeal is filed. ``` `4. Heard the learned counsel for the appellant and` `the learned standing counsel for the KSRTC.` ``` 5. The learned counsel for the appellant submitted that the appellant produced materials to show that he was getting an amount of Rs.4103.75/- as monthly wages. The certificate was issued from the Toddy Workers Welfare Fund Board. According to the appellant, he was a toddy ``` MACA.No.328 OF 2010 4 ``` tapper. The learned counsel submitted that only an amount of Rs.2,000/- is fixed as monthly income. The learned counsel also submitted that a disability certificate was produced by the appellant, which shows that there is permanent disability of 17% to the appellant. The disability certificate was marked without any objection. Thereafter the Tribunal rejected the same saying that, it is not proved in accordance with law. The learned counsel submitted that there is nothing to disbelieve the disability certificate, because, it is marked without objection. The specific contention taken in the appeal memorandum to the effect that the appellant was personally present before the Tribunal and thereafter the disability certificate was marked without any objection. The learned counsel submitted that in the light of the above aspects, the appellant entitled more compensation for loss of earning and loss of disability. ``` ``` 6. The learned counsel for the respondent submitted that there is absolutely no evidence produced by the ``` MACA.No.328 OF 2010 5 ``` appellant to prove the disability. Simply because, a certificate is produced from a doctor, that may not be accepted as evidence without examining the Doctor. ``` `7. It is an admitted fact that a certificate is produced` `by the appellant to show that he is getting Rs.4103.75/- as monthly income. Nobody is examined to prove the above certificate. But, the accident happened in the year 2005.` ``` InRamachandrappa v. The Manager, Royal Sundaram ``` ``` [2011(13) SCC 236],the Apex Court fixed the monthly income of a coolie as Rs.4,500/- in the year 2004. In such situation, there is no problem in accepting the case of the appellant that he was getting a monthly income of Rs.4103.75/- in the year 2005. Therefore, that can be taken as the monthly income of the appellant. ``` `8. The next question is about disability. It is true that` `the doctor who issued the disability certificate is not examined in this case. But, the learned counsel relied on the judgment of the Apex Court in` **`Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343].`** `The relevant discussion of` MACA.No.328 OF 2010 6 ## `the Apex Court is extracted herewith.` ``` “16. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of ``` MACA.No.328 OF 2010 7 ``` the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the ``` MACA.No.328 OF 2010 8 ``` Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certifcates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses.” [Emphasis supplied]. ``` ``` According to the appellant, the certificates are marked by consent and that is why he has not adduced any oral evidence to prove the same. The specific contention was taken in the appeal memorandum is also to that effect. In such circumstances, it will be an injustice in denying the compensation for disability. Therefore, I decided to consider the disability certificate produced by the ``` MACA.No.328 OF 2010 9 ``` appellant. The disability certificate is issued by Dr. Jose Kurian (MBBS D. Orthopaedic Surgeon). According to the Doctor, there is a permanent disability of 17% to the appellant based on the injury sustained by him. The Apex Court inPappu Deo Yadav v. Naresh Kumar and others [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in Syed Sadiq and others v. Divisional Manager, United India Insurance Company [2014 (2) SCC 735] and Raj Kumar v. Ajay kumar and anr.[2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of ``` MACA.No.328 OF 2010 10 ``` extent of disabilities and compensation under various heads. It was also held that the court should award compensation on future prospects. After considering the contents of the disability certificate, issued by the doctor and also considering the dictum laid down by the Apex Court, I think, this Court can safely conclude that the appellant has 10% disability. If that is the case, the appellant is entitled more amount towards compensation for disability. Therefore, the appellant is entitled compensation for disability in the following manner:- 4100x12x16x10/100=78,720/- ``` ``` Therefore, the appellant is entitled Rs. 78,720/- (Rupees Seventy Eight Thousand Seven Hundred and Twenty Only) towards disability. ``` ``` 9. As far as the loss of earning is concerned, the Tribunal assessed the compensation for a period of six months at the rate of Rs.2,000/- per month. In the light of the fixation of monthly income as Rs.4,100/- that is to be reassessed in the following manner:- ``` MACA.No.328 OF 2010 11 ## `4100x6=24,600/-.` ``` The Tribunal already awarded an amount of Rs.12,000/-, which is to be deducted from the above amount. Hence, the appellant is entitled an enhanced amount of Rs.12,600/- (Rupees Twelve Thousand and Six Hundred Only) in this head. ``` `14. Therefore, the enhanced compensation entitled by` `the appellant can be summarised like this:-` ``` HeadAmount Compensation for disabilityRs.78,720/- Loss of earningsRs.12,600/- Total Rs.91,320/- ``` `15. The appellant is entitled an enhanced` ``` compensation of Rs.91,320/- (Rupees Ninety One Thousand Three Hundred and Twenty Only) with interest at the rate of 8% p.a. ``` MACA.No.328 OF 2010 12 ``` Therefore, this appeal is allowed in part and the impugned award is modified. The appellant is entitled an amount of Rs.91,320/- (Rupees Ninety One Thousand Three Hundred and Twenty Only) as enhanced compensation, with interest at the rate of 8% p.a., from the date of petition till realisation. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```