Jijeesh Luckose v. Nazeer Basha and The Managing Director, Karnataka State Road Transport Corporation

MACA No. 1455 of 2012 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 ## MACA NO. 1455 OF 2012 AGAINST THE ORDER/JUDGMENT IN OPMV 528/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ## APPELLANT/S: **==> picture [69 x 97] intentionally omitted <==** JIJEESH LUCKOSE, AGED 28 YEARS S/O. LUCKOSE, URETH HOUSE, VAZHAVATTA.P.O.,VYTHIRU, WAYANAD. BY ADV SRI.JESWIN P.VARGHESE ## RESPONDENT/S: - 1 NAZEER BASHA, AGED 44 YEARS, S/O. NABEEZAVI, MC/TC BUS STAND, 6TH BLOCK, BANGALORE, RESIDING AT PARESANDRA, - CHICKABALLAPURA TALUK, KARNATAKA STATE PIN 560 001 - 2 THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION, K.H.ROAD, BANGALORE-560027. **==> picture [69 x 32] intentionally omitted <==** BY ADV SRI.SHEJI P.ABRAHAM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 1455 of 2012 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.528/2009 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the appeal were the respondents in the claim petition. 2. The facts in brief, which are relevant for the determination of the appeal are that : on 11.06.2008, while the appellant was traveling in a bus bearing registration No.KA-01-F/8214, from Bangalore to Mysore, when the bus reached Roobinikkara, the bus hit against a lorry, bearing registration No.AP 21/V/7744, which was parked on the side of the road. The appellant sustained serious injuries including bimalleolar fracture right ankle with Med Malleous fracture left ankle (both legs). The appellant was treated at the CSI Holdsworth Memorial Hospital, Mysore for a period of two days, but he was indisposed for a period of three months. He was a diploma holder in Fire and Safety Engineering and was employed in MACA No. 1455 of 2012 3 a private company earning a monthly income of Rs.8,000/-. The accident occurred solely due to the rashness and negligence, on the part of the 1[st] respondent, who drove the bus in a negligent manner. The bus was owned by the 2[nd] respondent. The appellant claimed compensation from the respondents, which he quantified at Rs.2,00,000/(Rupees Two Lakhs only). 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. The 2[nd] respondent filed a written statement, interalia, contending that the claim petition was bad for non-joinder of necessary parties and that there was no rashness or negligence on the part of the 1[st] respondent. It was only due to the negligence on the part of the lorry driver, who parked the lorry on the wrong side of the road, that the accident occurred. 4. The appellant got examined himself as PW1 and marked Exts.A1 to A17 in evidence. 5. The Tribunal, after analysing the pleadings and MACA No. 1455 of 2012 4 materials on record, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.29,900/- with interest at the rate of 7.5% per annum till the date of realisation along with proportionate costs from the 2[nd] 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 and the learned counsel appearing for the 2[nd] respondent. 8. The sole question that emerges for consideration in the appeal is whether the compensation awarded by the Tribunal is reasonable and just. 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 MACA No. 1455 of 2012 5 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. Ext.A5 charge sheet substantiates the fact that the accident occurred solely due to the negligence on the part of the 1[st] respondent, who drove the bus in a negligent manner and hit on the parked lorry. Undisputedly, the bus belonged to the 2[nd] respondent. Therefore, it is the 2[nd] respondent who is vicariously liable to pay compensation due to the negligence of the 1[st] respondent. 11. As per Ext.A6 discharge summary, it is proved that the appellant was admitted in CSI Holdsworth Memorial Hospital, Mysore on 11.06.2008 and he was discharged the following day. He sustained two fractures on both his legs. Although Ext.A13 disability certificate was produced before the Tribunal, the appellant did not examine the author of the document. MACA No. 1455 of 2012 6 12. In view of the law laid down by the Supreme Court in **Raj Kumar vs. Ajay Kumar : 2011 (1) KLT 620,** it was imperative, on the part of the appellant, to have examined the Doctor who issued Ext.A13. The appellant also did not avail the benefit of getting his disability assessed by a duly constituted medical board. The Tribunal accordingly held that the appellant does not suffer from any disability. In the light of the law laid down in the above decision and findings rendered above, I do not find any error in the said finding, which I fully endorse. 13. The appellant had claimed that he was a Diploma holder in Fire and Safety Engineering and was employed in a private company. He had produced Exts.A16 and A17 certificates to substantiate his avocation. However, he did not examine any person to prove the said certificates. Therefore, the Tribunal only fixed his notional income at Rs.4,000/-. 14. The Honourable Supreme Court in **Ramachandrappa vs. Manager, Royal Sundaram** MACA No. 1455 of 2012 7 **Alliance Insruance Company Ltd. :** (2011) 13 SCC 236 has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. It was also held that the notional income has to be enhanced by Rs.500/- every year. Similarly, in **Pushkar Mehra vs. Brij Moahm Kushwaha** **& Ors.** (2015 (12) SCC 688) the Honourable Supreme Court has fixed the notional income of a skilled labourer in the year 2010 at Rs.7,000/- per month. ## **Notional Income** 15. Following the parameters laid down by the Honourable Supreme Court in the aforecited decisions and considering the fact that the appellant was 24 years on the date of accident i.e., on 11.06.2008, I am of the considered opinion that the appellant’s notional income can safely be fixed at Rs.6,500/- per month. Hence I refix the appellant’s notional income at Rs.6,500/- per month. ## **Loss of Earnings** 16. In view of the refixation of the notional income of 8 MACA No. 1455 of 2012 the appellant and that he was incapacitated for a period of three months, I enhance the compensation under the head 'loss of earnings' to Rs.19,500/-, instead of Rs.12,000/fixed by the Tribunal. ## **Transportation Expenses** 17. The appellant had produced Ext.A12 trip sheets to prove that he had to travel from Maandia to Wayanad, for which he expended an amount of Rs.4,300/- . The Tribunal refused to accept Ext.A12. Taking note of the fact that the appellant had to travel from Mandia to Wayanad, as he was a resident of Wayanad and the accident took place at Mandia, I am of the firm opinion that the amount claimed by the appellant as per Ext.A12 is reasonable. Hence, I fix the transportation expenses at Rs.4,300/-. ## **Pain and Suffering** 18. The appellant had claimed an amount of Rs.50,000/- under the head pain and suffering. It is seen that the appellant had suffered two fractures on both his MACA No. 1455 of 2012 9 legs and was indisposed for a period of three months. However, the Tribunal only awarded an amount of Rs.10,000/- under the head pain and suffering, which according to me is too meager. Keeping in mind the fact that the appellant had sustained two fractures, as seen from Ext.A4 wound certificate and A6 discharge summary, I fix the compensation under the head 'pain and suffering ' at Rs.25,000/-. 19. With respect to the other heads, I find that the Tribunal had awarded a reasonable and just compensation. 20. On an overall re-appreciation of the pleadings and materials on record, and the law laid down in the aforesaid decisions, I am of the firm opinion that the appellant is entitled for compensation as modified and recalculated above and given in the table below for easy reference: ||SI.<br>No|Head of claim|Amount<br>awarded by<br>the<br>Tribunal (in|Amounts<br>modified and<br>recalculated<br>by this Court|| |---|---|---|---|---|---| MACA No. 1455 of 2012 10 |||rupees)|| |---|---|---|---| |1.|Loss of earnings|12,000|19,500| |2.|Medical expenses|5,000|5,000| |3.|Bystander<br>expense|200|200| |4.|Transportation<br>expenses|nil|4,300| |5.|Extra nourishment|200|200| |6.|Damage to clothing|500|500| |7.|Pain and suffering|10,000|25,000| |8.|Loss of amenities|2,000|2,000| ||Total|29,900|56,700| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.26,800/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, after 11 MACA No. 1455 of 2012 deducting a period of 121 days that is the period of delay in filing the appeal and as ordered by this Court on 10.03.2021 in C.M.Appln. No.1736/2012, along with proportionate costs. The 2[nd] respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from today. The Tribunal shall release the enhanced compensation to the appellant in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc