Johnson K.E. v. The Managing Director, Kerala State Road Transport Corporation and Sivaprasad

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940** **AGAINST THE AWARD DATED 28-01-2008 IN OPMV 1258/1999 of ADDL. MACT,ERNAKULAM** **APPELLANT/PETITIONER:** **---------------------** **JOHNSON.K.E. S/O. EASHI, KURISINGAL HOUSE, ARTHUNGAL.P.O., CHERTHALA, NOW RESIDING AT KURISINGAL HOUSE, MOOLAMKUZHI, KOCHI.** **BY ADVS.SRI.K.A.SEBASTIAN SRI.P.A.BAHULEYAN** **RESPONDENTS/RESPONDENTS:** **------------------------** **1. THE MANAGING DIRECTOR, KERALA STATE** **ROAD TRANSPORT CORPORATION, TRIVANDRUM.** **2. SIVAPRASAD, S/O. VASUDEVAN PILLAI,** **THEKKERIL VEETTIL, 1ST WARD, KUTHIATHODE.** **R1 BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC** **SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** ## **M.A.C.A. No.929 of 2010(C)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 10[th] day of April, 2018_ ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV) No.1258 of 1999 of the Additional Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal')_ , Ernakulam. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the bodily injuries suffered by him, in a road traffic accident. 2. According to him, while he was travelling as a passenger in a KSRTC bus, driven by the 2[nd] respondent and owned by the 1[st] respondent, the bus hit on an electric post and he sustained serious injuries in the accident. The appellant claimed `2,00,000/- as compensation. 3. The respondents did not file any written- ## **M.A.C.A. No. 929 of 2010(C)** ## **-: 2 :-** statement, opposing the said claim. However, after considering the evidence on record, the Tribunal passed the impugned award granting `79,762/- with interest at the rate of 7% per annum, as compensation to the appellant. The adequacy and correctness of the quantum of compensation, are challenged in this appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the respondents. 5. According to the appellant, he was a labourer, who was getting a monthly income of `3,500/- per month, at the time of accident. But, the Tribunal has taken `2,000/- only as his monthly income. Secondly, it is contended that the quantum of compensation determined under the heads 'pain and sufferings', 'loss of amenities', 'loss of earnings' ## **M.A.C.A. No. 929 of 2010(C)** ## **-: 3 :-** and 'permanent disability' is adequate and disproportionate with the actual sufferings and expenses met by him. 6. On the other hand, the learned Standing Counsel appearing for the respondents advanced arguments to justify the quantum of compensation determined by the Tribunal under the aforesaid heads of claim. 7. The short point that arises for consideration in this appeal is, is the Tribunal justified in fixing the quantum of compensation under the aforesaid heads of claim and the monthly income of the appellant? According to the appellant, at the time of accident, he was a labourer, who was getting `3,500/- per month; but no evidence has been adduced to substantiate the said contention. In the absence of sufficient evidence ## **M.A.C.A. No. 929 of 2010(C)** ## **-: 4 :-** to prove the exact monthly income of the appellant, the Tribunal is justified in taking notional income. The Tribunal has taken `2,000/-, as his monthly notional income. The accident occurred in the year 1999. The decision reported in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [(2011) 13 SCC 236], the Supreme Court held that for an accident occurred in the year 2004, `3,500 to `4,500/- can be taken as monthly notional income. In view of the aforesaid decision, this Court is of the view that the monthly income fixed at `2,000/is low; hence the same would stand enhanced to `2,500/-. 8. It is further contended that the Tribunal has granted compensation for 'loss of earnings' for four months only and the same is insufficient, in view of the fact that he had undergone treatment as **M.A.C.A. No. 929 of 2010(C)** ## **-: 5 :-** an inpatient for 24 days and thereafter he continued treatment for one year. 9. As rightly pointed out by the learned counsel for the appellant, the appellant had undergone treatment for 24 days and Ext.A1 discharge summary shows that he sustained grievous injuries, including two fractures and continued his treatment for a longer period. Having regard to the grievous nature of the injuries, this Court finds that the appellant is entitled to get compensation for 'loss of earnings' at least for six months. In the above view, the compensation for 'loss of earnings' would stand enhanced to `15,000/-[2,500 x 6]. For the very some reason, the appellant is entitled to get `58,500/-[2,500 x 12 x 13 x 15/100] towards compensation for 'permanent disability'. In view of the treatment as an inpatient for 24 days and the ## **M.A.C.A. No. 929 of 2010(C)** ## **-: 6 :-** grievous nature of the injuries and consequential disablement thereof shown in Ext.A4 disability certificate, the compensation for 'pain and sufferings' will stand enhanced to `25,000/- and the compensation for 'loss of amenities' would stand enhanced to `20,000/-. Thus, the total compensation payable to the appellant is, as shown below: Loss of earnings : `15,000/Cost of Extra nourishment : `2,400/Transport expenses : `450/Medical bills : `985/Pain and sufferings : `25,000/- Loss of amenities and : `20,000/happiness in life Compensation for permanent : `58,500/disability **Total :** ` **1,22,335** Thus, the appellant is given `1,22,335/- and the said amount would carry interest at the rate of 7% per annum and all other findings of the Tribunal **M.A.C.A. No. 929 of 2010(C)** ## **-: 7 :-** would stand undisturbed and operative. The 1[st] respondent is directed to deposit the said amount with interest, within a period of four months from today and the appellant is allowed to withdraw the entire compensation after paying court fees. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge