Jijo Ignatious v. Kerala State Road Transport Corporation Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 3[RD] DAY OF JANUARY 2022 / 13TH POUSHA, 1943** **MACA NO. 1664 OF 2011** **AGAINST THE AWARD DATED 26.04.2011 IN OPMV 1440/2007 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** JIJO IGNATIOUS, AGED 24 YEARS, S/O.IGNATIOUS, MANDAKATH HOUSE, NADUTHURUTHY, DESOM, MELOOR VILLAGE, MELOOR P.O.,, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** - 1 MANAGING DIRECTOR,KERALA STATE ROAD TRANSPORT CORPORATION LTD., FORT,, TRIVANDRUM. 2 RATHEESH S/O.SASIDHARAN PUTHENPATT MEMETHIL HOUSE, KALLUMALA P.O., MAVELIKKARA. BY ADVS. SRI.P.C.CHACKO(PARATHANAM) ALEX ANTONY SEBASTIAN P.A. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1664 OF 2011 2** ## **Dated this the 3rd day of January, 2022** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1440/2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 15.09.2007. It was his case that, on the aforesaid date, while he was driving a car bearing registration No. KL 23/153 in front of the Kaduvankulangara Temple, a bus bearing registration No. KL 15/4272 (bus) driven by the second respondent in ## **MACA NO. 1664 OF 2011 3** a negligent manner, hit the car of the appellant. The as an appellant sustained injuries and was treated inpatient at the Medical College, Alappuzha and the Medical Trust Hospital, Ernakulam for a period of 51 days. The appellant sustained a Type II open fracture of right femur shaft, closed fracture of right patella and multiple injuries. He has suffered a permanent disability. The bus was owned by the first respondent. The appellant was a driver by profession and was earning a monthly income of Rs.5000/-. Hence, the appellant claimed a compensation of Rs.6,56,000/- from the respondents, which claim was limited to Rs.3,00,000/-. 3. The respondents filed a joint written statement denying the allegations in the claim petition. 4. The appellant produced and marked Exhibits A1 to A10 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and ## **MACA NO. 1664 OF 2011 4** materials on record, allowed the claim petition in part, by permitting the appellant to realise an amount of Rs.1,59,135/- with interest and cost from the first respondent. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard; Sri.P.V.Baby, the learned counsel appearing for the appellant/petitioner and Sri.Alex Antony the learned counsel appearing for the first respondent. 8. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 9. Exhibit A2 charge sheet substantiates the fact that the accident occurred due to negligence of the second respondent. Admittedly, the first respondent was the owner of the offending bus and the employer of the second respondent. Therefore, the first respondent is ## **MACA NO. 1664 OF 2011 5** vicariously liable to pay the compensation amount, especially, since the respondents have not let in any to the contrary to discredit Exhibit A2 charge sheet. ## **Income** 10. The appellant had claimed that he was a driver by profession and earing a monthly income of Rs.5000/-. For the want of material, the Tribunal fixed the notional monthly income of the appellant at Rs.2000/-. 11. In **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 12. Considering the fact that the accident occurred in the year 2007, I fix the notional monthly income of the appellant at Rs.5000/- as claimed in the claim petition. ## **Disability** 13. The appellant had produced Exhibit A7 disability ## **MACA NO. 1664 OF 2011 6** certificate to prove that he has a permanent disability due to the accident. However, the Tribunal for the reason that Exhibit A7 was not issued by the Medical Board and that the Doctor has not objectively assessed the disability of the appellant, fixed his disability at 10%. 14. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has held that in case the Tribunal is not satisfied with the disability certificate produced before it, it is the duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Similarly, what needs to be looked into in a case of injury, is the functional disability of the injured/claimant. 15. In the instant case, although Exhibit A7 was produced and marked in evidence without any protest from the respondents, the Tribunal refused to accept the assessment made in Exhibit A7 for the reason that it was not issued by a Medical Board. The said finding of the Tribunal is erroneous and wrong. If the Tribunal was ## **MACA NO. 1664 OF 2011 7** dissatisfied with Exhibit A7, the Tribunal ought to have refer the appellant to a duly constituted Medical Board. Nevertheless, on evaluation of Exhibit A7, it is seen that the appellant has 10 degree angulation at the fracture site of the right femur, weakness on the flexion of the right knee of 30% and limitation of the flexion of the right hip of 30%. It is certified that the appellant has difficulty in squatting, climbing stairs, difficulty in running, jumping etc. Admittedly, the appellant is a driver by profession. Taking into account the above aspects, I hold that the appellant’s functional disability can be fixed at 10%. ## **Multiplier** 16. Admittedly, the appellant was aged 24 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘18’, instead of ‘17’ adopted by the Tribunal. ## **MACA NO. 1664 OF 2011 8** ## **Loss due to disability** 17. In view of the modification of the multiplier and re-fixation of the notional monthly income of the appellant at Rs.5000/- I hold that the appellant is entitled to compensation for Rs.1,08,000/-(5000x18x12x10/100) towards loss due to disability, i.e. an enhancement of Rs.67,200/-. ## **Loss of earnings** 18. The Tribunal has found that due to the injuries sustained by the appellant in the accident, he was indisposed for a period of four months. I find that the assessment made by the Tribunal in this regard to be reasonable and just. However, due to the re-fixation of the notional monthly income of the appellant at Rs.5000/-, I award the appellant an amount of Rs.20,000/- towards loss of earning i.e. an enhancement of Rs.12,000/-. ## **- By stander expenses and extra nourishment** 19. It is on record that the appellant was treated as ## **MACA NO. 1664 OF 2011 9** an inpatient for a period of 51 days. The Tribunal has awarded only an amount of Rs.5100/- towards by-stander expenses, which is too meagre. Considering the fact that the accident occurred in the year 2007, I hold that the appellant is entitled to an amount of Rs.250/- per day for a period of 51 days towards by-stander expenses, which comes to Rs.12,750/-, which is an enhancement by Rs.7650/-. Similarly, I award the appellant Rs.150/- per day for a period of 51 days towards extra nourishment, which works out to Rs.7650/-. ## **Pain and sufferings and loss of amenities** 20. Even though the appellant had claimed an amount of Rs.50,000/- each towards pain and sufferings and loss of amenities, the Tribunal awarded only an amount of Rs.20,000/- and 12,000/- respectively, under the two heads. Taking note of serious injuries sustained by the appellant and the fact that he was treated as an inpatient for a period of 51days, that he was indisposed ## **MACA NO. 1664 OF 2011 10** for a period of four months and he has suffered a permanent functional disability of 10%, I hold that he is entitled for enhancement of compensation under the head pain and sufferings by a further amount of Rs.15,000/and under the head loss of amenities by an amount of Rs.8000/-. 21. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 22. On an over all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decision, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|8000|20000| ## **MACA NO. 1664 OF 2011 11** ||||| |---|---|---|---| |2|Medical expenses|72235|72235| |3|By-stander<br>expenses|5100|12750| |4|Extra nourishment|0|7650| |5|Pain and sufferings|20000|35000| |6|Loss of amenities|12000|20000| |7|Loss<br>due<br>to<br>disability|40800|108000| ||**Total**|**159135**|**275635**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,16,500 **/-** with interest at the rate of 7% per annum from the date of petition till the date of realisation, and a cost of Rs.10000/-. The first respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. **MACA NO. 1664 OF 2011 12** Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm/03.01.2022